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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: June 27, 2013
July 23, 2013
September 30, 2013
October 2, 2013
October 7, 2013
November 18, 2013
December 20, 2013
March 7, 2014
March 14, 2014
Actual Record Closed Date: April 24, 2014
Hearing Officer: Judith Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2013
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2013
Attorney — Student
Father — Student
Attorney — DOE
Attorney — DOE
Principal (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 30,
2013
Attorney — Student
Parents
Attorney — DOE
School psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2013
Attorney — Student
Parents
Parent (Via Telephone) — Student
Program Director, — Student
Attorney — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 7, 2013
Attorney — Student
Parent (Via Telephone) — Student
Director, (Via Telephone) — Student
DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18,
2013
Attorney — Student
Parents
Parent (Via Telephone) — Student
Social Worker, Rebecca School — Student
(Via Telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 20,
2013
ESQ., Attorney — Student
Parent/Father (Via Telephone) — Student
ESQ., Attorney, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2014
Attorney — Student
Parent/Father (Via Telephone) — Student
OT (Via Telephone) — Student
Teacher (Via Telephone) — Student
NYC DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2014
Attorney — Student
Parent (Via Telephone) — Student
NYC DOE Attorney — DOE
DR., DOE Psychologist (Via Telephone) — DOE
(Via Telephone) — DOE
INTRODUCTION
On July 23, 2013 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (DOE) to provide a Free and appropriate public education (FAPE) to Kassidy E. (“the child“) for the 2013-2014 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 9:30 a.m. and continued on September 30, 2013; October 2, 2013; October 7, 2013; November 8, 2013; December 20, 2013;March 7, 2014; March 14, 2014.
A list of exhibits that were admitted into evidence is attached to this decision.
BACKGROUND
On May 20, 2013 the parent filed a request for an impartial hearing alleging that the DOE failed to provide a FAPE for the 2012-2013 school year. The child, who is classified as was then and had been receiving special education services beginning with an Early Intervention program provided by the DOE. The child then attended a full day program recommended by the DOE. After rejecting the DOE recommended placement, his parents placed him at , a private non-approved school for kindergarten which is where he remained for first grade during the 2012-2013 school year. They believe that the DOE recommended program with related services and the recommended placement did not offer the child a FAPE and are seeking tuition reimbursement for the 2012-2013 school year.
THE PARENT’S POSITION
The parents contend that the DOE denied the child a FAPE because the DOE failed : 1) to provide the child with a proper program recommendation for the 2012-2013 school year; 2) to allow them meaningful participation at an Individualized Education Program (IEP) meeting held on April 1, 2012; 3) to offer the parent an appropriate public school placement; 4) to provide the parents with a copy o the IEP created as result of the meeting; 5) to consider independent evaluations; .6) to identify the child’s present level of performance on the IEP and corresponding goals; 7) to include adequate management needs; 8) to provide for parent training on the IEP; 9) to assemble an IEP team that was properly constituted.
The parent further contends that is an appropriate placement and the equities support their request for prospective tuition payments pursuant to Connors and to reimburse the parents for tuition which they have paid to date as well as reimbursement for the cost of the 2011 . ( Ex. A.7-8).
THE DOE’S POSITION
The DOE contends that it provide the child with FAPE for the 2012-2013 school year. It further contends that: 1) the recommended program could have implemented the IEP; 2) not an appropriate placement and 3) the equities favor the DOE.
THE EVIDENCE PRESENTED
On May 20,2013 the parents requested an impartial hearing, On or about April 18, 2012, the CSE convened to conduct an annual review meeting and to develop the child’s IEP for the 2012-2013 school year. (Ex. A. 2; Ex. 1. 12, Ex. 4. 1; T. 155-56). The Committee on Special Education (CSE) team consisted of a district representative; two special education teachers; a school psychologist; a school social worker; the parents; and a parent member. (Ex. 2) Prior to the meeting, , who participated at the meeting as the DOE representative and the school psychologist reviewed the student’s permanent file.
(T. 156). The CSE had previously classified child as a student with autism and developed an IEP for him for the 2011-2012 school year. (T. 156). The CSE team reviewed the child’s prior IEP (T. 227), Report of Progress from December 2011 (Ex. 6), and received information about the child’s academic needs from his then current Rebecca School teacher, worker and his parents. (T. 165-75) These individuals provided specific and current information about the student’s needs, skills, and perceived deficits.
The goals that were developed for the child addressed his instructional levels in reading and math, and addressed his areas of strength and deficit. The short-term objectives were developed in connection with the IEP goals and provided appropriate measurable criteria. The short term objectives associated with each of the goals contained measurable criteria of a percentage of accuracy, a specific number of correct responses during a given set of opportunities, which enabled the monitor to determine whether the specific goal had been attained. (Ex. 1. 3 – 7). The IEP also indicates that the parents would be provided with periodic reports regarding the child’s progress toward attaining his IEP goals at the same time that report cards were issued. (Id. at p. 8). The goals were developed to help the child improve and maintain regulation and share attention throughout the day. (T. 177). The CSE developed corresponding short term objectives that included regulation strategies such as deep breathing to help maintain regulation. (Id.). The goals were measurable in that they included a schedule for how progress would be measured.(T. 179) Neither the parents nor raised any objections to the goals at the CSE meeting. (Id.).
Dr. went through each of the goals that were referenced in the Rebecca School Interdisciplinary Report of Progress (“Interdisciplinary Report of Progress”) individually. After its discussion with regard to how the child was functioning in school, the CSE discussed some specific goals that were in the progress report. Each goals was read out loud to the group, and the school staff and the parents were asked to comment.. They spoke about whether or not these goals had objectives, if he was still working on them, if he had met them and what types of areas would be appropriate for the child’s goals going forward. The CSE was aiming to create a program recommendation and develop an educational plan that would be appropriate for the upcoming school year.”(T. 174-75).
The child’s then current special education teacher indicated at the CSE meeting that the Interdisciplinary Report of Progress accurately described the child in all areas at time of the meeting. (T.159). The CSE team received and reviewed the Interdisciplinary Report of Progress. (T. 158; Ex. 6),
The Interdisciplinary Report of Progress indicated that the child was generally very regulated and engaged throughout the school day and consistently attended to people (both adults and peers) and activities in the classroom. ( Ex. 6 .1). The child’s teacher reported that although the throughout the day, on occasion, he could become She noted that he became (Id.), and when he did not get his way, but that with proper support, the child was able to become re-regulated. (Id.). She further reported that when the , and take a break, and then and him to re-regulated . When the child became , he had to be reminded with explanations about Id.). The child was sensory seeking and would seek out into a foof chair. (Id.).
The IEP stated that the child was generally calm, engaged and regulated throughout the day, and indicated that he was usually able to maintain about 20 minutes of purposeful communication across all activities throughout the school day, including during academics, games with peers, and conversations with adults. (Ex. 1.1). The child was reported to be verbal, primarily communicating in full sentences (Ex. 6.2). The report reviewed at the CSE meeting also stated that the child was able to remain engaged in back and forth continuous flow interactions, such as conversations with adults for up to 15 minutes or 20 circles of communication (Id.). His teacher reported that the child was able to maintain those for up to 20 minutes, across all activities throughout the day. (Id). He could also engage in purposeful communication with a preferred peer for similar time periods.
The child was reported to be consistently but was unable to make long chain logical connections within a play sequence. ( Ex. 1. 1, Ex. 6 1,6. 3).
The CSE team discussed the child’s present levels of academic functioning (T. 162). He was functioning for reading and math (Ex. 6. 4). He was a good sight word reader, who skills. Id. . He reportedly read 50 words at the time of the meeting. (Ex. 6. . 4). He also , follow along with songs and answer most questions asked of him Id. He was able to answer “ , but he was not able to “ . Id. He was and . Id.. At the time of the IEP meeting, he demonstrated basic fluency in his ability to follow tempo. Id..
With regard to his math skills, the child had demonstrated an ability to rote count and recognize numbers up to 30. Id. He also demonstrated number correspondence and an ability to match numbers with their corresponding number word and quantities for numbers. Id.
With regard to the child’s ADL’s, he was independent for toileting, however, he needed reminders to use the bathroom (Id. at p. 5; T. 162). He was independent at lunch Id..
During the IEP meeting, the child’s teacher confirmed to the CSE that the information contained in the Interdisciplinary Report of Progress was accurate, and the IEP that was subsequently developed incorporated the information from that Interdisciplinary Report of Progress (see Ex.1 .1-2).
The Interdiscipinary Report of Progress also included progress reports from the child’s OT, SL therapist, and music therapy providers (Ex. 6 .5-9). The report noted that he received OT to address his sensory integration, fine and gross motor skills, body awareness, visual spatial thinking and increase independence in self-care. (Ex. 6. 6). He received SL therapy to address his pragmatic, receptive and expressive language skills. Id. at p.7 He also received music therapy to help the child develop and broaden his functional emotional levels through interactive music-making experiences. ( Ex.6.9). Music therapy was utilized to address the child’s ability to engage in pretend play. Id.
In addition to the substantive discussions regarding the Interdisciplinary Report of Progress, at the CSE meeting, the Parents contributed extensively to the CSE’s discussion of the the child’s present levels of performance, academic achievement, and learning characteristics. (T. 162-63).
As a result of the information received during the meeting, the CSE team recommended that the child participate in a special class with a ratio of six students, one teacher, and one para-professional ( ) at a Specialized/District 75 School, and that he receive related services of occupational therapy, three times a week for individual thirty minute therapy sessions (3x30, ), physical therapy, twice a week for individual thirty minute therapy sessions (2x30, ), and , once a week for individual thirty minute sessions (1x30, 1:1), and twice a week for thirty minute therapy sessions with one other student (2x30, 1:1)(Ex. 1 .8-9; T. 194). The CSE team also recommended that the child receive his special education program on a 12 month basis. ( Ex. 1.9, T. 195). Shortly after the IEP meeting, the IEP was finalized and mailed to the parents. (T. 207 -208, 222).
On May 18, 2012, the Parents signed an enrollment contract and addendum enrolling the child at the Rebecca School . (Ex. J). The Parents also paid a non-refundable deposit of $7,500 on that same date. (Id.).
The CSE issued a final notice of recommendation (“FNR”) on June 6, 2012, that recommended ”) as the recommended placement (Ex. 7). On June 15, 2012, the parents visited P10 with a social worker employed by ( Ex. 8). On June 25, 2012, the father wrote to the CSE, to inform the DOE that the parents were rejecting the recommended placement at P10. (Ex. 9 at p.1). In that letter, the father also notified the DOE that the parents would be re-enrolling the child , and seeking funding for that unilateral placement. (Id.).
P10 provided students in special class program with individualized instruction and support. Ms. for the last 10 years, confirmed that the students in special class program were provided with small group instruction throughout the day. She arranged the classroom compositions based on the student’s IEP, age, goals, and functional levels. In addition, students were assessed and based on those assessments, provided with individualized instruction targeted to address the student’s IEP goals and needs. P10 utilized curriculum designed for students with regulation issues to enable them to prepare for classroom instruction. The students in the 6:1:1 special class were provided with visual aids, cues, reminders, prompts, and individualized assistance throughout the day. The recommended school on site, and a variety of sensory equipment. Ms. Hanson, viewed the child’s IEP and based upon her teaching experience and knowledge of the testified that the child’s IEP could be implemented at P10, and she believed that if it were implemented, the student would be able to obtain educational benefit.
The parents said that P10 was not appropriate because they observed the large cafeteria at P10 to be loud and rowdy. They recalled that there were dividers between the sections of the cafeteria for The crisis management teacher at P10 said that there was no divider in the cafeteria (T.1304-1305) but that the tables between groups of children were separated by a very large area . (Id., T.1331-1332) He also stated that the school had a smaller cafeteria that was used by non-ambulatory students, and that students with sensory issues could be serviced there if their sensory issues prevented them from receiving lunch in the larger cafeteria. (T. 1299)
The parents also were concerned that they could not meet with the various therapists on the day of their visit to P10.They could have made an appointment to speak to them at another time if the child was attending P10. (T. 1326) They expressed further concern about the computer room because they said that it had power tools in it. They were fearful that this created a dangerous situation. The power tools were kept behind cabinets and a sliding door that served as a separation between them and the teaching area. Students have never gained access to that area. ( T. 1308-1309) There was always a teacher present in that classroom while children were present. (T.1311-12) He was never called classroom to intervene in behavioral crises from January to June of 2012 . (T. 1320)
The Parents also asserted that the recommended placement, P10 was inappropriate because it lacked sensory equipment. However, there was sensory equipment in the OT and PT rooms. (T. 1322) The parents also claimed that they did not receive a copy of the IEP despite requesting a copy in writing. Id. They requested it in April 2013. (Ex.C)
On May 20, 2013, an impartial hearing request was filed. ( Ex. A).
CONCLUSIONS OF LAW
Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8). The DOE has the burden of proof in the first instance regarding whether FAPE was provided.
To meet its burden of showing that it offered to provide a student with FAPE, the DOE must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that substantively, the IEP that was developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefit. Rowley, 458 U.S. at 206-07; R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 18990 (2d. Cir. 2012);Cerra, 427 F.3d at 192.The procedural prong considers whether “the state has complied with the procedures set forth in the IDEA," Cerra., 427 F.3d at 192, and the substantive prong considers whether the IEP was "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 206-07. Although school districts are required to comply with all of the procedural requirement imposed by the IDEA, not all procedural errors will render an IEP legally inadequate. M.H. v. New York City Dep’t of Educ., 694 F.3d 167, 245 (2d Cir. 2012); A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir., 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, a hearing officer may only find that a student was not provided a FAPE, when the alleged procedural violations (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of education benefits. Winkelman v. Parma City Sch. Dist., 550 U.S. 515, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3f at 245; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff’d, 293 Fed. App’x 20, 2008 WL 3852180 (2d Cir. Aug. 19, 2008). Here, the DOE provided a FAPE to the child.
Looking at the allegations one at a time, the parents contention that the CSE that met on April 18, 2012 was not duly constituted is without merit. The CSE must include but is not limited to the student’s parents, a special education teacher, a parent member, and a general education if the child has been or will be receiving general education classes. 8 NYCRR §§200.3, 200.4(d)(2). Here the CSE contained all of the required members. Moreover, the parent has failed to identify which member was absent. The fact that the child’s teacher chose to participate in only part of the CSE meeting was her choice to make. Moreover, she contributed in meaningful ways prior to her departure. In addition, there was a second special education teacher present throughout the entire meeting. In addition, the absence of a general education teacher at the CSE meeting was proper since this child was not going to receive general education services of any kind. (Ex. 1.2_) Thus, the CSE was at all times properly constituted.
The parents also complain that they did not receive a copy of the IEP in effect at the beginning of the school year. But the CSE mailed that IEP to the parents before the start of the school year. The IDEA and State Regulations require that a school district have an IEP “in effect” at the beginning of the school year for each child in its jurisdiction with a disability. 8 NYCRR §200.4(e)(1)(ii). The IEP was finalized on or about May 29, 2012 by Dr. Craig Czarnecki. (Ex. `10. 2). The practice of the CSE was that after the IEP was finalized, a physical copy of the IEP is mailed to the parents (T. 207-08). When a student attends a non-public school program, the CSE team would also mail a copy of the IEP to that school, (T. 208). There is no reason to believe that it was not done in the instant case because every IEP created that year was mailed out. (T. 221). Moreover, the parent did not inform he CSE that he had not received the IEP until April 2, 2013, nearly one year after the IEP was created. (Ex. C.1) The parents cannot now complain that they did not receive the IEP when they waited so long to inform the CSE that they did not receive it.
The parents further contend the that CSE failed to rely upon sufficient evaluative data. The CSE relied multiple documentary sources and current information from the child’s teacher and parent when it developed the April 2012 IEP. “When developing an IEP, a CSE is required to ‘review existing evaluation data on the child, including—(i) evaluations and information provided by the parents of the child; (ii) current classroombased, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related service providers.’” M.Z. v. New York City Dept. of Educ., 12 CIV. 4111, 2013 WL 1314992, * 5 (S.D.N.Y. March 21, 2013) (citing 20 U.S.C. § 1414(c)(1)(A). On the basis of that review, and input from the child’s parents, the CSE and other qualified professionals, shall identify what additional data, if any, are needed to determine whether the student has a disability or continues to have a disability, the present levels of academic achievement and related developmental needs of the student, whether the student needs special education or continues to need special education, and whether any additions or modifications to the special education services are needed to enable the student to meet measurable annual goals set out in the IEP. 8 NYCRR §200.5(ii)(a)-(d) . A CSE, such as the one here, may rely upon a wide range of assessment tools such as the Interdisciplinary Report of Progress and well as discussion with the child’s teachers and providers and previous evaluations. . L.K. v. Dep’t of Educ. of NY., 2010 U.S. Dist. Lexis 139638, *4 (E.D.N.Y. Jan 5, 2010).
State regulations require that an IEP report the student's present levels of academic achievement and functional performance, but they do not specify where that information must come from. In the instant matter, the CSE had sufficient information regarding the student's present levels of performance from his teacher and related service providers’ descriptions of the student's current skill levels were thus able to develop an IEP that accurately reflected the student's special education needs. Application of a Student with a Disability, Appeal No. 11-043; Application of the Dep't of Educ., Appeal No. 11-025; Application of the Dep't of Educ., Appeal No. 10-099; Application of the Dep't of Educ., Appeal No. 08-045. The CSE had and relied upon additional information in developing the 2012-2013 IEP. The CSE had recent evaluations and reports including a very comprehensive Interdsciplinary Progress report prepared and provided to the CSE by . The child’s teacher confirmed that it presented an accurate picture of the child in all areas.
Moreover, although the parent also complains that the CSE did not conduct a classroom observation, the CSE was not required to conduct a classroom observation as part of this annual review. Application of a Student with a Disability, Appeal No. 12-068 (noting that “since the May 2010 CSE was conducting the student’s annual review, a classroom observation was not required under state regulation”).
As to the parent’s contention that were denied an opportunity to participate at the IEP meeting in a meaningful way, that too, is unpersuasive. Districts must take steps to ensure that parents are present at their child's IEP meetings and are afforded the opportunity to meaningfully participate in the development of the IEP. 8 NYCRR §200.5(d); Rowley, 458 U.S. 176 (1982) A parent’s rights to have a “significant role in the process simply requires that the CSE [team] consider the parent’s concerns and revise the IEP when appropriate. R.K. ex. rel. R.K. v. N.Y.C. Dept. of Educ., 2011 WL 1131492, at *14 (E.D.N.Y. Jan. 21, 2011); citing Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007).
Here, the parents were given the opportunity to express their beliefs regarding the child’s educational needs and their belief that the Interdisciplinary Report of Progress accurately reflected the child’s educational progress and needs. (Ex. 1 1-2 ; Ex. 3. 2). As reflected in the IEP and the meeting minutes, the parents had the opportunity at the CSE meeting to express their concerns about the child’s ability to recognize other people’s emotions, his issues with regulation, and his ability to ability to express his frustrations. (Ex. 1 1.). During the CSE review meeting, the parent also expressed their concerns about the the student’s ability to consistently of . (Ex. 1 . 1; Ex. 3 . 4). .Those issues were addressed in the development of the goals. However, although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. P.K. v. Bedford, 569 F. Supp. 2d at 383 ("A professional disagreement is not an IDEA violation"); Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) ("Meaningful participation does not require deferral to parent choice") The IDEA guarantees an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The mere fact that the CSE did not recommend a private school placement as the parent’s wished, does not mean that their opinions were not considered.
Contrary to the parent’s contention that the student’s program recommendation was pre-determined, Dr. testified that his practice during IEP meetings was to discuss the services that the IEP team felt might be appropriate to offer to a student, including the services that were within the DOE’s continuum of special education services. (T. 1273). Dr. also testified that the role of the CSE is not to create a specific class ratio that an independent or private school might develop (T. 1281). Rather, Dr. s team discussed minimum staffing ratios and recommended programs that they considered tailored to work with the types of needs that have been described and indicated that the particular child has. (T. 1281, 1286). Dr. further clarified that he and his colleagues always discuss that although the Department of Education has assigned specific staffing ratios to different types of programs, they recommended a program that would be supportive of a student that was manifesting needs in academic skill development, social skill development, communication development, cognitive skill development and so forth. (T. 1281). When a student presented with those or similar needs, Dr. and his colleagues believed that the Department’s program with ratio was appropriate (T. 1281)Dr. testified that during the CSE meetings, he endeavored to communicate was that the class size was kept at six, which was the maximum group size at any given time although it could be smaller. (T.1284).
The parents claim that the IEP goals were insufficient and inappropriate because they failed to address the child’s educational needs, were overbroad, and failed to contain objectively measurable criteria. (Ex. A.). However, as discussed above at length the CSE developed annual goals and objectives that were directly responsive to his academic needs and designed to provide him with educational benefits.
The IDEA requires an IEP to contain a written statement of measureable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in an make progress in the general education curriculum. 8 NYCRR §200.4(d)(2)(iii). Each annual goal must include evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee 8 NYCRR§ 200.4(d)(2)(iii)(b). That the goals failed to include a baseline description of the student’s present abilities does not invalidate them provide they are “measurable” going forward. State regulations do not require a CSE to include a “baseline” functional level in the goals. R.B. v. New York City Dep’t of Educ., 2013 WL 5438605, at *13 (S.D.N.Y. Sept. 27, 2013) The parents also claimed the goals could only be implemented the small class instruction and methodology utilized . But, the evidence shows that the classroom ratios at varied from which did not affect the implementation of the child’s goals there. Furthermore, gave persuasive assurances that the goals as written could be being implemented in a DOE program, and that that ratio would provide an equivalent ratio of support as that which the student was receiving in .
Moreover, the short-term objectives that were referenced in the IEP contained sufficiently detailed information regarding the conditions under which each objective was to be performed, the frequency, duration, and percentage of accuracy required to establish progress and remedied any deficiencies in the annual goals.
Admittedly, the IEP does not contain a physical therapy goal. However, that omission does not rise to the level of a depravation of FAPE because the child’s’s IEP as a whole contains strategies to enable a physical therapist to address the student’s needs.
The evidence supports a conclusion that the proposed public school placement at P10 would have provided the child with meaningful educational benefit in the least restrictive environment. The sufficiency of the district’s proposed program must be determined on the basis of the IEP itself as well as any explanations that might be offered as to how the IEP would be implemented at the proposed placement. R.E., 694 F.3d at 186-88. The Second Circuit has explained that a parent’s “speculation that a school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E., 694 F.3d at 195; seeN.K. v. New York City Dep’t of Educ., 2013 WL 4436528m at *9-*13 (S.D.N.Y. Aug. 13, 2013).
The parents claim that they were not given the opportunity to speak with the related service providers during their tour of P10. However, they could have spoken to them at another it had they chosen accept the placement and make an appointment with them. Moreover, neither the IDEA nor State regulations provide that a parent has the right to speak to them at all.
The parents are not entitled to reimbursement for the 2011educational evaluations they independently obtained.[1] Parents have the right to obtain an independent educational evaluation of their child at their own expense. 34 C.F.R.§ 300.502(a)(1); 34 C.F.R. §300.502(b)(3). However, Federal and State regulations provide in pertinent part that a parent only has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. 8 NYCRR§ 200.5(g).
In this case, the parents request reimbursement for the cost of the independent neurodevelopmental evaluation conducted dated September 19 & September 27, 2011. ( Ex. A . 8). However, there is no evidence to show that the parent disagreed with any of the DOE’s evaluations.2 Moreover, the although the parent said that he provided the 2011 evaluations to the CSE in 2012, no other member of the CSE team recalled that the parent provided the evaluations to the CSE during the April 2012 Interdisciplinary Report of Progress being provided and reviewed during the meeting. However, had no recollection of either parent providing any additional evaluative information during the meeting or mentioning that they had any additional evaluative information for the CSE’s consideration. (T. 429-431). If they had, he would have rescheduled the meeting to obtain copies of the evaluations. Id. Even Social Worker had no recollection of the parent producing during the CSE meeting. ( T. 793). Notes and minutes taken contemporaneously with the discussions that occurred during the April 2012 CSE meeting, (T. 161; Ex. 3, 4). do not refer to evaluations in the meeting. (Ex. 3. 1). Thus, the parent’s request for reimbursement for evaluations which were not shared with the DOE, is denied.
Since the DOE provided the child with a FAPE, it is not necessary to consider whether was an appropriate placement for the child or if the equities tip in the parent’s favor.
It is ordered that:
1) the parent’s request for tuition reimbursement for the 2013-2014 school year at Rebecca School is denied;
2) the parent’s request for reimbursement for the 2011 evaluation is denied. Dated: April 28, 2014
Judith Kramer mv
JUDITH KRAMER, ESQ.
Impartial Hearing Officer JK;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
2 The DOE argues that the issue of reimbursement for the 2011 evaluations cannot be considered because the parents failed to allege their dissatisfaction with prior evaluation. However, the parent does state in general terms on their request that the DOE “failed to perform any appropriate evaluations”. (Ex.A.4) 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
DOE ‘s List
EXHIBIT NO. DESCRIPTION PAGES
1 April 18, 2012 IEP [14]
2 April 18, 2012 IEP Attendance Page 1
3 April 18, 2012 IEP Meeting Minutes 5
4 April 18, 2012 Meeting Scratch Notes 1
5 Goals Utilized at 4/18/12 IEP Meeting 4
6 Initial Interdisciplinary Report of Progress (12/11)
7 June 6, 2012 Final Notice of Recommendation 1 8 Tour Sign-In Sheet (6/15/12) 1 9 June 25, 2012 Rejection Letter from Parents (Recv’d July 2, 2012)
10 Events Log- 4
11 Subpoena 1 (June 28, 2013) 2
12 Subpoena 2 (August 3, 2013) 2
15 Property Appraiser Valuation Undated 3
16 Reports and Evaluations Various Dates 22
Parent’s List
PARENT EXHIBITS
Exhibit DATE NAME OF DOCUMENT # PAGES
A May 20, 2013 Request for a Due Process Impartial Hearing 8
B Withdrawn as duplicate of DOE exhibit
C April 2, 2013 Letter from Student’s Parent to CSE 9 2
D June, 2012 Interdisciplinary Report of Progress Update 15
E December, Interdisciplinary Report of Progress Update 9
2012
F September 19 Evaluation by 10
& 27, 2011
G October 3, Occupational Therapy Evaluation Report & 25
2011 Addendum by
H January 14 & Evaluation by The 13
28, 2013
I January 17, Occupational Therapy Evaluation Report & 23
2013 Addendum by
J July 2, 2012- Enrollment Contract; Proof of Payment; Parent 15
June 21, 2013 2012 Form 1040
K 2012-2013 Schedule at 1
L Summer 2012 Attendance Card for July 2012 to June 2013 2
M June 28, 2013 Signed Subpoena to 2
N June 28, 2013 Signed Subpoena to CSE 9 2
O April 18, District Placement Office Referral Form 1
2012
P undated Class Profiles – response to #4 of Parent 6
Subpoena to – Exhibit M
Q January, Offered but not admitted into evidence: 85
2010;
NYSED Directives & Guide to Quality IEP
December,
Development & Implementation, w/
2010
attachments
R June 30, 2013 Interdisciplinary Report of Progress Update 10
S January 30, Judgment of Divorce 10
2013
T Precluded
Bank records of
U August 7, Receipt for purchase of a car 1
2010
V September 21, Physical therapy Discharge Report 1
2011
Footnotes
[1] Although the parent stated that he provided the CSE with all evaluations, the parent could not have provided the last two evaluations to the CE because they were not completed at the time of the 2012 meeting. Evaluation Report is dated January 17, 2013 ( Ex. I). (T. 862)
[13] Parents’ Subpoena (July 23, 2013) 2
[14] Parent’s Financial Information 14