NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 9, 2014
February 6, 2014
March 3, 2014
Actual Record Closed Date: March 28, 2014
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2014
For the Student:
NONE
For the Department of Education: JOSEPH MONTANO, CSE 3, District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2014
Educational Advocacy Services — Student
Parent/Mother — Student
RACHEL DUNN, ESQ., Attorney, — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 3, 2014
Advocate — Student
Assistant Director, School — Parents
School — Parents
RACHEL DUNN, ESQ., Attorney, — DOE
INTRODUCTION
On November 27, 2013 I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).
A hearing was conducted and appearances made by the parties as indicated herein.
Appended to the record are lists of persons in attendance and the documents received in evidence.
Pre hearing conference was conducted on January 09, 2014 and hearing date was scheduled.
On February 06, 2014 both parties joined in a motion to extend the compliance date by 30 days to allow for availability of witnesses. Motion was granted and compliance date was extended to March 12, 2014. (T 79-81)
On March 03, 2014 both parties joined in a motion to extend the compliance date by 30 days to allow time to receive and review the transcript and submit closing statements. Motion was granted and compliance date was extended to April 11, 2014. (T 147-148)
This matter was instituted by the impartial hearing request dated November 27, 2013 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 20132014 school year. (Ex A 1)
Relief sought includes 2013-2014 school year, a declaratory finding that the student’s right to a FAPE was violated, and transportation. (Ex A 3)
BACKGROUND
Student is currently years old. Most recent IEP, of April 15, 2013, includes a classification of evaluation of March 30, 2012 indicating an placing him in the Counseling, individual, once weekly for a 30 minute session;
THE PARENT’S POSITION
presented the parent’s position.
attorney, submitted a Post Closing Statement presenting the parent’s arguments. (Ex V)
PARENT WITNESS
reviewed her educational and professional background and testified as Assistant Director of. duties include supervising teachers, curriculum, teaching, and behavioral situations. (T 87-88)
“program is a small special education program within the , and we have small classes, and our curriculum is highly individualized; and if we deem it, if it's appropriate, we will mainstream children in certain subjects within the” (T 88)
elementary school, in, has 28-30 students and 13-14 teachers. (T 89 & 97)
School employs a technology consultant and related services providers for speech, OT and counseling. (T 90)
has professional development opportunities for staff. (T 90)
Student attends for the 2013-2014 school year. (T 91)
describes the student as liked
has observed the student this school year. Student works better in a small environment. Student challenges include comprehension, perspective taking, making generalizations, and abstract thinking. (T 93-94)
Classroom has a class wide behavior intervention or modification plan. (T 94)
Student is mainstreamed only for lunch. (T 94)
Student progress is measured via comprehensive student plans that are objectives, IEPS, a rubric, that is updated three times a year, and standardized testin g in reading and math. These are used to develop the student’s curriculum. (T 94)
drafts an IEP at the beginning of the school year, which is shared with the student‘s local CSE. (T 99)
Student progress is noted in that the student is beginning to has contact with the parents and there are parent teacher conferences. (T 95 96)
believes the program offers appropriate education to the student. (T 96)
PARENT WITNESS
() reviewed her educational and professional background and testified as the student’s education teacher at . (T 103)
Student’s class has four other student, 11 to 12.5 years of age, and two other adults in the classroom. (T 103-104 & 122)
is a ten month program. (T 125)
For reading and math students are broken up into small groups to address. (T 104-105)
Reading and math levels in the class range from. (T 124)
Student social emotional functioning varies. At times students are taught in a group to teach them to (T 106)
At the beginning of the year the student’s reading strength
A classroom behavior modification system is used. It is important to teach children how to conduct themselves appropriately. Student needs the plan (T 109110) plan is used throughout the day for the student because he (T 110) provided testimony regarding the student schedule. Activities in the schedule include, (T 111-114, Ex F)
Friday Activities are student reward activities. (T 121, Ex F)
Issues impacting the student in the classroom include that he is (T 114-115)
is important for the student. He needs (T 115)
are taught, by in a group. “It's a challenge for him, so I have; and I continue to do redirection and I have another teacher with me when I teach that group lesson.” (T 115-116)
Student progress is noted in that: “” (T 117)
Student requires a. . (T 117-118)
Classes that are. (T 118-120)
. (T 121)
PARENT WITNESS
(), the student’s mother, first became her child was not developing properly. (T 127)
Student first began. (T 127)
When the student turned (T 128)
participated in the 04/15/2013 via phone. (T 128)
(T 129)
was the student’s teacher for the 2012-2013 school year. (T 129)
At the time of the IEP meeting a. “” (T 130)
(T 130-131)
(T 131)
(T 131)
(T 134-135, Ex D)
(T 142)
Student attended for the 2013-2014 school year. (T 135)
communicate with the teacher every day. (T 136)
believes knows her child’s needs and wants and work with him to move on academically and socially, and individualizes her teaching methods to those needs. (T 136)
(T 136-137)
(T 137) (T 137-138)
(T 138, Ex I)
Student has never attended a public school. (T 140)
. (T 142, Ex E)
states that the IEP meeting the student’s behaviors were discussed. “” (T 144145)
(T 145)
DEPARTMENT OF EDUCATION POSITION
Rachel Dunn (RD) District Representative, presented the DOE position.
RD contends evidence will show the DOE offered the student a FAPE for the 2013-2014 school year, the parent‘s placement is inappropriate and equities favor the
DOE. (T 21-23)
DOE submitted a written closing statement which was considered in rendering this decision. (Ex IV)
DOE WITNESS CATHERINE FERRER
Catherine Ferrer (CF) reviewed her educational and professional background and testified as a DOE school. (T 27-28)
CF conducted the student’s triennial and participated in the 04/15/2013 IEP meeting. (T 28)
CF identified the evaluation she conducted. (T 29, Ex 4)
Student was able to participate in conversation. There were behaviors related to his (T 31) (T 32, Ex 4-4) (T 33, Ex 4-4)
(T 34, Ex 4-3) (T 63)
(T 63)
(T 36, Ex C)
Student attended . (T 36-37 & 44)
Student teacher discussed her report at the meeting. This included student performance, estimated grade levels in different academic areas, student strengths and how the student was doing socially in the classroom. Teacher provided information that the student was a. (T 48-50)
CF identified the attendees of the IEP meeting. (T 38, Ex C 11)
Meeting was an annual review and a parent member is not mandated. (T 39)
IEP present levels of performance were taken from school reports and what was discussed at the meeting. (T 42, Ex C 1)
Information contained in the present levels of performance and (T 50-51)
Information from the (T 51, Ex C 1)
Management needs were developed from the teacher, and included a lot of (T 52, 68 & 71, Ex C 2)
Teacher did not describe any student classroom behavior. (T 52)
(T 54)
Academic goals are developed with the classroom teacher. (T 54-55)
Frequency and duration were taken ]from provider reports. Providers were not at the meeting, but the team had reports. All goals were discussed at the meeting. (T 55, 58 & 64-65)
All goals were discussed at the meeting and no one objected to the goals. (T 55)
“…we go through each goal…we developed it with the…teacher and the school, and then we asked the parent did they have anything to add, is there anything that they don’t agree with, or if there is anything that they feel their child should be working on, and in this case, we did the same thing…no one had anything to say about any changes to the goals.” (T 56)
(T 57)
(T 59)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and
(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; 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, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (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 educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; 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).
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). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
The parent bears the burden of proof concerning the appropriateness of their unilateral placement.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 36465). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They 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.
(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-
65).
Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373
F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167
F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided
While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).
DOE IEP and PROPOSED PLACEMENT for the 2013-2014 SCHOOL YEAR
DOE witness testified as to the IEP meeting and IEP created as a result of the meeting. (Ex C)
CF attended the IEP meeting as a DOE school. (T 28)
CF reviewed the (T 32, Ex 4-4)
CF included one score from her evaluation on the IEP, an IQ score of 81. (Ex C-1 & 4-1)
Information in the evaluation that was not included in the IEP includes:
CF makes reference to reports were However, there are no current reports entered into evidence from any provider. (T 36-37 & 44)
(T 52, 68 & 71, Ex C 2)
CF contends were discussed at the meeting. There could not have been any meaningful discussion about such a plan without discussing (T 54)
Parent testified as to discussed at the meeting, which was not included in the IEP.
testimony continued to point to the importance of a for the student. Testimony included that a classroom is used as it is important to teach children how to conduct themselves appropriately. Student needs the plan to enhance his The is used throughout the day for the student because he is (T 109-110)
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M., 583 F. Supp. 2d at 510; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; M.W., 2013 WL 3868594, at *5; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K., 569 F. Supp. 2d at 380; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]).
Information included in the IEP, CF contends academic goals are developed with the classroom teacher and related service goals were provided by the providers. Frequency and duration were taken from provider reports. Providers were not at the meeting, but the team had reports. All goals were discussed at the meeting. (T 54 55, 58 & 64-65)
CF’s representations regarding the is not credible. No such reports were evidenced at hearing from any provider.
(Ex C 3)
IEP contains information in the area of academic achievement that states the student is working on. No goal appears related to this skill. (Ex C 1)
IEP contains information relating to writing that is (Ex C 1)
CF contends that the recommendation of a (T 57)
I find the IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.
I find that the IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.
Therefore, I find the DOE failed to offer the student a FAPE for the 2013-2014 school year. PLACEMENT for the 2013-2014 SCHOOL YEAR
Though the IEP recommends a twelve month school year, no evidence is presented as to why an extended school year is appropriate. Nothing in the hearing record that establishes that the student would or did demonstrate substantial regression without being provided with a 12-month program (8 NYCRR 200.1[aaa], 200.6[k]). is a ten month program. Parent put in place some service for the student throughout the summer. Parent testified that the student was placed in a summer camp, where he did well. (T 110 & 145)
described as “a small program within the, and we have small classes, and our curriculum is highly individualized; and if we deem it, if it's appropriate, we will mainstream children in certain subjects within the” (T 88)
Characteristics of the school include a technology consultant and related services providers for (T 90)
Testimony sets forth student challenges that include: (T 114-115)
Small class size is important for the student. (T 115)
Student support includes a small class of (T 103), a class (T 94), and two other adults in the classroom. (T 122)
Student is support in with small groups to address. . (T 104-105 & 118)
(Ex 4-4)(T 124)
drafts an IEP at the beginning of the school year, which is shared with the student‘s local CSE. (T 99)
Student progress is noted in that: “.” (T 117)
Classes that are. (T 118-120)
provides. (T 121) believes CL knows her child’s needs and wants and work with him to move on. (T 136)
provides a, for the subject student. (Ex G)
This plan serves as the student’s IEP and details goals in areas of I find the educational instruction at is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.
For the 2013-2014 school year I find offered an educational program which met the
TRANSPORTATION
Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a caseby-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
Parent seeks door to door special education transportation. (A 3)
No opposition was presented to the IEP inclusion of transportation services which include special education transportation via a mini bus and door to door service. (Ex C 8)
I find the student is entitled to transportation services as indicated above.
EQUITABLE CONSIDERATIONS
I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, participated in requested evaluation and communicated her concerns to the DOE.
There is a portion to the school day. Classes that are (T 118-120) I note schedule also includes (Ex F)
participated in the 04/15/2013 IEP, via phone. (T 128) made her disagreement with the DOE recommendation known at the IEP meeting. (T 130-131)
went to observe a class and had her concerns detailed on the, which was sent back to the CSE. (T 131, 134-135 & 142, Ex D)
Parents have a contract with and are paying tuition for the 2013-2014 school year. (T 137-138, Ex I & K)
Parent sent a ten day notice due to her disagreement with the IEP. (T 142, Ex E)
Total tuition for the 2013-2014 school year at is.
ORDER
1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student for the 2013-2014 school year.
2. DOE shall reimburse parent for payment made to for 2013-2014 school year tuition in the amount of. Tuition shall be reimbursed upon proof of student attendance and payment by parent to .
3. DOE shall provide door to door special education transportation of the student to and from for the 2013-2014 school year.
4. DOE shall provide parent and with any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.
5. This decision is subject to appeal and review by the State Review Officer. Dated: April 11, 2014
Daniel Ajello mv
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
ENTERED 02/06/2014
A 11/27/13 Impartial Hearing Request, five pages B 2013-2014, one page C 4/15/13 pages D 6/11/13 Final Notice of Recommendation, two pages E 6/16/13, , two pages F ’13-’14 Class Schedule, one page G ’13-’14, 23 pages H 8/23/13, , one page I 12/31/13, one page J ’13-’14 Attendance Record, one page K ’13-’14, three pages
DEPARTMENT OF EDUCATION
ENTERED 02/06/2014
1 12/4/13 Due Process Response, 3 pages 2 Omitted 3 Omitted 4 March 30, 2012, three pages 5 May 17, 2013, one page 6 5/23/13, , one page 7 June 11, 2013, , one page
IMPARTIAL HEARING OFFICER
ENTERED 02/06/2014
I IHO Email to Parties, dated 11/23/13 3 pages II DOE’s Notice of Appearance by, dated 12/27/13, one page
ENTERED 03/03/2014
III Grant of Extension of Timeline, dated 2/6/14, 3 pages
ENTERED 03/28/2014
IV DOE Closing Statement, dated 03/28/2014, 12 pages V Parent Post Hearing Closing Statement, dated 03/28/2014, 13 pages