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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: March 10, 2014
March 27, 2014
Actual Record Closed Date: May 9, 2014
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2014
Educational Advocacy Service — Student
Mother — Student
Interpreter — Student
CSE-3 Social Worker — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 27, 2014
Advocate (Via Telephone) — Student
Parent/Mother — Student
Interpreter — Student
Principal of (Via Telephone) — Student
Teacher at (Via Telephone) — Student
District Representative — DOE
School Psychologist (Via Telephone) — DOE
Ms. , the mother of requested an impartial hearing on December 6, 2013 for the purpose of seeking funding for her unilateral for Special Students (“ ”) for the 2013/2014 school year.[1] I was designated to hear this matter on January 8, 2014 after the prior hearing officer recused. A hearing on the merits was held on March 10 and March 27, 2014. The compliance date was extended on three occasions, due to the unavailability of witnesses, and extensive testimony. The final compliance date is May 20, 2014. (IHO Ex. II, III, IV).
old student with a classification of . His classification is not in dispute. (Par. Ex. A). This is his second year in attendance . (Tr. p. 127).
As part of an initial evaluation, Evaluation was performed on August 15, 2011. performed overall in the borderline range of cognitive functioning. His math skills were at a 2.9 grade equivalent for math reasoning and a grade equivalent for math computation. His word reading skills were at a grade equivalent. His reading comprehension was at a grade equivalent of 2.6 On February 1, 2013, , a Therapist, reported that ”) three times per week for thirty minute sessions She reported difficulty , . She recommended times per week for 30 minute sessions and noted that his focus had improved. (DOE Ex. 7).
In a report dated February 13, 2013, reported skills . She recommended goals to improve and ; and continuation of twice per week. (DOE Ex. 6).
In a social history update dated February 5, 2013, ’s mother reported that she intends to keep him She reported that he is mainstreamed for science, social studies, gym and religion and only receives special education services for math and reading and that she has made progress. (DOE Ex. 4).
A classroom observation was performed on February 7, 2013. It was reported that is in a special education class with a staffing ratio . It was observed that asked for assistance with math and received it. ’s teacher reported that he is mainstreamed for science and two other classes. He was reported to , to be and to require a highly structured environment to focus. (DOE Ex. 5).
According to minutes received in evidence, an IEP meeting was held on May 6, 2013, resulting in a recommendation to place in a class with a staffing ratio with related services of OT once per week individually and once in a group and SLT two times per week individually and once in a group. (Tr. pp. 11-12; DOE Ex. 1, 3).[2]
The IEP team included the parent, , who acted as school psychologist and District Representative, , a special education teacher, Therapist, , the principal , and an . According to the minutes of the review, a parent member was declined. The team reviewed the and reports from ’s teacher providers. (DOE Ex. 3, 7; Tr. p. 48).
The IEP reports that is in the seventh grade; but performing at level for math and a 5th grade level for reading. (DOE Ex. 1, pp. 1, 10). 3 It was noted that he has difficulty with receptive and expressive language, auditory processing, following directions and completing classroom assignments. It was further reported that he has difficulty with transitions, and with focusing; and that he has made progress in math and reading. It was noted that his natural curiosity benefits him in science and social studies; and that he will be auditing some mainstream science classes. Socially, it was reported that he can be class time; but during unstructured times he a classroom. It was reported that he has difficulty with handwriting, organization, fine motor and visual skills, as well as underlying sensory processing deficits. (Id. at 1-2). According to the minutes of the meeting, goals were reviewed and drafted and the entire IEP was reviewed with ’s mother. (DOE Ex. 3).
The following management needs were identified in ’s IEP: repetition, refocusing cues, checklists, graphic organizers discipline code. No FBA or BIP was developed. The IEP includes the following goals to be measured by a speech language pathologist: restating events of five grade appropriate stories or passages read to him, in sequential order, with ; following 1-2 step instructions; utilizing contextual cues with new content relevant vocabulary; producing a response to literature which makes connections between characters and themes, expressing his own ideas with supporting details and proper punctuation and spelling. It also includes the following additional goals to be measured by “Provider observation”: improve graphomotor functioning by coping a paragraph with proper letter formation, spacing sizing of letters and words; improve focusing and attending by participating in a 20 minute table top activity after deep pressure or movement activities; demonstrate improved organization skill by maintaining an organized desk and book bag; improve visual motor skills by completing an age appropriate maze and copying an age appropriate peg design pattern. There are no goals for math, reading or writing. (DOE Ex. 1, pp. 5-6).
Ms. , a New York State certified school psychologist and school district administrator, testified that she participated in the May 6, 2013 IEP meeting as school psychologist and district representative. (Tr. pp. 9-13). She testified that the CSE recommended a class with staffing ratio, in a community school, to address the student’s significant She testified that the parent was given an opportunity to participate in the meeting; and that the goals were developed in collaboration with the student’s teachers and providers. (Tr. pp. 15-16). She stated that would be available at the recommended school. (Tr. p. 64).
3 Ms. testified that the levels of academic achievement were provided , who was reading from information provided by the teacher. (Tr. p. 51).
The CSE did not feel an FBA was warranted. (Tr. p. 16). She did not recall any disagreement from the parent or school with the recommended related services of (Tr. p. 18). She testified that given the fact that was only delayed by two years academically, it was felt that a special class in a community school would provide an appropriate functional grouping; and the opportunity for a high school diploma; and that his behavioral issues could be addressed by the second adult in the room. (Tr. pp. 19-20). She testified that in his current program, his behavior was being addressed through redirection, repetition, focusing, prompts and graphic organizers. She did not recall whether he was being mainstreamed for any subjects. (Tr. p. 28). The CSE did not discuss mainstreaming for . She testified that mainstreaming opportunities exist in the community school. (Tr. pp. 30-31).[4] She testified that the IEP was finalized and forwarded to the parent, a week or two after the meeting. (Tr. p. 61).
Following the meeting, on June 17, 2013 the DOE issued a Final Notice of Recommendation, recommending a 12:1:1 program at 28Q190. (DOE Ex. 2).
Ms. , ’s mother, testified that she participated in the CSE review. She did not agree with the recommended 12:1:1 staffing ratio which she felt was too large, given ’s difficulty with focus and concentration. (Tr. p. 128). She testified that she went to visit the recommended site with (from . She felt that the class was too large and noted that not all of the students were participating in the lesson. (Tr. pp. 129-130).
On August 12, 2013, the parent sent the CSE a letter stating that she disagreed with the CSE’s recommendation and that if an appropriate placement is not found, she will re-enroll at and seek funding. (Par. Ex. E).
On October 10, 2013, the parent returned the final notice of recommendation, with notations that she visited the recommended placement but did not find it appropriate ; and that will be and she will seek tuition. (DOE Ex. 2).
On August 28, 2013, the parent signed a contract for to attend YESS for the 2013-2014 school year, with a tuition of $32,000. 5 As of February 18, 2014, the parent paid a total of $2,000 to cover the Hebrew party of the day. (Par. Ex. H).The parent’s adjusted gross income for 2012 was $13,233. (Par. Ex. K).
, the principal , testified that he is a certified special education teacher. (Tr. p. 67). is a self-contained special education school serving thirty students in grades kindergarten through with learning disabilities and attentional issues. The school rents space from a mainstream , which provides mainstreaming opportunities for all subjects. (Tr. pp. 68-70).
He testified that the school employs eight certified special education teachers as well as ten teacher’s aides who are in college or have degrees in related fields. The school employs speech and language therapists and occupational therapists, as consultants. (Tr. pp. 70, 95-96).
During the current school year, is an eighth grade His teacher is Miss (Tr. p. 72). At the beginning of the current school year, he was functioning on a sixth grade level in math; and between grade level for reading. He testified that was and had difficulty with organization. He would as “nothing out of the ordinary”. (Tr. pp. 74-75). He testified that ’s lack of are the main issues his potential. (Tr. p 76). He testified that he is currently in a class of six students, where he is constantly redirected and kept on task; and that he would a larger class. (Tr. p. 76).
’s school day goes from 8:00 AM to 4:30 PM on Monday through Thursday; and until 1:30 PM on Fridays, for a total of 39.[5] hours (2,370 minutes). His morning schedule includes prayers ten minutes each day (50 minutes each week), Talmud (380 minutes, or 6 hours and twenty minutes each week), Bible (85 minutes each week) and Prophets (eighty-five minutes each week), which are all religious subjects for which the parents are not seeking funding. (Tr. pp. 78-79; Par. Ex. F).6 ’s afternoon program includes OT twice per week, as well as Language Arts, Math, Social Studies, Gym, and Science.[7] for the 2013-2014 school year, and received related services at program. (Tr. pp. 88-89).
testified that ’s teacher was not available on the date scheduled for the CSE review; so he participated in her place and got all of the information that was important. The speech therapist and occupational therapists were able to participate. (Tr. p. 82). He testified that the school described the reward system in place in ’s class. (Tr. p. 83). This plan was not individualized for . (Tr. p. 84). He testified that some goals were mentioned, but not many were discussed. He testified that he clearly stated that the class would be too large for in light of . (Tr. p. 85). He testified that in midSeptember, he went with ’s mother to view the proposed site, and they concluded it would be inappropriate for because at least one of the children exhibited acting-out behaviors; and because there were children who were not functioning on ’s level. (Tr. p. 88)
Reviewing specific IEP goals, he testified that the goal of restating events if five grade appropriate stories or passages read to him, in sequential order, with age appropriate syntax and vocabulary could not be achieved in the recommended site; and the students were not anywhere near that level. Nor did he believe that would be able to improve his focusing and attending skills in the recommended class size. (Tr. p. 90). Finally, he noted that all of the recommended goals were for related services providers; and not for a classroom teacher. (Tr. p. 91).
testified that during the current school year, is demonstrating progress in remaining focused; in correcting his work; in summarizing a passage, and in using testified that Hebrew Language and Jewish Culture, which are also taught in the morning, are not religious in nature. (Tr. p. 79). also twice per week. graphic organizers to say on topic. In math, he is moving through the seventh grade and some eighth grade units. (Tr. p. 92).
, ’s classroom teacher, testified that she is state certified in general and special education. (Tr. p. 107). is one of six students in the class, which consists of students in grades six through eight; aged 11 to 13. In addition to Ms. there is a classroom assistant and a health paraprofessional for one student with mobility problems. (Tr. pp. 108-109). When began the school year, he functioned on a seventh grade level in math, in reading and a level in writing. (Tr. p. 109). He comprehension, syntax, punctuation and grammar. He was given short reading comprehension assignments to build up his skills in summarizing. He has also read novels; and has been given homework assignments in which he has to answer a question about a chapter. (Tr. p. 111). has been instructed in the writing process including brainstorming, prewriting, editing and eventually publishing, through the use of graphic organizers and other materials provided by the teacher. (Tr. p. 114). The school has created six annual goals for English Language Arts, including reading at least three novels and answering direct questions; summarizing, writing essays and building vocabulary. (Par. Ex. G-3).
In math, has reviewed concepts of place value and fractions. (Tr. pp. 112-113). The school has created four annual math goals for including computing exponents, applying order of operations; learning the beginning of algebra and multiplying and dividing decimals with both positive and negative numbers. (Par. Ex. G-2).
’s impulsive behavior interferes with academic instruction, and is managed through the use of a behavior plan, consisting of a sheet to be checked off each period, indicating if the student has completed his work without interrupting. Once the sheet is filled out, the student can receive reward, including a free homework, extra recess or a snack. (Tr. pp. 116-117). She testified that the DOE’s IEP could not be implemented in his current classroom, as there are no classroom goals. In contrast, has its own set of academic goals for . (Tr. p. 124; Par. Ex. G).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER.
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. Special education and related services must be provided in the least restrictive setting consistent with the child’s needs. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998).
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510
US. (1993).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs and provides for the use of appropriate special education services. Application of a Student with a Disability, Appeal No. 11-162 (citations omitted). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997). The school district must also implement the IEP, which includes offering placement in a school that can fulfill the requirements set forth in the IEP. D.C. ex rel, E.B., v. New York City Department of Education, 61 IDELR 25 (U.S.D.C., S.D.N.Y. 2013); See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
Appropriateness of IEP
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education. (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f)(3)(e)(ii).
I agree with the parents that the IEP team was not duly constituted, as it did not include a general education teacher. This is significant as was participating in the mainstream, to some extent, in his private school; and the CSE should have considered to what extent participation in the general education environment was appropriate for him.
8 NYCRR 200.3[a][1][ii]; Application for review of a determination of a hearing officer, Appeal No. 11-025. I also find that the goals in the disputed IEP were inadequate, and that this deficiency rose to the level of a denial of FAPE. See M.H. v. New York City Department of Education, 685 F. 3d. 217, 249 (2d Cir. 2012). The IEP includes goals for only. While the goals do address ’s language needs, and his difficulty with focus and organization, both of which are significant; they do not address his delays in reading, math and writing. At the time of the CSE review, was functioning one year below grade level in math and two years below grade
I do not find that ’s as to require an FBA or a BIP. His teacher testified that his behavior was managed through a classroom wide system of rewards .
The DOE failed to present any evidence that the recommended program could be implemented at the recommended site, as required by D.C. ex re. E.B. v. New York City Dept. of Educ, supra; See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, supra. Furthermore, the DOE failed to prove that would be appropriately grouped at the recommended site, as required by 8 NYCRR 200.6(a)(3)(i).
For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations. Appropriateness of Parental Placement
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).
I find that the parents demonstrated that the program is an appropriate educational program designed to meet ’s unique needs. is educated in a small class, with a licensed special education teacher and a classroom assistant (and one other paraprofessional assigned to an individual student). His program includes related services of SLT and OT.
’s are managed through a system of positive rewards. The school has created appropriate academic goals for him in Math and English Language Arts and he has progressed through specialized instruction which includes summarizing short passages; graphic organizers and brainstorming. In math, he has progressed by at least one year. He has also improved in his ability to focus and organize his work. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parent has cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
The parent is not seeking reimbursement for the religious portion (which I find to be twenty-seven percent of the school day) of ’s tuition. I also find that the charge of $360.00 for the dinner journal, which is a fund-raising event, is not properly considered part of the tuition. Therefore, I find that the reasonable charge for ’s special education program is seventy-three percent of $31,640, or $23,097.00.
The record indicates that the parent participated in the CSE review, went to view the proposed site and provided ten day notice of her intention to place at seek funding.
The parent demonstrated that she is unable to pay the balance of the tuition owed at and seek reimbursement. The parent is not entitled to reimbursement of the $2,000 which she has paid thus far, as this amount was credited to the religious portion of the tuition ($8,543) which is in excess of the $2,000.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall directly fund ’s tuition at for 2013-2014 school year, to the extent indicated in this decision, by paying $23,097.00 directly to the school. Dated: May 13, 2014
Dora M. Lassinger, Esq. gc
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
DML:gc
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
A Impartial Hearing Request, 12/6/13, 5 pages B Program Description, Undated, 6 pages C IEP, 5/6/13, 10 pages D Final Notice of Recommendation, 6/17/13, 2 pages E Ten Day Notice, 8/12/13, 2 pages F Class Schedule 2012-2013, 2 pages G Annual Student Report, 10/14/13, 4 pages H Affidavit of Payments, 2/18/14, 1 page I Proof of Payments, 2013-2014, 1 page
DEPARTMENT OF EDUCATION
1 IEP dated 5/6/2013, 13 pages 2 Final Notice of Recommendation, 6/17/2013, 1 page 3 CSE Minutes, 5/6/2013, 2 pages 4 Social History, 2/5/2013, 2 pages 5 Classroom Observation, 2/7/2013, 2 pages 6 Occupational Therapy Annual Review Plan, 2 pages 7 Progress Report, 2/12/2013, 1 page 8 Evaluation dated 8/15/2011, 4 pages J Enrollment Contract 8/28/13, 2 pages K Tax Return 2012, 2 pages L Attendance Record 2013-2014, 1 page
IMPARTIAL HEARING OFFICER
I Prehearing Conference Summary 1/9/14, 1 page II Case Follow-Up Sheet 1/8/14, 1 page III Case Follow-Up Sheet 3/10/14, 1 page IV Case Follow-Up Sheet 3/27/14, 1 page
Footnotes
[1] In her complaint, the parent alleged, among other things, that (1) the IEP is deficient because the CSE review team was not duly constituted and the team did not provide the parent with an opportunity to meaningfully participate in the IEP process; (2) because the IEP goals were insufficient; (3) because the CSE failed to develop a Functional Behavioral Assessment (“FBA”) and a Behavioral Intervention Plan (“BIP”); and (4) that the recommended class did not provide an appropriate functional grouping socially and emotionally, and the IEP could not be implemented at the recommended site . (Par. Ex. A). The Department of Education’s (“DOE”) position is that it a Free Appropriate Public Education (“FAPE”) through an IEP which is procedurally and substantively sound. (Tr. p. 5). The DOE did not present any evidence regarding IEP would be implemented at the recommended site. (Tr. p. 6).
[2] While the IEP attendance page indicates that the date of the IEP is March 18, 2013, this is in error, as the IEP meeting was rescheduled for May 6, 2013. While the minutes of the IEP meeting reflect the recommendations for related services of OT and SLT; and the IEP includes goals for ; the actual IEP does not include recommendations for related services. Nor are the related services reflected in the final notice of recommendation. (DOE Ex. 1, 2). This omission was not challenged in the due process complaint. (Par. Ex. A).
[4] She testified that it was her understanding that was visiting a science class; and was not mainstreamed in that class. (Tr. pp. 30-31). This is consistent with the notation in the IEP that will be “auditing” a mainstream science class. (DOE Ex. 1).
[5] The tuition includes a charge of $360 for a dinner journal which is a fundraising and public relations event. (Tr. p. 102). ’s related services are funded through the DOE, and are not included as part of his tuition. (Tr. p. 93).
[7] On Mondays through Thursdays, ten minutes are devoted to afternoon prayers for a total of forty minutes (Par. Ex. F, 2). I have calculated that Prayer, Talmud, Bible and Prophets, for which the parents are not seeking funding comprise 27% of ’s time in school. (Tr. p. 99).