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FINDINGS OF FACT AND DECISION
Case Number: 79014
Student’s Name:
Date of Birth:
District: Lawrence
Hearing Requested By: Parent
Dates of Hearing: January 14, 2014
March 20, 2014
March 27, 2014
May 28, 2014
June 16, 2014
August 20, 2014
December 9, 2014
Record Close Date: April 28, 2015
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED June 16, 2014 August 20, 2014 December 9, 2014
January 14,2014
Attorney — Parents
Attorney — District
CSE Chairperson — District
Deputy Superintendent — District
Father — Parents
March 20,2014
Attorney — Parents
Attorney — District
CSE Chairperson — District
Deputy Superintendent — District
Father — Parents
March 27,2014
Attorney — Parents
Attorney — District
Supervisor — District
Deputy Superintendent — District
Father — Parents
Psychologist — District
Director/ — Parents
May 28,2014
Attorney — Parents
Attorney — District
Supervisor — District
Father — Parents
Director — Parents
Attorney — Parents
Attorney — District
Supervisor — District
Father — Parents
Teacher/ — Parents
Attorney — Parents
Attorney — District
Director/Pupil Personnel — District
Father — Parents
Educational Coordinator — Parents
Attorney — Parents
Attorney — District
CSE Chairperson — District
Ass’t Principal
Pupil Personnel Svc. — District
Father — Parents
Teacher — District
EVIDENCE
Parent’s Exhbt. Description Date Pages A Impartial Hearing Request 8/13/13 4
B IEP 11/1/11 8
C Letter to Office of Pupil Personnel Services 10/10/12 3 with fax transmission report D Letter to ----- -----/fax transmission report 9/19/12 1 E Letter to CSE Chairperson with fax report 8/12/12 2 F Report Card 2012-2013 1 G Classroom Teacher’s Report 4/23/13 3 H Report 4/15/13 2 I Progress Report 4/10/13 2 J Annual Review 2/25/13 K -----Program Description undated 1 L Affidavit of ----- ----- 1/7/14 1 M 2012-2013 Attendance Record 1/7/14 1 N 2012-2013 ----- Tuition Contract 4/30/12 2 O Class Schedule 2012-13 2 P Proof of Payment Misc. 10 Q Progress report 6/1/12 2 R Progress report 5/31/12 2 S Parent letter to ----- ----- (W. Hempstead) 5/25/12 1
DISTRICT
1 IEP 6/5/12 13
2 PWN 6/5/12 2
3 Classroom Teacher Report 6/14/12 2 4 report 5/24/12 2 5 Psycho/education al report 3/9/11 3 6 Evaluation 1/3/12
1/16/12 4 7 Evaluation 2/10/12 5 8 Classroom Observation 9/27/11 1 9 Progress Report 2012-2013 7 10 Class Register 2012-2013 1
11 IEP 6/5/12 12
12 IESP 6/13/12 11
13 Teacher Statement Form 3/19/12 2 14 Report 3/20/12 1 15 Parent Intent to Receive Services 5/17/12 1
PROCEDURAL HISTORY
Petitioners, ----- and ----- bring the instant action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., Article 89 of the New York State Education Law, and Section 504 of the Rehabilitation Act of 1973. They seek an order requiring the Lawrence Union Free School District ("District") to reimburse the cost of their son's tuition at the ----- Program at the of Nassau County ("-----") for the 2012-2013 school year ("SY"). The parents allege that the District failed to offer their son, -----, a free and appropriate public education ("FAPE") for the 20122013 SY, that ----- provided him with an appropriate program, and that a weighing of the equities supports an award of reimbursement for ----- tuition.
STATEMENT OF FACTS
----- was a 6-year-old student at the beginning of the 2012-2013 SY. He has academic delays, social/emotional deficits and speech and language issues, including poor motor skills, a slow and labored work pace on class work, organizational deficits, along with a limited attention span and a low frustration tolerance. Tr. 311-16, 466-470, 474-75, 519-520, 543-45, 675-76; Ex. 4, 5, 6, 7, 8, 9, 13, 14, G, H, I, J. He requires frequent prompting and redirection to stay and complete tasks, and to re-engage once his attention has strayed. Tr. 311, 314-16, 468-470, 546-48; Ex. F, G. Additionally, ------ struggles with social interaction and has difficulty appropriately engaging with his peers. Tr. 311, 314, 467-68, 546-48; Ex. G. As a result of these issues, in order to make measurable academic and social/emotional progress; according to the Parent -----requires placement in a small class within a small, structured, and nurturing environment, with related services.
BACKGROUND
On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program. The hearings were conducted at the office of special education, Lawrence School District, 87 Wanser Avenue, Inwood, New York. At the hearing the “DOE” was represented by its attorney ----- ----- and the parent was represented by their counsel Mr. ---- ----- and Ms. ----- -----.
THE DISTRICT’S POSITION
That the IEP developed was tailored to meet the student’s educational needs and that they provided a FAPE. Alternatively, if considered the DOE submits that the equities do not favor the parent and that the relief requested be denied.
THE PARENT’S POSITION
The Parents maintain that the DOE failed, procedurally and substantively, to offer----- a free and appropriate public education (“FAPE”) for the 2012-2013 school year.
THE DISTRICT’S CASE
Ms. ----- ----- after being duly sworn testified that the CSE team obtained updated and current evaluations. As the student’s school was located outside his district of residence, the district of location, (“DOL”) provided the related services.
Ms. ----- testified that she is familiar with -----and has chaired some of his meetings, did a classroom observation and a behavioral inventory last year (Tr. 24); Ms. ----- ----- is a Psychologist at the #4 school and participated in the classroom observation with Ms. ----- when ----- was in kindergarten (Tr. 24) The observation took place on September 27, 2011, and revealed that ----- was slow in getting started and that the other children had already begun their work, after a few minutes, without prompting, -----began to work independently. He finished a few minutes before the other students; the teacher indicated he got everything correct (Tr. 27). Based on her observation, she stated that it’s possible that ----- is in too restrictive a setting as he was able to move along at a quicker pace than his classmates.
The witness stated that she was the chairperson for the student’s Annual Review for the 2012-2013 school year; she identified District #1 and #11 as ’s IEP’s that were generated for the 2012-2013 school year (tr. 28). Additionally, the witness stated that all the reports were reviewed and there was a full IEP team including evaluators from all disciplines. Ms. ----- stated that Exhibit #11 is the IEP that goes to the parent; it indicated that ----- was to be classified and provided information regarding the recommended program. The witness explained that Exhibit #12 is an IESP and was generated from the district of location, the West Hempstead School District (tr. 31); she did not participate in the West Hempstead IESP meeting.
The witness stated that the Lawrence School District’s responsibility to a student who is placed outside of the school district includes being responsible to draft an IEP so that the district of residence can offer the student a public school placement. (tr. 32). The final IEP was generated June 13, 2012, one week after the meeting.
Ms. ----- described the protocol of the IEP meetings in that she “makes it her business to turn to the parent after each presentation and reiterate that they can question or add anything”. (tr. 34). After each of the presentations by the attendees, the second part of the meeting is used to develop an IEP for the upcoming school year including accommodations, modifications and goals. (tr. 35).
The witness identified Exhibit 3 as a document that was received from the teacher’s at ----- and that it follows the Lawrence School District format in terms of classroom-teacher reports (tr. 37). She described District #13 as a West Hempstead form, wherein teachers are requested to provide information.
Ms. ----- stated that District #3 indicated that Mrs. ----- noted that ----- skills were emerging but that he needed assistance in blending sounds. Listening and comprehensive skills were very good, math skills were on grade level and writing skills were labored (tr. 40).
The witness stated that based on the teacher’s reports, -----exhibited strengths wherein the classroom teacher indicated that he has good cognitive skills and is interested in many topics. He participates in classroom conversations and exhibits competencies for kindergarten-aged students in reading and math. (tr. 43).
With respect to areas of deficit, the teacher highlighted that ---- motor skills were an area of weakness and that he had issues with social skills; however, has made progress in his tolerance to frustration (tr. 43). She stated that the teacher’s report indicated that -- ---has difficulty regarding organization or attentional skills and sometimes needs to be brought back to task (tr. 44). Regarding the child’s short attention span, there was a discussion regarding whether he required a specific functional behavioral assessment or behavioral intervention plan and it was decided that classroom strategies implemented by the teacher were sufficient. (tr. 46).
Ms. ----- was directed to District #11 and stated that the reports and annual review progress report were reviewed. The witness identified District’s Exhibit #4 as the Report that was utilized by the CSE at the June, 2012 meeting; the report indicated that the therapist observed that ----- demonstrated progress in many language areas and was cooperative and hard-working. It was noted that -----was a good listener and that there has been progress since the beginning of the school year. Additionally, she stated ----- becomes very excited at times and will interrupt a speaker during a verbal exchange, however his “turn taking skills” are emerging. ----- utilizes language with his peers to regulate their behavior (tr. 49). ----- had good vocabulary and comprehension skills for newly taught words and phonemic awareness skills was a strength for him (tr. 50). The Speech Therapist stated that in the area of expressive language, ----- asks questions to gain information (tr. 53). Speech intelligibility was stated to be effected by the use of inappropriate volume intensity and occasional mumbling; strategies have been presented to to address this difficulty (tr. 53). Ms ----- stated that the team made a recommendation for ----- to receive related services in in a small group and did not recall there being any disagreement. The team reviewed the and reports.
The IEP reflected that evaluations were performed on February 10, 2012 and January 6, 2012. Districts Exhibit #7 was the evaluation which was reviewed at the annual meeting and indicated that ----- displayed good eye contact, required minimal verbal cues to complete most gross motor tasks and responded well to encouragement on difficult tasks (tr. 58). Additionally it was reported that the therapist reviewed standardized testing results in terms of posture, muscle tone and motor verbiage. Body coordination was reported to be in the th percentile and strength/agility in the range. (tr. 59).The witness stated that the June 5, 2012 IEP reflected the child’s performance in the physical therapy domain. It was recommended that therapy be provided twice a week on an individual basis. Goals were developed to address the child’s difficulty with balance while negotiating stairs to improve trunk control (tr. 62). She also stated there were no disagreements for the recommended services (tr. 63).
As per the therapy report, there was an evaluation held on January 6, 2012 (District #6); the report described the student’s strengths and weaknesses and indicated that he has made progress in all domains but continues to need to improve to keep pace in the classroom. Standardized testing was conducted as part of the evaluation. Ms. ----- stated that the CSE developed goals to address the child’s fine motor deficits and referenced page 8 of the IEP at goal #13. The goals contained measurable criteria to determine progress and that to the best of her recollection, no one disagreed with the results of the evaluations.
The witness testified that there was an annual review report dated 3/27/12 (District #14), the document was authored by Dr. ----- from the West Hempstead School District and reviewed by the CSE team. Ms. ----- stated that it was her job as a District Psychologist to review the report. She noted that Dr. ----- opined that ----- needed to work on demonstrating a mature coping mechanism and he was also working on improving his attendance skills. Dr. ----- indicated that modeling for ----- in the form of role-play, would demonstrate to him more effective ways of engaging in longer dialogue with peers, etc. (tr. 76). On page 5 of the IEP, the social and emotional needs of the child indicated that the child’s tolerance to frustration has improved, however, he doesn’t always initiate contact with peers. Social and emotional goals were recommended including that ----- would verbally identify feelings of frustration and implement strategies to deal with same. The witness also stated in her opinion ----- would be appropriately placed with typically developing peers. (tr. 79); no one in the CSE meeting disagreed with the report. Recommendations for were that ----- would be in a small group one time weekly. She also stated the social and emotional goals were measurable. Ms. ----- stated that a psychological evaluation had been administered one year prior to the meeting in July, 2011 (District #5).The WPPSI and Wechsler Pre-School/Primary Scale of Intelligence were administered, wherein ----- responses were measured against other children’s. The March, 2011 testing indicated ---- verbal IQ was and within the range. ----- was able to integrate information into a logical manner with adequate deductive reasoning skills. His performance IQ was in the range wherein he scored a in the th percentile. (tr. 83).
Ms. ----- stated she is familiar with the -----testing which is an educational evaluation that examines reading skills. ----- word reading yielded a standard score of in the rd percentile, marginally short of a range. (tr. 86). The witness indicated that a measurement of the child’s math skills was done and ----- scored an ageequivalent of , a few months above his chronological age. ’s listening th comprehension yielded a standard score of in the percentile.
Ms. ----- indicated that ----- made significant gains in language processing and motor delays. The small class setting appeared to be warranted for continued growth. She recalled that the team agreed with the School Psychologist’s recommendations.
The witness was directed to the June 5, IEP and stated that the team recommended five goals; four of which were study skills as ----- was meeting or exceeding grade level expectations. Ms. -----stated after reviewing all the documents and reports, the CSE team recommended an integrated co-teaching classroom for the 20122013 school year and related services including therapy, therapy, therapy and . (tr. 96).
Ms. ------stated that from the time of the CSE meeting in June, 2012 until the beginning of the school year, there was a discussion with a parent wherein it was indicated that ----- was going to attend . (tr. 98). Ms. -----reiterated that at the meeting, the recommended placement was described in terms of what an integrated class would consist of wherein there could be up to 20 or 21 children; 2/3 of the student do not have IEP’s and would be appropriate role models for ----- (tr. 98). The class is taught in a co-teaching model where there is a general education teacher with the students all day and the special ed teacher who pushes into the classroom for all core academic subjects (tr. 99). Ms. ----- described the program as highly structured, well-implemented to provide children with all the support in academic areas, social emotional development and functioning. (tr. 100).
Upon further questioning of the witness, she stated that a recommendation for a self-contained classroom would be too restrictive and that the recommended placement would provide him with an appropriate setting in the least restrictive environment. Ms. -- --- stated that the recommended program was housed in the #2 school. The witness further testified that after she received a phone call from the parent to look at the program, she called Dr. ----- who is the School Psychologist at the #2 school to arrange for a visit. (tr. 103).
Upon cross-examination of this witness, she was directed to Exhibit #8 and identified it as her observation report and reiterated that she was the author of the report. (tr. 107). Ms. ---- stated that a review of the record indicated that the parent was provided with a copy of her 9/27/11 report at the 11/1/11 IEP meeting and again at the June, 2012 meeting. She stated that copies of all the reports that were referenced at the meeting were sent to the participants even if they participated by telephone prior to the meeting (tr. 109). Concededly she did not have an opportunity to observe ----- with the mainstream population and only observed him in the special education classroom setting (tr. 114). The witness stated she did not agree with the teacher’s comments regarding ----- difficulties in processing information, however, did not ask for any documentation to otherwise elaborate on same. (tr. 116). She does not recall how much re-focusing the child required but that he could easily be re-directed.
Ms. --------stated that she believed the classroom was “too restrictive# based upon the student’s average to above average cognitive abilities, her classroom observation and the strides that he made in his related services. (tr. 120). Based upon her observation at the time, she had preliminary thoughts about it being too restrictive, however, it is one piece of information and that she did not have enough information on the basis of the observation alone to say that the placement was too restrictive. (tr. 122).
After reviewing her file, Ms. ------- stated that the Lawrence School District was not prejudiced in developing an IEP by a lack of information that may have been available to West Hempstead as in her opinion, “we have more information than they have”(tr. 128).In comparing the West Hempstead recommendations for related services, the witness stated that they were the same as the Lawrence School District’s recommendations except for therapy whereas West Hempstead recommended it twice a week in a group and that Lawrence recommended it one time per week individually and once in a group. The witness didn’t recall whether she had a conversation with the Therapist regarding recommendations for this size of group sessions for the 2012-2013 school year. Upon further questioning of the witness, she stated that the provider has made the recommendations for the service levels that were on the IESP as opposed to those recommendations made by the Lawrence School District (tr. 132).
Ms. ----- conceded that at the June, 2012 IEP meeting, she was aware that----- required support to maintain pace with the rest of his special education class. The witness conceded that the teacher’s report did not state that re-focusing, reorganization and paying attention is no longer an issue. (tr. 136).
Upon further cross-examination, the witness stated she did not recall having contact with ----- ----- the Pathologist regarding exception of ----- auditory processing delays (tr. 138). Ms. ----- conceded that the child’s deficits in speech and language were not “minimal”, however, he made significant strides in his functioning as it relates to academic competency in language skills. (tr. 140).
Ms. ----- stated that to establish mastery of the skills, ----- had to demonstrate the skills 2/3 of the time. These mastering goals were based on her observation and the recommendation of the professional, ----- -----, who had not worked with or observed -----. Concededly, all of the attendees from the Lawrence School District did not meet or observe ----- except for her observation as reported above.
Ms. ----- stated that at the time of the meeting, Ms. ----------, was a teacher, however, she did not recall what grade she taught for the 2012-2013 school year. At the June 5, 2012 meeting, there was no general education teacher who had worked with ----- and no participants present who would have been reasonably expected to work with ----- as a Gen Ed teacher for the 2012-2013 school year. (tr. 145).
Ms. ----- agreed with the recommendation for an integrated co-teaching class; she did not recall anything else of what she may have said. The witness conceded that the child’s difficulties in speech and language and therapy were “not typical for a Kindergarten or 5 year old student”. The witness conceded that although improvement was noted in ----’s ability to tolerate frustration, he still needed work on improving his composure. (tr. 1543). Upon further questioning of the witness, she stated that after the meeting, the draft IEP is finalized and that no one who attended the IEP meeting outside of employees of the Lawrence School District could comment upon the final version.
Ms. ----- conceded that at the time of the IEP meeting, she acknowledged that ----- often fell, bumped into things and people and was considered to be very clumsy. The IEP recommended 7 pull-out sessions for related services and did not specify that the pull-out sessions would not occur during the 2 hours of integrated co-teaching. (tr. 173).
The witness stated she did not have recollection of the staffing ratio at but recalled the participants at the IEP meeting and stated that ----- had made progress due to the small class with a 4:1 ratio. (tr. 175). Additionally, none of the representatives of the School were in agreement with an ICT class.
The next witness to testify was Dr. ----- who stated that he is a NYS Licensed Psychologist and a certified School Psychiatrist. He is employed by the Lawrence Public School District as a Psychologist and has held that position for 19 years. His responsibilities include overseeing implementation of special education programs, student crisis’s, counseling, responsibilities and cheering special education meetings and annual reviews (tr. 195).
Additionally, he assists teachers and staff in developing management behavioral components and conducts FBA’s and BIP’s; however, he usually trains his staff to implement the BIP. The witness stated he is in and out of the classrooms and observes children every single day and goes into classes to observe specific students for specific reasons (tr. 196).
Dr. -------testified that he gave the parent a tour of the building at School #2 on September 23, 2012; he arranges for Parents to visit a classroom and then typically expands the tour so the parent can see all the programs available. (tr. 198). The parents view the entire building including the gym, library and stairways. During the 2012-2013 school year there were 70-80 students that attended the #2 school who were classified. (tr. 200). The witness did not have a recollection of specific conversations with -----s parents during the tour. He was familiar with the inclusion class for the first grade for the last school year and there were several students who received counseling. (tr. 201).
The witness was directed to exhibit #10 and stated that it was the #2 school Register for the recommended class; there were fifteen children in the classroom and to the best of his recollection at least seven of the students had IEP’s. The structure of the classroom consisted of two adults at all times; a General Education Teacher and a Special Education Teacher . The Special Education Teacher was there for 2-3 hours a day; when she wasn’t present, there was an Instructional Aide. The Special Ed Teacher had a varied schedule, however, she was there every time that Reading and Math was part of the instruction. The witness testified that the Special Education Teacher provided additional service to the children in the inclusion class and was available to provide extra help during the school day, before and after school at least 1 time per week; in addition to extra help being available at various times throughout the day. (tr. 204).
Dr. -----described the school day as beginning at 8:20 a.m. and ending at 3:05 p.m. In addition to Reading and Math, the children also received Physical Education three times a week, Art one time per week, Music one time per week, and computers. The first graders and third graders go to lunch from 11:45 to 12:30 and the second and fourth graders attend lunch from 12:30 to 1:20. (tr. 206). The witness estimated that roughly 200 students eat at each lunch period. There were two cafeterias, wherein the first graders would go to cafeteria A and the third graders to cafeteria B. There were 5 first grade classes during the last school year consisting of approximately 100 students.
The witness stated that in the inclusion class last year, the cognitive levels range from high average to low average. (tr. 207). The behavior needs of the inclusion class were not problematic as the students were generally pretty good; there were some students with ADHD profiles. The witness further specified that each of the Special Education Classrooms in the building had a classroom-wide behavioral plan or motivational plan that differed based upon the teacher’s assessments. He is familiar with the social presentation of the children in the first grade inclusionary class for the 20122013 school year and stated that they were typical first graders, friendly, inquisitive and social; however, there were instances when they became frustrated and there were issues between the students but nothing out of the ordinary. (tr. 209).
Dr. --------- reviewed District evidence #1 and identified it as -----’s IEP for the 2012-2013 school year. He stated that based upon the child’s performance on the testing, he was solidly average and seemed to be functioning at a level consistent with his cognitive abilities (tr. 212). He described -----’s scores as generally a little better than some of the other inclusionary students, however, conceded that some of them had scores similar to -----.
On page 5 of the IEP, Social Development, the witness stated that -----’s social development strengths and needs was similar to the profile of the students that have IEP’s in the classroom (tr. 214).
Dr. ----- conceded that other children in the inclusion class during the 2012-2013 school year had deficits in writing skills, and language skills. Additionally, other children in the class were receiving related services including speech & language therapy, occupational therapy and that -----’s needs in the general education curriculum were similar needs to other children in the class. (tr. 216).
Dr. -------stated that he had a group of 5 children, a small group of first grade students in his office and for the most part they all had IEP goals “to engage in frustration tolerance skills and the emotional self-regulation. (tr. 220). He described his counseling sessions, wherein each student begins with five stars and the counseling lasts 30 minutes; if the students can accomplish the goals that he sets out for them in the first 20-25 minutes; the student could earn additional stars; then collectively they would be rewarded with play time in the office. This exercise promotes listening, compliance and the ability to accomplish self-regulation (tr. 221).
Dr. ----- stated that the students were mainstreamed for non-academic activity including art, music, physical education, library and computers. (tr. 226).Dr. --------- has been involved in assisting or transitioning a student into the #2 school from other schools and/or programs. The parents would fill out a registration information form and interview with the school Social Worker and/or himself if necessary to come up with a plan to get the student into a classroom. The most useful tool would be “friendly receiving faces of the #2 staff”(tr. 228); a buddy would be assigned to the student for additional support.
The witness testified that he believed the recommended placement at the #2 school, inclusion first grade class, would have been able to provide -----with sufficient support and based on what was written in the IEP he believed that his school could accommodate his needs (tr. 229). Dr. ---------- described how his staff would address children and re-focus and redirect them in a dignified and constructive way. He and the teachers would come up with a script that would be appropriate based on the student’s individual needs in order to assist the student to self-regulate (tr. 231).
Dr. ----------- opined in his opinion the teachers and aides were responsive to the needs of the children in addressing attentional issues. (tr. 231). In his opinion, the general education students in the class last year were all typical learners and typical 6 year olds with generally good social, emotional repertoires so that they would be good role models. (tr. 232).
Upon cross-examination of the witness, Dr. -------- conceded that he never met --- -- and stated that he did review parent’s Exhibit A in order to become familiar with the parent’s concerns.
Dr. ----- stated the entire population at the #2 school was between 410 and 425 students. The witness stated that the student population/roster changed all the time, however, believed that there were 8 IEP students in the recommended classroom on the first date. (tr. 239). To the best of his recollection, Dr. ------ stated that the IEP students were generally learning disabled, speech and language or other health impaired (tr. 240).
The witness testified that the Special Education teacher was also in the integrated class for science and social studies periodically, however the emphasis was on reading, English, language arts and math. Dr. -----stated that in the 7 hour day, the students would have 2-3 hours of ELA and math and a 45 minute lunch. Additionally, there would be 3 hours for art, music, library, and gym. The Teaching Aide would be in the class with the General Education Teacher whenever the Special Ed Teacher was not there.
Dr. ----- stated that there were 3 gym classes which could be a mix of first and second graders with approximately 15-20 students in each class and participated 3 times per week with 3 physical education teachers. Dr. ----- stated that he was unfamiliar with the minimum requirements for the presentation of English Language Arts and Math on a given day. He believed the children received approximately 2 hours a day for such instruction. He conceded that based on his review of the IEP he did not recommend any type of additional support for ----- to function in mainstream classes (tr. 249).
Dr. ----- described instruction for ELA and Math wherein there would be a general presentation by the General Education Teacher and there would also be desk work and break down into sub-groupings wherein the Special Ed Teacher or the Teacher’s Aide would sit at a crescent moon table to monitor work that the children were doing.
Occupational therapy was typically provided to children in the occupational therapy room. The groups usually were not larger than 3-1 and it was stated that there were 2 occupational therapists and 2 full-time speech therapists last year.
Dr. ----- conceded that the student was recommended for 7 pull-out periods and 1 push-in and he did not recall anyone having these many related services in the class. (tr. 257). He did not believe there were any additional supports to assist for making up missed work. He added that the school could have met the mandate of 7 pull-out sessions and one push-in session (tr. 258).
Dr. --------- stated that the IEP students adapted to the curriculum in “an accepable manner”. (tr. 260). Dr. ------ reiterated that most of his students had frustration and/or attentional issues and the staff worked to assist the children to attend and follow through (tr. 264). The students presented with expressive receptive language issues and impulsivity issues.
Dr. ----------- reiterated that he was required to provide extra help both before and after school, at least once a week. The extra help was not a recommendation that was placed on an IEP. (tr. 265). Counseling was stated to be often done during a period when the students were not getting ELA or Math and generally late in the morning. He also conceded that if a child were receiving 7 pull-out services, that some accommodation would have to be made with respect to the scheduling (tr. 266).
The general classroom behavior plan was designated as “lucky ducks” where the children would vie for rewards by the end of the day. Students who had a more specific plan would work out such a plan with the Special Education Teacher and the student. The witness believed that perhaps two students had special plans and that he was consulted with the Special Education Teacher who he described as “very seasoned” (tr. 267).
The witness was directed to pages 3 and 4 of the IEP and stated the child’s functioning in February, 2012 in the area of body coordination was , however, strength and agility was the average range. With respect to motor coordination, -----was in the th percentile which was definitely . Regarding the Wechsler Pre-school processing speed, the student was in the average range (tr. 270).
Dr. ----- was directed to District Exhibit #3 wherein it stated that ----- needed constant re-focusing because he becomes self-absorbed and distracted internally; the witness stated there were other students that had similar needs. The witness stated that he was not familiar with the ratio of the class that ----- was in which was based on the information contained in the report. He also stated that assuming ----- was in a selfcontained class with a teacher and assistant teacher and that it was under 10 students, it would not change his opinion on whether or not he could function in an integrated class (tr. 272).
Dr. ------ conceded that there were students in first grade in a self-contained class that had difficulty with organizational skills, deficits in writing skills, deficits in language skills and deficits in motor skills. Furthermore despite the fact that ------’s difficulties were similar to the students in the self-contained class, the profile could also represent the student in the recommended program. Dr. -----stated that -----’s profile illustrated a student whose cognitive skills and academic achievements were solid. Based on that, it would push him towards the integrated co-teaching class even though he has selfregulatory impulsivity issues (tr. 275).
The witness stated that-----’s social deficits do not necessarily warrant special education support throughout the day; the staff has a program review wherein they discuss why it would be a good idea for the student to go from a more restrictive to a less restrictive setting and the plan would be mapped out in an IEP. He conceded that he did not see a transition plan in ----- IEP.
On re-direct examination, Dr. ----- stated that at no time was he advised in the 2012-2013 school year by the art, music or gym teacher that they required additional support for the purposes of providing services to the first grade inclusion class. If there was a need for such a support, there would be a mechanism to implement same. If there was an issue, any one of the clinicians or special ed teachers would be called. (tr. 284).
The next witness to testify was Ms. -----who stated that she has been employed by the Lawrence Public Schools for 24 years as a Literacy Specialist for the first and second grade. She has a Bachelor’s degree in reading from Eastern Washington University and a Master’s Degree from Columbia University Teacher’s College. Her primary responsibilities are to remediate first and second grade students who do not meet the District’s benchmark for reading. She is also responsible to turn-key all the newest information and curriculum changes to the staff. (tr. 747).
Ms. ---- stated that she has worked as a Reading Recovery Teacher which is an interventional program designed by ----- from New Zealand. The children are instructed individually with a short term intervention. (tr. 748). The Reading curriculum at Lawrence School District is taken from a variety of sources including “Core Knowledge Language Arts Program”, which is a phonics and listening/learning program. It is also based on the Common Core Curriculum (tr. 749).
Ms. ------- stated that she provides small group instruction for 1st and 2nd grade students and that the groups are homogenous. They come from a variety of classrooms and are placed in the program based upon an examination. (tr. 750). She described 1st graders as a unique experience in the reading process and stated there are 18 levels of 1st grade reading; one is scaffolded upon the other (tr. 751). The witness stated that the reading instruction goes on throughout the day wherein the morning is very direct reading instruction and encompasses the entire morning unless a teacher has a prep period. She described reading as not being automatic but rather that it must explicitly be taught and is not an intrinsic skill (tr. 755).
Ms. ------ testified that based on her experience if children have language deficits, introducing a second language is not in the child’s best interest. The witness was shown a reading report from the 2011-2012 school year indicating that ----- is not totally comprehensive in terms of reading, he has reversals and his writing is labored. When directed to Exhibit #3, she stated that it indicated that-----’s short vowel word decoding skills were emerging; however, he needed assistance in smoothly blending sounds (tr. 762). Ms.----- stated that she would not recommend the child with writing deficits try to learn a second language as in order to be a reader you must be able to spell and write, “it’s all one big package; learning to decode is not a skill in isolation”. Upon further questioning of the witness, she stated that teaching in the Lawrence School District is in English – there is no bilingual curriculum.
Upon cross-examination, the witness conceded that she has not participated in the IEP meeting and never evaluated -----. Also, she stated that she never read any of the evaluations except for the 2 teacher reports that were shown to her at the instant hearing. (tr. 771).Ms. -------stated that she has no knowledge of the first grade Hebrew curriculum at (tr. 774).
The last witness to testify on behalf of the District was Mr. ------ He testified that he is a New York State Licensed Psychologist and Certified School Psychologist and is currently employed at the West Hempstead School District as a School Psychologist. He has held that position for 27 years. Prior to that he worked at Long Island Jewish Medical Center in their pre-school program. His current responsibilities include being the Building Psychologist for two schools wherein he does evaluation and testing as needed and also sees children for counseling. (tr. 781). He stated that the buildings that he is located in includes The Academy of Nassau County and the St. Thomas Apostle School.
Dr. ----- stated that he has been at the Academy for approximately 8 years and during the 2011-2012 school year he was at the facility approximately 4 days per week. He is familiar with ----- and saw him for . During the 2011-2012 school year, ----- ----- was -----’s teacher and he consulted with her approximately every 5 or 6 weeks. was administered to ----- in a small group; his goals were to enhance play skills, enhance ability to communicate with peers in a positive way and to assist him to cope with any kind of negative emotions (tr. 784).
During the 2011-2012 school year, the witness stated Ms. Harris did not request a functional behavioral assessment or behavioral intervention plan. The witness further stated that during that school year, he went into Ms. ------’ class and stated there were classroom management programs. He believed they were sufficient for ---- as “they ran an organized class in that regard”.
For the 2012-2013 school year, the witness stated that he conducted an IESP meeting for ---- dated June 13, 2012 and was the Chairperson. (tr. 786).The witness stated he did not have recollection as to any discussion regarding the student’s District of residence, Lawrence, at the IESP meeting. He also stated that he had responsibility to provide services to children who were parentally placed at / .
The witness testified that he made a recommendation for the 2012-2013 school year with reference to and stated that it was a continuation of the services from 2011-2012; if the child required more intensive services, he would have recommended same. (tr. 790).
Dr.----- stated that there were no more than 4 children in the group and the ratio was appropriate. He stated that ----- made progress during the 2011-2012 school year, however, he had difficulty tolerating frustration and would get upset. He wanted to be by himself as opposed to being with other children and he was making progress in that regard and interacting for longer periods of time with children. (tr. 792). He stated that he provided services for the 2012-2013 school year in a small group. The therapy was mainly verbal and also had a combination of exercises, social skill games, role playing and talking (tr. 793).
Lastly, the witness had no recollection if a parent ever contacted him regarding the student’s social and emotional needs for the 2012-2013 school year.
Upon cross-examination, the witness stated that he was at the / facility
4 days a week and believed he worked with 12-14 students at the school. He believed he provided counseling services for 4-5 children from -----s class. Dr. ------ stated that he did observations in Ms. -----’ class; they generally lasted 30-35 minutes. Additionally, when he picks up the children at Ms. ’ class he also would be in the class for 5 minutes. He agreed that he had conversations with Ms. ----- when he picked up ----- on a periodic basis and did not keep track of these impromptu conferences (tr. 803).
Dr. ----- stated that he would have had a conversation with a parent regarding future provisions of related services prior to the IESP meeting. To the best of his recollection he was not asked to participate in the IEP meeting from the Lawrence School District. At the IESP conference he wrote a summary. Prior to the Annual Review for the 2012-2013 school year, he would try to reach the parents perhaps 2-3 weeks prior thereto. He would discuss the child’s progress, things that have been going on in the sessions and any concerns that the parent had (tr. 807).
THE PARENT’S CASE
----- is currently an 8 year old child who has been classified as
,“ ”. On June 5, 2012 the CSE met to develop an IEP for the 2012-2013 school year. The child was recommended for an integrated co-teaching class with the related services of therapy, therapy, and therapy. The parent declined the class recommendation and ----- attended an out of district placement at the Academy of Nassau County, (“ ”) located in the West Hempstead School District. The related services to the child were provided by the district of location, and funded by the Lawrence Union Free School District.
----- was a 6-year-old student at the start of the 2012-2013 school year; he had academic delays, social/emotional deficits and speech and language issues, including poor motor skills, a slow and labored work pace on class work, organizational deficits, along with a limited attention span and a low frustration tolerance. tr. 311-16, 466-470, 474-75, 519-520, 543-45, 675-76. He required frequent prompting and redirection to stay on task, to complete academic tasks, and to re-engage once his attention has strayed. tr. 311, 314-16, 468-470, 546-48; Ex. F, G. E.O. struggles with social interaction and appropriately engaging with his peers. tr. 311, 314, 467-68, 546-48; Ex. G. As a result of these issues, in order to make measurable academic and social/emotional progress, ------ requires placement in a small class within a small, structured, and nurturing environment, with significant levels of individual attention and support, with similarly-functioning peers and peer models, and with appropriate opportunities for interaction with typically developing peers. Tr. 316-17, 555-557; Ex. 5, G.
On June 5, 2012 the CSE convened to develop an IEP for ------ for the 2012-2013
SY. In attendance was the parent, ----- -----, the Program Director of and ---- ---, -----'s classroom teacher. The CSE considered the teacher report, related service reports, a psychoeducational evaluation, -----IEP and verbal input from his providers and teacher tr. 28, 39, 47, 57, 63, 75, 80; Ex. 1, 11.
Parent maintains that the CSE failed to consider a social history or a classroom observation, to sufficiently consider the most recent psychoeducational testing, and did not adequately review -----'s progress towards meeting his 2011-2012 IEP goals. tr.80, 167, 318-19. Despite these omissions the CSE initiated a significant change in placement from ----’s then-current small, self-contained program, to a partial recommendation for an ICT classroom with unsupported mainstreaming for the remainder of the school day. tr. 463; Ex. 1, 11. Parent maintained that the CSE failed to provide him with a meaningful opportunity to participate in the decision-making process, failed to adequately consult the parent and the representatives from regarding the appropriateness of the recommended program for 2012-2013 SY. tr. 154-55, 319, 325-330, 465. 475-77.
The parent testified that he was referred to the # 2 School in the Lawrence District for placement in an Integrated Co-Teaching (“ICT”) class. tr. 672-73; Ex. 1, 11. The parents arranged to visit the program when school opened in the fall in order to consider whether it would be appropriate for ----- Tr. 672-73; Ex. D, E. The parent observed the recommended class during a lesson and was concerned that it would not offer ----- sufficient or appropriate support. tr. 672-74; Ex. C. The parent noted that the classroom aide was not engaging with the students and had to be repeatedly summoned to do so and expressed concerns regarding the training and qualifications of the classroom aide. He expressed doubts that she would be capable of providing for -----, given his extensive needs. Ex. C. The parent expressed concern regarding the partial ICT recommendation for only two hours per day; he did not have the opportunity to observe the mainstream environment that ----- would attend for the majority of his school day. Ex. C. After his visit to the proposed placement the Parent determined that it was inappropriate for ----- and wrote to the CSE to so advise. tr. 674; Ex. C. In their letter, the parents indicated a continued willingness to consider any program offered for -----.. Ex. C, however the CSE failed to respond to this letter. tr. 674.
----- -----, the CSE Chairperson and District Psychologist at the June 5, 2012 CSE meeting, testified that the CSE relied upon -----'s teacher report, a classroom observation, related service reports, a psychoeducational evaluation and -----'s prior 20112012 IEP in developing -----'s 2012-2013 IEP. tr. 28, 39, 47, 57, 63, 7 80; Ex. 1, 11. However, Ms. ------testified that no classroom observation was done and that a social history was not reviewed during the meeting. tr. 80, 167, 318-19. Furthermore, the team reviewed ------'s prior 2011-2012 IEP; Ms. ----- could not confirm whether the team reviewed ----- prior IEP goals with his teacher to determine the extent of progress he had made on those goals, prior to developing new goals for the 2012-2013 SY. tr. 167, 319. Ms. ------- admitted that she did not observe ----- in a mainstream setting, so that she had no knowledge of -----‘s ability to function independently in a mainstream class; therefore, the observation could not be reasonably relied upon in support of a mainstream recommendation. Tr. 113-14; Ex. 8. Similarly, Ms. ----- could not point to a single report that was relied upon that likened -----‘s needs to the “typical” kindergarten student, to be used in support -----'s participation in an ICT classroom or in the mainstream. Tr. 136, 148-49.
The team also developed related service recommendations and goals without consulting ------'s then-current related service providers. tr. 131-32, 138. As a result, Ms. ----- could not confirm whether the therapist working with -------- at the time of the IEP meeting would have supported the level of related services recommended by the CSE, as opposed to the level of services recommended by the West Hempstead
IESP. tr. 131-32, Ex. 1, 11, 12. . As per the testimony of Ms. ---------, the CSE failed to provide ------'s parent with a meaningful opportunity to participate in the decision-making process and to adequately consult the parent and -----'s then-current teachers regarding the appropriateness of the recommended program for ----- for 2012-2013 SY Tr. 319, 325-28, 475-76. At the IEP meeting, the faculty discussed the inappropriateness of placing ----- in full size general education classes with only one general education teacher and with respect to safety concerns in physical education. tr. 327-28, 476-77. A recommendation for a parttime ICT program for two hours per day was not discussed during the meeting, and the faculty testified that their impression of the final program recommendation was of a full time ICT recommendation. tr. 327-330, 465.
Ms. ------ admitted that the draft IEP that she was typing during the meeting was visible only to the participants from the Lawrence District who had access to the "IEP Direct" program, and that the parents and participants would not have been able to comment upon the information inputted into the draft during the meeting. Tr. 154-55. The CSE failed to consider or recommend any supports for the mainstream portion of----- -'s program, even though the CSE was aware that ----- was attending mainstream music and physical education with supports, including the assistance of teachers, preteaching and small group work. Tr. 328-29, 476-77.
Parent maintained that the CSE was invalidly constituted as a general education teacher who was currently working with ----- or could be reasonably expected to work with ---- during the 2012-2013 school year was not present as required by federal and state law. tr. 143-45; Ex.1; concededly, a general education teacher from the Lawrence School District signed into the meeting in the role of a general education teacher, Ms.----- -admitted that the participant had never met or observed ., and admitted that she could not be reasonably expected to work with --------- during the 2012-2013 school year, tr. 145. She admitted that the general education teacher did not contribute to the discussion of the supports that ------ required in order to participate a mainstream education setting. tr. 146-47.
Parent alleges that the IEP developed by the District was substantively inadequate as it fails to include sufficient, appropriate, objectively measurable goals and short-term objectives to assess --------'s progress throughout the year. The goals included in an IEP must be aligned with a student's needs and also must include sufficient information to enable measurement of the student's progress towards the goals during the school year. Parent argues that the IEP goals and objectives fail to meet this standard. Despite -----'s academic delays, there were no goals for reading or math on the IEP. tr. 468-470, 728, Ex. 1, 11, G. Furthermore, the one goal included on the IEP for writing fails to specify what grade level materials would be used to measure progress; therefore, the goal in not specific or measurable. Ex. 1, 11. The goals to address his organizational and attentional deficits are insufficient to address his needs, and there are no goals included to address his slow work pace during academic tasks. tr. 315-16, 466-470, 54648; Ex. 1, 11. Despite ------'s significant coping issues, there is only one goal to address this area of need, and it fails to specifically target his tendency to cry. tr. 635-36;
Parent stated that the ICT class recommendation would not have been appropriate for -----tr. 312-313, 471-74, 558. The CSE recommended this class for ------- despite the fact that, at the time of the meeting, he was in a small, self-contained class of eight students and two teachers, and mainstreamed only with the direct support of teachers. tr. 328-29, 463. Ms. --------- testified that the ICT class recommendation would not provide ---------- with the level of individual attention and support from a special education teacher that he requires in order to maintain attention to task, complete academic tasks, and to learn in the classroom in order to make appropriate academic and social/emotional progress. tr. 312-313, 471-74, 558. Additionally, the recommendation for an ICT class for only two hours per day, without any indication of where ----- would be placed for the remainder of the school day, would not have been appropriate for ------. Ex. 1, 11. Failing to include a recommendation for support during the majority of ------'s school day is a significant deficiency of the IEP. Furthermore, the IEP fails to identify the specific subjects that ----------- would attend in the ICT class. Ex. 1, 11. In his testimony, Dr.-----------, School Psychologist for the #2 School, attempted to clarify this deficiency by stating that a special education teacher was "absolutely [in the classroom] every single time that reading or math was part of the instruction." tr. 203. Dr. -----------firmed that the offered class was fully mainstreamed without the support of a special education teacher or a classroom aide for art, music and physical education. tr. 242-44.
Parent alleges that the IEP management needs were insufficient and did not provide the appropriate level of support that --------required as they should have included teacher modeling, prompting, individual support and small group instruction, among others. Ex. 1, 3, 11. Furthermore, the CSE was aware of these strategies during the meeting, as they were referenced in --------- teacher report. Ex. 3. The IEP also fails to include an individual behavior modification plan to address -----'s social and behavioral issues, despite the fact that his social/emotional issues and their impact on his academic functioning were discussed during the IEP meeting. tr. 321-24, 464-65; Ex. 3. Although Ms. ----- admitted that she was aware of these issues, there is no corresponding reference in the management needs to address --------'s work pace or his difficulties completing assignments independently, among others. tr. 45-46; Ex. 1, 11. The IEP also fails to include a transition plan or transitional support services to facilitate -------------- transition from his then-current program at to the less-supportive program recommended by the CSE, nor was this issue discussed during the IEP meeting. tr. 176, 279, 330, 477.
Dr. ---------- described classroom behavior plans and transition supports provided at the # 2 School to assist new students, tr. 208, 228. Dr. ------- testified that a special education teacher was present in the classroom at times during which reading and math were part of the instruction, which he loosely estimated to be two or three hours per day, but that these times varied throughout the week to accommodate the special education teacher’s schedule; however, the District failed to establish that this arrangement in fact conformed to the IEP mandate of two hours of special education instruction per day. tr. 203, 240-41. Parent maintains that the failure to provide an ICT class for two hours each day, as recommended by the CSE, is more than a de minimus failure in the District's ability to recommend a placement in conformity with ----------'s IEP or to appropriately implement -------------'s IEP.
According to Dr. --------- testimony, the students in the recommended class were mainstreamed in full-sized general education classes for art, music and physical education. tr. 226. He testified that the first grade ICT class joined a class of approximately 15 students for art and music, taught by one general education teacher. tr. 242, 280-81. For physical education, the first grade ICT class joined two general education classes, supervised by three general education teachers. tr. 242. Dr. ----------- testified that the offered class was also mainstreamed for lunch/recess with five first grade classes, totaling approximately 100 students, supervised by the physical education teachers and lunchroom aides. tr. 248, 258-59. As per Parent’s counsel though appropriately supported inclusion opportunities would have been appropriate for ------, none were recommended in the IEP and the IEP failed to include any supports for mainstreaming; and the programmatic mainstreaming in the recommended placement would not have sufficiently supported ------ to enable him to make progress. tr. 279, 309313, 327-28, 476, 558-59 Ex. 1, 11.
Additionally, the Parent argued that the District has failed to demonstrate that it offered placement to ------ in an appropriate class with similarly-functioning peers or appropriate peer models. Dr. -------- testified that approximately 16 students were enrolled in the offered class on the first day of school in September 2012, approximating that eight students had IEPs. tr. 239. He described the cognitive abilities of the students in the class as "low-average to high average," as "generally pretty good with behavior" and socially as "typical first graders," also noting that he did not recall any other first grade ICT students the amount of related service sessions mandated by -----‘s IEP. tr. 207-09,
257. He did not elaborate or offer any other specific information about the class. Parent maintained that the District's attempt to elicit testimony regarding -----'s social/emotional and academic functioning in relation to the first grade ICT class is suspect at the least, especially in light of the fact that Dr. --------- had never met or evaluated -----------, and based his testimony upon only a cursory review of -----------'s IEP. tr. 212, 214, 223.
Parent’s counsel opined that the District has failed to establish that the recommended class would provide ----------- with appropriate instruction, employing sufficient individual attention and support from a trained teacher. Dr. ---------- that a classroom aide was present to assist the general education teacher in the ICT classroom during the times that the special education teacher was absent; however, no testimony was presented regarding the qualifications or credentials of the teaching aides to suggest that they were qualified to support the students during academic lessons. tr. 187,203.
Parent’s counsel argued that while Dr. ------------ claimed that the special education teacher was able to give a high level of individual attention to the students during ELA and math, there was no testimony regarding the level of support available from a trained teacher to the students during the remaining academic subjects. tr. 205-06,
254. Dr. ----------- confirmed that the offered class followed the first grade common core curriculum, and while he testified that the offered ICT class was taught through a combination of full group and small group instruction, no evidence was presented to demonstrate how the teachers would differentiate instruction for the IEP students, or how the different instructional needs of the students would be addressed. tr. 254, 15 260.
--------------requires multisensory instruction with significant levels of individual attention and support from a special education teacher in order to maintain attention to task and to learn. tr. 305-06, 548-550; Ex. G. During her visit, the parent observed the classroom teacher instructing the class as a full group, without the active participation of the classroom aide. This raised substantial concerns about the level of support that would be available to ----- during academic instruction. Ex. C. The parent witnessed inappropriate behaviors from the students in the class, without any redirection from the teacher, which would not have been an appropriate model for -------, given his own behavioral and social issues. Ex. C. The parents addressed these concerns in their letters to the CSE following their visits, but received no response. tr. 673-74; Ex. C.
Furthermore, the school would not have been able to appropriately provide ------- with his related services. Dr. ---------- testified that therapy and therapy providers shared one room for the provision of services. tr. 256-57. He was unable to definitively state that provision of multiple service types did not occur in the same room simultaneously, and admitted that therapy and therapy may have occurred in the same room for multiple students at once. tr. 256-57.
Parent alleges that the District failed to establish that the offered placement would have provided ------- with a sufficient level of individual attention and support during less structured times during the school day. For instance, Dr. -------- testified that ------ would have had lunch/recess with five first grade classes, accompanied by lunchroom aides and three physical education teacher, and without a special education teacher. tr. 206-07. Given -------'s distractibility and difficulty interacting with his peers, the lunch/recess setting would have been overwhelming for -------, and he would not have been provided with sufficient individual attention and support to navigate such a setting. tr. 311, 314, 315-16; Ex. G. Moreover, an important opportunity for structured teaching of social skills would be lost. Similarly, the District has failed to specifically demonstrate how the placement and offered class would have supported and addressed --- --------'s specific issues, including his difficulty interacting and engaging with his peers, his low frustration tolerance and attentional issues.
Parent’s counsel stated the District attempted to present testimony to show how it would have supplemented -------'s IEP with additional support services, had he required them in order to learn and to make appropriate progress during the 2012-2013 SY. Dr. --- ------- testified regarding the potential provision of additional support from the special education teacher, as needed, as well as the implementation of a behavior modification plan in every classroom, and the provision of transition supports to facilitate -----'s transition to the #2 School. tr. 204, 208, 228, 279. Parent maintained that this testimony should not be considered in assessing whether the District has met its burden of proof on Prong I, as the District should not be permitted to rely upon testimony that it would have provided those services to make up for a program otherwise insufficient to address ------'s needs for the 2012-2013 SY.
Additionally, the testimony of -------- ----------, the Program Director of , --------- ----------, the Educational Coordinator of , and the parent, together with the documentary evidence, establish that the Program at the Academy of Nassau County was an appropriate placement for -------- During the 2012-2013 SY.
has a special education program that follows New York State standards with of small, self-contained classes for children from kindergarten through high school, integrated within various mainstream day schools. tr. 294, 538; Ex. K. The program serves children with learning disabilities, language-based disabilities, speech and language impairments and attention deficit disorder. tr. 294. 's mission is to meet the individual needs of its students and to nurture and develop these students such that they grow and progress academically, socially, and emotionally. tr. 294. The curriculum is designed after an analysis of student needs, and there is an ongoing process of faculty meetings and observations during the school year to review how the program is working. Tr. 295-96.
For the 2012-2013 SY, ----- was in a self-contained first grade class with eight students, one teacher and one assistant teacher, and located in the Academy of Nassau County. tr. 296-97, 541. The students in ------------ class were first graders, ages 6 to 7.5-years-old. tr.541. In September 2012, the students were functioning at a midkindergarten to beginning first grade level in both ELA and math;. ------. fell within these ranges and fit in well with these students academically and socially. Tr.541-43; Ex. G.
------- ---------- was -------'s lead teacher for his secular studies during the 20122013 SY. tr. 297. Ms. ------- has a Master's degree in special education and is certified in special education in New York State. She was responsible, in conjunction with her supervisor and assistant teacher, for developing, implementing, delivering and individualizing the curriculum for --------- and providing whole group, small group, and one-on-one instruction in the classroom. tr. 297-98. Ms. ------- assistant teacher for secular studies was working towards a Master's degree in special education during the 2012-2013 school year. tr. 299-300. The assistant teacher was supervised by Ms.
, and her responsibilities ranged from working with the students in small groups and on a one-on-one basis in the classroom, going to recess, lunch and specials with the children, helping the students develop their academic skills in class and their social skills in non-academic settings, and supporting the students in mainstream settings. Tr. 300, 308-310, 559, 648. Ms.----------, who supervised the secular studies teachers, is a Master's level certified general education teacher, licensed as a reading teacher, with teaching and educational experience, and is supervised on a daily basis by Ms. ----------, who is licensed, certified, and experienced in special education and administration for kindergarten through the twelfth grade. tr. 292, 536-38.
---------- --------- was -----'s lead teacher for the non-secular portion of the program. Tr. 297. Ms. ------- holds a Master's degree in special education and is certified in special education in New York State. Id. Ms. ----------- was supported by one assistant teacher who holds Master's degree in special education and early childhood education. Tr. 299-300. -------- ----- -------- supervised the non-secular studies teachers, and holds Master's degree and special education and is certified in special education by the state of New York.
It is the Parent’s position that the program addressed -------'s issues and provided him with the small, structured environment, small group instruction, and frequent individual attention that he required to make appropriate academic, social, and emotional progress. tr. 316-17, 555-57; Ex. F, G. E.O.'s teachers used a variety of multimodality strategies to enable him to make progress academically, including graphic organizers, color-coding, games, and audio and visual activities. tr. 305-06, 546-47; Ex.
G. Reading and writing were integrated throughout the curriculum, and the teachers broke -------s class into smaller groups for ELA and math; ------ was appropriately grouped with similarly-functioning peers. tr. 552, 594-95. They also recognized that ------ --- ----social and emotional issues often lead to his academic difficulties, so they focused on addressing those issues, as well. tr. 311, 314-16, 467-68, 546-48. -------'s teachers provided individual support, additional wait time, modeling and organizational strategies, to ensure that he maintained focus, was motivated to complete the assignment, and avoided frustration. tr. 314-16, 546-48; Ex. G. ----- had classroom and individual behavior modification plans that provided him with consistent positive reinforcement. tr. 550-51, 643. ------. received support during the non-academic periods of day, including lunch and recess, which helped to improve his social skills. tr. 598.
In his non-secular classes, -------. worked on skills similar to those he was learning in his secular classes, including listening comprehension, sequencing and higher order thinking skills. tr.307, 370-71. He also learned to read, write and comprehend and speak Hebrew as a second language. tr.307, 370-71. ---------'s religious and Hebrew language classes did not impede his ability to make academic progress in his secular classes. tr. 370-71, 640. Counsel maintained that Ms. ---------- has never met, evaluated or observed -----, has never worked with a dual-language curriculum and has no knowledge of the curriculum at , and was therefore unqualified to opine as to the appropriateness of Hebrew instruction for ------. in the program. tr. 770-71, 774.
-------. was mainstreamed for music, science lab, gym, lunch and recess, and received support from staff members during those periods, who were responsible to -------. and his classmates, thus maintaining a supportive, small studentteacher ratio in an integrated environment. tr. 308-310, 428-431, 558-59. Parent maintains that appropriately supported -------. in the mainstream classes, specifically by providing pre-teaching and individual attention where necessary to ensure his academic success, as well as supporting his social interactions . tr. 307-311, 428-431, 558-59. --------- also received therapy, therapy, therapy and at the site by the district of location, West Hempstead, in accordance with his IEP and IESP mandates. Tr. 302-03, 433, 450-53; Ex. 1, 11, 12. The Lawrence School District contracts with West Hempstead, which then provides the services. tr. 450-52 and if the District had not provided the related services, the Program would have provided them. tr. 453.
------------'s related services were incorporated into his program and took place in a space set aside for the provision of related services. tr. 302-03; Ex. --------. also had a social skills class once a week taught by Dr. , a psychologist employed by , that addressed peer interactions and coping mechanisms. tr. 548; Ex. -------. made academic, social, and emotional progress at during the 2012-2013 SY, and it was an appropriate placement for him. tr. 316-17, 556-57, 675-76. This was measured through ongoing assessments, tests, researched-based materials designed to measure progress, class work and homework. tr. 554, 601, 637. ------------improved his decoding, reading comprehension, math, and writing skills, and he progressed in his nonsecular classes. tr. 316-17, 556-57, 675-76; Ex. F, G. His self-esteem and ability to express himself improved, and he developed the skills to deal with his feelings of frustration. tr. 317, 549-550; Ex. G.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v. Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d 2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5] a; CFR section 300.13 [a] [2] [i], .200. 1.116 [a] [2]; 8 NYCRR 200.6 [a] [IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]
In conformity with a written IEP, a school district must provide special education and related services designed to meet the student’s unique needs. 20 U.S.C. §1401(9) (D); See 20 U.S.C. § 1414(d)). “‘The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a Disability, Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532.
A school district provides a FAPE to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982); 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. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f) (3) (E) (i)). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’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 child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); see 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f) (3) (E) (iii)).
The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School 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 developed a proper IEP.
The CSE must provide a student with a placement recommendation in a specific class at a specific school site that is reasonably calculated to provide meaningful educational benefit and to avoid regression. Walczak, 142 F.3d at 123 (citing 8 N.Y.C.R.R. § 200.4(d)(2)(xii)); N.Y. EDUC. L. §4402(1)(b)(3)(b)(I). "[T]he students in a [recommended] class must have sufficiently similar academic levels and learning characteristics that each child will have the opportunity to achieve his or her goals" and to "assure that the social interaction is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. Id. at 123 (quoting 8 N.Y.C.R.R .§ 200.6(a)(3)(i)-(ii)); §§ 200.1(ww)(3)(i), 200.6(h); see also P.G. v. New York City Dep't of Educ., No. 12 Civ. 05235, 2013 U.S. Dist. LEXIS 115933, at *36-37 (S.D.N.Y. Jul. 22, 2013) (specifically considering the parents' claim of inappropriate functional grouping at a recommended placement in an analysis of prong one and in a determination of whether the placement would have been appropriate for the student). To meet its burden of proof, the District must demonstrate not only that it provided an appropriate placement recommendation to the student, but also that the placement was capable of appropriately implementing the student's IEP. See D.C. ex. rel. E.B. v. New York City Dep't of Educ., 950 F. Supp. 2d 494, 509 (S.D.N.Y. 2013) ("[D]esigning an appropriate IEP in accordance with the procedural and substantive requirements of the IDEA is only the first step. '[The Department] must also implement the IEP, which includes offering placement in a school that can fulfill the requirements set forth in the IEP.'"); C.B. & R.B. v. N.Y.C. Dep't of Educ., 2005 WL 1288964, at *18 (E.D.N.Y. June 10, 2005) (stating that the court must consider "whether the program was appropriately designed and implemented so as to convey a meaningful benefit").
Procedurally, if a recommended school cannot implement the program recommended in the IEP, the school district has by definition failed to deliver a FAPE. D.C., 950 F. Supp. 2d at 509. In R.E., the Second Circuit found that it would be speculative to assume that a proposed placement would be unable to provide a student with her mandated services where documentary evidence indicated that the school was only meeting the related service mandates of some of its students. Id. at 195. The Court did not hold that the District no longer had the burden to demonstrate that its recommended placement could satisfy the provisions of federal and state regulations, including those relating to the age range and functional grouping of the students at a recommended program, as well as those relating to the school environment as a whole, and that it could appropriately implement a student's IEP. Thus, the District must still demonstrate that it has offered special education and related services in an appropriate school in conformity with a student's IEP. Id. at 191-92; 34 C.F.R. § 300.17(d); 8 N.Y.C.R.R. § 200.4(e). In T.Y. v. New York City Dep't of Educ., the Second Circuit was even more specific with regard to the District's ongoing burden to recommend an appropriate placement, emphasizing that school districts do not have "carte blanche" to assign a child to a school that cannot satisfy an IEP's requirements. T.Y., 584 F.3d 412, 420 (2d Cir. 2009). The District is still permitted under R.E., indeed required, to present testimony explaining or justifying state-offered services listed in the IEP and the nature of the program offered in the written IEP, as well as its ability to implement the IEP. R.E., 94 F.3d 167 at 191-92. Therefore, it is not speculative, but rather proper for parents to present or elicit testimony and evidence regarding an explanation or justification of the IEP services and the nature of the program at a recommended placement, including whether the placement has a program in conformity with the IEP and whether the student would be functionally grouped in an appropriate class. As the Court stated in D.C. ex. rel. E.B v. New York City Dep't of Educ., 12 Prior to making a placement decision, a parent must have sufficient information about the proposed placement school's ability to implement the IEP to make an informed decision as to the school's adequacy. At the time the parent must decide whether to accept the proposed placement or unilaterally place a student elsewhere, the only information available to the parent about the proposed placement are the FNR and, if the parent visited the proposed placement, the information provided during the visit. The information a parent can glean from these two sources creates considerable reliance interests because the parent must decide, based solely on this information, whether to take the financial risk of unilateral placement.
Under the approach advocated by the District they could propose a placement that was not prepared to implement the IEP, leading a parent justifiably to place the child unilaterally. However the District could defeat the parent's subsequent reimbursement claim by introducing evidence that the proposed placement hypothetically could have effected changes to implement the IEP. This would result in the same "bait and switch" that the Court of Appeals condemned in R.E.. D.C., 950 F. Supp. 2d at 510.
I agree with the Parent that the recommended placement did not have a program in conformity with the IEP and would not have been appropriate for .. The District has failed to establish that the recommended placement at the #2 School would have been able to implement -----s IEP and appropriately address his needs for the 2012-2013 SY. -- -----'s IEP mandates an ICT program for two hours per day. Ex. 1, 11.
Additionally, the parents reasonably relied upon the information at their disposal in considering whether the placement would be appropriate for ------., and any District allegations regarding the recommended program should carry no weight, given that the District never corrected the parent's understanding of the program at any point prior to the hearing. See D.C., 950 F. Supp. 2d at 512-13 (noting that "'both parties are limited to discussing the placement and services . . . reasonably known to the parties at the time of the placement decision,'" and finding that the District should not be permitted to rely upon testimony contradicting parents' understanding of a recommended program when it fails to advise the parents that their understanding is incorrect at any point prior to the impartial hearing). The District's own Prior Written Notice fails to allege that the recommended placement had a program in conformity with the IEP, and a program that would have been substantively appropriate for -----. Ex. 2. Therefore, the recommended placement was inappropriate for ------. and could not implement his IEP mandate.
When parents unilaterally place their child in a private program and seek funding for that program, they must demonstrate that the program they have selected is appropriate to meet their child's needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F.Supp.2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)). However, parents are not barred from an award of tuition funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and parents' selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d at 364 (citing Carter, 510 U.S. at 14); Application of a Child with a Disability, Appeal No. 00-068. Parents need not show that a private placement provides every special service necessary to maximize their child's potential, but only that it is likely to produce progress not regression and provides "educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 102 (2d Cir. 2007).
To receive an award of tuition funding associated with a private program, a weighing of the equities must support that award, as "equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief." Frank G.,459 F.3d at 363-64 (citation omitted); 20 U.S.C. §1412(a)(10)(C)(iii). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, "the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief." N.R. ex rel. T.R., 2009 WL 874061, *6 (S.D.N.Y. 2009) (citation omitted). "A major consideration . . . is whether the parents have cooperated . . . throughout the process to ensure that their child receives a FAPE." Id. (citation omitted).
I agree that the record demonstrates that the parents fully cooperated with the CSE and were willing to consider an appropriate public placement for their son. See Kitchelt ex rel. Kitchelt v. Weast, 341 F.Supp.2d 553, 557 n.1 (D. Md. 2004). ------. attended and participated in the CSE review meeting that was held on June 5, 2012. Tr. 665, 697; Ex. 1, 11. Upon receiving the placement offer, the parents advised the District that they intended to visit the recommended school in the fall, arranged to visit the program as soon as possible, visited the recommended placement to consider its appropriateness, considered it in good faith, and advised the District that they had found the program to be inappropriate for -----. Tr. 668, 672-74; Ex. C, D, E. The parents' letter indicated a continued willingness to consider any alternative program offered to ------. for the 2012-2013 SY. Ex. C. The District failed to respond to the parents' letters in any way or offer any alternative placement for -------. for the 2012-2013 SY. Tr. 669, 674. The District's failure to respond, either to address the parents' concerns or to correct their understanding of the recommended program, should "weig[h] equitably in favor of reimbursement." M.H. ex rel. P.H., 712 F. Supp.2d at 167. Moreover, the parent also testified that he would have sent --------. to an appropriate public school program. Tr. 675.
The fact that the parents signed a tuition contract with for the 2012-2013 SY in April 2012 does not evidence an intent on their part not to consider a public school placement for ---------. Tr. 680-81; Ex. N. The parents signed the contract with at that time to reserve a seat for ---------. and to ensure that he would have a seat at an appropriate school placement for the fall, in the event that the CSE failed to recommend an appropriate placement for him for the 2012-2013 SY. Tr. 681. Moreover, the parents understood that, in the event that they received and accepted an appropriate public program for ----------., they would have been able to withdraw him from without financial penalty, an understanding supported by the terms of the agreement. Tr. 681.
The parents' request for related services from the West Hempstead School District and participation in an IESP meeting should not weigh against reimbursement. The parent credibly testified to his understanding that in order to preserve the right to receive related services from West Hempstead for the 2012-2013 SY, he was obligated to sign the West Hempstead consent form, despite the fact that he was still considering the program recommended for -----------. by Lawrence. Tr. 677-79, 684; Ex. 15. Upon further consideration of the consent form, the parents sent a follow-up letter to West Hempstead to clarify their intent to receive related services from West Hempstead, in the event that Lawrence did not provide an appropriate public school program for --------.. Tr. 684, 689; Ex. . The parent testified to his understanding that participation in the IESP meeting on June 13, 2012 in West Hempstead was a required part of the process, and that the meeting was scheduled in response to his letter requesting related services. Tr. 684. He testified that the specific placement recommendation made by the Lawrence School District had not impact upon his decision to participate in the IESP meeting with West Hempstead. Tr. 684. Accordingly, the District has not demonstrated that the parent "acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds." N.R. ex rel. T.R., 2009 WL 874061, at *7 (citation omitted).
I find that the District failed to offer ------- a FAPE for the 2012-2013 SY; that appropriately addressed his needs for the 2012-2013 SY; and that a weighing of the equities supports an award of reimbursement for the amounts the parents paid towards the cost of -----.'s attendance at for the 2012-2013 SY in the sum of ; this shall be paid within 30 days from the of this decision.
Dated: May 8 2015
______________________________
Impartial Hearing Officer
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.