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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: October 15, 2014
October 28, 2014
November 6, 2014
November 7, 2014
November 14, 2014
November 19, 2014
Actual Record Closed Date: January 14, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 15, 2014
Attorney — Student
Attorney — Student
Parent/Mother — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2014
ESQ., Attorney, — Student
Parent/Mother — Student
ESQ., Attorney, — DOE
ESQ., Attorney, — DOE
School Psychologist, Committee on — DOE
Special Education Region - (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 6,
2014
Attorney — Student
Parents
Program Director at — Student
Assistant Principal (Via Telephone) — Student at (Via Telephone) — Student
DOE Attorney — DOE
DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2014
ESQ., Attorney, — Student
Parent/Mother — Student
Transition Director, (Via Telephone) — Student
DR. (Via Telephone) — Student
Head Teacher, (Via Telephone) — Student
(Via Telephone) — Student
ESQ. Attorney — DOE
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14,
2014
Parents
Attorney — Student
Assistant Principal (Via Telephone) — Student
Attorney — DOE
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19,
2014
Attorney — Student
Parents
Assistant Principal (Via Telephone) — Student
DOE Attorney — DOE
DOE Attorney — DOE
Site Coordinator (Via Telephone) — DOE
The parents of , filed an amended request for an impartial hearing on August 13, 2014, challenging ’s educational program for the 2012-2013, 2013- 2014 and 2014-2015 school years and requesting tuition reimbursement for the parents’ unilateral placement at the for the years, as well as compensatory relief. (DOE Ex. 17 )[1] I was designated to hear this matter on July 22, 2014, pursuant to 20 U.S.C. Section 1415(f)(1).
An impartial hearing was held on October 15, 28, November 6, 7, 14, and 19, 2014. The compliance date was extended on four occasions, due to the extensive testimony and issues. The final compliance date is January 28, 2015. (IHO Ex. IX, XI,
XII, XVI).
Issues for Hearing
In their amended complaint, the parents alleged 148 procedural and substantive deficits and violations. (DOE Ex. 17). In their closing brief, they argue fourteen “core claims”, including inadequate notice of IEP meetings; that the Individualized Education Program (IEP) teams were improperly constituted, as they failed to include a general education teacher (see Amended Complaint, Par. 5) failure to give compliant Prior Written Notice; that the recommended program failed to provide adequate teaching support and was unduly restrictive; that the DOE engaged impermissible predetermination and prevented parental participation; that the recommended program and placements failed to adequately address the student’s needs; that the evaluations and assignments (including the ) were inadequate; that the IEP did not provide a plan or adequate IEP goals and objectives; and that the recommended site would be inappropriate because its primarily
- based classrooms would be inappropriate, and because would not be . (IHO Ex. XV). In the complaint, the parents challenged the DOE’s failure to offer , and its recommendation for a program that used a -based program (DOE Ex. 17, paragraphs 14 and 30). At the hearing, the parents challenged the specific recommended sites, because, among other things, they employed methodologies geared toward students.
The Department of Education (“DOE”) argued that a general education teacher was not a required member because general education was not being considered at the IEP meetings; that the DOE’s failure to conduct a vocational assessment with the student did not constitute a denial of Free and Appropriate Public Education (FAPE), where an assessment was conducted with the parent and the transition plan was sufficient; that it was not required to defend a specific classroom where the parent rejected the IEP before classroom arrangements were even made; and that Committee on Special Education (CSE) was not required to recommend a specific teaching methodology in the IEP. (IHO
Ex. XV).
Evidence at Hearing
is an year old man with a classification of . (DOE Ex. 2).
His classification is not in dispute. (Tr. p. 80).[2] He has attended the since the . He attended and at the . (Tr. p.
776).
2013-2014 School Year
In December 2012 and January 2013, Dr. a , performed an independent psychoeducational evaluation including an observation of
.[3] He wrote that continues to demonstrate with , , and . He wrote that he had benefited greatly from his placement at the . He recommended that remain enrolled in a program with a , with other students on the , . He wrote that requires support by individuals experienced with techniques emphasizing and
, and that he
also benefits from .
He wrote that needs for his , and
; and for to be skills and
. (DOE Ex. 5).
Dr. testified that the three main methodologies used in teaching students[4] with are (“ ”), and the method. Which method is effective depends upon the individual child. (Tr. p. 463). He testified that at the time of the 2012-2013 evaluation , . (Tr. p. 469). On the , ,
, ’s skills appears were . He achieved a
level in ; but his performance dropped to level when required to . His skills were at a level. His was at a level. His ability to was at level. (DOE Ex. 5, p. 6). He testified that has the . (Tr. p. 479).
He testified that the method, which and with ’s needs; and , as he can . He testified that method is more appropriate for someone who has than . (Tr. pp.
481-482). He testified that should not be placed in a classroom with children who are , or who . (Tr. p. 483).
An updated (“ ”) evaluation was performed on January 15, 2013. was recommended to address ’s weaknesses in his and . (DOE Ex. 6). A / evaluation was performed on January 17, 2013. The evaluator noted that was able to use his skills . He indicated the desire to
. He
. Continuation of
(“ ”) was recommended. (DOE Ex. 7).
The most recent classroom observation performed by the DOE was on December 17, 2008, by , who participated in the May 19, 2013 IEP meeting as a school psychologist. (DOE Ex. 8; Tr. pp. 74, 122). The IEP team included a special education teacher, a parent member, ’s mother and staff from the , including ’s teacher. No general education teacher member was included, as no one was requesting that participate in a general education setting. (Tr. pp. 75-76).
The IEP team reviewed the recent evaluations, as well as a Progress Report from the , dated December 2012, which included a description of ’s progress in . (Tr. pp. 79, 230; DOE Ex. 4). Ms. noted that the I.Q. testing indicated of indicating that had a . She noted that had strengths in and ; which were . (Tr. p. 81). The IEP team determined that his instructional level was at the range. (Tr. pp. 83-84).
Mrs. , ’s mother, participated in the May 9, 2013 IEP meeting.
Although was invited to attend, Mrs. did not bring him; because . (Tr. pp. 712, 753). No vocational assessment was performed of in preparation for either the 2013-2014 IEP meeting. (Tr. pp. 715, 754).
According to the May 9, 2013 IEP, had progressed during the 2012-2013
school year, .
The IEP states that he cannot as he
will . (DOE Ex. 2, pp. 2-3). The May 9, 2013 recites numerous needs including and . (Id. at. 3). The IEP team determined that a (“ ”) was not needed for , as he was not . (Tr. p. 87).
The first six IEP goals, goals for (
and goals for ( a times per day) do not
include . (DOE Ex. 2, pp.5-6, 7). Further into the IEP, additional and goals are set forth. These include very general and unmeasurable goals for improving skills; skills, and improving ; and separate goals for . The second set of and goals include “ and or benchmarks”
“ and or benchmarks”, appear to be goals, and not intermediate steps toward goals. For instance, listed under the goal of improving is the short term objective: “ .” Under the goal of improving skills, the short-term objective is “ ”. For the goal of improving skills, the short-term objective is “ ” For the goal of improving skills, the are: “following ,
” “
”
“
” (Id. at 8-9).
The IEP includes two goals for improving (with detailed short - term objectives); developing skills in the to range (with no short-term objectives), developing skills (with short term objectives related to and (Id. pp. 6-7); The goal is very general and non-measurable: to “ ”. Included under that goal are which appear to be goals in themselves and not intermediate steps: They are:
“
(Id. at 6-7).
The IEP includes an unmeasurable goal of with short term objectives, which appear to be goals in themselves, and not intermediate steps: e.g.
Also included as a short-term objective is the following:
“
” (Id. at 7).
According to Ms. , the transition plan was developed, after considering the parent’s concern that be able to ; ; and . (Tr. p. 99). No formal vocational assessment was performed of or the parent; although Ms. testified that the questions she asked the parent were similar to the questions asked on a formal vocational assessment.
(Tr. p. 100).
The only statement in the IEP regarding the student’s strengths, preferences and interest appears on page 2 of the IEP, as follows:
“
” (DOE Ex. 2, p. 2).
The Measurable Postsecondary Goals set forth in the IEP are as follows:
“Education/Training:
Employment:
.
Independent Living Skills:…
Transition Needs:
.“
The May 9, 2013 IEP includes the following coordinated set of transition activities:
The IEP states that the assigned school will be responsible for these activities.
(DOE Ex.
2, p. 11).
The CSE recommended placement in a in a
( ), with related services of ( times per week for - minutes , times for - minutes); and ( ; and in a group); ( ; and ); and parent counseling, per month for .
programming was recommended. (DOE Ex. 2, p. 9-10).
Ms. testified that recommended program is
, and is designed for . Placement in a was considered but rejected as not providing sufficient support. (Tr. p. 102). ’s school staff felt he should be in a program with a smaller student to teacher ratio. Mrs. expressed concerns that the students in the recommended program (which she had observed in the past) were l than . The IEP did not specify a particular methodology; however Ms. testified that the was the methodology most commonly used in the programs. (Tr. pp. 101-102, 239).
Following the May 9, 2013 IEP meeting, the parent was not provided with Prior Written Notice. (Tr. p. 720).
According to the May 9, 2013 IEP, had progressed during the 2012-2013 school year, in his ; and will ask .
The IEP states that he wants to have . The IEP states that he with problems as he will . (DOE Ex. 2, pp. 2-3).
Mrs. testified that she disagreed with the proposed with a staffing ratio of because she feels he needs a higher teacher instruction ratio, including - to- academic instruction; and because her impressions when she observed the class, was that the other children were than . She voiced her objection at the May 9, 2013 IEP meeting. (Tr. pp. 737-738, 812). She testified that there was a discussion of a class with a staffing of ratio of ; which was what he was participating in; but she was told it would not work for him. (Tr. p. 806).
On May 6, 2013, the parents signed a contract enrolling at the for the 2013-2014 school year, with tuition of . In order to hold a spot for , they made a deposit of which was non-refundable deposit of, and paid the balance in installments. (Par. Ex. C; Tr. pp. 739-740). As of the hearing, tuition for the 2013-2014 school year was paid in full (with percent having been paid, pursuant to the pendency provisions of the law). (Tr. p .75).
On June 17, 2013, the parents provided 10 day notice of their intent to place at the and seek funding. (Par. Ex. E).
On June 18, 2013, the DOE sent the parents a Final Notice of Recommendation, recommending placement at . (DOE Ex. 9). Mrs. went to see the school sometime in June and testified credibly about her observations. She was given a tour of the school, including to classrooms; and was told that the school used the program and a system, which provided . Within one of the classrooms, most of the students had their own . Mrs. could not see the location for services; but was told there was . (Tr. pp. 745, 749).
Mrs. was told that students had their own , due to problems. She was also informed that the other students were or .
(Tr. pp. 744, 819). She was concerned about placing in an environment with students who were , with . In addition, she testified credibly that the system she observed was inappropriate for , who is motivated by , such as . (Tr. p. 746).
In contrast to Mrs. Ms. , the Assistant Principal of was vague and evasive in her testimony. While she acknowledged that some of the students in the program have ”s, she stated that she was not sure for what the purpose of those ’s were; but stated there may have been a student . (Tr. p. 883-885). She denied that the students in the classrooms were . (Tr. p. 898). She testified that teachers do “ ” throughout the day in their classrooms. (Tr. p. 892). She testified that there were students in the program; within a school building that was “ ”. She could not estimate the size of the entire student body. (Tr. pp. 895-896). She testified that the school would provide , in accordance with a student’s IEP, but could not name any specific . (Tr. p. 898).
When asked whether the school had someone in charge of vocational training she asked what was meant by vocational training. (Tr. p. 889). When asked whether there was equipment for students with needs, her response was “I can’t name every piece of equipment, but something that is on the student’s IEP, we will have that there, and additional items as well”. (Tr. p. 898). When asked whether the school has a , her response was “You have to tell me what items that you are looking for in a ” (Tr. p. 900).
On June 17, 2013, the parents, through their attorneys, wrote a letter to the CSE rejecting the IEP as inappropriate. They stated that the recommended program would not provide a suitable and functional grouping. They stated their intent to place him at the and seek tuition reimbursement. (Par. Ex. E; Tr. p. 747). The DOE responded, requesting any further available reports; and the parents responded with the most recent report. (Par. Ex. G). The CSE did not reconvene after the parents rejected the IEP. (Tr. p. 749).
2014-2015 School Year
An annual review was held on January 17, 2014. Ms. served as the district representative. The IEP team also included a special education teacher, Mrs.
and a teacher and social worker from the . There was no teacher present, as was not being considered for . (Tr.
pp. 105-106; DOE Ex. 10). Ms. testified that the IEP team based the January 17, 2014 IEP on the prior IEP and conversations at the meeting. (Tr. p.109). She testified that the purpose of the annual review was to update the prior IEP. (Tr. p. 111).
Mrs. did not bring to the meeting because she thought a meeting. (Tr. pp. 712, 753). No vocational assessment was performed of directly in preparation for the 2014-2015 IEP meeting. (Tr. pp.
715, 754). Toward the end of the IEP meeting, a formal interview of Mrs. was conducted, to assess ’s vocational interests. (DOE Ex. 15; Tr. pp 717, 754).
The January 17, 2014 IEP describes ’s progress in and ; and in . The IEP states that he has benefited from being around peers. (DOE Ex. 10, p. 1). The IEP states that he benefits from , and has a throughout the day; usually or times per day. The IEP describes his progress in , including his . The IEP states that is very . (Id. p. 2). The IEP states that will
; and that methodology
works best with him. His as described in the IEP, include throughout the day; and (ID. at 2-3). No was developed, as it was felt that was not a problem. (Tr. p. 111).
The IEP includes two goals for developing skills (with
; ; ;
; and (all in the range of to level); and using . The IEP includes no goals for improving or skills. The IEP includes a goal for developing skills (with related to and sentences) (Id. pp -4-
5). The goal is very general to “ ” is not measurable. Included under that goal are which appear to be goals in themselves, and not intermediate steps: They are:
“
(Id. at 4-5).
The IEP includes a very goal of improving
with , which repeat the contained
in the prior IEP. (DOE Ex. 2, 10). There is an additional goal for improving
, with of ; and
. (Id. at 8).
The IEP goals includes an goal for developing by and (with no short-term objectives): and goals for improving and . The second and third goals include “short-term instruction objectives and or benchmarks”, however what are entitled “short-term objectives, appear to be goals.
the short term objectives are:
“
”
goal , skills; improving skills, and improving .
The goals include “ ”, which are
all repeated from the prior IEP. (DOE Ex. 2, 10).
Ms. testified that she conducted a vocational assessment with the parent, at the IEP meeting. (Tr. pp. 115-116). She stated that a vocational assessment of the student is usually done as part of a psychoeducational evaluation, which was performed independently in this case. (Tr. p. 148). She could have performed a vocational assessment with ; and there was no specific decision made not to perform one. (Tr.
p. 149). She learned from the parent that ; and that . (Tr. p. 156). She testified that an interview with would not have been meaningful, as he would likely have just been a repetition of the questions she asked. (Tr. p. 180).5
The only statement in the IEP regarding the Student’s strengths, preferences and interest appears on page 2 of the IEP, as follows:
“
.” (DOE Ex. 10, p. 2).
The Measurable Postsecondary Goals are as follows:
“Education/Training: During the level I Vocational Interview- Parent conducted on 1-17-14, the parent related that
Employment: During the level I Vocational Interview- Parent conducted on 1-17-
’s ,
. His mother reported that enjoys based on , like that linkage with agencies . (DOE Ex. `15).
14, the parent related that is good at and .
He has a strong , is and
. He can
. will
.
Independent Living Skills: continues to
.
Transition Needs: Parent is concerned that she receive an educational placement with others who are on . Finding activities for students on his level is a concern. Parent is searching for appropriate s for her son. During the level I Vocational Interview-
Parent conducted on 1-17-14, the parent relate the need for support with linkages to outside agencies that can provide post 21 support.” (DOE Ex. 10, p. 4).
’s IEP describes the following activities, which are needed to facilitate the student’s transition:
“Instruction. will
.
Related Services: will
. will .
Community Experiences. will
.
Development of Employment and Post-school adult Living Objectives:
will
.
Acquisition of : will
: A Level 1 vocation interview- Parent was
competed on 1-17-14.”(DOE Ex. 10, p. 10).
According to the IEP, the parties responsible for these activities are assigned school . No outside agency was identified in the IEP. (DOE Ex. 10, p. 10).
The CSE again recommended placement in a in a ( ), with related services of ( times per week for - minutes in a group , times for - minutes); and ( ; and ); ( ; and in a group); and parent , per month for .
programming was recommended. (DOE Ex. 10, p. 9-10). The reasons for recommending this program, and rejecting less restrictive options remained the same, as in the prior school year. (Tr. pp. 118-119).
Ms. testified that she was not familiar with the level of the kind of students who attend the sites which were recommended for . (Tr. p. 129).
She testified that would be in a class with other students who and acknowledged that it is important for to have , and . (Tr. pp. 212-214).
Mrs. disagreed with the proposed with a staffing ratio of because she feels needs a teacher instruction ratio, including academic instruction; and because her impressions when she observed the class, was that the other children were than . She voiced her objection at the January 17, 2014 IEP meeting. (Tr. pp. 762-763). She also noted her disagreement with the methodology. (Tr. p. 239).
On May 1, 2014, the DOE sent the parents a School Location Letter, recommending placement at at . (DOE Ex. 14). Mrs. went to see the school on June 20, 2014. In a letter dated June 26, 2014, she wrote to the CSE describing her visit to the school on. The parents rejected the school because they felt the placement was overly restrictive. She wrote that Mr. , who provided a tour of the school, told her that the children in the classes were far below ’s level of . She wrote that there was no or , and that ’s significant could not be met there; that due to the of the school would not be would be too restrictive6; that the work program is not individualized, with children going to the same location at the same time with a teacher and ; and because the room is a crowded area with several desks. She stated that she intends to place at the and seek funding. She never received a response to the letter. (Par. Ex. K; Tr. pp. 769-770).[7] She testified that based upon her description to Mr. of ’s ; he didn’t think the school would be appropriate for him. (Tr. p. 854).
Mr. , the site coordinator at , testified as a rebuttal witness, but had no recollection of his meeting with Mrs. (Tr. p. 87). He testified that as of July 1, 2014, the school had one or two class for ’s age level. The school had available
, , parent and . (Tr. pp. 871-872). He testified that he did not receive any written communication from the DOE regarding . (Tr. p. 875).
, the Assistant Principal of , the recommended site.
testified that could have been placed in of two classrooms, based upon his age. (Tr. pp. 359, 366). The students in one of the classrooms are years old; and to years old in the other class. All of them are classified with . Within the class, about of the students are . (Tr. 370, 410). Within the class, of the students are . Within the younger class, of the students is (Tr. p. 371, 401). Within each class, students have . (Tr. p. 413). The school provides monthly parent trainings.
(Tr. p. 398). The teachers employ different methodologies, including the , based upon the needs of the students. (Tr. pp. 404-406). does not have a . (Tr. p. 412).
On May 1, 2014, the parents signed a contract enrolling at the for the 2014-2015 school year, with tuition of They made a
6
At the , goes
. Mrs. . feels it would be a hallway. (Tr. p. 860). deposit of which was non-refundable. (Par. Ex. J). They have made additional payments according to a schedule, and intend to pay the balance. (Tr.
pp. 774-775).
Mrs. feels that has been making progress at the over the past years in his , , and in . (Tr. pp. 772-773). He benefits from being in a class with or students. (Tr. p. 774). She testified that during the 2013-2014 school year, and currently, she is able to discuss ’s likes and interests, by asking specific question; but that he would be unable to . (Tr. pp. 785-786).
The
, the director of the , testified that the school serves students on the , and other students with , aged though - . The school currently has students. The
’s operates on the model, developed by Dr. . (Tr. pp. 267-
271).
The program includes parent training through support and education groups, . The school also , as needed. (Tr. p. 175).
began participating in the “ ” during the 2012-2013 school year; and remains in it during the current school year. This program helps to support the students in becoming productive members of the world. The students are exposed to a variety of experiences , to assess their interests and strengths. (Tr. p. 278). His class consists of students, a head teacher, and teacher assistants (“TA”s) who are also called . During the 2013-2014 school year, there were students in the class. ’s head teacher, has been with him for the past three years. (Tr. pp. 280-281). She has a master’s degree in special education and is a certified special education teacher. (Tr. p.
287). The TA’s have bachelor’s degrees and TA certification. (Tr. p. 292). 8All of the 8 During the 2013-2014 school year, two of the TA’s were the same; and there two additional TA’s, who also had Bachelor’s degrees and TA certification. (Tr. p. 303). staff receives training in , before school starts. (Tr. p. 293). receives instruction of or ; however there is always of . (Tr. pl. 293). Ms. testified that he requires this level of support to assist him with his and .
(Tr. p. 295).
According to Ms. , has in
; but can about something he is really
interested in, such as . He has ; but has progressed in his awareness of his , and his needs without adult support. (Tr. pp. 282-283). She testified that for the past three years, has been able to . (Tr. p.
284).
During the current school year, ’s classmates are , with the exception of classmate, whose is limited to or . The students range in age from . (Tr. p. 285).[9] is in the of his class in . (Tr. p. 340). Each of the students has an individualized program. (Tr. pp. 286-287). As part of the program, he , and , where . (Tr.
pp. 288-289). He also receives ,
. (Tr. p. 290).
receives related services of and . with licensed , as well as . (Tr. pp. 291, 316, 321). The school has a on staff. (Tr. p. 314). His class at least times per week, including .
. (Tr. pp. 142-143). His academic program follows the Standards. The school uses various and programs. (Tr.
p. 306). The school has with
. (Tr. pp. 311-312).
needs the to When he
becomes , he will
. (Tr. pp. 311-313).
The school generates progress reports in December and May, including reviewing goals. (Tr. pp. 314-315). All of ’s providers participate in preparing the report. (Tr.
p. 316). She testified that is making meaningful progress at the .
(Tr. p. 322).
, ’s current , testified that she has also worked with during the 2012-2013 school year. (Tr. p. 422). receives per week , and in a . He received the same level of service during the 2013-2014 school year. (Tr. pp. 428-
429).She testified that he , and skills. He responds to a variety of and to the Program, where he learns to use the strategies independently. (Tr. p. 423). Ms.
created a for to use . He receives
the and the classroom experience. He has , including , which he receives . (Tr. p. 425). Ms.
also created a program, including and for him to do at . (Tr. p. 426).
The school has gyms. with ; and which also has . needs the input he receives from the , which helps with his , and his . Without it, he would become and . (Tr. p.
428). Within his sessions, works on , ,
, and , including . They also work on identifying to use when . (Tr. p. 430). has improved in his , , and in his . (Tr. . p. 433).
the director of the Program, testified that she is certified in general and special education. The program focuses on building
. Students participate in
. (Tr. pp. 520-522). ’s program includes
. (Tr. p. 523). travels through the independently. He is very vocal about his interests and passions, which include , . (Tr. pp. 524, 526). She testified that has gained a great deal of independence and self-sufficiency over the last two years, especially
. (Tr. pp. 539-540).
, a licensed , works with currently; and previously worked with him during the 2011-2012 and 2013-2014 school years. (Tr. pp. 551-552).
The focus of her work with has been on
. (Tr. p. 553). During the 2013-2014 school year and currently, is . (Tr. p. 555). For school years, received session per week and sessions per week of . (Tr. p. 556). During the 2013-2014 school year, was in a class of students, who were , but with a range of abilities. (Tr. p. 559).
student, however, was and relied upon . (Tr. p. 560).
Presently, his classmates all have the ability . (Tr. pp. 562).
During the 2013-2014 and during the current school year, progressed in his ability to . (Tr. pp. 566-568). He has also progressed in his ability to
. (Tr. p.
569). She testified that requires . (Tr. p.
581). He would be able to
. (Tr. pp.
586-587).
a certified special education teacher, was ’s head teacher for the 2013-2014 and during the current school years. During the current school year, ’s class consists of students, with Ms. and ’s. The classroom also has a job coach who supports the classroom. (Tr. pp. 595-597). All of the students in the current classroom are ; although of the students has very limited ability. (T pr. 599). The profile of students was similar in the prior school year. (Tr. p. 603). She testified that ’s and have continued to improve, and that he is . (Tr. p 624). She testified that during the both school years, has progressed from , to . He has also improved in his ability to . (Tr. pp. 628-629). The school is working on . (Tr. pp. 630-
631).
During the 2013-2014 school year, worked on , including . He was also introduced to . (Tr. p.
639). included during
. correctly
. (Tr. p. 641).
She testified that n ; but that he would not benefit from using , as he . (Tr. pp. 642, 653). His
. (Tr. p. 645). During the 2014-2015
school year, continued to work on skills,
. (Tr. pp. 646-
647). He is that is at a level, for which he requires support. (Tr. p. 648). For , he is being taught to . (Tr. p. 650).
According to Ms. , the Program, in which participated for both school years, focuses on . The program also includes . (Tr. pp. 604-605).
.
(Tr. pp. 635, 636). During the 2013-2014 school year,
; ( );
. (Tr. p. 637). During the current school year, he continues to . (Tr. p. 638).
She testified that needs the teaching ratio provided in the class, especially when working with peers. He also receives - support when working with , and with Ms. or a . (Tr. p. 606). The amount of support he receives currently (and received during the prior school year)
, but is in the range of to hours. (Tr. p. 607-610). At the May 9, 2013 CSE review, Ms. expressed her disagreement with the recommended staffing ratio, as not providing sufficient support. (Tr. pp. 618-619). She also participated in the January 17, 2014 IEP meeting, and recalled a discussion of the methodology, and the parent’s statement that it would not be appropriate. She also agreed that it would not be appropriate. (Tr. pp. 621-622; See DOE Ex. 10, p. 13).
may . In those events, staff will , , and
. He also benefits from ,
. (Tr. pp. 611-613). The school has , and there is in the classroom including , , , and . Outside of the classroom there is for . used the last year and during the current school year, in order to . (Tr. p. 615). Mrs. testified that throughout the day so that he does not need a plan. (Tr. p. 733)
He is interested in and motivated by ,
. (Tr. p. 632).
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]. 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 recommended site must be capable of satisfying the IEP’s requirements. See T.Y., K.Y.
on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
Procedural Issues
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).
1. IEP Team
I agree with the DOE that for both school years in question, the IEP team was duly constituted, and that a general education teacher was not a required member, as no one was requesting that participate in a general education classroom.
2. Evaluations/Transition Plan
State regulations require that an IEP, to be in effect when the student is age 15 must include (1) a statement of the student’s needs, taking into account the student’s strengths, preferences and interests as they related to transition from school to post-school
10 activities as defined in section 100.1(fff) ; and (b) “appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to raining, 8 NYCRR 200.1(fff) defines transition services as “a coordinated set of activities for a student with a disability, designed with a result-oriented process.” These activities must be based upon the student’s strengths, preferences and interests.” education, employment and where appropriate, independent living skills. 9
NYCRR 200.4([d][2][9].
I find that the vocational evaluation and transition services recommended for , for both the 2013-2014 and 2014-2015 school years, were deficient. The
CSE did not attempt to assess directly to determine his preferences, although the record is clear that he was , and capable of communicating his preferences.
Although this argument was previously rejected by the court which reviewed ’s
2011-2012 IEP , (see R.B. v. New York City Dept. of Educ., 15 F. Supp. 3d 421, 431
(S.D.N.Y. 2014; aff’d R.B. v. New York City Dept. of Educ., supra); the vocational evaluation assumed greater significance, as turned during the 2013-2014 school year , and the CSE was obligated to recommend transition services for both school years in question.
For the 2013/2014 school year, the only area of interest identified for was ; although his interests were much broader, and included .
The recommended measurable postsecondary goals ( ) were vague and not measurable. The recommended coordinated set of transition activities was equally vague, as it related to the vocational assessment. The
CSE assigned to the recommended site the task of determining what can do in the field of interest, which is . This narrow focus was not consistent with ’s wider interests, and was not likely to result in progress in preparing for eventual employment. Nor did it provide a results-oriented process.
For the 2014/2015 school year, the CSE conducted a vocational assessment of by speaking with his mother in the course of the IEP meeting. While this assessment resulted in identifying a wider range of interests and strengths for (including his interest in ) the IEP does not include measurable postsecondary goals. Rather, the IEP merely restates the parent’s concerns and desire for linkage with outside agencies. The transition plan, which did not include any reference to an outside agency, did not provide a results-oriented process.
3. Goals and Short-Term Objectives
An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability and to enable the student to be involved in and make progress in the general education curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21
(citing 8 NYCRR 200.4[d][2][iii]). For a student who takes a New York State alternate assessment, the IEP must also include an appropriate description of short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal. 8 NYCRR 200.4[d][2][iv].
I find that the 2013-2014 IEP is deficient because (1) the annual goals are not measurable; (2) many of the goals do not include short-term objectives; and (3) in instances where short-term objectives are listed, they are in reality, goals, and not short-term objectives or measurable intermediate steps.
With respect to the 2014-2015 IEP, the , and goals are adequate; however there is no goal for or . The goal for developing handwriting skills and the goal for do not include short-term objectives. The short-term objectives for many of the related services goals are goals in themselves, and not short-term objectives or intermediate steps.
I find that the foregoing procedural deficiencies impeded ’s right to a free and appropriate public education, and caused a deprivation of educational benefits, for both the 2013-2014 and 2014-2015 school years. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).
Substantive Issues
1. Methodology
The parents challenge the DOE’s failure to offer , and its recommendation for a program that used a -based program. The DOE argues that it is not required to recommend a specific teaching methodology in the IEP (See IHO Ex. XIV, p. 12);
While I do not find that the CSE’s failure to offer deprived of a FAPE, I am persuaded by the testimony Dr. ’s and Ms. that the methodology, ( programs)
which relies heavily on , would not be an effective methodology for teaching , who can . I am also persuaded by Dr. ’s testimony that the methodology is more appropriate for students who have less access to and than . At the January 17, 2014 IEP meeting, the parent expressed her concern that the methodology was inappropriate for . This should have been a consideration for the CSE when it recommended that , who is , participate in the program, where the methodology is commonly used. See M.H. v. New York City Department of Education, 685 F. 3d. 217, 250 (2d Cir. 2012).
2. Recommended Program
The record supports the parent’s argument that the program recommended by the CSE in both school years was pre-determined; and that the CSE ignored the parent’s concern that not be placed with students who have issues and who are . The parent was also concerned that the recommended program would not provide a sufficient level of support; and that the and ’s within the would be unduly restrictive.
While I do not agree that the recommended program which provides a adult to student ratio, with sessions per week of related services, (including sessions of - minute each) fails to provide a sufficient level of support; I do find that placing , who is and , in a class of students, in a setting where he could not be independent within the school building, would be unduly restrictive, and not likely to result in progress in , and .
More importantly, the record as a whole supports the parent’s argument that the recommended program, with its primarily based methodology, is geared toward students who have and than . I make this finding based upon the testimony of Dr. Ms. (who testified that students at had ’s, which address ), Ms. (who testified that to - of the students at are ); Mrs.
observations at of the program and a system with , and information provided to her that the other students were and had ; and both Mrs. ’s and Ms. ’s observation at , including their conversation with Mr. , who told them that would be for the program. I do not credit Ms. that she is not aware of the functional levels of the students who attend the program she recommended for . (See Tr. p. 129). On the contrary, her professed lack of knowledge of the type of students in the program she was recommending for only supports the parent’s position that would not be grouped with other students with similar needs, within the program, as required by 8 NYCRR 200.6(a)(3); and 8 NYCRR 200.1(ww), and that therefore the program was not reasonably calculated to enable him to receive educational benefits.
3. Recommended Sites
The record indicates that for each of the school years, the recommended sites could not satisfy the IEP requirements. The DOE argues that the parent is precluded from challenging the recommended sites, because the student never attended them. Citing R.C.
v .Byram Hills Sch. Dist., 2012 WL 5862736 (SDNY 2012), the DOE argues that it is not required to defend a specific classroom. (IHO Ex. XV p. 15).[11] Nevertheless, the Second Circuit held, in T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, supra., that the school district does not fulfill its obligation to provide a FAPE, when it recommends a site which cannot satisfy the IEP’s requirement. See 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).
’s May 19, 2013 IEP clearly stated that he requires and . (DOE Ex. 2, p. 3). His IEP includes goals for , improving ; and
, within the classroom, in order to
. Nevertheless, the DOE recommended placement at a school where the only .
Furthermore, notwithstanding a statement in the IEP that he cannot be in a class with students with (DOE Ex. 2 pp. 2-3) he was recommended for placement in a school where the children had ’s and were assigned due to .
Notwithstanding the fact that his plan includes shopping and traveling independently; activities which require transition services outside the classroom, he was recommended for placement in a school where the only vocational program consisted of classroom activities.
The January 17, 2014 IEP, includes, as a need, supports throughout the day. It includes an goal of skills with short term objectives requiring , and within the classroom.
Nevertheless, was assigned to a school which did not have a .
Furthermore, while the IEP includes as a transition activity, the school did not provide .12
I find that for both school years, the combination of procedural and substantive inadequacies caused a deprivation of educational benefits and rose to the level of a denial of FAPE. See C.F. v. New York City Dept. of Educ, . No. 11-5003-CV 2014 U.S. App.
Lexis 4085 (2d Cir. March 4, 2014).
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 for both school years, the was an appropriate educational program designed to meet ’s unique needs.
.
For both school years, was placed in classes ( or students)
with a teacher to student ratio, where he received support for . He received , and a variety of opportunities . For both years, his program included related services of , ; as well as of parent training and support. The school has s, and receives
Ms. testimony that the school did not provide (Tr. pp. 531-532) was not rebutted.
support throughout the day, through a created by his . In addition, he receives .
For both school years, was placed in classes where, with one exception, the other students were .
The record indicates that in both school years, has progressed, especially in . Although the DOE now argues that the did not meet the student’s academic needs (DOE IHO Ex. XV, pp. 17-18); the January 17, 2014 IEP’s notes ’s progress in and his . (DOE Ex. 10, pp. 1-2). The May 9, 2013, also notes ’s progress in . (DOE Ex. 2).
Equitable Considerations
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have 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 record indicates that the parents cooperated with CSE by participating in the CSE reviews and expressing their specific concerns; viewing proposed sites, providing evaluations, and providing notice of their intention to unilaterally place and seek funding.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall reimburse the parents for ’s tuition at the for the 2013-2014 and the 2014- 2015 school years, by reimbursing them upon presentation of proof of payment thereof; but only to the extent said tuition amounts have not been funded pursuant to the pendency provisions of the law.
Dated: January 23, 2015
, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
IHO
I Subpoena, dated 10/15/2014 3 pages
II Hearing Officer E-mail to parties RE: 10/15/2014 hearing procedures dated 9/10/2014,
1 page
III Pre-Hearing Conference Summary dated 8/14/2014, 1 page
IV New York City Department of Education Motion to Dismiss with exhibits dated
9/24/2014, 58 pages
V Petitioner's Brief and Opposition with affidavits, dated 10/8/2014 15 pages
VII Order on Motion to Dismiss dated October 20, 2014, three pages
VIII Signed subpoenas dated October 21, 2014, collectively 13 pages
IX Case Follow Up Sheet, dated 10/15/14 (1 page
X Subpoena on , dated November 14th, 2014
XI , 11/7/14, 1pp
XII , 12/27/14,1pp
XIV Parent’s Closing Brief, 1/8/15, 31pp
XV DOE Closing Brief, 1/8/15, 22pp
XVI , 1/12/15, 1pp
DEPARTMENT OF EDUCATION
1 Due Process Response, dated July 31, 2014, 4 pages
2 IEP and attendance page, dated May 9, 2013, 15 pages
3 Meeting Minutes dated May 9, 2013, 2 pages
4 Report dated December 2012, 11 pages
5 Psycho Educational Re-evaluation dated December 2012 and January 2013,ten pages
6 Evaluation, dated January 15, 2013, 5 pages
7 Evaluation, dated January 17, 2013, 3 pages
8 Classroom Observation dated December 17, 2008, 3 pages
9 Final Notice of Recommendation dated June 18, 2013, 1 page
10 IEP and attendance page, dated January 17, 2014, 14 pages
11 Meeting Minutes dated January 17, 2014, 2 pages
12 Report dated December 2013, 14 pages 13 Prior Written Notice dated May 1, 2014, 4 pages
14 School Location Letter dated May 1, 2014, 1 page
15 Vocational Interview dated January 17, 2014, 3 pages
16 Due Process Complaint dated July 21, 2014, 15 pages
17 Amended Due Process Complaint dated August 13, 2014, 19 pages
18 Psycho-Educational Evaluation, dated 8/2010 (10 pages)
PARENT DESCRIPTION I.D. IN EV.
A Letter to Dr. , dated 12/14/12 (1 page)
B Meeting Notice, dated 4/18/13 (1 page)
C Enrollment Contract 2013/2014, dated 5/6/13 (6 pages)
D Treatment Plan, dated 6/2013 (6 pages)
E Letter to District, dated 6/17/13 (2 pages)
F Letter to parents dated 6/24/13 (1 page)
G Letter from parents to the District, dated 6/27/13 (1 page)
H CSE Meeting Notice, dated 12/6/13 (3 pages)
I Report of Progress, dated 5/2014 (14 pages)
J Enrollment Contract 2014/2015, dated 5/1/14 (6 pages)
K Letter from parents, dated 6/26/14 (3 pages)
L DOE Resolution Response, dated 7/24/14 (3 pages)
M Resolution Response, dated 9/3/14 (2 pages)
N Letter from parents, dated 9/9/14 (2 pages)
O Duplicative
P Duplicative
Q Duplicative
R Duplicative
S Duplicative
T Assessment, undated (14 pages)
U Assessment Form, undated (3 pages)
V DOE Operating Procedures, dated 9/2009 (78 pages)
W Progress Report, dated 6/2013 (13 pages)
X Attendance Record, dated 2013 through 2015 (4 pages) Y Classroom Schedule 2013/2014 (1 page)
Z Classroom Schedule 2014/2015 (1 page)
AA Policy, undated(1 page)
BB Curriculum Description, undated (3 pages)
Footnotes
[1] The original complaint (DOE Ex. 16) , filed on July 21, 2014, did not include a claim for relief with respect to the 2012-2013 school year. The Department Of Education (“DOE”) moved to dismiss all claims regarding the 2012-2013 school year, as being time-barred by the two year state of limitations. (IHO Ex. IV). By decision dated October 20, 2014, I granted the DOE’s motion, and the hearing proceeded on the parents’ claims for reimbursement for the 2013-2014 and 2014-2015 school years. (IHO Ex. VII). ’s placement for the 2010-2011 school year was the subject of an appeal to the Second Circuit, decided in the DOE’s favor on October 29, 2014, ending ’s pendency entitlement to % of the tuition expense. R.B. v. New York City Dept of Educ., 2014 U.S. App. LEXIS 20854 (2d Cir., October 29, 2014); IHO Ex. XIV, p. 24; Tr. pp. 749-751).
[2] turned during the 2013-2014 school year. (DOE Ex. 2; Tr. p. 712).
[3] Dr. is a instructor at the of Department of , and has been working with children on the for years. (Tr. p. 458). He has been following ’s progress since he was years old. (Tr. p. 464).
[4] (the acronym for ) focuses on the child’s level, beginning with his . The philosophy of this methodology is that the student would be . The methodology identifies nine levels which students work on achieving. (Tr. pp. 267-271; 546-547).
[7] Ms.. the supervisor of the school visit. She testified that, based Mr. , including his interest in too for school did not have a ; (Tr. pp. 531-532).
[9] In the 2013-2014 school year, his class grouping was very similar, with students, and student who was limited to or . (Tr. p. 304).
[11] In R.C. v .Byram Hills Sch. Dist., the school district did present evidence of how the student’s IEP could have been implemented (although the Court held it was not required to defend a specific classroom).