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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 28, 2014
May 1, 2014
Actual Record Closed Date: June 7, 2014
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28,
2014
Attorney — Student
Parents
Chairperson Designee CSE — DOE
Teacher Assigned (Via Telephone) — DOE
MS. IEP Teacher, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2014
ESQ., Attorney, — Student
Parent/Mother — Student
Principal, (Via Telephone) — Student
School Administrator (Via Telephone) — Student
DR., School Psychologist, — DOE
Chairperson’s Designee, Committee on Special — DOE
Education Region — DOE
Mr. and Mrs. , the parents of requested an impartial hearing on October 7, 2013 seeking funding for their unilateral placement of , a private school, for the 2013/2014 school year. I was designated to hear this matter on October 8, 2013 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on February 28, 2014 and May 1, 2014. The compliance date was extended on six occasions, due to the unavailability of witnesses, and extensive testimony, with a final compliance date of June 20, 2014. (IHO Ex. I, II, III, IV, V, VI, VII).
old girl with a classification . ( Department of Education (DOE). Ex. 1). 1Her classification is not in dispute. (Par. Ex. A; Tr. p. 18).[2] She attended as a preschool student, and public special education programs for first and second grade. She attended various general , in small classes from third to sixth grade. (Tr. pp. 179-181).
On August 20, 2012, evaluation was performed by Department of Education (“DOE”). (DOE Ex. 3).
’s was easily understood. While she was quiet, she responded appropriately to all questions. She earned a Full Scale IQ All of her subtest scores were also in the On the Woodcock Johnson III Tests of Achievement, reading scores ranged from equivalent for passage letter-word identification, with a broad reading grade equivalent , in the low range. In math, ranged grade equivalent for applied problems equivalent for calculation with a broad math score at the (very low level). (Id. at 8). On an assessment of adaptive functioning, completed by composite score was in the below average range, with higher scores (at the low limits of the average range) , she was described pleasant, cooperative and quiet, with a somewhat flat affect. It was reported that she is happy about going to public school and that she had begun to see a therapist to express . (DOE Ex. 3).
1 At the time of the disputed IEP, she old.
For her seventh grade year (the fall of 2012), attended , the recommended site for two to three months; and then transferred , for the balance of her year. (Tr. pp. 181-182). Ms testified was not doing well . She testified that the school was very for her. (Tr. p. 183). She testified saw fighting in the hallways and was afraid to go to school. (Tr. p. 184).
Ms. , an Individualized Education Program (IEP) teacher , testified that ’s teacher reported that she was doing fine and was starting to really open up and enjoy the class; and was surprised when she left the school. (Tr. p. 49). Ms. testified that most of the students with was were lower functioning, including students who were alternately assessed. (Tr. p. 49).
On May 9, 2013, Ms. grade reported math level was fourth grade; with strengths in multiplication and division, and weakness in word problems and understanding money concepts. It was reported that for reading, her comprehension level was third grade, and her ability to decode was at level. It was reported that she writes short, basic sentences and finds it hard to elaborate into details. Her handwriting was described as neat. No difficulty was noted with skills. With regard to her language skills, it was reported that she understand and responds appropriately to instructions and is able to express herself. , her teacher reported unphased by failure and does not demonstrate frustration. She was reported to be sociable and popular and interact appropriately with adults. (DOE Ex. 4).
On May 9, 2013, the Committee on Special Education (“CSE”) met to review s program. , served as school psychologist, and the general education teacher. Ms. special education teacher, served as the special education teacher. , the director private , a case liaison from ’s private school, and ’s mother also participated in the meeting The team did not include a parent member, which was waived. (Par Ex. B. p. 16; Tr. p. 14).
The May 24, 2012 IEP summarizes s academic levels, as reported by her teacher (decoding fourth grade level; comprehension third grade level; writing short basic sentences (second grade level); with weakness in math word problems and money concepts. Par. Ex. B, pp 1-2, 13). Socially, the IEP noted , is sociable and popular; but that she is immature, submissive and may not respond appropriately in situations. Physically, it was noted that is taken at home. Her management needs were reported to be simplify instructions and directions and prompt and cue as needed. (Id. at 2).
’s IEP includes a goal for reading comprehension, with short term objectives of demonstrating comprehension of text by answering 8 out of 10 questions, referring explicitly to the text; use information from illustrations and words to demonstrate understanding of text in 8 out of 10 questions; determine the meaning of words and phrases in a text relevant to given topics. Mr. testified that this goal was consistent with ’s academic ability; and that the review team agreed that the goal was appropriate. (Tr. p. 22).
The IEP included a goal of improving math problem solving skills, with short term objectives for telling time; solving word problems involving money; using bar graphs to represent data and solve simple problems. that this goal was consistent with ’s math level, and was appropriate for her. (Tr. p. 23).
’s IEP also included goals of improving creating writing skills (with shortterm objectives of writing narrative pieces, including 4 details; writing texts with four facts; using an editing checklist); improving expressive language skills (with short term objectives of responding to “wh” questioning, age appropriate related vocabulary; and using appropriate word order, tenses and sentence forms in response to “wh “ questions”) . (Id. at 4-8).
He testified that the goals were discussed only generally, and were based upon the progress report provided by Ms. . (Tr. p. 28). There is no indication in the record that there was any report or participation from pathologist. Mr. did not know where the goal came from. (Tr. pp. 23-24).
The CSE recommended placement in a special class in a community school (12:1:1), for all academics, as well as specials (science, computer, and creative arts) with related services twice per week individually, in a group of three. (Par. Ex. B, pp. 7-8). The IEP provided that would participate with non-disabled education, lunch and school wide assemblies. (Par. Ex. B, p. 11). Mr. testified that there was no disagreement that required a small class and related services . (Tr. p. 25). He testified that group speech and language therapy was recommended so that could also work on her social skills. (Tr. p. 33). There was no discussion, at the meeting, about ’s need for occupational therapy or physical therapy.(Tr. p. 35).
’s IEP provides that she will participate in alternate assessment. (Id. at 13).
On June 19, 2013 the DOE offered placement in a special class (12:1:1) with related , as provided in her IEP, at K 240. (DOE. Ex. 2).
Ms. certified special education and general education teacher , testified that she is employed as teacher assigned. at the recommended site. She reviews all of the IEP’s and works with the teachers, and directly with students. (Tr. p. 44, 65). She observes classes, including the class was placed in during the prior school year. (Tr. p. 66). She testified that the school has two self-contained classes (12:1:1) students, with seats available in both of the classes. (Tr. p. 73). For the 2013-2014 school year, was not assigned to a specific class, because she was not registered. (Tr. pp. 76-77).
Within the first class, there were other students who were recommended for alternate assessment. For reading and math, students ranged from second to seventh grade level. (Tr. p. 75). Within the second class, the range of academic levels was first to fifth or sixth grade. (Tr. p. 76). Instruction is given to the class as a whole, individually and in groups, with the assistance of the paraprofessional. (Tr. p. 77-78). She testified that the disparate academic levels would be addressed through differentiated instruction, with the assistance of the paraprofessional. (Tr. p. 87). ’s therapy could be met at the school. (Tr. p. 46). She testified that ’s IEP goals were consistent with her academic levels; and that other students in the had similar goals. (Tr. pp. 51-55). The school would also be able to implement the management needs indicated in ’s IEP. (Tr. p. 63).
Mrs. ’s mother, testified that is social, and can function in society. She can shop, and take phone messages. Her she is . She feels that she requires . (Tr. p. 187).
Mrs. was familiar with the recommended site, as had previously attended it. Nevertheless, she went to visit it again after receiving the final notice of recommendation, hoping for a change. She met with Ms. and was shown two classes, each with more than ten students. She thinks Ms. stated the math levels in the classes were eighth grade. (Tr. pp. 189-191). for the 2013-2014 school year, at a cost of $48,000. The contract does not state when or how payment must be made. (Par. Ex. G). As of the hearing, the parents had made payments totaling $4,000. toward the tuition, in five installments of $800.00. (Par. Ex. J; Tr. p .194). Ms. that she is making payment slowly, which the school has allowed. She did not explain why she has failed to pay more than $4,000. toward the $48,000 tuition. The parents are requesting reimbursement for payments made; and are not requesting direct funding. (Tr. p. 206). [3]
On September 17, 2013, the parent sent a letter to the CSE rejecting the recommended site. She wrote that she was informed that the students’ math and reading levels were between grade, and that would be followed. She also wrote that would not receive sufficient individualized instruction. She wrote that would be overwhelmed and anxious in the large environment of the school, where there were over 900 students; and 300 students eating lunch together. She wrote that the parents would consider other programs, but did not receive any other offer of placement. (Par. Ex. C; Tr. p. 192). She testified that is and does her homework independently. (Tr. p. 193).
, the principal that he is licensed in special education. IVDU is a school for special needs students, aged five to thirteen, located within a mainstream school, the (Trj p. 99-100). The school consists of thirty students. (Tr. p. 101). She described as having strengths in her social behavior and work ethic. (Tr. p. 102). She testified that she has delays in all areas of speech and language, and that this is her greatest challenge. (Tr. p. 103).
functions on a for reading level for math. Her class consists of five students, between twelve and fourteen years of age, with math levels between third and fourth grade and reading levels between second and third grade. The class has a teacher and a teacher’s assistant, both certified in special education. (Tr. pp. 104-105). is one of two eighth grade girls in her class (and the school). The other three students are in the seventh grade. (Tr. pp. 131; 137). each week for thirty minutes and speech and language therapy twice each week for forty-five minute sessions. (Tr. pp. 106-107). [4] According to Ms , in speech, is working on articulation, multi-step directions, syntax and semantics, and is making progress. (Tr. pp. 112-113). The school does not provide counseling. (Tr. p. 153).
In math, is working on money skills, time, patterns and the daily calendar. The school places a lot of emphasis on money skills. (Tr. pp. 107-108). She is also working on multiplication and division skills. (Tr. p. 111). Her program includes Hebrew instruction, four days each week; current events, computers and activities of daily living (an exercise class taught twice each week, by therapist, which includes daily living skills, ). Her individual occupational therapy session also focuses on endurance, motor planning and following directions, similar to the skills taught in the exercise class. (Tr. pp. 110-111, 146 , 148, 164).[5] During library time, she is read to or can take out a book on her level, which she enjoys. (Tr. p. 109). Her class schedule also includes swimming and music therapy, on a weekly basis. (Par. Ex. F).
She receives reading instruction daily; however there is no indication in the record as to the method used to instruct her, or how it addresses decoding and fluency, which Ms. testified is a weakness for . (Par. Ex. F; Tr. p. 122). Reading instruction also takes place in social studies. (Tr. pp. 114-115). The students in ’s class function on a second and third grade reading level. Materials are read aloud, and are appropriate for both grade levels, with activities geared towards the level of the child. (Tr. pp 13234).
In language arts, she is working on grammar, sentence structure and paragraph formation. (Tr. p. 112) Her program also includes social skills, twice each week, and a snack break, twice each day (once on Fridays). (Tr. p. 113; Par. Ex. F).
’s class participates with the mainstream for lunch, recess and assembly programs. (Tr. p. 118). The school follows the common core standards. (Tr. p. 133).
Ms. testified that is assessed informally and through teacher observations and a student portfolio. (Tr. p. 118).She testified that in September, was assessed for reading and math with did not see the results of the assessment. (Tr. pp. 138-141). The school prepares goals and progress reports; however neither was offered into evidence, for the current school year. (Tr. pp. 162-163).
She testified that made progress in calendar math (money skills, time, patterns and the course of the daily calendar, Hebrew reading, current events, computers, motor planning, math, language arts, speech, social skills, reading, science and music therapy. (Tr. pp. 107-117). .
Reviewing the IEP goals (which she states were not discussed at the IEP meeting), Ms. agreed that the reading comprehension goal was appropriate; but testified that the IEP does not address ’s . (Tr. p. 122). For math, she agreed that it was appropriate to have a goal for time; however she noted that there was no goal for multiplication or division. She agreed that the creative writing goal was appropriate. She pointed out, however, that the goal did not specifically mention punctuation or grammar. With regard to the language goals, she felt that they were deficient in that they did not include pragmatics, articulation or receptive language. (Tr. p. 124). She testified she requested counseling, because is ; however the request was denied, as the CSE felt she did not need it. was not discussed. (Tr. pp. 125-126, 165). She testified that has issues with her coordination, in that . (Tr. p. 127). She testified that could function in a class greater than five students; but feels a class , due to her . (Tr. p. 153).
the School Administrator, testified that the school tries to work out a regular payment schedule with the parents; however the school is lenient as to the time of payment. (Tr. pp. 173-176).
DOE POSITION
The DOE’s position is that the IEP and recommended class provided with a free and appropriate public education (FAPE), and that the parent failed to prove the appropriateness of IVDU. The DOE pointed out that the record does not include any progress reports, or records of assessments of . The DOE also pointed out that the school does not that there was no evaluation in evidence to demonstrate ’s need for Occupational Therapy, and that the school is overly restrictive. Finally, the DOE argued that the tuition contract does not specify a time by which tuition must be paid, and thus there is no real obligation. (Tr. pp. 208-211).
PARENT’S POSITION
The parents argued that the IEP goals were inadequate; particularly the speech and language goals. They pointed out that the CSE did not consult therapist. Although not alleged in the due process complaint, the parent also argued that the IEP was deficient as the CSE failed to recommend occupational therapy or counseling services. (Tr. pp. 197-203). The parents further argued that the was inappropriate for , as it was above her academic level; and that the size of the program would be overwhelming for her. The parents argued is an appropriate placement and that equitable considerations support the parents’ request for reimbursement. (Tr. pp. 204-205).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).
APPPROPRIATENESS OF THE RECOMMENDED PROGRAM
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services Application of a Student with a Disability, Appeal No. 11-043.
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a Free Appropriate Public Education (“FAPE”) only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).
I find that ’s IEP is deficient because the CSE failed to obtain any information about ’s , and because the are inadequate. There is no goal for decoding or fluency, although functions level in both areas. The DOE failed to provide any explanation as to why it recommended goal; and failed to provide an adequate explanation for its decision to therapy. Although Mr testified that the reason for the group sessions was to address ’s social skills, the record is clear that social skills are a strength for .
The DOE also failed to prove that that the range of academic/educational achievement, at the recommended site was limited to assure that would have appropriate opportunities to achieve her annual goals, as required by 8 NYCRR 200.6(a)(3)(i). Ms. testified that the range of academic achievement within the eighth grade classes at the recommended site was in one class; and in the other. She failed to explain how ’s goals would be accommodated within this wide range, with only one teacher and one paraprofessional.
For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving that it provided with a FAPE.
APPROPRIATENESS OF PARENTAL PLACEMENT
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007). With certain exceptions, the same criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parental placement. The issue turns on whether a placement- public or private –is reasonably calculated to enable the child to receive educational benefits. See Green v. New York City Department of Education, 50 IDELR 40 (SDNY 2008), citing Gagliardo v, Arlington Cent. Sch Dist. 489 F. 3d 105 (2d Cir. 2007).
I find that the parents failed to prove provides instruction specially designed to meet ’s unique needs. ’s program, as described , is inconsistent with ’s needs as described in Ms. Minsky’s progress report and with evaluation in evidence. In addition, I am unable to credit Ms. testimony, as it is unsupported by evaluations, progress reports, assessments or other documentary evidence.
While Ms. reported that is able to express herself; and that she understands and responds appropriately to instructions, Ms. testified that language is her greatest area of need, that she has articulation difficulties; and also requires goals for pragmatics, and receptive language.[6] There is no report in evidence Therapist to describe what is working on in her sessions, and whether she is progressing. Ms. also testified that needs counseling; however the school does not provide it. receives individual occupational therapy; however there was no testimony or report from an Occupational Therapist explaining why she requires it. At the CSE review, no concerns were expressed regarding her need for Occupational Therapy.
Nor do I credit Ms. s testimony that has progressed in all academic areas. When tested in September 2012, her broad reading score was equivalent. At the time of the May 2013 CSE review, her teacher reported that she was reading at a third grade level. Ms. reports that she is reading at a third grade level. She is instructed with second to third grade materials, including provided no description of the methodology for reading instruction provided to , or how it addresses her and fluency, which she described as a weakness. Although she testified that informal assessments are conducted to measure progress, she has not seen those measures. Although the school produces goals and progress reports, neither was offered into evidence for the school year in question. The only progress report in evidence was the brief report one year ago, in preparation for the CSE review.
While is she attends a school is one of students in the school. Her program appears to students.
EQUITABLE CONSIDERATIONS
The parent failed to prove that she is in fact obligated under the tuition contract which she signed. The tuition contract does not specify when payment must be made. The parent failed to explain why she paid less than ten percent of the agreed upon tuition. The school administrator stated that the school is lenient with payment arrangements.
ORDER
For all of the foregoing reasons, it is hereby ordered that the parent’s request for tuition reimbursement for the 2013-2014 school year is denied. Dated: June 13, 2014
Dora Lassinger mv
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Demand for Due Process dated October 7, 2013, 6 pages B IEP dated May 9, 2013, 16 pages C Letter dated September 17, 2013,3 pages D Letter to CSE dated August 12, 2013, 2 pages E Program Description, undated, 1 page F 2013-2014 Schedule, 1 page G Tuition Contract dated September 3, 2013, 1 page H Affidavit of Payment dated February 21, 2014, 5 pages I February 19, 2014 Attendance Record, 1 page J Dated April 29th, 2014, one page
DEPARTMENT OF EDUCATION
1 IEP dated May 9, 2013, 11 pages 2 Final Notice of Recommendation dated June 19, 2013, 1 page 3 Report dated August 20, 2012, 5 pages 4 School Progress Report dated May 9, 2013, 1 page
HEARING OFFICER
I Pre-Hearing Conference Summary dated November 5, 2013, 1 page II Case Follow-Up Sheet dated November 4, 2013, 1 page III Case Follow-Up Sheet dated January 15, 2014, 2 page IV Case Follow-Up Sheet with Attachment dated February 18,2014, 2 pages V Case Follow up Sheet with attachment dated February 28, 2014, 1 pages VI Case Follow up Sheet with attachment dated April 17, 2014, 2 pages VII Case Follow up Sheet with attachment dated May 1, 2014, 1 page
Footnotes
[2] In their due process complaint, the parents allege, among other things, that the May 9, 2013 IEP is deficient because it fails to adequately reflect ’s needs (including her transition needs); that it lacks appropriate goals ; that the IEP team should have site is inappropriate and too large Par. Ex. A). Although not alleged in the due process complaint, the parent also argued that the IEP was deficient as the CSE failed to recommend occupational therapy or counseling services. (Tr. pp. 202-203). Although the parents alleged that the IEP failed to provide appropriate transportation, that claim was withdrawn at the conclusion of the hearing. (Tr. p. 206).
[3] The parent previously served 10 day notice of their intention to seek funding for the unilateral placement by letter dated August 12, 2013. (Par. Ex. D).
[4] According to the daily schedule in evidence, speech consists of thirty minute sessions. (Par. Ex. F). The students travel by bus to therapy, off site. (Tr. p. 145). No report from ’s pathologist was offered into evidence.
[5] The parents did not produce an occupational therapy evaluation. Nor has seen a formal evaluation. (Tr. p. 150).
[6] In the DOE’s evaluation, it was also reported that her articulation was good, and that she responded appropriately to questions. is described as sociable and popular with peers.