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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: April 21, 2015
May 19, 2015
June 3, 2015
Actual Record Closed Date: July 17, 2015
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date Attorney PARENT 04/21/15 Parent PARENT 04/21/15 Attorney DOE 04/21/15
School Psychologist DOE 04/21/15 Attorney PARENT 05/19/15 Parent PARENT 05/19/15
Director PARENT 05/19/15 Attorney DOE 05/19/15 Legal Associate DOE 05/19/15 Attorney PARENT 06/03/15 Parent PARENT 06/03/15 (T) Supervisor PARENT 06/03/15
(T) PARENT 06/03/15
(T) Social Worker PARENT 06/03/15
Attorney DOE 06/03/15
On January 20, 2015, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of an (16) year old student attending a private school and the New York City Department of Education (“DOE”) - Home District: , Service District: , concerning the student’s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on March 19, 2015, April 21, 2015, May 19, 2015 and June 3, 2015. The parties opted to submit written closing statements which were original due on July 3, 2015 (T-286) and after a request for an extension of time were received on July 13, 2015. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated June 6, 2014 is procedurally and substantively flawed. (See Parent’s Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student a private school year for the 2014-2015 school year. (Id.) The Parent seeks “tuition reimbursement” for the student’s attendance at the private school and receipt of related services for the 2014-2015 school year.
The Parent requests the following relief: “The DOE provide direct funding and costs related to the unilateral placement of [student name] at the [private school name] for the 2014/2015 school year.”
THE DOE’S CASE
The DOE declined to make an opening statement. (T-20) In its closing statement, the agency argues that its recommendation of a “ ” special class in a school was reasonably calculated to enable the student to receive educational benefits and did not violate the IDEA’s “least restrictive environment” (“LRE”) mandate. (D-24) The student had been in a “ ” DOE setting and was progressing in an “ ” setting at the private school. (Id.) The Parent wanted the student to receive “ ”, but did not want the student to be assigned a “ ” . (Id.) The “ ” setting allows for the student to receive the individual attention she requires without specifically assigning a “ ” to her. (Id.)
The DOE argues that its June 6, 2014 recommendation was substantially similar if not identical to the student’s private school program. (Id.) What’s more, the “ ” recommendation is less restrictive than the agency’s original attempt to place the student a New York State approved private school. (Id.) The student’s June 6, 2014 IEP provides for individualized goals and related services, in keeping with the Parent’s request for the student to receive “ ” (Id.) A trained would be capable of devising the “ ” for the student that the Parent says is required. (Id.) The June 6, 2014 IEP addresses the student’s needs and her “ ” was considered in drafting the student’s “ .” (Id.) The IEP “goals” are also measurable. (Id.)
The DOE called (1) witnesses to testify on its behalf and submitted (24)
documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parent argues that the student’s classification of “ ” is not at issue. (T-
21) The student attended a DOE “ ” setting and had her services repeatedly reduced. (Id.) Thus she made little progress, was basically and was not . (T-21-2) In May of 2013, the Committee on Special Education (“CSE”) did not have a placement for the student and gave her a “P-1” letter to find a state approved private school for the 2013-2014 school year. (T-22) The state approved program did not accept students classified as “ ” as the student was classified at that time.
(T-23) The Parent then placed the student at her current private school for the 2013-2014 school year which was funded via a Settlement Agreement with the DOE. (T-23) For the student’ 2014-2015 school year, the CSE team had no personal knowledge of the student’s educational needs, did not observe her, did not recommend appropriate goals, related services and necessary interventions. (T-24) Accordingly, the Parent kept the student at the private school for the 2014-2015 school year. (T-25)
The Parent called (5) witnesses to testify on her behalf and submitted (13)
documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
Two 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 Free and Appropriate Public Education (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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])
A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See 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] and Perricelli v. Carmel Cent. Sch.
Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])
Under the IDEA, if a procedural violation is 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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 impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379)
Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.
2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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; E.G. v. City Sch. Dist.
of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and 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 accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)
The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See Burlington, 471 U.S. at 370-
71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra
v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S.
at 12, 15 and 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 and 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-
105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and 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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) 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." (See 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 specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at
364-65).
The IDEA allows that tuition 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 child 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." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 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 in the public schools." (See Greenland Sch.
Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir.
2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty
v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-
120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.
(See 20 U.S.C. § 1412[a][10][C][iii]; 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] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
I first turn to the question of whether the DOE offered the student a “free and appropriate public education” (“FAPE”) for the 2014-2015. As noted above, a FAPE is offered to a student when (a) the DOE 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. (See Rowley and Cerra, supra) Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4)
a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.
Here, the relevant IEP for the student is dated June 6, 2014. The student’s CSE team was composed of a school psychologist also acting as a district representative, a special education teacher, the student’s private school teacher, the Parent (via telephone) and a social worker from the student’s private school. (T-33-4) The CSE did not have a “Parent
Member” as required by law and said deficiency constitutes a procedural violation. Under the IDEA, if a procedural violation is found, an IHO may also find that a student did not receive a FAPE only if the procedural inadequacy (a) impedes the student's right to a FAPE, (b) significantly impedes 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. (See 20 U.S.C. § 1415[f][3][E][ii], 34 C.F.R. §
300.513[a][2], 8 NYCRR 200.5[j][4][ii], E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], 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])
Here the Parent’s testimony makes clear that she was fully allowed to participate at the CSE meeting. She conceded discussing the student’s needs, needs, the student’s deficits, providing the CSE team with her independently obtained evaluation of the student and emphasizing the student’s concerns. (T-124-5, 127 & 134-5) The student’s private school teacher and social worker were also allowed to participate in the meeting. (T-135) I find that the lack of a “Parent Member” at the student’s June 6, 2014 CSE meeting did not impede her right to a FAPE, deny the parent a right to participate at the meeting, or cause a deprivation of educational benefits.
As also stated above, 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. (Supra) The record indicates that the CSE team on June 6, 2014 reviewed the student’s Psycho-Educational Evaluation, her Social History Evaluation, her , and Evaluations, as well as her
Interview and the student’s private school Interdisciplinary
Reports of Progress. (T-33-4) The evaluations were all conducted the previous school year, while the private school reports were produced in December of 2013 and May of
2014. (T-33)
The student’s Psycho-Educational Evaluation is dated March 5, 2013 and made the following findings concerning the student’s strengths and weaknesses: “
[student’s name] Strengths and Challenges - Attempts were made to assess [student name]
, however levels were not attained. [student’s name] Strengths and Challenges - [student name]
. Teachers report she is able to and
. [student’s name] Strengths
and Challenges - [student name] strength is her ability to interact with adults. Her challenge is being able to
.” (D-5)
The Psycho-Educational Evaluation notes that the student’s second marking period report card records indicate that she passed all of her classes and attained an “ ” average.
(Id.) The evaluation further states:
. Teachers report [student name] is unable to . She is able to , however is unable to . [Student name] is . She is described as . However, her are limited. The form completed by
[student’s name] doctor reports a diagnosis of , ,
, and . The report indicates [student name]
. (Id.)
The Psycho-Educational Evaluation concludes by making the following “Summary &
Conclusions”:
[Student name] has been re-evaluated as part of an interim order of an impartial hearing and to determine appropriate placement for .
levels were not attained, therefore an informal assessment, observation, and teacher reports were administered. Findings indicate [student name]
, is able to ,
, , and
. [Student name] was able to
. Teachers report [student name]
. She and
. results for both parent and teacher rating forms indicate in the range of . Recommendations will be made during the educational planning conference. (Id.)
The Student’s Progress Report dated March 7, 2013 was available to the CSE team and was also received in evidence. (D-6) The report noted that the student was making
“Progress in Meeting Goals Evaluation Methods and Criteria”:
In regards to the above short-term and annual goals, [student name] is making progress. She is developing her ability to , program. [Student name] can
,
. In addition, she can
. Furthermore, she is able
to . Furthermore, she
can , such as “
” Also, she is able to
. In addition, she can
. [Student’s name] ability to
("
") is developing. She is capable of ,
. Furthermore, she has developed an ability to . It should be noted that [student name] may
. Nonetheless,
. In regards to , [student
name] has developed an ability to
(e.g., “
”). Based on the above information, [student name] has made progress towards the above - goals, based on class activities and provider observations. [Student name] continues to benefit from and , as well as, .
In addition, as mentioned above she benefits from
. (Id.)
The student’s Evaluation dated March 1, 2013 was also reviewed by the CSE team on June 6, 2014. (D-7) After a through analysis, the reports
“Summary & Recommendations” states:
[Student name], a old student at was seen to assess her current skills. She displayed delays in
.
According to the School - , her teacher and her , [student name] displays delays and is placed in a class that works primarily on -level skills. According to her teacher she is working level and . It is recommended that [student name] continue to receive with frequency and duration. intervention by a ( - or Teacher) is the only available [student name] with the strategies and skills to improve skills.
Testing: (Must include but not limited to assessment, etc.) (Id.)
The Evaluation assessed the student’s reported difficulties noting that “A examination was done and revealed
. was noted
with .” (Id.)
The CSE team also reviewed the student’s evaluation dated March 1, 2013. (D-8) The “ ” evaluation noted that the student’s private teacher reported her academic levels in all subject areas are at a level. (Id.) The student has an instructional program based on level indicator, has passed all of her classes with an average grade of and her overall skill level in skills are at a level. (Id.) The student is said to need . (Id.) The “ evaluation states:
As per information in SESIS, parent reported that [student name] needs assistance with . She is able to
As ·per , [student name] is able
to but needs to make sure that she
. She needs
Most of the time, [student name] is able to
. She needs assistance with
. (Id.)
The evaluation recommends that the student receive services “ ” “ ” weekly . (Id.) The following recommendations are also made: (1)
. (2)
. (3)
. (4)
. (5)
. (6)
. (7)
. (8)
. (9)
. (Id.)
The student’s Evaluation dated March 5, 2013 recommends that the student receive with program during , as she was able to , which she was not able to do . (D-9) The “ ” evaluation further states: “
.
. A trial period plan was generated to help assess the efficacy of upon completion of the trial period.” (Id.)
At the end of the “ ” trial period, an addendum was added to the initial evaluation which states as follows:
Based on the results of this end of trial evaluation, it has been determined that will not enable [student name] to
.
During the trial period, [student name] was unable to , even with . In addition, [student name] demonstrated
. [Student
name] was not able to
, nor was she able to , or
. No recommendation for is indicated at this time. It is, however, recommended that [student name] continue to be provided opportunities to utilize the in the classroom as deemed appropriate to her teachers and school staff. (Id.)
The student’s Evaluation is dated March 4, 2013. (D-13) The “ ” evaluation makes the following recommendations:
It is recommended that [student name] mandate be reduced from a week to a week. [Student name] has been receiving services for at least and has begun to level out in terms of her progress. She is now years-old and will be going into next year. At this time, school-based will focus on accommodations and adaptations to maximize [student’s name] . can also help to and work with the teacher to implement throughout the school day. Reportedly, [student name] attends , , which is the she needs. Participate in including , or .
. For example,
. (Id.)
A Social History update was conducted February 13, 2008 and was reviewed the student’s CSE team on June 6, 2014. (D-14) The update sates:
[Student name] is a y/o enrolled in grade at undergoing a re-evaluation as part of an interim order of an impartial hearing, as well as to determine appropriate program for . Mother requested an evaluation. [Student name] is classified with and is placed in a with Related Services of / , , , and Education. Social history update was conducted with mother in person and in English. [Student’s Mother’s name], the biological mother and informant of this intake, was in agreement with this evaluation. Due Process and Parental Rights were reviewed and provided to parent. (Id.)
Finally, the student’s CSE team on June 6, 2014 reviewed the student’s private school
Interdisciplinary Reports for December of 2013 and May, 2014, the latter having been produced just one month before the CSE meeting. (D-18) In the May, 2014 report, the student’s then private school program is described as follows:
[Student name] is a year old in a classroom setting with a ratio of and has been in her current classroom since she transitioned to the [private school name] in July 2013. [Student’s name]
( weekly program consist
of and instruction, ,
, , , sessions, activities of
, and education. In addition, [student name]
receives , - , and .
[Student name] is who is motivated by
,
. She
s. When , [student name] has no difficulty
, but will occasionally
or (
), and will require support to
. [Student name] and has been diagnosed with
. She is but often , although she
seems to and
. [Student name] usually uses
. [student name]
and she has
. [Student name]
. (Id.)
The Private school report summarizes the student’s progress thereat as follows:
Utilizing methodology, since this fall [student name] has shown an increase in her abilities to
, , and .
The major focus of [student’s name] program has been on
, as well as
. Throughout the day, [student name] most often
( ) ,
(up to students) with support from
. At her best,
, [student name] can
( ). While her often seemed in December, they have increasingly been
,
. Below is a more detailed update of her progress. (Id.)
With this plethora of uncontroverted current evaluative materials, the student’s CSE team on June 6, 2014 produced an IEP for the student that is reasonably calculated to provide her with an educational benefit. (D-19) The IEP correctly identifies that the student is working on school level, as was related to the CSE by the student’s private school teacher. (Id.) The IEP notes that the student is able to and and .
(Id.) The IEP also notes that the student benefits from supports and needs support. (Id.) It identifies the student’s at a “ ” and accurately notes that the student does not use an in the classroom and that her teacher did not think it is warranted. (Id.) The IEP also notes that the student continues to work on , but she is able to .
(Id.) The IEP’s description of the student correctly reflects the evaluative results identified above.
The student’s June 6, 2014 IEP recommends that the Student attend a in a School and receive: (a) , a week, session; (b) , a week, session, and , time a week, minute session; (c)
, a week, minute sessions; and (d) - , a week, minute sessions, and - , time a week, minute session. (Id.)
The Parent alleges that the in procedurally and substantively flawed in that it does not recommend “ ” for the student, does not provide the student with an appropriate amount of services and does not provide appropriate services to address the student’s deficiencies. (P-N) The Parent also alleges the IEP’s goals and short term objectives are vague and inappropriate. (Id.)
The IEP’s needs encompass , ,
, , , ,
, instruction, a and
“ ” “ ” “ ”
“ ” by a teacher. (D-19) The services
recommended in the IEP at “ ” “ ” exceeds what the student receives at the private school. (D-18)
The DOE is right to note the inconsistency in the Parent’s argument that the “ ” recommendation is too restrictive, while at the same time arguing that it does not offer the student sufficient “ ” (D-24) The IEP actually provides a significant amount of individualized intervention to the student by way of providing the student with twelve individual goals and approximately - short-term objectives, as well as a week for , , a week for , , a week for a total of minutes; and - a week for a total of ..
(D-19)
As for the student’s need for an “ ”, the
“
” (T-235) She conceded that an “ ” is a term of art within her profession that is understandable to any . (T-236) While there can be a lot of variation in individual student’s , a could develop such a for a student by assessing the student and then in their professional opinion developing targeting those deficits. (T-236-8)
Accordingly, I find that the lack of any specified in the student’s IEP, in light of the services it provides for her, does not amount to a denial of
FAPE.
The DOE cites B.K. v. New York City Dept. of Educ., 12 F. Supp 3d 343, 360
(EDNY 2014) and W.W. v. New York City Dept. of Educ., 12 CIV 7196, 2014 WL 1330113
(SDNY 2014) and S.A. ex rel. M.A.K. v. New York City Dept. of Educ., 12 CIV 435, 2014,
WL 1311761 (EDNY 2014), for the proposition that in general, “courts are reluctant to find a denial of FAPE based on failures in IEPs to identify goals or methods of measuring progress.
(D-24) Examples of the student’s IEP goals, requiring accomplishment at least of the time include:
.
.
.
.
.
.
.
.
. (D-19)
“ ”
“ ” “ ”
“
are examples of goals that contrary to the Parent’s argument, are clearly not vague and which are measurable. These examples evidence the overall specificity of the student’s IEP goals, adjudged by the undersigned to be sufficiently clear and measurable to satisfy the requirements of the law.
Considering the student’s evaluative recommendations and the “tremendous” progress the Parent says she has made at the private school (T-129-31, D-6 & D-18), the student’s June 6, 2014 IEP reasonable provides the student with the opportunity to progress, while placing her in the least restrictive environment for doing so. The law requires only that a school district provide “an IEP that is 'likely to produce progress, not regression,' and . .
. affords the student with an opportunity greater than mere 'trivial advancement.', while being “reasonably calculated to provide some 'meaningful' benefit.” (See Cerra, Newington Bd. of Educ., Perricelli, Mrs. B. v. Milford Bd. of Educ. and Rowley, supra)
For all of the reasons stated herein, I find that the student’s IEP dated June 6, 2014 is so calculated. Accordingly, I find that the DOE did offer the student a FAPE for the 2014- 2015 school year.
Having found that the DOE offered the student a FAPE, the necessary inquiry is at an end and I need not determine whether the student’s private school placement is appropriate or whether equitable considerations bar an award on behalf of the Parent.
NOW therefore, it is hereby
ORDERED that the Parent’s request for tuition reimbursement and/or direct payment for the student’s 2014-2015 school year at the private school must be denied.
Dated: July 28, 2015
EDGAR DE LEON, 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
Number/Letter Title Dated For # of Pages
A Letter from Dr. 10/23/09 PARENT 01
B Interim Order 01/20/13 PARENT 03
C P-1 Letter 05/02/13 PARENT 01
D New York City Placement UNDATED PARENT 01
Recommendation Timeline
E Letter from Parent to the CSE 06/17/14 PARENT 06
F Letter from Parent to the CSE 06/20/14 PARENT 04
G Letter from the CSE to Parent 08/26/14 PARENT 01
H Affidavit of Payments from the 02/27/15 PARENT 01
I Attendance Sheets from the 2014/2015 PARENT 02
J Parent’s 2013 Taxes Return 2013 PARENT 04
K Interdisciplinary Report of 12/2014 PARENT 12
Progress Report Update for
L 2014-2015 Schedule at 2014-2015 PARENT 01
School
M Affidavit of 05/26/15 PARENT 06
N Closing Statement 07/13/15 PARENT 25
1 Complaint 01/20/15 DISTRICT 04
2 Due Process Response 01/22/15 DISTRICT 03
3 Due Process Response 02/09/15 DISTRICT 03
4 Department SEISS Events 04/13/15 DISTRICT 15
For
5 Department Psychoeducational 03/05/13 DISTRICT 04
Evaluation Report
6 Department Student Progress 03/07/13 DISTRICT 05
Report
7 Department 03/01/13 DISTRICT 07
Evaluation
8 Department 03/01/13 DISTRICT 08
Evaluation of and
Participation
9 Department 03/05/13 DISTRICT 06
Evaluation
10 Department 03/21/13 DISTRICT
Evaluatio
Addendum/follow up
Report
11 Department Level 1 03/05/13 DISTRICT 03
Interview
Parent/Guardian
12 Department Level 1 03/06/13 DISTRICT 02
Assessment
13 Department 03/05/13 DISTRICT 06
Evaluation
14 Department Social History 02/08/13 DISTRICT 03
Update
15 Department Meeting Notice 03/25/14 DISTRICT 03
16 Department Meeting Notice 05/14/14 DISTRICT 03
17 Interdisciplinary 12/2013 DISTRICT 11
Report of Progress
18 Interdisciplinary 05/2014 DISTRICT 11
Report of Progress
19 Department Individualized 06/06/14 DISTRICT 20
Education Plan
20 Department Attendance Page 06/06/14 DISTRICT 01
21 Department Meeting Minutes 06/06/14 DISTRICT 02
22 Department Prior Written Notice 06/10/14 DISTRICT 04
23 Department School Location 06/16/14 DISTRICT 01
Letter
24 Closing Statement 07/13/15 DISTRICT 22