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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: July 8, 2013
October 9, 2013
December 12, 2013
Actual Record Closed Date: February 6, 2014
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2013
Advocate — Parents
(via telephone)
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 9, 2013
Advocate — Parents
CSE School Representative — DOE
Guidance Counselor (special — DOE
(via telephone) Education) Recommended School
IEP Witness — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2013
Advocate — Parents
(via telephone)
Advocate — Parents
Parent — Parents
Parent — Parents
Principal, School for Girls — Parents
(via telephone)
CSE District Representative — DOE
On July 8, 2013, October 9, 2013, and December 12, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated April 29, 2013. (Ex. A) I was appointed Impartial Hearing Officer on May 6, 2013, after prior recusal/s. I was available to conduct a hearing within 14 days of the end of resolution. At a telephone conference with the parties conducted on June 6, 2013, the initial hearing was scheduled for July 8, 2013, the first mutually available date for the parties and the hearing officer. (T. 3, Ex. I) A hearing subsequently scheduled for August 14, 2013 was thereafter adjourned at the request of both parties due to the unavailability of witnesses. (T. 17-18, 22)
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and to enable the hearing officer to obtain and consider the transcript. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process and to enable consideration of those positions was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 4-8, 18-20, 21-22, 122-124, 207, Ex. II)
The current compliance date is March 13, 2014. The record closed on February 6, 2014, upon my receipt of the final transcript. (Ex. II) Background1
The student was in September 2012 and was classified as speech/language impaired. (Exs. C, 4) She had ”), a non public school that is not authorized by the New York State Education Department as a school with which the district may contract to provide special education services, since . (T. 206) She was unilaterally placed by the parent in the same school for the 2012-2013 school year.
The CSE convened on May 15, 2012, classified the student as speech or language impaired and recommended a Special Class (15:1) in a community school and related services ( (“ ) 3x30 (group), 2x30 (group)). Testing accommodations were specified. (Ex. C) The IEP specifies, among other things, that the student: was in reading with significant struggles in comprehension skills and difficulties in in math in well as mild stuttering and speaking with low breath supply; in socialization and interaction with peers and a hard time maintaining friendships with a low frustration tolerance; was eager to please and wanted to do well in school but and was (Ex. C)
By letter dated June 8, 2012, the CSE recommended a placement at a community high school. (Ex. 3)
On or about July 17, 2012, the parent informed the CSE that she could not accept or reject the placement until she could visit it in September 2012. (Ex. D)
By letter dated August 15, 2012, the parent informed the CSE that she had not been able to observe the recommended placement because the school had not been in session and that if the recommended placement was not appropriate the student would be enrolled for the 2012-2013 school year. No claims concerning the IEP or the CSE review were made. (Ex. E)
A contract specifying execution on September 5, 2012, stated that the tuition for the 2012-2013 school year was $32,000 and services would be provided at $55 per 30 minute session. The contract specified that if the student was removed, tuition and fees through the month in which the departure occurred would be required to be paid. (Ex. H) No payments for the “secular” portion of the program have been made. (Ex. I)
The material set forth in the Background section are included herein as Findings of Fact.
The parent visited the school in September, concluded that it was not appropriate and on September 27, 2012 informed the CSE that she would enroll the (T. 216, 221 , Ex. D)
The parent’s filed an impartial hearing request by letter dated April 29, 2013. (Ex. A)
Positions of the Parties
In her hearing request, the parent claimed that the DOE failed to provide a free appropriate public education (“FAPE”) for the 2012-2013 school year. The parent asserted that the IEP was procedurally and substantively defective and specifically referenced the waiver of a parent member, the absence of relevant and current academic data, the absence of the student’s teacher and resulting lack of appropriately updated information regarding progress in academics, , insufficient goals which lacked adequate methods of measurement, a program change unsupported by data, inadequate consideration of other programs, no offer of an opportunity to meet with a placement officer and the failure to provide a copy of the review minutes. The parent also claimed that the placement was not appropriate. Further, she claimed in which she unilaterally placed the student, was appropriate and that equitable considerations warrant DOE funding for that placement.[2] The parent asserted financial inability to pay and seek reimbursement and requested direct funding for the non-religious portion of the program provided and the recommended related services as well as school bus transportation. (T. 131-132, 175-176, 238-241, Ex. A)
The DOE asserts that the IEP was procedurally and substantively appropriate, that it offered an appropriate placement which could implement the IEP and that therefore a FAPE was provided. Further, the DOE claims not appropriate specifically claiming that teachers were not appropriately qualified, standardized assessments were not provided and speech/language therapy was not provided although the student’s classification is speech language impaired, The DOE asserts that equitable considerations favor it. (T. 9-11, 230-238)
Cases Presented
A. Lists of documents in evidence are attached hereto.
B. The DOE presented the testimony of two witnesses:
(
Lijoi is a special education teacher assigned to the CSE for more than two years and also been a general education teacher for some 20 years and holds both licenses. (T.
72) Lijoi had limited current recollection of the 2012-2013 IEP, for which she was on the review team, and relied during her testimony on documents in the record. (T. 74, 88) Also present at the review was a DOE school psychologist, the parent and, by telephone the principal of TM. (T. 74-75, 85, Ex. 1) In making its recommendation the team relied upon reports/information it requested and received from the principal and from the parent
(T. 76-78, 83, 89) The team also reviewed the December 10, 2010 evaluation. (T. 8384, Ex. 4) The SL classification was continued in the absence of new information concerning that. (T. 76, 105-108) The goals, were developed to address the students strengths and weaknesses as reported by the principal. (T. 77-78, 101) The CSE had not received an report at that time. (T. 78) The CSE did not make a recommendation as to site. (T. 79) The IEP’s “management needs” were developed after consideration of this student’s (T. 79-80) Testing accommodations included extra time, smaller setting, directions read and use of a calculator in view of need for a . (T. 81) was provided in view of her disability and affects other areas including reading and learning, counseling was provided to help with self-esteem issues and a 15:1 class would enable her to have necessary extra attention and help. (T. 82) The principal had informed the CSE that the student had difficulty socializing with peers. (T. 99) stated that in the small setting provided the teacher could differentiate instruction and would have the benefit of the IEP and input from the counselor (T. 103)
testified that although the principal might have had evaluation from previously, it was not provided to him by the CSE. (T. 84-85) She stated that it was her understanding that the student at that time was in a “ ” non-departmentalized class and was an 8th grader but she could not recall how many students were actually in the class or in the school although she believed it was about 150. (T. 86, 93-94, 111)) She had no recollection as to whether the specific goals were developed at the meeting or discussed with the parent and the school nor did she recall which, if any, pages of the IEP were created at the meeting but stated that customarily the IEP was created subsequently from notes. (T. 86-87, 89-91) However, she stated that none of the goals were prepared prior to the commencement of the meeting. (T. 87) goals were not reviewed by provider.
(T. 96) could not recall whether the student had mastered any prior goals or whether there had been a disagreement about the program. (T. 92) Only a placement was available in a community school and if that was not appropriate the only alternative was a District program which would have been very restrictive which she opined was not appropriate for this student. (T. 95-97, 104-105) Further, she testified that an opportunity to be with mainstream students would be beneficial. (T. 113-114) She had no recall as to whether provision of SETSS was considered but opined that it was necessary to see whether a program would be appropriate first. (T. 96-97, 110) A para would be considered for a student who had severe behavioral problems. (T. 109) Further, she had no recall as to whether or what written information concerning parental rights was provided but the parent declined a parent member and parents who express concern at meetings are advised of procedures. (T. 98, 100-101) With regard to participants, the CSE requests the school to provide someone with knowledge of the child and the principal usually appears and is very knowledgeable. (T.112—113, 114)
)
holds teaching, guidance counselor and administration licenses. (T. 29) She is currently a guidance counselor, special education and has worked in that position at the recommended placement (“the placement”) for some 30 years. (T. 30) Her duties include programming and “as needed” counseling. (T. 30-31.55) All teachers are licensed and certified and are supervised by an Assistant Principal. (T. 32-33, 34) are available in the school, in the providers’ offices, and providers are appropriately licensed/certified.
(T. 33, 47, 64) She described the placement as “safe.” (T. 34) There are 15:1 classes for 9th through 12th grades. (T. 45) Parent support is provided through various means. (T. 34-35) Report cards and progress reports are routinely issued. (T. 35) The student would have six 45 minute classes plus a gym class and lunch in a “departmentalized program.”
(T. 36, 45, 52-53) She would be expected to take a second language unless she is exempt.
(T. 65) The students would travel individually between classes and would not necessarily have the same students in all classes. (T. 49-51) There are some 50 students in gym class and some 300 in the cafeteria at any one time. (T. 35) Up to some 3500 students could be transitioning between classes at one time. (T. 47) Freshman orientation is provided and includes instruction in how to navigate the building. (T. 66) Work is modified in 15:1 classes but the mainstream curriculum is followed. (T. 37) Instruction is individualized, there is ongoing communication between related service providers and instructional staff and mandated testing accommodations are available. (T. 36, 40, 42) An OrtonGillingham reading program with no more than 15 students is available is available in the school as is a “math-intensive” program and these programs could be in addition to ELA and math classes. (T. 39, 52, 62) Mainstreaming instructional opportunities are available and gym is mainstreamed. (T. 37) Transitional programs/activities are available. (T. 38)
testified that many students are at the student’s academic achievement levels and efforts are made to group the students within a three year age/academic level range but that may be affected by a student’s need for a particular subject to graduate. (T. 39, 56) The majority of class students are reading levels. (T. 63) The great majority students have a classification and a very small number are classified as emotionally disturbed and for classes with those students a paraprofessional is provided. (T. 62-63) A student classification could be accommodated in one of the school’s . (T. 68) The diploma a student would receive would depend on achievement and for this student would not be predetermined. (T. 58-59) Parents visiting to view the program would be meet with her and would be able to spend time observing classrooms but could not speak with a teacher during instructional time but could make other arrangements to do so. (T. 59-61, 67)
C. The parent presented the testimony of two witnesses:
(“the principal”)
The principal testified as follows:
He has had that position at for over 22 years and has a Masters degree and is a New York state certified special education teacher with experience as a teacher and in testing and evaluation. (T. 135-136) He does not have license/certification in school administration. (T. 196-197) With regard to , he testified that: Regents Competency Test had been available but that that possibility is now being phased out by the state; students are evaluated upon application and if accepted he develops a curriculum and sets up materials which teachers may not change without his approval; teachers provide weekly written reports of progress and impressions; the principal meets with students and teachers on an ongoing basis and provides teacher training. (T. 137-139, 146-147) TM is in a self contained building with almost all classes on the first floor and with other resources on the second floor. (T. 143-144) It has some 30 students in the high school, one class for each grade level, and a junior high school class with about eight students.
(T. 202)
The principal described the student in September 2012, her year: as having a relative strength in decoding several grades in advance of reading comprehension but with comprehension at approximately level and which impacted all areas of comprehension; a very significant four year ; “very very” level; significant emotional issues which included , being with a lack . (T. 139-141, 144, 147-148, 203) ) The principal opined that the student had and that her classification could have appropriately been , or . (T. 197)
The student was in a class of eight girls within two years of one another in academic functioning and with most with although this student presented particularly .
(T. 141-142) Students were grouped generally in groups of 3 to 5 with a different teacher and different rooms for each group and an individualized academic program and sometimes support was provided. (T. 14, 148-149, 153-155, 162, 163-164, 169) For math, students had individualized folders with work at their levels and would generally receive some during the day from one of two math teachers assigned. (T. 154-155, 160-
161) The foreign language requirement was met by Hebrew instruction. (T. 162, Ex. M) Literature classes used simplified versions of literary works. (T. 163, 182) Reading comprehension and reading enrichment were, like math, totally individualized and facilitated an ability to focus on the student’s particular deficit areas. (T. 164-166) A vocabulary development program (Wordly Wise) targets the student’s tested level. (T. 173-174, 180-181) Writing classes provided individualized and whole group instruction depending on what area was being addressed. (T. 167-168) Whole class instruction was provided for science. (T. 170) A sociology class provided whole class instruction in other cultures. (T. 171-172) A creative workshop was provided and gave the student an opportunity to work on projects collectively with others. (T. 166-167) A Historic Facts class provided some enrichment, an Ethics class covered morality from a non-religious point of view and Jewish Laws and Customs and Bible Study provided instruction from a religious point of view and Daily Prayers were also scheduled. (T. 174-178, 179)
Students are evaluated at the beginning of the school year with standardized tests or material the principal has created if deemed to be more reliable and progress is measured by the students’ ability to move through levels. (T. 183-184.,188) However, with regard to beginning school year evaluation, since this student had been in the school previously it was only necessary to determine the amount of regression during the summer and that could be determined by evaluating her ability to perform at the previous level obtained. (T. 183-186) Programs utilized for this student included various formal reading related programs which provided grade levels and curriculum based assessment tools. (T. 186-189) Writing was assessed by the principal. (T. 192) Math skills at the beginning of the year were assessed by an instrument developed by the principal and a comparison to previous achieved levels was made. (T. 192-193) Report cards and reports to parents are provided and grades include consideration of participation. (T. 193-196)
The student had two counseling sessions with the social worker each week and in addition the principal met with her on an as needed basis, sometimes as frequently as twice a week. (T. 142-143, 149) The social worker sessions were but sometimes expanded in view of the student’s needs in that area. (T. 204) A social skills class worked on social comprehension. (T. 173) Teachers met with the social worker and with him concerning the student. (T. 152) The student issues at home and the school worked with the family. (T. 143) was not provided by the school. (T. 197)
The student’s teachers were not licensed or state certified as teachers but all received a high school Regents’ diploma and some post secondary education which could have been college or a Jewish seminary and all were experienced teaching special education students. (T. 152, 157-159, 172)
The principal testified that the student progressed during the 2012-2013 school year and reached a level in comprehension, in math had completed fractions and decimals and was working on word problems, in writing had improved from very brief short passages to being able to put together a simple story and improved social integration demonstrated by her self-reports and observations. (T. 149-150, 191)
With regard to IEP goals the principal opined that the writing goal should have included the level of current ability and that the counseling goals were vague and that what would be appropriate progress according to the CSE could not be determined. (T. 198-200).
The principal speculated that the student would tend to be confused if constant transit in a large building with many students was required and would “space-out” and get physically lost and need guidance. (T. 144-145, 204-205) He stated that she requires immediate intervention when upset due to her low frustration tolerance and that a small class was therefore required. (T. 145-146) He had no recent experience but opined that in view of her difficulties and need for immediate intervention it would be very difficult for even a talented teacher to address her needs. (T. 201, 205)
Mother (“the parent”)
The parent testified that the student received various Early Intervention services through subsequently attended a playgroup and then a combination playgroup and school, also provided through and funded by the DOE through CPSE IEP. (T. 210-212) She was thereafter enrolled by her parent in class of 8 in a small school, from (T. 212-
213) When the student was to enter that school closed and a tutor recommended (T. 213-214, 220) The student has never attended public school. (T. 220)
The parent stated that she disagreed with the CSE recommendation of a program and stated that the student would be unable to learn. (T. 215) The parent visited the recommended school at the beginning of the school year and found it large and confusing.
(T. 216, 221) She was shown a class with 15-25 students and one teacher which she observed from outside. (T. 216-217) All her questions were answered and she was told that students get used to moving around the school. (T. 221-223) She stated that the placement was not appropriate for the student because the student would have to move from class to class over several floors and that the student would be “terrified” alone in a crowd. (T. 216)
The parent testified that was appropriate because instruction was provided in very small groups and the student was making progress academically and the parent had an opportunity to talk with the counselor concerning the student’s emotional issues. (T. 217-218) The student stopped receiving in the because the student was unwilling. (T. 229) The services had been provided through RSAs but none were provided for the 9th grade year. (T. 230)
The parent has paid approximately $4000 in cash to for the 2012-2013 school year and there remains a balance due which the school has made repeated efforts to collect. (T. 218- 219) The parent stated that the amount paid reflected only that she had only that amount available. (T. 224-226) She told the school she would continue to make payments monthly and hoped to do so, notwithstanding an annual income of $11,350, with the help of others but was unable to do so. (T. 226-228)
Findings of Fact and Conclusions of Law
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)
Prong 1
An appropriate educational program begins with an Individualized Education Program (IEP) which 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 Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
CSE Review and IEP
I find the testimony of Lijoi credible and note that her testimony as to what occurred at the review is principally uncontested. I turn to the specific objections asserted in the impartial hearing request which alleges that there were substantive and procedural violations requiring nullification of the IEP. I note with regard to that claim, however, that whether considered individually or in the aggregate, “[p]rocedural violations … only …[automatically entitle the parents to reimbursement] if ‘they impeded the child’s right to a [FAPE],’ significantly impeded the parents’ opportunity to participate in the decision making process’ or ‘caused a deprivation of educational benefits’ [citations omitted]” R.E. v. New York City Dept. of Educ., 694 F. 3d 167, 190 (2d Cir 2012). I conclude that for the reasons discussed below any procedural violations, whether considered individually or in the aggregate, did not have any of those effects in this matter.
Absence of parent member: It is undisputed that the parent signed a declination of a parent member of the CSE. (Ex. 2) That declination includes a statement that the parent was aware that the law required the parent member unless the parent declined and that the parent was aware of various procedural safeguards and legal rights with regard to the review. Further, the student has received services from the DOE since preschool and I conclude that the parent is familiar with procedural requirements. I also note the testimony of Lijoi concerning CSE practices regarding explanations to parents. I find the claim that the parent had insufficient information to execute a waiver not credible.
Current academic data was not available/updated: The evidence shows that the principal, who held himself out as knowledgeable at the view and at this proceeding and testified that he personally received and evaluated data as to the student’s progress on a weekly basis, provided information concerning the student’s academic levels at the review which were incorporated in the IEP and considered by the CSE in developing the program. I find the claim that current academic data was not available lacks merit. With regard to the claim that instructional levels specified in the IEP were not supported by clinical data and progress reports, it is acceptable for a CSE to rely on reports provided by teachers or other knowledgeable staff. Appeal No. 13-203.
Goals: The parent asserts that the goals were unduly limited and did not include a grade level, appropriate modes of assessment or varied achievement dates. However, the goals were developed based upon information provided by the principal and covered each of the areas of weakness specified, specified the method and timing of measurement and in certain instances identified the supports to be provided when addressing the goals. There has been no testimony that any area was omitted. Further, with regard to whether the substance was generally appropriate, I note that the principal articulated objections only to narrow aspects of writing and counseling. Further, goals are not required to include a specific baseline. In the foregoing circumstances, I find no procedural defect with regard to the goals. See Appeal No. 13-203, Appeal No. 12-228, Appeal No. 11-040
Insufficient support for recommendations: The principal testified as to his very substantial familiarity with the student and, further, that he himself provided counseling to this student when necessary. There is no claim that the parent or principal objected to the counseling recommendation at the review or thereafter. With regard to the that in the absence of updated information the prior recommendation was continued and goals were developed based upon the information available including that provided by the principal. Further, I note that there was no testimony indicating that any objection to the provided was made or that an objection to classification was stated at the review or thereafter.
No Clear Explanation of Certain IEP Sections: The parent did not assert at the hearing information provided by the CSE was insufficient. Further, there was no claim that either the promotional criteria or participation in assessments sections were not appropriate for this student. The principal’s testimony indicating skepticism generally about the value of standardized assessments does not support a conclusion that the CSE’s recommendation in those areas is not appropriate.
Provision of Minutes: The parent asserted that minutes of the meeting were not provided. There is no indication that minutes were prepared and further, there is no requirement that that document be provided to the parent.
Placement Information: It is undisputed that an opportunity to speak with a placement official at the review was not provided. However, it is well established that that is not required. R.E. v. New York City Dep’t of Educ., 694 F. 2d. 167 (2d Cir 2012).
Substantive Defect Claims
It is well established that “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F. 3d at 190.
It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025.
In the instant matter, the persuasive evidence shows that the CSE, based upon information provided by the school and in evaluation as to the student’s strengths and weaknesses, concluded that a would enable the student to make meaningful educational gains. No documentary evidence inconsistent with that conclusion has been presented. Further, the testimony of the principal is not inconsistent with it. Although he opined as to expected difficulties in , he had no personal knowledge as to how that program functioned generally or in the placement proposed. Further, there is no indication in the record that he shared that with the CSE at the review. The testimony of the parent with regard to whether the DOE provided a FAPE related principally to her objections to the placement. I conclude that evidence the record does not rebut the conclusion of the CSE that based upon the information at the time of the review the program it proposed would enable meaningful educational gains.
Placement Claims
In her hearing request the parent the parent claimed that the placement offered was not appropriate but did not specify her objections therein. (Ex. A) Claims not made with adequate specificity in the impartial hearing request may not be considered by me unless the DOE has specifically consented or “opened the door.” Appeal No. 13-203. The facts that the specific allegations were made in opening and closing statements, were the subject of direct examination in the testimony of the parent’s witnesses and cross examination by the district does not constitute “opening the door” since the district did not elicit it. Id. at n. 5. The fact that certain allegations were stated in a preceding communication from the parent which was itself referenced in the hearing request does not, I conclude, “bootstrap” those allegations into the hearing request. I note with regard to that conclusion that subsequent conflicting information may emerge at a later date which may result in a party ceasing to make a claim previously asserted. Accordingly, I do not consider the placement claims. However, I note that the Second Circuit has made clear that certain considerations with regard to a placement which a student has not attended are speculative in nature and therefore not a basis for conclusions that a district failed to provide a FAPE. R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d 167 (2d Cir. 2012). I also note that with regard to the implementation of a student’s IEP, a denial of a FAPE occurs only if the district deviates from a substantial or significant provision of the student’s IEP in a material way and thereby precludes the student from an opportunity to receive educational benefits. See Appeal No. 12-098 and the cases cited therein. The testimony of the parent with regard to her observations and conversations as well as that of Sorokoff, which I find credible, does not indicate that that occurred in this matter.
* * * *
In the foregoing circumstances, I conclude that the DOE has met its burden to demonstrate that it provided a program reasonably calculated to enable the student o make meaningful education gains. Prong 2 In view of my finding with regard to Prong I, which is sufficient to compel dismissal of the parent’s claim, I do not comprehensively discuss the parent’s program. I do, however, note the following:
When a public school system has failed to provide a FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
The testimony of the principal establishes that the TM academic program provides instruction in the student’s areas of weakness and is tailored particularly for her. Further, the program provided is in a small structured class and provides praise and encouragement and redirection and counseling, all included in the management needs specified by the CSE. (Ex. C) The DOE accurately notes that standardized tests to determine progress are not utilized. That fact alone is not determinative so long as other appropriate and reliable measures are demonstrated. Further, I note that the CSE relied in substantial part on the information provided by the principal. Insofar as the CSE elected to utilize and rely upon the reports and assessments of a private school, that reliance weighs in favor , not against, the private placement’s appropriateness. A.D. ex rel E.D. v. Bd. of Educ. of City Sch. Dist. Of New York, 690 F. Supp, 2d 193, 208 (S.D. N.Y. 2010) (citing Frank G, 459 F. 3d at 364) The principal testified that his evaluation includes assessments included in the curricula as well as routine tests and quizzes and such material could be the basis for an adequate assessment. However, in the instant matter, no documentary evidence describing the results of those assessments either in the form of progress notes, actual test/assessment results or any other contemporaneous material has been submitted to enable any evaluation of the principal’s testimony. Further, it is noteworthy that the principal relies substantially on information reported by the student’s teachers, none of whom are certified teachers, special education or otherwise, and about whom no evidence as to the precise nature of their academic training related to education has been submitted. The claim that they have experience with special education students does not demonstrate a basis for reliance upon their knowledge and expertise especially here where information obtained by the principal as to the student’s ability to independently demonstrate mastery rests substantially on their observations. Further, progress, even when established, does not require a finding that a program is appropriate. Gagliardo.
Moreover, although I am persuaded that the student received IEP mandated counseling and that were addressed, that is not the case with regard to the . The student is classified as , that classification has not been disputed and the principal acknowledged that it, among others, was appropriate. The IEP delineates speech issues including stuttering and not breathing appropriately. Those have not been disputed and there is no indication that that was addressed. Further, although the counselor may address certain aspects of peer interactions, the student’s language based issues, which I conclude affect peer relationships, are also referenced in the IEP and are not disputed. An provider may well address language issues relating to peer interactions in a manner and with methodology that differs from that utilized by a counselor. However services were provided. I am not persuaded that the failure to provide those services was based on the student’s objection to them but rather conclude that was the choice of the school. Although, I am mindful that a private program need not provide the particular arrangement of related services recommended by the CSE, a failure to do so is a factor in evaluating the totality of the program as a whole. R.K. v. New York City Dept. of Educ., 2011 WL 1131492, aff’d. 694 F. 3rd 167 (2d Cir.) (adopting Report and Recommendation). In the circumstances here, I conclude that the absence of speechlanguage therapy weighs heavily against a determination that the program was appropriate.
Based upon the foregoing, I find that the parent has not met her burden to establish that a program reasonably calculated to enable the student to make meaningful educational gains was provided for the 2012-2013 school year.
I also note that upon review of the testimony and evidence submitted, I conclude that approximately 50% of the s five day program is non-secular and that even had the parent met her burden and was otherwise entitled to funding, tuition funding should be reduced by that percentage.
Prong 3
In view of the foregoing findings I do not address equitable consideration regarding DOE funding in this matter.
ORDER
This matter is DISMISSED.
Dated: February 18, 2014
_______________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
1 IEP, 5/15/2012, 16 pgs. Department of Education
2 Parent Member Declination, 5/12/2012, 1 pg. Department of Education
3 FNR, 6/8/2012, 1 pg. Department of Education
4 Evaluation, 12/10/2010, 6 pgs. Department of Education
5 Social History Update, 12/10/2010, 3 pgs. Department of Education
A Impartial Hearing Request, 4/29/13, 4 pgs. Parent
B Program Description, 1 pg. Parent
C Board of Education IEP, 5/15/12, 13 pgs. Parent
D FNR, 6/8/12, 2 pgs. Parent
E Ten Day Notice, 8/15/12, 2 pgs. Parent
F Related Services Counseling Sched., 2012-2013, 1 pg. Parent
G Counseling Services Affidavit, 6/27/13, 3 pgs. Parent
H Registration Contract, 9/5/12, 2 pgs. Parent
I School Affidavit, 6/26/13, 1 pg. Parent
J Attendance Record, 2012-2013, 2 pgs. Parent
K Parents U.S. Income Tax Return, 2012, 2 pgs. Parent
L Proof of Licenses, 2 pgs. Parent
M Class Schedule, 2012-2013 , 1 pg. Parent
I Prehearing Conference Memo Impartial Hearing Officer
II Compliance Date Extension Decisions Impartial Hearing Officer
Footnotes
[2] In testimony and closing argument the parent specifically asserted that the student would by transfers within the school. (T. 239) This claim was not specified in the hearing request although it was specified in the letter concerning the placement referenced in the hearing request. (Exs. A, D)