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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: December 16, 2013
Actual Record Closed Date: January 3, 2014
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16,
2013
Attorney — Student
DR., Clinical Director (Via Telephone) — Student
Parent (Via Telephone) — Student
District Representative — DOE
Hearing Scheduling Coordinator (Via Telephone) — DOE
The parent requested an impartial hearing on October 30, 2013. I was appointed on November 4. On November 5, I scheduled the hearing date of December 16 at 10:00. The complaint was submitted by , Inc. When I called to schedule a hearing date I was referred to . On November 6, I emailed a pre-hearing order requiring direct testimony by affidavit to ; and . Ms. never received the email.
The student’s date of birth is January 24, 1996. He is classified as Other Health Impaired. The parent is challenging the Individualized Education Program (IEP) dated February 15, 2013. He attends the and is in the grade.
The district concedes that they have not offered the student an appropriate education.
The complaint requests prospective payment of tuition for the Robert Louis Stevenson School from September 1, 2013 through June 30, 2014. Payment for the cost of related services from September 2013 through June 2014; compensatory education for related services from September 2013 through June 2013 and Related Service Authorization (RSA)’s for related services from September 2013 through June 2013.
DOCUMENTS IN EVIDENCE:
IEP dated February 15, 2013
Present at the IEP meeting was , and District Representative, the parent, school psychologist; , parent member; , parent representative; , Clinical Director of
(participated by telephone).
The dated 11/23, 24/10 indicates that the WISC-IV results are that the student’s intelligence quotient/index is (high average) in verbal comprehension; ( in perceptual reasoning; ( ) in processing speed; ( ) in working memory; ( ) in full scale. In Wechsler Individual Achievement Test, the student scored ) in oral discourse; average)
in math problem solving.
Under the heading Academic Achievement, functional performance and learning characteristics, the student has shown remarkable progress in all subjects. Her grades for the 2nd quarter were and ’s.
Under the heading Social Development, the student and in the appropriate manner. She is including teachers and peers. The student was described as a strong leader who set a great tone for the other students. The student’s attitude about her skills may at times compromise her performance and her outlook.
Under the heading , the student is currently diagnosed with and . The student is currently receiving and . She was said and saw a nutritionist. She has . She has and reportedly can’t run, jump, climb or hop. Her parent is concerned with the student’s difficulty with mobility and wants to limit her participation in Physical Education. (Exh. H)
Education Evaluation dated January 2013
The student received the highest possible grade in Creative Writing on the following: academic progress; class participation; motivation and effort; class projects; assignments; study habits; interaction with other and teacher; class attendance; class promptness. The student earned an A_ on both her mid-year exam and 93 on her page portfolio.
The student received the highest possible grade in Popular Literature on the following: Motivation and Effort; Class Projects; Assignments; Study Habits; Interaction with other students; behavior toward class and teacher; class promptness. She received the second highest grade in the following: academic progress, class participation, class attendance. The student earned an , she turned in two good journals and earned an A on her semester exam.
The student earned the highest possible grade in Physics on the following:
Assignments, Interaction with other students; Behavior toward class and teacher and class promptness. She earned the second highest grade in the following: good participation; motivation and effort; test results; study habits; class attendance. She earned a “Good
Progress” on academic progress. The student earned a grade of and on Mechanical
Advantage Exam.
The student earned the grade in Ancient History on the following: Motivation and effort, class projects, test results, assignments; interaction with other students; behavior toward class and teacher; class attendance and class promptness. She earned the grade in the following: Academic Progress; Class Participation, Study Habits. The student earned a grade of .
The student earned the highest possible grade in Algebra II on the following:
Assignments; Interaction with other students; Behavior toward class and teacher; class attendance; class promptness. She earned the second highest grade in the following:
class participation, motivation and effort; test results; study habits. She earned a good progress in Academic Progress. The student’s grade was a . (Exh. I)
letter dated January 31, 2013
Dr. is a psychiatrist. The student is . The student is , , and . The student is currently receiving , . The student is psychiatrically stable and doing well in her current academic environment. Dr. strongly recommends that she continue in her current therapeutic academic placement. More specifically, she requires a highly structured small classroom setting with 10 students maximum in order for her to learn, make progress in school. She requires constant redirection, and emotional and structural reinforcement both during school as well as after school. Behavioral skills are recommended to help the student learn how to decrease her level of frustration, in addition to the use of daily tutoring. (Exh. J)
Dr. Evaluation dated January 6, 2011
Dr. consists of the following sections: History of Present Illness as reported by the parent and the student; as reported by the parent; which is Dr. observation of the student’s attire, appearance, and interview; Assessment based on student’s prior history, chart review, parent and child interview and his clinical interview. Dr. recommends the following: , social cognition remediation, group therapy, treatment and family therapy;
, ; transfer to a , highly structured classroom setting, ideally with 10 students maximum, constant redirection and emotional and structural reinforcement during and after school; continual reinforcement with daily monitoring of her academic progress, student should learn how to decrease in addition to the use of daily tutoring; taking all examination with extended time in a distraction free environment, electronic organizer; specific problem-solving strategies, usually following a verbal rule; use of gaze for social interaction, monitoring and patterning of inflection of voice, social awareness. (Exh. I)
Dr. Evaluation dated January 26, 2012
Dr. ’s evaluation consists of the following sections: History of Present Illness as reported by the parent and the student; as reported by the parent; Mental Status Exam which is Dr. ’s observation of the student’s attire, appearance, and interview; Assessment based on student’s prior history, chart review, parent and child interview and his clinical interview. Dr. recommendations are identical to the recommendation in the January 6, 2011 evaluation except for medication which . (Exh. II)
Social History Report dated December 10, 2012
At the time of the report, the student was a at Brooklyn Technical High School.
The evaluation was to determine appropriate academic needs. The student has never responded to her name being called. She has difficulties in fine motor skills, organizational skills, attention skills, gross motor (ambulation) and speech. According to the student’s parent the student is not performing to her potential. The student is happy at
Tech but has . The parent states that the skills in script.
Under the heading of Medical History, it indicates that the student and extreme
. The student may have a family history and may possibly .
Neuropsychological Evaluation dated November 23, 24, 2010
Under the heading Identifying Information, it indicates that the student has been diagnosed with Type. On the dates of the evaluation the student was taking 30 mgs. Of and seeing Dr. for individual therapy. In the Summary, the student’s cognitive profile supports her diagnoses of and . The student seems able to de-code nonverbal cues well and has empathic responses to others. She has great difficulty with executive function.
The student will require a structured therapeutic school environment. The
Recommendations include continue medication with Dr. regularly; a daily planning template; large or long-term assignments chunked into smaller units; visual cues; cell phone and computer reminders; scheduled breaks throughout the day; coping strategies to deal with ; support in a separate distraction free setting and additional time; an adolescent social skills seminar which will be taught by the . (Exh. IHO III)
Secondary School Record
The student’s grades at 2010 – 2011 are as follows: English 9 – , Spainish I
Global 9 Algebra 9 , Biology ; School 2010 – 2011: Creative Writing , Anatomy
Algebra -, Modern History , Writers Voice -, 2011 -12: Advanced Literature
Chemistry , Creative Writing , American History , Geometry ; 2012 – 13: Creative
Writing , Popular Literature , Physics Middle History Algebra II (Exh. IHO IV)
Testimony
Dr. testified that she is the Clinical Director of . (T. 13) Stevenson is a college preparatory therapeutic school who service bright students who have had “some sort of difficulty along the way.” (T. 14) The classes are typically eight to ten students.
(T. 14) The student started the school in February 2011. (T. 18)
The student had more to some classroom routines that interfered with the student’s following classroom routines in the past. (T. 18) The student presents with .
The student does not act out. She requires “a lot of support.” (T. 19) The student is with peers, and trusting others and adults around her. She has progressed tremendously.
(T. 20)
The school is able to provide the student with the right kind of skill development both academic and socially that she requires. An assessment is made through committee in her classes as well as her advisors and teachers. Staff meet in the morning and assess progress on the students and evaluate if they are meeting the students’ needs. (T. 21)
Based on the assessments and evaluations formally and informally, the school is a good fit for her and she has made steady progress throughout the years. She is able to trust others now, makes really , and has established friendships. (T. 22) Academically she takes and she is but also very hesitant. She way than before. The student’s cognitive mindset and frame of mind can be but recently she really allows for some nuances, some new elements of external stimuli to be integrated into her frame of thinking so she’s more open to the possibilities of things, not following a specific, rigid pattern. (T. 23)
The school uses an advisory model. The teachers are advisors, some certified teachers, and given eight to ten students that they meet with three times a day. (T. 27, 40)
They help the student maneuver both academically and socially in the school for the full year. The advisor becomes the one the student rely on to help them problem-solve, organize both academically and socially. (T. 27)
The student has six classes, one is an elective. She starts school at 9:00, meets in advising from 9:00 to 9:15. (T. 28) The student can go to the counseling center on her own. (T. 30, 31) There are no scheduled counseling sessions. (T. 38)
Sixty percent of the students have IEPs and forty percent have no IEPs. (T. 43)
The student does not receive any related services. (T. 46) Mr. was unable to provide the classification of the other students in the class. (T. 57) The school has a rolling admission. Students are not graded. All ninth, tenth, eleventh and twelfth don’t travel to the same classes. Students are place in classes that are appropriate for their level skill- wise and level-wise. (T. 58)
Dr. testified that he believes the student’s classification is and the nature of the . The student has difficulties with establishing social relationships and eye contact. She very reluctant to have any changes to her schedule. She is very “hard-pressed” to have any new transitions in her schedule. She has a very difficult time trusting others. She is very challenged in making friendships, attending to the nuances of social interaction. She presents with attention . T. 69) The student is able to tolerate more distress now. (T.
75)
The parent testified that she believed the student needed help when she was receiving telephone calls from the ninth grade teachers stating that the student was failing classes. The student was connecting to other children and making friendships but they were “ .” (T. 78) The student and depressed at her prior school and she related to her parent that she had thoughts of traveling the trains all day and not going to school so the parent brought her to . (T. 80) The student sees a psychiatrist, Dr. twice a week and additional times if needed. (T. 81, 98) The student takes medications: and . (T. 99) In
2010/2011, the doctor diagnosed the student with and . (T. 81) Dr. recommended that the student go to a school , a therapeutic school with a small setting and structured with a in place. (T. 81)
At the Committee on Special Education (CSE) meeting the parent was unable to speak about the because the CSE team stopped her. (T. 104)
DISCUSSION
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S.359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).
The district has conceded that they did not offer the student an appropriate program.
In order to determine whether the services selected by the parents were appropriate it is necessary to identify the student’s disability, its manifestations and the inability to access education due to the disability.
Dr. ’s letter dated January 31, 2013 states the student is currently diagnosed with Disorder. (Exh. J)
The Neuropsychological Evaluation dated 11/23, 24/10 as discussed in the IEP presents a different picture of the student with high average IQ, grades of and , and under the heading Social Development, the student works cooperative with others, seeks guidance in the appropriate manner, is respectful of others including teachers and peers. She is described as a strong leader who set a great tone for the other students. (Exh. H)
The Evaluation dated January 2013 is consistent with the Neuropsychological Evaluation and inconsistent with Dr. ’s letter. The Educational Evaluation describes the students as participating in class, motivated, excellent interaction with other students (Exh. I) Dr. ’s recommendations of 2011 and 2012 are inconsistent with the education at , for example “she requires constant redirection, and reinforcement during school….” (Exh. I, II) The “advisors” at may or may not be teachers but are not counselors. The student receives no designated counseling sessions. There is no indication that at the Stevenson school the student takes her examinations with extended time in a distraction free environment or receives tutoring. (Exh. I, II pg. 3)
Dr. , the school’s clinical director, testified that the student was able to trust others now, makes really , and has established friendships. (T. 22) He described the student in her development of her sense of self as a learner, able to take feedback in a much better way than before. The student’s cognitive mindset and frame of mind can be typically but recently she really , some new elements of integrated into her frame of thinking so she’s more open to the possibilities of things, not following a specific, pattern. (T. 23)
The parent described the student’s initial problems as receiving telephone calls from the ninth grade teachers stating that the student . The student was having difficulties connecting to other children and making friendships but they were “very shallow.” (T. 78) The student at her prior school and she related to her parent that she had thoughts of traveling the trains all day and not going to school so the parent brought her to a psychiatrist. (T. 80)
The student’s disabilities as described by the parent, neurologist and teachers are vague and not apparent, according to the Stevenson’s Educational Evaluation her disabilities do not seem to impact on her ability to ’s in classes such as Algebra, Creative Writing, Popular Literature, Physics, Ancient History.
Although throughout the hearing I requested documents such as the psychiatric evaluations etc. The documents have not been provided.
Additionally, Dr. testified that the school uses an advisory model. Parent’s counsel advances the argument has a therapeutic approach is based on an advisory system that is embedded in all aspects of its students’ education. However, the some teachers are advisors, some certified teachers, and given eight to ten students that they meet with three times a day. (T. 27, 40) They help all the students maneuver both academically and socially in the school for the full year. The advisor becomes the one the student rely on to help them problem-solve, organize both academically and socially. (T. 27, 40) There are no related services. (T. 46) is generalized to the entire student population and not tailored to meet the specific needs of this student. (T. 38) The student and has a minimum of two appointments per week with which appears to address a significant problem, yet this information was not provided. Dr. was unsure whether he had read the psychiatric evaluation. (T. 54) According to Dr. no counseling services are needed or provided on a regular basis to this student. (T. 38)
I find the parent’s testimony regarding what she disclosed to the interviewer during the Social History Report regarding the student’s not credible. (Exh. L, T. 105 – 110, Exh. IHO III, Exh. V)
Based on the student’s diagnosis of , and (Exh. J) and her classification of , I find that the does not address any of the diagnosis listed. Parent’s counsel also claims that is specially designed to meet her unique needs. There was no specific information provided as to their “therapeutic” services. There is no evidence that the student receives counseling on a regular basis. The student meets with advisors on a regular basis but these advisors may or may not be teachers. The parent has failed to establish the therapeutic academic placement. (SRO No. 11-163)
Parent’s counsel claims that the student has made academic progress as indicated in the student’s report cards. This is acknowledged. However, the is opposite to the recommendations in Dr. s evaluations, which includes the need for a therapeutic day school setting, extended time in a distraction free environment. Dr. evaluations and the Neuropsychological Evaluation do not support the program at
Based on the , Stevenson’s Educational Evaluations, Dr. ’s Evaluations, and Dr. s testimony of the student’s current disability, I find that the does not address this student’s needs.
Parent’s request for tuition reimbursement is denied. Dated: January 8, 2014 ________________________
MARY NOE, ESQ. MN;mv Impartial Hearing Officer
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
A Letter to M. , 8/29/13, 1 page
B Ten-day notice, 8/16/13, 2 pages
C FNR, 7/31/13
D RLS Contract, 5/29/13, 1 page E Letter from parent to 5/28/13, 3 pages F Letter from parent to 4/12/13, 3 pages G Letter from parent to , February 2013, 1 page
H IEP, 2/15/13
I RLSS educational evaluation, January 2013, 6 pages J Letter from Dr. , 1/31/13 1 page K Letter from DOE to parent, 1/25/13 2 pages L Social history, 12/10/10, 3 pages M Due process complaint, 8/30/13, 8 pages