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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: January 16, 2014
March 7, 2014
March 24, 2014
Actual Record Closed Date: May 9, 2014
Hearing Officer: Dora Lassinger, Esq
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2014
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2014
Attorney — Student
Parents
Teacher (Via Telephone) — Student
Reading Teacher (Via Telephone) — Student
DR., CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2014
Attorney — Student
Attorney — Student
CSE Chairpersons Designee — DOE
CSE School Psychologist (Via Telephone) — DOE
The parents of . requested an impartial hearing on October 8, 2013 for the purpose of seeking funding for their unilateral placement of matter on October 9, 2013 pursuant to 20 U.S.C. Section 1415(f)(1). A hearing on the merits was held on March 7 and March 24, 2014. The compliance date was extended on five occasions due to unavailability of witnesses, and extensive testimony. The final compliance date is May 22, 2014. (IHO Ex. II, III, IV, V, VI).
year old student with a classification of . His classification is not in dispute. (Department of Education (DOE). Ex. 1). This is his second year in attendance at He is chronologically a student. (Tr. p. 63).
On July 2, 2012, diagnosed him with (“ ”) combined type, a . (DOE Ex. 3).
A (update) was performed on October 9, 2012. At the time Mitchell was a fifth grade student at presented with significant problems with independent reading, listening comprehension and expressive writing skills. The evaluator noted his difficulty with language processing, attention and organization. The evaluator recommended placement in a full-time special education school with small class size and small school setting. (DOE Ex. 4).
An Individualized Education Program (IEP) meeting was held on February 8, 2013, resulting in a recommendation to place in a program of Integrated co-teaching services (“ICT”) for math, art, music and physical education,[1] A special class with a staffing ratio was recommended for English Language Arts, Social Studies and Sciences. Related services of Therapy (“SLT”) two times per week in a group of two; and counseling once per week individually, were also recommended. (DOE Ex. 6, pp. 10-11).
The IEP team included the parent, , who acted as school and District Representative, , a special education teacher, a parent member and Ellie . (DOE Ex. 6, p. 17; Tr. p. 95). There was no general education teacher member of the review team; however Ms. had experience in mentoring teachers entering the ICT program, and was familiar with that model. (Tr. pp. 122-123).
The IEP reports will be in the in the 2013-2014 school year; but performing at a 4th grade level for math and a 3rd grade level for reading. (DOE Ex. 3, pp. 2, 14). Elsewhere in the IEP, it was reported that based upon a state assessment performed in the Spring of 2012, scored a level 3 for math, indicating that he is proficient. (Id. p. 2).[2] It was noted that he has difficulty with fluency and decoding; silent reading comprehension; inferencing and spelling; and that he needs to work on expanding sentences and adding details. He was noted to have difficulty with expressive vocabulary, word retrieval and . (Id. at p. 2). Socially, he was described as well liked; but anxious. His management needs, as described in the IEP included preferential seating; previewing, scaffolding, repetition, multi-sensory instruction. graphic organizers, sentences prompts and other organizational strategies.
The IEP includes goals for decoding, fluency, and increasing sight word vocabulary; and applying a variety of reading techniques to aid in comprehension. For writing, the IEP includes the goal of writing a multi-paragraph essay including planning and editing and adding details. For math, the IEP includes goals of improving problem solving skills at grade level and using a variety of strategies related to the use of language, in performing math operations and problem solving. The IEP includes three language goals and two counseling goals, including a goal of reducing his . (DOE Ex. 6, pp. 5-; Tr. pp. 101-102). The goals were generated after the meeting, based upon the discussion at the meeting of the student’s strengths and weaknesses. (Tr. p. 102).
Ms. testified that she participated in the May 6, 2013 IEP meeting as school psychologist and district representative. (Tr. p. 94). She testified that the Committee on Special Education (CSE) considered ’s weakness in writing and silent reading. It was noted that was well . (Tr. pp. 99-100).
She testified that the CSE recommended attend an ICT classroom for math, which was seen as an area of strength. ICT was also recommended for specials (art, music and physical therapy) due to his strengths in all of those areas, as well as in socialization. She testified that the ICT class would provide two teachers (one general education and one special education) with exposure to the general education curriculum. A smaller class setting was recommended for English language Arts, and subject areas (social studies and science) which require a lot of language and vocabulary. (Tr. pp. 105109). The CSE explained to the parent that s program would be departmentalized. (Tr. p. 116). The parent expressed concerns about the type of students with whom the student would be grouped, within the 12:1 classes. (Tr. p. 115). She was also concerned about the size of the classroom. (Tr. p. 122).
On July 24, 2013 the DOE issued a Final Notice of Recommendation, recommending a special class, and ICT program at JHS 104, with related services of Counseling and (“SLT”). (DOE Ex. 7).
Ms. W., Mitchell’s mother, testified attended public school for first through fourth grade. When he was in the second grade, he was placed in an ICT class, with 30 or more students. (Tr. p. 64). She testified that by fourth grade, he was unable to keep up with the reading level in the class. He was asked to write a full page; but could only write a sentence. Even with the help of a tutor, he was not successful in the ICT class. (Tr. pp. 65-66).
Ms. participated in the February 8, 2013 CSE review. (Tr. p .66). She was advised that the CSE was recommending an ICT class for math and specials, because ’s math scores were more advanced; and a class for language, science and social studies, as his language scores were much lower. (Tr. pp. 68-69). She informed the CSE that Mitchell had been in the ICT class before; and that he was problems in class. (Tr. p. 70). She received a final notice of recommendation in July 2013, recommending placement at J.H.S. 104. (Tr. p. 71: DOE Ex. 7).
On August 5, 2013, the parent sent the CSE a letter stating that she disagreed with the CSE’s recommendation for a combination special class and ICT; that she was unable to visit the recommended site during the summer; and that she was returning in September. She stated that if an appropriate placement is not offered, she will keep and seek funding. (Par. Ex. B).
On the first day of school, Ms. . went to visit the recommended school. She testified that the parent coordinator told her she had to choose between an ICT and a 12:1 class for the visit. The appointment was rescheduled and the parents returned on September 17, 2013, and saw both an ICT class and a 12:1 class. (Par. Ex. C). Ms. W. was told that there were two ICT classes and that the class she was shown was an Honors Class for students with a 3.75 average. She testified grades were not that high. The other ICT class she was shown was for students with behavior problems. Within the 12:1 class she was shown, the children appeared to be much older ; and the level of instruction appeared to be lower than his. (Tr. pp. 73-74). Following the visit, the parent sent another letter to the CSE explaining all of the concerns described at the hearing. In addition, she pointed out that the school would not provide an ICT class for art, music or physical education, as recommended in the IEP. She again stated that as no appropriate IEP or placement was offered, the parents would and seek reimbursement. (Par. Ex. C). She testified that she did not receive a response to the letter. (Tr. p. 76).
On March 16, 2013, the parents signed a contract for for the 2013-2014 school year, with a tuition of $52,100. (Par. Ex. D). They received a scholarship of $12,000, so that the total due under the contract was $40,100, which was paid in full, as of the hearing. (Par. Ex. I).
head teacher, testified that she has a Master’s Degree in teaching and learning with an emphasis in reading disabilities; and has training in Orton-Gillinghan, (“O-G”) as well as specialized writing and math programs. (Tr. pp. 18-19). Gaynor is a school serving approximately 330 students, aged four through fourteen, with language based learning disabilities. s homeroom class consists of eleven students and an assistant teacher, who is certified in general and special education. Within that class, he receives instruction in social studies, writing, and study skills. (Tr. pp. 19-21, 26 ). receives math and reading instruction in smaller groups of two to eight students; in which he is grouped according to his skills and needs. (Tr. p. 22). She testified weaknesses are in language, including written language, attention and organization. (Tr. pp. 27-28). To address these issues, lessons are clear and organized with explicit language. Lessons are presented with multisensory elements and graphic organizers. (Tr. p. 29). To address tasks are broken down, so that he is not overwhelmed. The school has two psychologists on staff that are available for consultation. (Tr. p. 30). The small classes p. 31).
In math, is in explaining his . Due to , he also makes a lot His math program includes Singapore Math; and his math class consists of five students. The students function between a grade level. progressed by approximately one half year in math; so that he now functions on . (Tr. p. 35). In writing, has progressed from writing fragments to the point where he is now able to write a simple, organized paragraph. (Tr. p .37). One-half hour per day is scheduled for study skills. (Par. Ex. F). Mitchell receives language therapy, three times per week on a push-in basis, and once per week on a pullout basis. (Tr. p. 40).
reading teacher, testified that she has a Master’s Degree in reading. (Tr. p. 50). She testified that Mitchell has difficulty in decoding multisyllabic words, fluency, and in comprehending abstract ideas. (Tr. p. 51). At the start of the school year, he was reading on a late third grade level. Ms a multisensory approach to reading, and the Judith Hochman Writing Skills program for writing is now being instruction level. (Tr. p. 53). ’s reading class consists of three students, on the same level. (Tr. p. 54). .
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]. Special education and related services must be provided in the least restrictive setting consistent with the child’s needs. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998).
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).
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. 11-162 (citations omitted). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997). The school district must also implement the IEP, which includes offering placement in a school that can fulfill the requirements set forth in the IEP. D.C. ex rel, E.B., v. New York City Department of Education, 61 IDELR 25 (U.S.D.C., S.D.N.Y. 2013); See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
APPROPRIATENESS OF IEP
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 and 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 agree with the parents that the IEP team was not duly constituted, as it did not include a general education teacher. The CSE should have considered to what extent participation in the general education environment was appropriate for Mitchell. 8 NYCRR 200.3[a][1][ii]; Application for review of a determination of a hearing officer, Appeal No. 11-025. Nevertheless, I do not find that this omission rose to the level of a denial of FAPE, as the team included a teacher who was familiar with the ICT program which was recommended as part of Mitchell’s IEP, and neither party was to attend a general education class.
I find that the goals in the disputed IEP were adequate, and consistent with s needs, as described by his teachers. ’s IEP included goals for decoding, fluency, and increasing sight word vocabulary; applying a variety of reading techniques to aid in comprehension; and writing an essay including planning and editing and adding details. For math, the IEP included goals of improving problem solving skills at grade level and using a variety of strategies related to the use of language in performing math operations and problem solving; The IEP includes three language goals and two counseling goals, including a goal of reducing his performance anxiety. All of these goals are consistent with the work being done with during the current school year, as testified to at the hearing.
I also find that the recommended program, which combined ICT classes and special classes, was appropriate and consistent with the requirement that special education and related services must be provided in the least restrictive setting consistent with the child’s needs. The CSE review team recognized s strengths in math, physical education and the arts; but provided a higher level of support for English Language Arts, Science and Social Studies.
The DOE, however, failed to present any evidence that the recommended program could be implemented at the recommended site, as required by D.C. ex re. E.B. v. New York City Dept. of Educ , supra ; See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, supra. Furthermore, the DOE failed to prove that Mitchell would be appropriately grouped at the recommended site, as required by 8 NYCRR 200.6(a)(3)(i).
The parent’s testimony that the school did not recognize the combination program recommended ; that ICT classes did not exist for specials (as recommended in the IEP) and would not be appropriately grouped in the recommended classes was not contradicted by any DOE witness.
For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations.
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).
I find that the parents demonstrated that Gaynor is an appropriate educational program designed to meet s unique needs. is educated in small classes, with teachers trained in special education, language and reading. His program includes related services of . Psychologists are on staff to needs.
receives reading instruction in a small group with students on his level from a reading specialist, and has progressed from level in reading. In math, he has progressed by one-half year in his instructional level. He has improved in his writing skills; from writing fragments to writing a paragraph. He receives a great deal of support for his organization skills. Tasks are broken down to reduce his anxiety.
EQUITABLE CONSIDERATIONS
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parent has cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
The record indicates that the parent participated in the CSE review, went to view the proposed site and provided ten day notice of her intention to place Mitchell at Gaynor and seek funding.
I find that the tuition charged ($52,100, reduced by a $12,000 scholarship) is reasonable, taking into account the specialized nature of the instruction provided.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall reimburse the parent $40,100. tuition expenses for the 2013-2014 school year, upon presentation of proof of payment thereof. Dated: May 16, 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
B letter from parents to CSE dated 8/5/13, 2 pp. C fax receipt dated 9/18/13, 3 pp D contract with dated 3/21/13, 4 pp. E 2013-2014 attendance record, 1 pp. F 2013-2014 class schedule, 1 pp. G description of undated, 1 pp. H proof of payment dated 3/16/13 1 pp. I Affidavit of payment, dated 2/25/14, 1 page
DEPARTMENT OF EDUCATION
1 due process request dated 10/8/13 3 pp. 2 central auditory processing eval dated 7/22/10, 11 pp. 3 eval dated 7/12/12, 2 pp. 4 letter dated 10/18/12, 10 pp. 5 classroom observation dated 1/16/13, 2 pp. 6 IEP dated 2/8/13, 17 pp. 7 final notice dated 7/24/13, 1 pp
HEARING OFFICER
I pre-hearing conference summary dated 11/12/13, 1 pp. II case follow up sheet dated 12/11/13, 2 pp. III Case follow-up sheet, dated 1/16/14, 1 page IV Case follow-up sheet w/attachment, dated 2/24/14, 2 pages V Case follow-up sheet, dated 3/7/14, 1 page VI Case Follow Up Sheet, dated 3/24/14 (1 page)
Footnotes
[1] The IEP states that ICT will be provided once time per week for each of these subjects. Ms. Alvarez, the District Representative and School Psychologist explained that this was a clerical error; and that the IEP should have indicated that the ICT classes would be provided five times per week. (Tr. pp. 141-142). This was also the parent’s understanding. (Tr. pp. 66-69).
[2] Ms. testified that the CSE indicated math level to be fourth grade; based upon his teacher’s statement that he was being instructed at that level; but also indicated that he might be functioning higher than reported by the teacher, based upon the state assessment which indicated that he was proficient.. (Tr. pp. 110-111).