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FINDINGS OF FACT AND DECISION
IHRS Case Number: 7904
Student’s Name: Mathilde Robert
Date of Birth: July 17, 2001
District: Mamaroneck U.F.S.D.
Hearing Requested by: Parents
Hearing Dates: 9/23/13, 11/04/13, 11/15/13, 11/19/13, 11/25/13
1/10/14, 2/10/14, 3/3/14, 4/30/14, 5/6/14, 5/13/14, 6/12/14, 6/23/14,
7/1/14, 7/9/14, 7/14/14, 8/6/14, 9/3/14, 11/14/14, 11/19/14, 12/1/14,
12/8/14
1/16/15, 2/12/15, 4/13/15, 4/14/15, 4/17/15, 4/22/15, 4/23/15,
4/24/15, 4/27/15, 4/30/15, 5/1/15, 5/15/15
Actual Record Close Date: October 14, 2015
Hearing Officer: Jean M. Lucasey, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED September 23, 2013
ANNE PROST-ROBERT, — Parents
JACQUELINE DeVORE, Attorney — Student
Dr. ANTHONY MINOTTI, Asst. Superintendent — District
MICHAEL K. LAMBERT, Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED November 4, 2013
ANNE PROST-ROBERT, — Parents
JACQUELINE DeVORE, Attorney — Student
Dr. ANTHONY MINOTTI, Asst. Superintendent — District
MICHAEL K. LAMBERT, Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED November 15, 2013
ANNE PROST-ROBERT, — Parents
JACQUELINE DeVORE, Attorney — Student
Dr. ANTHONY MINOTTI, Asst. Superintendent — District
KRISTEN ARITA, School Psychologist — District
MICHAEL K. LAMBERT, Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED November 19, 2013
ANNE PROST-ROBERT, — Parents
JACQUELINE DeVORE, Attorney — Student
Dr. ANTHONY MINOTTI, Asst. Superintendent — District
MAURA LINKOWSKI, Special Education Teacher — District
MICHAEL K. LAMBERT, Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED November 25, 2013
ANNE PROST-ROBERT, — Parents
JACQUELINE DeVORE, Attorney — Student
Dr. ANTHONY MINOTTI, Asst. Superintendent — District
NANCY ALBERTSON, Speech Language Pathologist, — District
MICHAEL K. LAMBERT, Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Reading Teacher, — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Reading Teacher, — Student
Educational Director, (via telephone) — Student
Attorney — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney (via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Therapist, (via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Educational Director, (via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Ph.D, Director, — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Therapist, (via telephone), — Student
Special Education Teacher, (via telephone) — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Special Education Teacher, (via telephone) — Student
(via telephone) — Student
Attorney — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Ph.D, Director, — Student
Attorney — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
(via telephone) — Student
Attorney — Student
Intern, — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
(via telephone) — Student
Therapist, (via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Therapist, (via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Therapist, (via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
(via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
(via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Pathologist (via telephone) — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
Asst. Superintendent — District
Ph.D, ccupational Therapy Coordinator/Consultant — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
Ph.D, Occupational Therapy Coordinator/Consultant — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Therapist, (via telephone) — Student
Attorney — Student
Asst. Superintendent — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
Special Education Teacher, — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
Special Education Teacher, — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
Ph.D, Occupational Therapy Coordinator/Consultant — District
Specialist, — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
(via telephone) — Student
Attorney — Student
Ph.D, Occupational Therapy Coordinator/Consultant — District
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
(via telephone) — Student
Occupational Therapy Supervisor, (via telephone) — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Occupational Therapy Supervisor, (via telephone) — Student
Educational Director, (via telephone) — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Educational Director, (via telephone) — Student
Attorney — Student
Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED
Parents
Attorney — Student
Attorney — District
IHRS Case No. — District
FINDINGS OF FACT AND DECISION
Procedural History
A hearing on this matter was requested on July 1, 2013, by Anne P.-R. and Olivier R., as parents of Mathilde R. (“MR”), pursuant to the Individuals with Disabilities Education Improvement Act § 1415 (f) and 8NYCRR §200.5(i) for failure of the Mamaroneck Union Free School District to provide a FAPE to the student for the 2012-2013 and 2013-2014 school years.
During the course of the hearing, Parents filed a second hearing request against the District involving MR for the 2014-2015 school year, and after recusal of the initial hearing officer assigned to the second matter, I was appointed to hear that case pursuant to 8 NYCRR
§200.5(j)(3)(ii)(a). In the interest of judicial economy and other factors, I issued an Order of Consolidation on December 11, 2014, directing that the two complaints proceed as one consolidated complaint under the original 77904 case number. (IHO Ex. xvi.) Parents seek tuition reimbursement for all three school years, compensatory services and compensation for the cost of transporting their daughter to and from the private school.
The proceedings encompassed 34 days of hearing, from September 23, 2013, through May 15, 2015, which included extensive testimony from both parties’ long list of witnesses, lengthy cross-examinations, and rebuttal and sir-rebuttal witnesses. Along the way, the parties moved to extend the compliance dates numerous times, and the extensions were duly granted after consideration of relevant factors pursuant to 8 NYCRR 200.5(j)(5). (See IHO Exs. i-xv; xvii-xxiv; xxix.) The parties submitted post-hearing briefs two months after the close of the hearing. (See Exs. 97, MMMM.) After receipt and full review of the extensive record, I notified the parties and closed the record on October 14, 2015.
FINDINGS OF FACT
Throughout the course of the impartial due process hearing, MR was a classified student attending the Children’s Academy (“CA”), a private, non-approved school located in New York City. Parents secured MR’s placement at CA before their family moved to the United States, where Mr. R. had been offered a position in the New York City office of the bank where he had worked in London. (Tr. 1747-50.) MR has been classified by the District as a student with multiple disabilities since December 17, 2012, (Ex. 4), and her classification is not in dispute.
She has never received educational services from the Mamaroneck Union Free School District.
MR was born in London, England, to French parents. (Tr. 1721.) Information in the hearing record explains her educational background in England, most of which was unavailable to the District’s CSE when they developed the IEPs at issue here.[1] Parent repeatedly emphasized at hearing that MR had only been able to master skills in England in a 1:1 setting. (Tr. 1735-36, 1886-87.) It is undisputed that she informed the CSE of MR’s history of 1:1 success in mastering skills. (Tr. 1886-87.)
In or about the Fall of 2011, MR’s father, who had lived in London for approximately 20 years and who worked for JP Morgan Chase, learned he had an opportunity to be transferred to a position in or around New York City in September 2012. (Tr. 1747-48, 1750,
2146.) Although Parents, as residents of the U.K., were unaware of how public schools in the United States provided education for students with special needs under the IDEA, (Tr. 399,
1749-51, 17650-61), Mrs. P-R had heard that schools in the United States offered better educational opportunities for children with special needs than what was available oversees, (Tr.
1749). At or near the end of 2011, upon the recommendation of London parents who had children with special needs, Mrs. P-R hired a search consultant named Davida Sherwood to locate a suitable special-needs school for MR. (Tr. 1752-53, 2148-49.) Parents and Ms.
Sherwood did not discuss the possibility of placing MR as a student in the District, (Tr. 1755), and they paid Ms. Sherwood $5,000 for her services, (Exs. 91, 92).
In about April 2012, near Easter time, (Tr. 1758, 1765), the family traveled to New York to look at possible schools for MR and her two brothers, neither of whom require special education. Ms. Sherwood had provided Parents with a list of four private schools to consider for MR. (Tr. 2154-55.) It is undisputed that Ms. Sherwood did not identify and the family did not visit any public schools. (Tr. 2156.) It is also undisputed that, during the same trip,
MR’s mother called the Mamaroneck school district, one of two districts they were then considering moving into, to discuss special education services, but she was told that since they do not reside in the town they could not discuss schooling. (Tr. 1756-57.) During the trip, Parents met with Ms. Sherwood and visited three private schools for MR, including CA on two separate occasions, and two private French-language schools for their sons. (Tr. 1757-59, 1766-68, 2160.)
Ms. Sherwood continued to follow up with CA staff toward finalizing the CA admissions process. (Ex. 87, pp. 490-502.) Parents completed a CA application for MR on April 16, 2012, (Ex. 87, pp. 479-84; Tr. 2179-80), and CA accepted her into their program after meeting MR and her Parents and speaking with them about their daughter, (Tr.2166, 2170-72). Once Parents’ sons were both accepted into the French American School in Mamaroneck, Parents decided to move their family to Larchmont, which is within the Mamaroneck UFSD. (Tr. 1759-60.)
By e-mail dated May 29, 2012, Mrs. P-R formally advised CA of her decision to accept their offer and to enroll MR there as a student. (Ex. 86, p. 16; Tr. 2178.) Parents executed a contract with CA, arranging for MR to attend there for the 2012-2013 school year to start in September 2012. (Ex. E.) Although the contract does not indicate the precise date that MR’s parents signed it, CA signed the contract on July 24, 2012, more than a month before the family moved to Larchmont, (Ex. E, p. 5), and Parents signed it sometime before that, (Tr. 2367).
By letter dated July 19, 2012, Parents advised Mamaroneck Superintendent of Schools
Dr. Robert Shaps that they intended to move to Larchmont effective August 26, 2012, (Ex. P; Tr. 1762, 2192), and that their daughter would be attending CA. Via e-mail dated July 23, 2012, a copy of this letter was forwarded to Dr. Anthony Minotti. (Ex. Q.) Upon the family’s arrival at their home in Larchmont, they found a letter in their mailbox from Dr. Minotti welcoming them to the District and advising them that they needed to register MR in the District. (Ex. 21; Tr.
1762-63, 2368.) In response, Mrs. P-R obtained a registration packet, completed it and returned it to the District on or about August 28, 2012 (Ex. 22; Tr. 1763-64.) On or about September 7, 2012, Mrs. P-R met with Dr. Minotti for “a good hour” and she received a procedural safeguards notice and a District special education handbook. (Exs. 24, N; Tr. 36, 1774-75, 1778, 2372-73.)
Dr. Minotti told her that the District would send her a consent form to sign so that the District could perform the required evaluations of MR. (Tr. 1777.) As Mrs. P-R did not bring any records with her to that first meeting, (Tr. 2373), Dr. Minotti asked her to provide MR’s educational reports from London, and she agreed to do so, (Ex. N; Tr. 1777). On December 3, 2012, Parent provided the District with two reports regarding MR’s education prior to her arrival in the United States, (Exs. 6,7, 63; Tr. 2380-81), and the District had no other documents describing her educational program before the 2012-2013 school year, (Tr. 460-61).
The District mailed the Prior Written Notice and consent form to Parents on September 10, 2012. (Ex. 25.) The District received Parents’ actual written referral to the CSE on September 11, 2012, (Ex. 28), and it received Parents’ initial signed consent on September 19, 2012. (Ex. 26.) The District then conducted the approved evaluations. (See Exs.
12,13,14,15,16,17.) Initially, CA did not respond to District’s requests to send MR’s school records, (Ex. 67; Tr. 494-95, 562), but finally provided some of MR’s records, as well as CA math, reading, speech, language arts and occupational therapy goals on December 4, (Exs.
64,66,67,68), December 5, (Ex. 71), and December 6, 2012, (Ex.73).
By letter dated November 29, 2012, the District advised MR’s parents that the CSE meeting would take place on December 12, 2012, (Ex. 36). The District initially tried to schedule the meeting for November 14, 2012, but Parents were unavailable. (Exs. 43, 60, 61.) District staff offered to meet with Parents before the CSE meeting to review the evaluations they had conducted, (Tr. 2382-83), but Mrs. P-R instead participated in a phone conference with Ms.
Arita, Ms. Linkowski (“L”), Ms. Albertson (“A”). (Tr. 490.) At the time, Mrs. P-R voiced no disagreements with any of the findings reported in the evaluations. (Tr. 492.)
The December 2012 CSE meetings
The initial eligibility meeting occurred on December 12, 2012. (Ex. 4; Tr. 1791.) As of that date, the CSE had the following evaluative information available to it: (1) Undated
Abingdon Progress Report (Ex. 6); (2) 7/3/13 UnicornMath Report (Ex. 7); (3) 9/11/12
Occupational Therapy Evaluation (Ex. 8); (4) 9/21/12 Comprehensive Speech and Language Evaluation (Ex. 9); (5) 9/26/12 Medical Report (Ex.10); (6) 9/28/12 BOT 2 Report (Ex. 11); (7)
10/11/12 Classroom Observation (Ex. 12); (8) 10/18 and 11/12/12 Educational Evaluation (Ex.
13); (9) 10/19/12 Speech and Language Evaluation (Ex. 14); (10) 10/22 and 11/7/12
Psychological Evaluation (Ex. 15); (11) 11/6/12 Occupational Therapy Evaluation (Ex. 17); (12)
11/7/12 Social and Developmental History (Ex. 16); (13) 11/30/12 Addendum to Speech- Language Evaluation (Ex. 18); and (14) CA goals (Exs. 68, 71). Each of these evaluations, along with a draft IEP, (Ex. 3), was shared and reviewed with the parents, (Tr. 1832), and with CA prior to and at the December 12, 2012, CSE meeting. (Tr. 1829, 2413-14.) At the meeting, CA staff were invited to share information they believed should be included in the current- functioning-levels section or goals that they believed to be appropriate for MR. (Ex. 63.) Dr.
Minotti chaired the meeting and “very clearly” explained the purpose of the meeting to Parents.
(Tr. 1833.) It lasted for approximately an hour and a half. (Tr. 1854.)
The District’s OT evaluation, (Ex. 17), conducted by Dr. Laurette Olson, a highly- qualified therapist with 35 years of experience in the field, (Ex. 94; Tr. 4822-24), determined that MR presented with definite sensory differences2 from typically developing children her age and that she would benefit from a sensory diet and other sensory-based activities during the school day to help her function in daily activities. Dr. Olson’s evaluation also found that MR presented with deficits in gross motor, fine motor and visual motor skills and that she would benefit from supports that are typically part of a special education classroom. (Ex. 17-3.) CA’s OT evaluation found similar deficits, but the recommendations therein as to the intensity and focus of the OT differed from Dr. Olson’s. (Ex. 8.)
Nancy Albertson, a speech language pathologist with 35 years of experience in the field, conducted the District’s speech-language evaluation, and her test results revealed MR’s significant delays in both expressive and receptive language. (Ex.14; Tr. 1074.) On December 6, 2012, (Ex. AA-6; Tr. 1084), Ms. “A” received a copy of a 9/21/12 speech-language evaluation conducted by CA staff, (Ex.9). Although the CA evaluator used a version of the CELF-4 meant for children ages 5-8 and MR was 11 years old at the time of the evaluation, (Tr. 1085), Ms. “A” nonetheless believed that the CA test results were consistent with the results of the tests that she
2 The overall results of the Short Sensory Profile indicated that MR’s “definite difference” rating was 2 standard deviation below the mean. (Ex. 17-1.) had administered, (Tr. 1089). Ms. “A” also reviewed an addendum to CA’s initial speech-language evaluation, which provided an “Apraxia Profile” of MR. (Ex. 18; Tr. 1093.) She described “apraxia” as “the ability to volitionally create smooth motor movements, fine motor movements for speech.” (Tr. 1093.) Although the addendum report suggested that MR presented with characteristics of apraxia, Ms. “A” had found MR’s speech to be fully intelligible when she evaluated her. (Tr. 1096.) She testified that the statement contained in Exhibit 18 that “[t]he majority of M’s spontaneous utterances were judged to be intelligible with the presence of mild articulation errors” was “totally consistent” with what she had observed. (Tr. 1097.) At the December 12 meeting, Ms. A and Victoria King, the speech-language pathologist from CA, reviewed their respective reports and discussed MR’s speech-language needs, disagreeing as to the extent of MR’s signs of apraxia. (Tr. 1835-37.)
Maura Linkowski, a certified special education teacher with 14 years of experience and a Board Certified Behavior Analyst, conducted the District’s educational evaluation of MR. (Tr.
745, 748-49, 758.) This evaluation confirmed that M.R. was functioning below the 0.1% in all academic areas and that she could not perform basic functional academic tasks. (Ex. 13.) Ms.
“L” concluded that M.R. was “very delayed for an 11-year-old, that really her main area of need would be pre-readiness skills in general, early literacy, early math skills, attending skills and a lot of language-based learning skills, both receptive and expressive.” (Tr. 768.) These conclusions were entirely consistent with the information a District school psychologist obtained during her observation of MR at CA in October 2012. (Ex. 12.)
Kristen Arita, a school psychologist employed by the District, evaluated MR in October 2012 and testified that MR had global developmental delays, including delays in her cognitive functioning, in her acquisition of academic skills, in her speech and language functioning, fine motor abilities, and activities of daily living. (Ex. 15; Tr. 456-57.) Ms. Arita’s evaluation3 noted that, although MR was interested in social interactions, her language delays meant that she needed support to facilitate such social interactions. (Tr. 458.) MR’s test scores in the psychological evaluation were consistent with this characterization. (Ex. 15.)
Adam Heimann, who taught math to MR at CA in 2012-2013, (Tr. 2901), attended both the December IEP meetings via telephone only and was not present for the entirety of any of the meetings. (Tr. 2961-62, 3098.) He recalled being concerned that there were few math goals on
December 12 and wanted to know if they might add onto the goals during the school year. (Tr.
3101.) He was only present during that portion of each of the December meetings when math goals were discussed. (Tr. 3101-02.)
The December 17, 2012, follow-up CSE meeting lasted less than an hour, and the team agreed to classify MR as multiply disabled. (Tr. 780-81, 1855.) Based upon additional information provided by CA staff, MR’s then-current functioning levels were discussed further, (Tr. 781-87), and the team reviewed and revised the updated goals, (Tr. 527, 1855-56, 2420).
Once again, no one voiced disagreement on how MR’s current functioning levels were described or regarding the proposed goals. (Tr. 527-28, 779, 788.) Ms. Linkowski testified that the CSE concluded that MR needed a small, structured program with visual supports and a lot of speech therapy involvement, which she believed accurately described her class. (Tr. 804-05.) The team reviewed a proposed program, (Tr. 790-91), and determined that MR’s cognitive functioning was similar to that of the students in the 8:1:2 class. (Tr. 556.) Ms. Arita and Ms. Linkowski testified that MR’s academic functioning was similar to that of the students in the 8:1:2 class at
Hommocks Middle School. (Tr. 556, 806-07.) At hearing, Ms. Arita described the 8:1:2 as a language-rich program that included explicit, direct instruction based upon individual goals, a
3
At the time Ms. Arita wrote the evaluation, which appears in the record as Exhibit 15, her surname was Ruf. high adult-to-student ratio that allowed for facilitation of social skills, and a comprehensive model of speech-language and occupational therapies pushed into the classroom. (Tr. 530.) The team made it clear at the meetings that MR would have had the opportunity to interact with other peers within Hommocks in such activities as clubs and Special Olympics, and that such peers could serve as communication models for her. (Tr. 817-20.) Adults in the proposed 8:1:2 classroom also served as appropriate communication models for the students. (Tr. 821-22.) Ms.
Linkowski testified that her 8:1:2 program was ungraded, individualized and included group activities to support common needs. (Tr. 744, 749.) All of her students had language needs, and classroom activities were designed to provide individual or small group instruction to promote the acquisition of pragmatic language, academic information and ADL skills. (Tr. 750.) Some of the instruction was ABA-based and data-driven, and all instruction was individualized to meet the needs of the children. (Tr. 750-51.) She explained at the meeting that her students were able to push out to mainstream settings, if appropriate, or to the 12:1:2 class. (Tr. 752.) At hearing, Ms. Arita explained that the 8:1:2 program used numerous techniques to facilitate the development of communication skills. For example, adult-prompted basic conversational skills were practiced during the morning meeting program and throughout the school day. (Tr. 535.)
The CSE also recommended that a home-school communication system be adopted to ensure effective communications between the teacher and Parents. (Ex. 5-14; Tr. 551-53.) Ms.
Linkowski described the roles of the additional staff assigned to her 8:1:2 program, including the two paraprofessionals who supported instruction in the class. (Tr. 753.) A teaching assistant, a speech language pathologist, a psychologist and an occupational therapist were attached to the class. (Tr. 530, 754-56.) The speech-language and occupational therapists consulted with her and the students in the classroom to enable the students to generalize targeted skills. (Tr. 531.) The speech language therapist pushed into the classroom to work on functional communication and to promote student interactions. (Tr. 536-37.) At hearing, Ms. Linkowski described the direct and indirect support provided by the speech therapist, including the speech therapist’s meeting with Ms. L and her staff to ensure that the speech goals were “co-owned” and worked on throughout the school day. (Tr. 792-94.) Ms. Linkowski testified that her class was language-rich and that MR would have benefited from the language support in the 8:1:2 classroom. (Tr. 808-11.) Ms. L, who is not an occupational therapist, also described the two hours of OT program time in the IEP, in addition to the individual OT that had been recommended by the CSE. She testified that the supports included ADL and organizational activities throughout the day and the provision of a sensory area for MR. (Ex. 4; Tr. 794-99.) Although a psychologist worked with the class to help develop students’ social skills, the IEP did not list a social-skills group in the IEP at the time. (Tr. 544.) The meeting concluded with Dr. Minotti advising that the CSE was recommending a 12-month program, consisting of an 8:1:2 program during the primary school year and a 12:1:2 program during the summer. (Tr.1856-57.) It is undisputed that the summer
12:1:2 program was not explained in detail at either December 2012 IEP meeting. (Tr. 1867-69.)
The overall program that appears in the December 17, 2012, IEP, (Ex. 4), was developed over the course of two separate CSE meetings in collaboration with Parents and CA staff. Although the team mentioned that the 8:1:2 classroom included a teaching assistant, Parents did not understand who was the aide and who was the teaching assistant. (Tr. 1857.) In addition to describing MR’s then-current levels of functioning and setting forth goals and short-term objectives that no one expressed disagreement with at the meeting, the December 17, 2012, IEP offered a small class, individual speech language and OT, and a four hours per week of program time in the classroom for speech and two hours per week of program time for OT. (Ex. 4-7.)
By letters drafted with the help of their attorney4 and dated January 11, 2013, (Ex.Y), and January 15, 2013, (Ex. 44), Parents advised the District that they were rejecting the CSE-recommended placement and that they intended to seek public funding for their unilateral placement of MR at CA. In their January 15, 2013, letter, Parents alerted the District that they would seek funding for up to five hours of speech therapy and up to five hours of occupational therapy for MR per week. (Ex. 44-2.) In response to the letters, Dr. Minotti wrote to Parents on January 17, 2013, offering to work with them to transition MR to the District’s recommended program. (Ex. 46.) In response, (Tr. 56), Parents sent the District another letter, (Ex. 48), similar to the earlier letters drafted with help from their attorneys. Dr. Minotti offered to schedule another CSE meeting to review Parents’ continued concerns regarding the program, (Ex. 47; Tr.
55-56), and that third CSE meeting occurred on February 26, 2013, (Ex. 5; Tr. 1878).
The February 2013 CSE meeting
The meeting on February 26, 2013, was attended by District staff members and CA staff.
All of the IEP goals were individually reviewed while CA staff participated on the phone, (Tr.
1899), and no one voiced any objection to the non-service goals at the meeting, (Tr. 549-50). The
CSE reviewed the list of concerns articulated in Parents’ January 15, 2013, letter. (Tr. 542.) As in the December meetings, the speech-language pathologists from the District, Ms. Albertson, and from the private school, Ms. King, disagreed on the amount of speech language therapy that was appropriate for MR. (Tr. 1882-83.) Part of the basis for Ms. Albertson’s opinion on the 4 District asked Parent if she or her husband wrote the letter to Dr. Minotti that referenced “Connors” funding. The letter appears in the record as Exhibit Y. Parent answered: “We certainly got some help to draft this letter.” (Tr. 2430.) Counsel for District attempted to elicit who helped Parents write the January 11, 2013, letter, but Parents’ counsel objected to the question on the basis that the answer could “get into attorney-client privilege,” which I ultimately sustained. (Tr. 2430-32.) The inference I draw from Parent’s answer and the objections that followed is that Parents’ attorneys, who would be in a position to reference “Connors” funding, assisted Parents in writing the letter. Beyond inferring that Parents consulted an attorney regarding the instant matter as early as January 11, 2013, and that their attorneys played a role in the drafting of Parents’ letters to the District from that point forward, I draw no further conclusions from the exchange. appropriate amount of speech for MR was the fact that other staff members in the 8:1:2 program would also be working on MR’s speech goals in addition to the speech-language pathologist’s work with her. (Tr. 1886.) Ms. Linkowski recalled that Parent asked questions at the meeting regarding the language functioning of the students in the 8:1:2 classroom and that District staff explained how the program was individualized for the students and mentioned the numerous opportunities for socialization with other students. (Ex. AA-4; Tr. 850-52.) No occupational therapist from the District appeared at hearing to defend the District’s OT recommendation for
MR, but Parent’s testimony made it clear that Dr. Olson, the District’s OT consultant, and Maria
Khawaja, one of MR’s OTs at CA, disagreed on the appropriate amount and focus of MR’s school-based OT. (Tr. 1891-93.) Parent recalled in her testimony that a basic difference in the characterization of the speech and OT services was that CA’s model was clinical and the District’s model was inclusive. (Tr. 1895.) Parent testified that the CSE discussed providing MR with the chance to join in activities with the 12:1:2 class and to participate in a lunch program designed to facilitate social interactions with peers. (Tr. 1896-97.) In the IEP resulting from the February 2013 meeting, the CSE clarified the level of related-services support that MR would be receiving within the recommended program. In addition to the 4 hours of program time that each child received in the area of speech, MR would be receiving 1 individual speech session and 4 small group sessions per week. I note that, at 30 minutes each, the 4 group speech sessions represented a significant increase over the District’s recommendation in December 2012, an increase that amounted to two additional hours of speech time per week for MR. In addition to the 2 hours of program time that each child in the 8:1:2 class received in the area of OT, MR would also receive 1 individual OT session per week, (Exs. 5-1, 5-9), a recommendation unchanged from that of the December 2012 IEP, (Exs. 4-1, 4-9). The parties agreed that District staff members would observe MR at CA, and the CSE recommended that Mrs. P-R observe both the 8:1:2 and 12:1:2 classes at Hommocks Middle School. (Tr. 557.)
On or about April 30, 2013, Mrs. P-R and Lydia Soifer, Ph.D, observed both the 8:1:2 and 12:1:2 classes. (See Exs. 88-259, 88-260; compare Ex. K-1.) Mrs. P-R’s impression was that some of the students in the 8:1:2 class used augmentative communication devices while the children in the 12:1:2 class seemed on a par with MR in their social and communication abilities.
(Tr. 1908-10.) After the visit to Hommocks, Dr. Soifer wrote a report about her observations there, and she sent the report to Parents on or about May 24, 2013. (See Exs. 56, K.) Parent sent
Dr. Soifer’s observations via email and fax to Dr. Minotti on June 1, 2013.[5] (Ex. R.) As District did not have Dr. Soifer’s report until June 2013, they had no opportunity to consider it during the February 2013 CSE meeting. Although the exact date that MR’s parents executed a contract to continue M.R.’s attendance at CA for the 2013-2014 school is uncertain, Parent testified that it was executed before May 7, 2013, when Ms. Daum signed the contract on behalf of CA. (Ex. F; Tr.1930-31, 4414-15.)
The June 2013 CSE meeting
The CSE met yet again on June 20, 2013, to review additional evaluations the District had administered to MR and to develop her 2013-2014 IEP, (Ex. 5a), and the District provided
MR’s mother with a draft IEP prior to the meeting, (Tr. 4459-60). District staff presented the results of their recent observations of MR. (Tr. 4433.) The following updated information was available to the CSE at that meeting: (1) 3/1/13 Speech and Language Progress Report (Exs. G and 82); (2) 3/1/13 CA Classroom Report (Ex. 81); (3) 3/14/13 Assistive Technology Evaluation (Ex. 88 at 198-202); (4) 4/8/13 Classroom Observation by Ms. Linkowski (Ex. 84); (5) 4/8/13
Classroom Observation by Ms. Albertson (Ex. 85); (6) 4/12/13 Observation at CA by Dr. Soifer (Ex. 19); (7) 5/15/13 Classroom Observation Report by Dr. Hess (Ex. 96); (8) 5/24/13 Report of Dr. Soifer including her classroom observations at Hommocks (Ex. 56); (9) CA OT Goals (Ex.
87 at 97-99); and (10) CA Speech Goals (Ex. QQ).The information available to the June 2013 CSE demonstrated that MR continued to present with delays in the areas of receptive, expressive and pragmatic language and play skills. (Ex. G-3.) CA’s speech progress report continued its recommendation that she receive speech 2 x 45 minutes per week on an individual basis, (Ex. G-
4), and noted several areas of progress including her motor planning and speech intelligibility,
(Ex. G-3). Via telephone, various CA staff members provided additional information regarding
MR’s functioning and gave input on the proposed goals, which were individually reviewed at the meeting. (Tr. 4434, 4444-45, 4459.) No one voiced any objection to the goals or to how MR’s current functioning levels were described. (Tr. 572-73, 4445.) The speech language pathologists and the occupational therapists from the District and from CA disagreed once again regarding the level and focus of services that would be appropriate for MR. (Tr. 1920-22.)
As MR continued to present with needs similar to those she had presented with in the 2012-2013 school year, the CSE recommended a similar program (including the 8:1:2 placement) for the 2013-2014 school year, (Tr. 573), with several noteworthy changes. A weekly social skills group was added, along with monthly parent training, (Ex. 5a-1; Tr. 573-75), and the new IEP included transitional support services to help connect the family to services available through community and State agencies, (Ex. 5a-17).
In addition, the IEP included extensive recommendations from the District’s assistive technology director Andrew Hess, Ph.D, to provide MR with multi-modal supports in reading and writing, along with graphic and auditory supports. Dr. Hess attended the June 20, 2013, CSE meeting, and the resultant IEP also included twice-monthly consultations with the AT specialist to ensure that the AT would be appropriately incorporated into MR’s program. (Exs. 5a-2, 5a-
17.) Dr. Hess, a highly experienced assistive technology specialist, (Tr. 6371-72), explained at hearing that his role in the District was to make recommendations as to AT that might help a student with disabilities access the curriculum and then to follow up with the implementation of those recommendations to see if anything needs to be revised. (Tr. 6369-71.)
Dr. Hess evaluated MR on March 14, 2013, after the CSE had met three times to attempt to formulate an appropriate program for her for the 2012-13 school year. (Ex. 88, at 0198-0202;
Tr. 6373.) In preparation for the evaluation, he read the available reports and learned that MR presented with a range of significant delays related to receptive and productive language as well as fine motor skills. (Tr. 6374-75.) He also spoke with Mrs. P-R and met with MR for approximately 1 ½ hours. (Tr. 6375.) Through this process, Dr. Hess made numerous recommendations for AT that would assist MR with receptive and productive language. (Tr.
6378.) He described these recommendations in detail in his report and during his testimony. (Tr.
6378-91.) In his report, he prefaced his recommendations by writing that, “After considering
Mathilde’s challenges, goals, and current technology use, I recommend the following as necessary for this student’s learning.” (Ex. 88 at 200, emphasis added.) His recommendation included multimedia/multimodal “experiences developed through a 1:1 individualized process that tailors the curriculum to [MR’s] needs.” (Ex. 88 at 201.) To provide those experiences, Dr.
Hess suggested technology and resources, including programs that provide graphic and auditory support for reading texts, and structured practice opportunities (e.g. Clicker 6, SOLO Literacy
Suite, TumbleReadables), among others. He also recommended access to support for writing with technology and resources including keyboarding to address MR’s graphomotor difficulty, and word-production software, including word-prediction software. (Ex. 88 at 201-202.) Dr. Hess’s report finally recommended AT consultation with staff on behalf of MR. As the report explains, “Consultation between the AT specialist and the teacher, and possibly student is necessary in order to integrate AT into the curriculum in a way that is individualized to [MR]’s needs.” (Ex. 88 at 202.) As early as March 2013, then, the District’s AT specialist specifically recognized that “the global nature of [MR’s] learning needs suggests that trial of several technologies and resources would be warranted, which would also require ongoing consultation.”
(Ex. 88 at 0202.) All of the recommended technologies were available in the District, (Tr. 6391-93), and the CSE adopted all of Dr. Hess’s recommendations. (Compare Ex. 88 at 200-202 to Ex. 5a at 19, 20.)
The team briefly discussed an extended-school-year program (ESY) for MR without explaining the specific level of service she would receive over the summer months, (Tr. 1927), and recommended a 12:1:2 special class program with speech and OT support. (Exs. 5a-1, 5a-17,
5a-18.) Via the filing of their Demand for Due Process on or about June 28, 2013, Parents made the District aware that they were rejecting the IEP formulated for MR’s 2013-2014 school year as well as the recommended IEP for 2012-2013. (See. Ex. A.)
The May 2014 CSE Meeting
In preparation for the CSE meeting for the 2014-2015 school year, four District staff members traveled to CA to observe MR in her program there. (See Exs. UUU, VVV, WWW,
XXX.) For the staff members who had observed her previously, the visit revealed that MR had made considerable progress across domains since their last observation. (Tr. 4433, 5519, 5610-
15, 5642.) For example, Ms. Linkowski observed that MR required less prompting in general than what she had seen on her first visit, that MR had learned to use a calculator in math and that she had become noticeably more comfortable contributing to class discussions. (Tr. 5610-5616.)
A CSE meeting convened for annual review of MR’s program on May 7, 2014. (Ex.
AAA.) Two-and-one-half months before the meeting, Parents had already requested that the District arrange for transportation of MR to CA for the 2014-2015school year in observance of the April 1 application deadline.[6] (Ex. EEE.) In developing MR’s program for 2014-2015, the CSE had a great deal of new information before it, including (1) 2/14/14 OT Progress Report (Ex. CCC); (2) 2/15/14 Mid-Year Progress Report and Assessment Summary (Ex. NN); (3)
2/17/14 Speech and Language Progress Report (Ex. OO); (4) 3/12/14 Classroom Observation -
“A” (Ex. YYY); (5) 3/12/14 Classroom Observation - “L” (Ex. 95); (6) 3/20/14 Classroom Observation - Olson (Ex. 93); and (7) 3/20/14 Classroom Observation - Arita (Ex. YYY). As it had the previous year, CA staff provided the CSE with additional information that was largely consistent with the information contained in their written reports, (see, e.g., Tr. 5801). From this information, and with input from CA staff, the CSE updated MR’s then-current functioning levels, developed goals and developed a draft 2014-2014 IEP. (Ex. ZZ.) These goals were individually reviewed and revised at the CSE meeting, (Tr. 5583-90), with no one at the meeting expressing any disagreement with the revised goals, (Tr. 5590). Likewise, no one at the meeting expressed disagreement with the draft’s description of MR’s current functioning levels. (Tr.
5590-91.) Ms. Linkowski visited CA to observe MR there on March 12, 2014. (Ex. VVV.) She testified that MR’s presentment had changed since her last observation on April 8, 2013, (Ex.
84), so much that she now believed that MR’s needs could be appropriately met in the 12:1:2 class at Hommocks. (Tr. 5514.) Ms. Linkowski observed that MR had matured and that her ability to attend had improved as a result of her time spent at CA in a structured program with multi-disciplinary supports, a description that she likened to her own 8:1:2 program in the District. (Tr. 5519. 5526, 5561-63.) She further testified that the level of support that MR was receiving at CA during her most-recent visit was similar to the level of support enjoyed by the students in the 12:1:2 class at Hommocks. (Tr. 5515.) Ms. Linkowski testified that she used information provided by CA to inform her preparation of a draft IEP prior to the May 7, 2014, CSE meeting. (Tr. 5527-28.) The CSE meeting had numerous participants, including CA staff.
The team discussed MR’s then-current functioning levels and reviewed and revised her annual goals. (Tr. 5529.) The manner in which CA staff described MR’s functioning, both in their written reports and in their oral descriptions at the meeting, led the CSE to conclude that the 12:1:2 program would be an appropriate placement for MR. (Ex. SSS; Tr. 5559-65.) Ms.
Linkowski explained how the student profiles differed between the 12:1:2 and the 8:1:2 classes, (Tr. 5555-59), and described the 12:1:1 program. Parent acknowledged that they were given the projected class profile for the 12:1:2 classroom, (Ex. RRR), at the May 2014 CSE meeting, (Tr.
7478-79). The 12:1:2 classroom, with the District adding enhanced staffing to ensure that MR had support throughout the school day, was recommended by the CSE. (Tr. 5572, 5574-75.)
District explained that the enhanced staffing was recommended for MR, in part, to prevent her from becoming overwhelmed in the big building. (Tr. 5651.) The program utilized functional academics, which involved working on skills in context. (Tr. 5575-76.) The team discussed program modifications and accommodations, (Tr. 5579), as well as the ESY program, (Tr. 5579-
80). Dr. Minotti noted that Ms. Arita would be working with MR’s mother on a plan to transition
MR from CA to Hommocks. (Tr. 5580, 7429.) Ms. Linkowski clarified that the transition plan was actually developed the previous year, however, and that it was not discussed much at the meeting. (Tr. 5580.)
District speech language pathologist Nancy Alberton also attended the May 2014 CSE meeting, and she shared impressions she had gleaned from her March 12, 2014, observation of
MR at CA. She had observed that MR’s speech was fully intelligible, (Tr. 5754, 5756, 5765,
5772-73, 5809), that MR spoke a little slowly, (Tr. 5809), and that she generated little in the way of spontaneous utterances, (Exs. AAA, SSS-9; Tr. 5764, 5797). Ms. Albertson testified that, although a CA speech language therapist was with MR during the observation, MR was not scheduled for direct speech-language therapy at the time and, in her professional opinion, the therapist was not providing any supports that could not have been provided by a paraprofessional. (Tr. 5776-78.) Based upon what she observed, Ms. Albertson formed the opinion that MR’s “needs would well be met” in the District’s programs. (Tr. 5780.)
Albertson had also reviewed the latest CA Speech and Language Progress report,
(Ex.OO), as well as the school’s speech goals for MR, (Ex. QQ), and she employed the documents in generating her portion of the draft IEP, (Ex. ZZ; Tr. 5789-90), including the draft goals. She testified that the narrative description of MR’s speech-language functioning contained in Parents’ Exhibit AAA at page 7 accurately reflected the discussion that occurred at the CSE meeting and that no one at the meeting expressed any disagreement with the description. (Tr.
5816-17.) Each draft goal was discussed at the CSE meeting, and several proposed goals were revised or added to as a result. (Tr. 5811-16.) No one expressed any objection to or disagreement with the final speech goals at the meeting, (Tr. 5819), and Albertson indicated that the goals would be implemented by several staff members, (Tr. 5830). District did not increase its recommendation for individual speech therapy for the 2014-2015 school year because Ms.
Albertson believed that many of the goals could be met during group therapy sessions and in the classroom. (Tr. 5910-16.) Of all the proposed goals, Goal No. 15 was the only one that could only be worked on by a speech therapist. (Tr. 5831.) She testified that the CSE recommended the 12:1:2 program for MR based on the information provided by CA, their own District observations of MR and their knowledge of the 12:1:2 program. (Tr. 5820.) Albertson further testified that, in addition to the programmatic speech time, the CSE recommended that MR receive one individual speech language session, four small group sessions, and one speech consultation, all on a weekly basis. (Ex. AAA-1; Tr. 5824-28.) Albertson further testified that the 12:1:2 program had good language models for M.R. and that the program was “a very nice fit” for her. (Tr. 5834, 5837-38.)
Dr. Olson also attended the May 7, 2014, CSE meeting. She observed MR at CA on March 20, 2014, (Ex. WWW), and this observation helped form her impressions regarding what
MR needed in a school-based OT program, (Tr. 6275-77), in order to support her access to and participation in her school-based academic curriculum, (Tr. 6281-82). For example, Dr. Olson writes in her report that MR was “working on a computer program that supported her identifying upper and lower case letters” and that she switched between her left and right index fingers to strike the keyboard. (Ex. WWW-1.) Her report further notes that MR “required teacher cues within two minutes” and that, although her attention drifted without 1:1 attention, with “positive reinforcement and redirection” from a teacher, “she readily re-engaged with the activity over a
15-minute period.” (Id.) Dr. Olson’s report summarized her conversation with CA OT Lely Li, who described MR’s progress. According to the report, Ms. Li told her that MR had made good progress for the 2013-2014 school year with increased independence and that she could copy letters using a worksheet with moderate to minimal assistance, whereas the previous year she had “needed hand-over-hand to complete worksheets,” and that she uses “hunt and peck” for keyboarding. (Ex. WWW-2.) Ms. Li also reported improved balance for MR as well as gains in her motor-planning skills. Finally, Ms. Li reported, according to Dr. Olson, that MR’s therapy included work on self-care skills, especially buttoning her own clothes. At the time of the report,
MR needed “assistance to push the button through the buttonhole.” (Id.) Dr. Olson explained that in school-based OT, the main focus should be academic and education support, as opposed to underlying skills. (Tr. 6282-84.) Coming into the May 2014 CSE meeting, Dr. Olson continued to believe that MR’s school-based OT should focus on supporting her in the classroom and teaching self-care/independent living skills. (Tr. 6285-86.) At the meeting, the team discussed
MR’s motor functioning levels, and the resulting IEP, (Ex. AAA-8), accurately reflected that discussion. (Tr. 6294-95.) Dr. Olson recalled no disagreement expressed by anyone at the meeting regarding that description. (Tr. 6296.) Using the latest OT progress report from CA, the team developed OT goals for MR. (Tr. 6298-300.) No one voiced disagreement with the goals at the meeting, and Dr. Olson said the goals could be implemented by other staff members without an occupational therapist’s presence in the classroom. (Tr. 6305-08.) Dr. Olson voiced her opinion that a sensory gym was not a necessary component of an appropriate school-based OT program for MR. (Tr. 6309-10.) Notably, the CSE recommended two 30-minute 1:1 OT sessions per week for MR for the 2014-2015 school year, (Ex. AAA15), which is twice the amount of individual OT that it recommended for the 2013-2014 school year, (compare Ex. 5a-18).
Dr. Hess also attended the May 2014 CSE meeting. His AT recommendations for MR for the 2014-2015 school year are identical to those of the 2013-2014 school year except that the 30- minute AT consultations, which had been recommended for twice a month in 2013-2014, were reduced to 10 times per year for the 2014-2015 school year. (Compare Exs. 5a at 19, 20 and AAA at 16, 17.) The CSE adopted all of Dr. Hess’s recommendations. (Ex AAA16-17.)
Kristina Martin, the teacher of the 12:1:2 class recommended by the CSE for MR for the 2014-2015 school year, did not participate in the May 2014 CSE meeting, but at hearing she testified about her program. The 2014-2015 school year was her third year teaching that class.
(Tr. 5997-98.) There were two paraprofessionals attached to the class, in addition to any enhanced staffing that may have been recommended for individual students. (Tr. 6010-12.) Ms.
Albertson, in addition to delivering IEP-mandated individual speech services, consulted with Ms.
Martin weekly and was attached to the 12:1:2 program for two hours per week during which time she was physically in the classroom working on such objectives as developing students’ expressive language and social skills. (Tr. 6013-14.) The occupational therapist was attached to the classroom for one hour per week and worked with the students on such objectives as developing students’ gross and fine motor skills, teaching them how to regulate their bodies, and addressing their sensory needs. (Tr. 6014-15.) Dr. Hess consulted with Ms. Martin as needed.
(Tr. 6015.) All of these other professional staff worked directly with the program’s paraprofessionals. (Tr. 6053.)
Ms. Martin explained that her class was ungraded, (Tr. 6006), and was designed for alternate-assessment students who, like MR, were not working on grade-level materials. All of the students in the 12:1:2 program were significantly below grade level. (Tr. 6003.) The focus of the class was on life skills instruction and functional academics based on the students’ IEP goals.
Ms. Martin explained that “functional academics” are intended to prepare a student for an independent life in the community, including vocational skills. For math, that would include such objectives as telling time, counting money, making purchases, and counting. (Tr. 6044-45.) Life skills included skills required for independence, such as brushing teeth, toileting independently, hygiene, and expressive communication skills. (Tr. 6045.) Cognitively, the students in the 12:1:2 class fell in the less than 1% range, similar to MR. (Tr. 6007, 6080-81.) Academically, the students fell in the pre-K to 2nd-grade range in all subjects, (Tr. 6007-08), also similar to MR, (Tr. 6081). All of the students were verbal, none used augmentative communication devices, (Tr.
6008), and Ms. Martin testified that MR seemed to fit on the lower range of the speech-language functioning levels of her students, (Tr. 6081-82).
Ms. Martin described the structure of the 12:1:2 class, starting with splitting the class into first period and morning meeting. The lower group, which MR would have fit into, participates in a guided reading activity, (Tr. 6083-84), while the other group works with the speech therapist on such objectives as language acquisition, expressive language, calendar skills, basic math skills and basic ELA skills. (Tr. 6008-09, 6204-13.) Second period was a writing class, (Tr. 6010); third period was typically for unified arts classes; fourth period was either lunch or PE. For fifth period, the class was split into two for math. Once a week, that period was used for shopping, during which a real-life functional math lesson was delivered along with lessons on community safety. (Tr. 6016-17.) Sixth period was again unified arts, gym or lunch, depending on schedules.
(Tr. 6017-18.) Seventh period was a combined health/social studies class, which focused on such topics as body parts, safety, reading and writing, and basic American history. (Tr. 6018.) Eighth period involved vocabulary lessons and a social skills group, (Tr. 6018-19), which incorporated video modeling and focused on expanding emotional vocabulary and conversational skills, (Tr.
6019-20). Ms. Martin testified that not all students take the same unified arts or PE classes, with some students taking adaptive PE. (Tr. 6020-22.) MR was one of the students who were slated to take adaptive PE. (Ex. AAA-19.)
Ms. Martin believed that her 12:1:2 class was an appropriate program for MR and that MR would have fit nicely into the classroom. (Tr. 6117.) Ms. Martin described the program as highly structured and supportive, (Ex. AAA- 8; Tr. 6028-29), one that offered visual supports, (Ex. AAA- 8; Tr. 6029-31), and one that presented information through the use of visual, tactile and kinesthetic strategies, (Tr. 6031-33). Games and puzzles were used to reinforce skills taught.
(Tr. 6033-34.) Everything done in the classroom, including initiating play, promoted social interaction between the students because such interaction was extremely important to all of the students in the class. (Ex. AAA-8; Tr. 6034-36.) Ms. Martin and Ms. Albertson facilitated a social skills group that worked on such objectives as engaging with peers and basic social conversation. (Ex. AAA-1; Tr. 6050-53.) All of the students in the 12:1:2 class needed to work on sustaining attention, and the classroom activities were designed to promote that outcome. (Tr.
6036-39.) Lessons and activities were delivered through differentiated instruction in small groups and to promote positive social reinforcement and included the use of token systems for reinforcement. (Exs. AAA8-9; Tr. 6039-42.) Each student had her own iPad to support a number of academic goals. (Tr. 6042-44.) Elements of a sensory diet were available in the classroom, (Tr. 6046-49), including a sensory corner, (Tr. 6073-74). Ms. Martin testified that all of the goals in MR’s 2014-2015 IEP, including the related services goals, involved activities that either had been or could be implemented in her classroom. (Exs. AAA10-13; Tr. 6053-75.)
Prior Written Notice, dated May 7, 2014, was sent to Parents advising them of the CSE’s recommendations. (Ex. HHH.) By letter dated June 16, 2014, Parents advised the District that they were rejecting the CSE-recommended placement and keeping MR in the private school placement at CA. (Ex. KKK.)
The Private School
MR started attending Children’s Academy in September 2012, where she was a student in a classroom of just five students with two teachers and a therapist who was often present in the room. (Ex. 9, Tr. 4371.) Adam Heimann, who holds dual certification in childhood education and students with disabilities, (Tr. 2874; 2938), served as MR’s math teacher for 2012-2013, (Tr.
2876). He testified that a 2:1 student-to-teacher ratio was ideal for MR, that a 3:1 ratio was appropriate, but that a ratio as high as 4:1 would not be appropriate for her. (Tr. 3083-84.)
For the 2013-2014 school year, Mr. Heimann was MR’s homeroom teacher, and the class had a total of six students. (Tr. 2898.) He also taught her math, language arts and social studies for the year. (Tr. 2876.) Social studies was taught three times a week in 30-minute sessions in a group of six (the homeroom class). (Tr. 2899-01.) In September 2013, when Mr. Heimann started working with MR in in the area of language arts, she showed deficits in expressive language. (Tr. 2877.) CA used the Scientific Research Association program for language arts, (Tr. 2944), which focuses on expressive language. The program is organized into four books, so
MR started at the beginning of the program with Book A. (Tr. 2877.) As MR had difficulty understanding conceptually “what it meant when something was next and last,” they worked on sequencing, (Tr. 2878-79), and by June 20147, MR had mastered her sequencing goal, (Tr.
2880). Mr. Heimann explained that CA creates IEP goals for their students, (Tr. 2880), and that one of his responsibilities as a head teacher is to meet the individual needs of the students in accordance with their IEP goals, (Tr. 2875, 2883). CA created individual language arts goals for MR in July 2013. (Ex. LL; Tr. 2881.) Those goals were written by MR’s language arts teacher from the previous school year,[8] (Tr. 2881), based on the SRA book, the goals were chosen particularly for MR, (Tr. 2883). In the 2013-2014 school year, MR received language arts
7 Mr. Heimann testified on June 12, 2014, and June 23, 2014. He testified that as of the date of his initial testimony, MR had mastered the goal. (Tr. 2880.) instruction for half an hour each school day in a group with one other child, (Tr. 2884), who was on a similar level with MR, (Tr. 2885). Over the course of the year, MR progressed to the middle of Book B by June 2014. (Tr. 2885.) MR also mastered several short-term objectives in her language arts goals and was making progress toward mastering even more of them. (Ex. LL.)
Mr. Heimann explained that once a student masters a short-term goal he usually keeps it in review, especially because the SRA program is 70% repetition, with 30 % being new material.
(Tr. 2889-90.) Generally, MR was making progress toward the majority of her short-term objectives that she was working on by the time of Mr. Heimann’s testimony. (Ex. LL; Tr. 2888-
93.) Mr. Heimann emphasized SRA’s appropriateness for MR given its emphasis on repetition coupled with her needs for repetition and the small-group instruction. (Tr. 2896.)
Mr. Heimann had been working with MR in math since September 2012, (Tr. 2901). At that time, MR had difficulty with basic counting (1:1 correspondence), so they worked on counting up past 10. It was difficult for her to sequence, difficult for her to count on from a given number and difficult to identify which pile had more or less than the other. (Tr. 2902.) So they also worked on sorting objects and counting. (Id.) When she started at CA in September 2012, she struggled to count to 10, but at the time of hearing, she could count to 10 and count in sets of tens. (Tr. 2906.) Mr. Heimann wrote her math goals in fall 2012. (Tr. 2967-68.) She made slow progress on her math goals, mastering some of them in the following school year. (Compare Ex.
87 at 10-12 with Ex. KK; Tr. 2908-09; 2910-12.) In 2012-2013, her math class had just one other child, who was at a similar level of development, somewhere between Kindergarten and 2nd grade, (Tr. 2914-15), and she had math five times a week for 30-minute sessions, (Tr. 2915).
In 2013-2014, MR mastered short-term objective 1c; to help her master naming coins and stating their value, the group played games with coins and took trips to nearby stores to use the coins. (Tr. 2917.) The trips to CVS for this purpose started in the previous year, and MR really enjoyed them. The students got to buy a snack with their coins, and the exercise helped
MR to generalize her math skills outside the school environment, an important skill that Mr.
Heimann called “integral to her development.” (Tr. 2918.) In 2013-2014, MR’s math group had three children, one was the same student she was with in math the previous year, and the other student was also selected for the group based on developmental level. (Tr. 2919.) Mr. Heimann explained that he tests the students at the beginning of the year, (Id.), with material in the Oxford curriculum book, (Tr. 2919, 2946-49); he also used Pearsons, (Tr. 2919), and looked at her
UnicornMaths report from England, (Ex. 7). He testified that “some of the skills that were noted in the Unicorn report were not representative of where she actually was.” (Tr. 2920, 2950-56.)
Mr. Heimann testified that MR had mastered some of the objectives in her math goals and that she was still progressing in others. (Tr. 2920-24.) In 2013-2014, MR’s classroom also contained a teaching assistant and a speech therapist and “at times” the “OTs will participate in a classroom activity.” (Tr. 2924.) Whenever he taught the class in the group of six, the speech therapist and teaching assistant were always in the room. (Tr. 2924-25.) He explained their roles: the teaching assistant “may reiterate” or assist in important points of the lesson, and the speech therapist helps with the language component. This arrangement benefits MR’s learning because it affords individualized attention, gives her cues from the speech therapist from their individual lessons, and helps her focus. (Tr. 2925-26.) Mr. Heimann meets regularly with his classroom staff, and director of school, and he checks in with the teachers of MR’s other subjects. The weekly classroom meetings include the speech therapist (ABerns in 2013-14), teaching assistant, principal Sara Daum, occupational therapist Lely Li, and the BCBA. (Tr. 2929.) The weekly meetings review MR’s progress and help with Mr. Heimann’s instruction via suggestions from the other staff members on how to address her goals. (Tr. 2929.) Mr. Heimann testified on cross-examination that instructional strategies involving hands-on activities and social supports were helpful to MR. (Tr. 3017-18.)
In the 2013-2014 school year, MR’s classes had 6 students in music, 6 in social studies, 2 in language arts, 3 in math, and 6 in homeroom. (Tr. 3033-34.) For math in 2013-14, Mr.
Heimann was the only adult in the room. (Tr. 3034.) He testified that MR required a high level of support from the speech therapist in 2013-14 throughout the school day. (Tr. 3116-17.) He testified on re-cross that he was able to provide speech-language support in math when the speech therapist was not present, but that having the speech therapist present to assist with the language support would be ideal. (Tr. 3142-44.) On re-direct, however, he changed his answer to say that he believes MR required a speech language-therapist to be there in light of her speech-language impairment, her low math level and her age, (Tr. 3150-51). When I asked him to clarify whether a speech-language therapist was present during MR’s math group for the 2013-2014 school year, he unequivocally answered that no therapist was present. (Tr. 3152.) Considering
Mr. Heimann’s earlier testimony that a 3:1 student-to-teacher ratio was appropriate for MR, and his hesitation when he changed his answer to suggest that MR required a speech teacher to be present in math, I credit his original answer and consider that Mr. Heimann, with his demonstrated knowledge of MR’s strengths and weaknesses,[9] believed that a speech therapist’s presence would be ideal in math, but that he was delivering appropriate math instruction to her and the other two students on his own in the 3:1 ratio without a speech therapist. For that reason, I give no weight to his revised answer.
For CA’s initial speech evaluation of MR, administered in September 2012 shortly after
MR began attending there, (Ex. 9), Victoria King, CCC-SLP, used the Clinical Evaluation for Language Fundamentals (“CELF”) with all of its subtests to assess her language deficits.[10] (Tr.
4373-76.) CA’s occupational therapy evaluation of MR included the Beery VMI and its subtests, and the Bruininks-Oseretsky Test of Motor Proficiency (“BOT 2”) to measure MR’s motor skills. (Ex. 8; Tr. 3821-22, 4373-76.) CA also included a full sensory profile11 of MR in order to form a complete picture of her sensory processing and identify delays. (Tr. 4222.)
CA staff created therapy goals targeted to MR’s needs identified within the evaluations and based in part on clinical opinions of her therapists. (Exs. PP, QQ.) For example, for the 2013-2014 school year, MR had five general long-term speech goals, each with specific objectives targeting her individual needs. The general long-term goals: 1) improve receptive language, 2) improve receptive language, 3) improve pragmatic language, 4) improve motor planning/speech production, and 5) improve oral motor skills. (Ex. QQ.) Goal 1 contains 13 short-term objectives, including: a) MR will comprehend “WH” questions after listening to a short story given visual support with 80% accuracy, in a 1:1 setting across three consecutive sessions, … d) MR will follow directions containing sequence concepts (first, next, last, middle)
given repetition, in a 1:1 setting, with 80% accuracy, across three consecutive sessions, … j) MR will identify one item that does not belong in a given category when presented with a field of 4 given verbal cues with 80% accuracy across three consecutive sessions.” (Ex. QQ1-2.) Of the 13 short-term objectives, nine of them require a 1:1 setting. CA speech-language pathologists explained that MR required individual speech therapy to learn many language skills before
11 A short form of the sensory profile exists, but Lely Li, MS-OTR/L, favored the use of the longer full sensory profile because it provides more information. (Tr. 4222.) working on the skills in a group to generalize them. (Tr.4514, 4562-63.) Long-term goal 2 further reflects k’s practice of teaching MR a skill 1:1 before moving into a group to generalize the skill. The 10 short-term objectives for Goal 2 share this pattern. For example, short-term objective 2a targets independent production of past-tense verbs in a 1:1 setting, while short-term objective 2b targets independent production of past-tense verbs in a group setting. (Ex. QQ2.)
MR’s speech therapists reported success with this model for her, where she learned the skill 1:1 then branched out into a small group to generalize it. Sometime in December 2012, upon recommendation by CA, MR began receiving twice-weekly 1:1 speech therapy at the McCarton
Center after-school. (Ex. XX5, ¶ 20; Tr. 4326-27.)
The program at Children’s Academy, in the words of Lydia Soifer, Ph.D, incorporates
“language literacy, socialization, always forms of academics in a way that is quite deliberate and integrated and appropriate to the level of functioning … and provides appropriate learning experiences for [MR].” (Tr. 2567-68, 2616.) The students in MR’s class, in Dr. Soifer’s opinion, provide her with appropriate language models, as the nature and amount of language they use is better than MR’s. (Tr. 3301, 3310-11.)
During her April 12, 2013, trip to observe MR at CA, Dr. Soifer observed a language arts lesson led by the speech pathologist with three children in the session. (Ex. K1; Tr. 2563.) The session was set up in a U shape, and the teacher had immediate access to the children. (Tr. 2563.)
In her testimony at hearing, Dr. Soifer said that everything she saw in that interaction had an academic as well as social purpose similar to what then math teacher Heimann did after the class’s trip to CVS: They came back, ate their snacks, and the teacher helped them talk to each other. (Id.) The lessons in language arts are structured, sequential and consistent in a way that engages the students with each other, which also adds a social-emotional component to the lesson. (Tr. 2564, 3295-97.)
In the reading session that Dr. Soifer observed, reading instructor Nancy Kendall was using a program “appropriate to MR’s level” adapted according to her needs. To address MR’s weaknesses in decoding word attack, the instructor accommodated her by providing additional examples and additional context while working on comprehension. (Tr. 3314-15.) Dr. Soifer said that the students whom MR was placed with at CA were linguistically and socially appropriate for her. (Tr. 3390.)
In the 2013-2014 school year, MR received two, 45-minute sessions per week of speech therapy at CA, as well as approximately 15 hours of support in the classroom and two additional
45-minute speech therapy sessions after school.[12] (Tr. 3483.)
CA speech-language pathologist Aleksandra Berns characterized CA as a “language school,” (Tr. 3498), and testified that when she’s not in the classroom, the teacher and assistant teacher ensure that MR is generalizing her speech-language goals. (Tr. 3595-96.) In Ms. Berns’s opinion, the afterschool services are “completely appropriate for [MR]” because she “needs additional services after school” in order to “make meaningful progress.” (Tr. 3484-85; but see
Dr. Soifer’s testimony, Tr. 2617-19.) MR does not receive more than two sessions of speech therapy during the school day, says Ms. Berns, because she cannot be pulled from academic instruction more often without detriment to her learning and academic skills. (Tr. 3485.) While
MR is not the only student in her class who receives extra speech sessions after school, CA recommended them for her because the staff believed that she required more than just two 45- minute sessions per week. (Tr. 3488-89.) Dr. Soifer, however, had a different take on the extra speech instruction. She said that the additional speech-language therapy after school was “reinforcing” for MR. She testified that MR could learn without the additional speech-language therapy when being properly instructed13, and that when being properly instructed she learns within the school day. (Tr. 2617-19.) Given her wholesale endorsement of the instruction MR received at CA, I infer that Dr. Soifer considered the after-school speech not to be necessary but rather to be helpful for MR to reinforce what she had already learned via the proper instruction she received during the school day at CA. In light of Dr. Soifer’s considerable experience as a speech-language pathologist, I FIND, in spite of the opinions of Ms. Berns and Ms. King, that the afterschool speech, while “reinforcing” for MR and thus certainly of extra benefit to her, was not necessary for her to make progress. Indeed, Ms. King testified that MR was making progress with the 2x45 individual speech therapy that she had been receiving in school from September 2012 to December 2012. (Tr. 4387.) Her affidavit dated November 11, 2014, stated that “CA’s mix of individual therapy and group learning attuned to skill level offered [MR] the right opportunity for academic and social success.” (Ex. XX5.) On cross-examination, she explained that the twice-weekly 1:1 speech therapy during the school day “supported academic success” but that she “just required more” and 2x45 1:1 speech was “just not enough for her.” (Tr. 4607.)
She further clarified her statement to explain that MR made progress in speech across all domains with the twice-weekly individual support along with the additional speech support she received in the classroom but “not at a rate that we deemed appropriate for her.” (Tr. 4614-15.)
She explained that MR was taking a lot of time to acquire new vocabulary and that her rate of 13 While difficult to ascertain Dr. Soifer’s meaning when she refers to “proper instruction,” her description of the interaction in MR’s class at CA sheds some light. She testified: “A setting like this where the instruction is controlled, the interaction is consistent among the professionals, the style of language is concrete and it is multi-sensory, and it’s very practical and it’s experiential and it's repetitive and it's deliberate, it’s purposeful, the teachers are very clear about what they are doing in what order, in what ways for what purpose in tiny bits, you have to be very skilled and really have a passion for working with kids who learn so slowly and inconsistently.” (Tr. 2566-67.) I note that her testimony described what she observed at CA. Outside the context of CA, “proper instruction” is not defined. progress in that area was slower than expected. (Tr. 4616.) Based on the opinion of Dr. Soifer and on Ms. King’s explanation that the in-school individual therapy MR received before 2012 allowed her to make progress in all speech domains, albeit at a slower than optimal rate, I FIND that the 2 x 45 individual afterschool therapy MR began receiving at the McCarton Center from December 2012 was not necessary for her to make progress.[14] Ms. King explained that speech-language support in the classroom was sometimes provided by her and at other times was provided by other staff members who, while not speech therapists, collaborated as a team to provide that support. (Tr. 4616-17.)
At CA, Ms. Berns helped facilitate interactions between MR and her peers in her classroom. (Tr. 3592.) Ms. Berns worked with MR’s teachers and provided indirect support so that the staff could generalize MR’s speech goals with her when Ms. Berns was not in the classroom. (Tr. 3599.) Some of the strategies she recommended to MR’s teachers included
“language enhancement strategies, pragmatic social enhancing strategies during” group activities and during lessons in class. (Tr. 3614-17.)
MR needs language models to learn new concepts, to engage in conversations and to ask questions of her peers. (Tr. 3671.) In the classroom, MR falls on the lower end of verbal, receptive and pragmatic communication skills, and it is undisputed that her classmates serve as great language models for her. (Tr. 3670.) MR’s classmates are able to “initiate conversations she takes part [in]. They help her out in terms of communication skills and how to ask the question or maintain a conversation … .” (Tr. 3670-71.)
In addition to her speech-language needs, MR presents with delays across all occupational therapy domains: sensory processing, fine motor skills, visual motor skills, self-care, visual perceptual skills and gross motor skills. (Tr. 1990.) The certified occupational therapists at CA target the “foundations” for her goals. (Tr. 2798.) CA focused on MR’s visual attention, moving the pencil, small lines and curves, larger lines and curves, and building the foundation on how to write the letters. (Tr. 3877-78.) Lely Li, MR’s OT for the 2012-13 school year, further explained that “[MR] has a lot of sensory processing delays that she needs to work on . . . she needs to work on her vestibular and her proprioceptive processing, which is her awareness of her movement and her body awareness in space.” (Tr. 4212.) Accordingly, CA set occupational therapy goals for MR that addressed her sensory processing needs, fine motor skills, visual processing skills, self-care and gross motor skills. One of the venues where MR receives OT at CA is the school’s sensory gym, where her sensory needs, specially her underlying skills, can be addressed. CA’s Maria Kahwaja testified that a sensory gym was vital to meeting MR’s sensory needs. (Tr. 1998, 2086-88.)
CONCLUSIONS OF LAW
Congress’ stated purposes in enacting the IDEA were to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) designed to meet their unique needs, to prepare them for independent living and to protect the rights of such students and their parents. 20 U.S.C. § 1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Ed. v. Rowley, 458 U.S. 176, 179-181 (1982). The U.S. Supreme Court held in Rowley that FAPE required by the IDEA means an education that is “tailored to the unique needs of the handicapped child by means of an individualized education plan.” Board of Ed. V. Rowley, 458 U.S. 176, 181-182 (1982). The IDEA requires that educational instruction be provided to the student in the least restrictive environment, with the student participating to the maximum extent possible in the same classrooms and activities as non-disabled students. See 20 USC § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. The student’s IEP must be “reasonably calculated to enable [him] to receive educational benefits.” Rowley, at 207. A school district, to satisfy the “reasonably calculated” test, must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . [that] affords the student with an opportunity greater than mere trivial advancement.’” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195, quoting Walczak v.
Florida Union Free Sch. Dist., 142 F.3d 119 at 132. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1998) (citations omitted). School districts are not required to “maximize” the potential of students with disabilities. Rowley at 189, 199.
This is a tuition-reimbursement case, so I analyze the issues under the standard announced in Burlington Sch. Comm. v. Dept. of Educ., et. al., 736 F.2d 773 (1st Cir., 1984)
aff’d at 471 U.S. 359 (1985). The Court in Burlington found that three factors determine whether a parental request for tuition reimbursement for a unilateral private school placement is appropriate. (1) If the services offered by the board of education are inadequate or inappropriate, and (2) the services selected by the parent are appropriate, and (3) equitable considerations support the parents’ claim for reimbursement, then reimbursement should be granted. In New York, the local educational agency has the burden of proving “Prong I,” that it offered an appropriate educational program that amounted to a FAPE. See N.Y. Educ. Law §4404(1)(c).
In determining whether an IEP complies with the IDEA, courts make a two-part inquiry that is first procedural and second substantive. At the first step, courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” R.E. v. New York City Dep’t of Educ. 694 F.3d 167 (2d Cir 2012), quoting Cerra, 427 F.3d at 192. While not every violation is considered “material,” the Supreme Court and Congress have emphasized the importance of the procedural provisions found in the IDEA. Rowley, 458 U.S. at 205. Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Id. (quoting Rowley, 458 U.S. at 206-07). Substantive inadequacy automatically entitles the parents to reimbursement. Procedural violations, however, only do so if they “impeded the child's right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the decision-making process,” or “caused a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii); A.C., 553 F.3d at 172. Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not. See Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005). Further, the Second Circuit emphasizes that even minor violations may cumulatively result in a denial of a FAPE. See R.E. 694 F.3d 167. “School districts are well-advised to ensure the IEP complies with the checklist of requirements specified by state regulations.” Id.
“At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in [34 CFR 300.320 ].” 34 CFR 300.323 (a). See also 20 U.S.C. § 1415(d)(2)(A). “An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs and provides for the use of appropriate special education services.” Application of a Student with a Disability, Appeal No. 08-015
(internal citations omitted). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including where appropriate, social and emotional status. 20 U.S.C. §1414(b)(3)(B); 34 C.F.R. §300.304(c)(4);8 NYCRR §200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related-services needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. § 300.304(c)(6);8 NYCRR §200.4(b)(6)(ix). SRO Appeal No. 08-015.
A. The District Failed to Provide a FAPE to MR for the 2012-2013 School Year
In support of their claim that the District failed to offer MR a FAPE for the 2012-2013 school year, Parents argue that the District’s evaluations were insufficient and untimely, that the District failed to meaningfully consider the recommendation of MR’s therapists, that the District disregarded the report and recommendations of Dr. Soifer, the District offered an inappropriate
ESY program, that the recommended program and placement was inappropriate, and that the recommended speech and OT services were inadequate. (Ex. MMMM2-14.) Parents charge that the District’s speech and OT evaluations were insufficient and that the AT evaluation was not completed until months after the December IEP meetings. (Ex. A ¶31, ¶47; Ex. MMMM-2.)
Regarding the speech and OT evaluations, while the reports were shorter and less comprehensive than those completed by CA’s therapists, the District’s evaluations nonetheless resulted in scores similar to those in CA’s evaluations. (Tr. 1089). Like CA’s speech evaluation of MR, Ms.
Albertson’s test results revealed MR’s significant delays in both expressive and receptive language. (Ex. 14: Tr. 1074.) The same similarities exist between CA’s and the District’s OT evaluations, with both finding that MR had deficits in gross motor, fine motor and visual motor skills. (Ex. 17-3.) While CA employed the long form sensory profile in its assessment, Dr.
Olson’s use of the short form sensory profile also determined that MR had definite sensory differences and that she would benefit from sensory-based activities during the school day to help her function in daily activities. (Ex. 17.) Both the District’s therapy evaluations yielded results that agreed with the results of CA’s more comprehensive evaluations, so the District’s evaluations, while bare bones, fulfilled its obligation to assess MR in two areas of her known deficits. Consequently, I FIND that the District’s speech and OT evaluations were sufficient.
Insufficient recommendation for speech in December 2012
It is undisputed that MR’s program at CA had 15 hours of classroom support per week from the speech-language pathologist and that MR benefited from the arrangement. The
District’s recommended 8:1:2 program had just 4 hours of classroom support per week from the District’s speech-language pathologist. At CA, MR received individual speech therapy during the school day twice per week in 45-minute sessions. It is undisputed that MR required one-to-one speech to master her goals before generalizing her skills in a group setting. The District recommended just one individual 30-minute speech session per week for her, resulting in a one-hour-per-week decrease of individual speech therapy compared to her services at CA. Given the overwhelming evidence in the record from MR’s CA speech therapists and her teacher that she required more contact from the speech pathologist in 2012-2013 than could be offered with a combination of 30 minutes of 1:1 speech per week and the 4 hours of speech-therapist time built- into the District’s 8:1:2 class, the District fell short of meeting its burden to prove that the markedly lower complement of speech services was adequate to meet MR’s needs. Accordingly, I FIND that the District failed to provide adequate speech services for her with the offer of the December 17, 2012, IEP.
In contrast, when the CSE reconvened to consider Parents’ concerns about the December IEP, the District significantly augmented its speech recommendation with an additional two hours of service in the form of 4 weekly 30-minute group sessions. With the additional speech recommendation and the belief of District staff that the combined classroom, group and individual services were sufficient for MR to progress toward her speech goals, I FIND that District proved that its February 26, 2013, IEP offered MR an appropriate level of speech services.
Insufficient recommendation for OT throughout 2012-2013 and 2013-2014 xxxz
Parents argue that District’s OT recommendation was insufficient. At hearing, the District did not advance an argument in favor of its OT recommendation beyond the testimony of the 8:1:2 teacher who described how the District’s OT and the OT at CA disagreed at the CSE meetings about the appropriate level and focus of OT for MR. While Ms. Linkowski is a certified special-education teacher with 14 years of experience, (see Findings of Fact, above), she is not an occupational therapist. In fact, no occupational therapist testified for the District regarding the 2012-2013 and 2013-2014 school years, and thus no competent District witness explained why
District’s OT recommendation might arguably have been appropriate to meet MR’s needs.
Parents, on the other hand, presented persuasive testimony from MR’s duly certified OTs at CA that the functional emphasis favored by the District’s OT recommendation was inadequate for MR and that her definite sensory differences could not be appropriately addressed without a sensory gym. It is undisputed that Hommocks did not have a sensory gym.
District chose not to present the testimony of its OT during its direct case. On rebuttal,
Dr. Olson testified that CA’s delivery of services was inappropriate because it focused too much on underlying skills rather than emphasizing functional needs. She also testified that CA’s delivery of services resembled a clinical approach that was not appropriate for school-based OT.
(See, generally, Tr. 4821-4956, 499315-5186.) The parties agreed before and during hearing that 15 A glitch in the page numbering of Volume 24 of the hearing transcript occurred after page 4994 such that page numbers 4988 through 4994 appear twice in sequence. In the interest of avoiding the time and expense inherent in Dr. Olson’s rebuttal testimony would not be used to fill in for District’s lack of defense of its OT recommendations for the 2012-2013 and 2013-2014 school years, and I emphasized on the record at hearing that I would not consider it for any other purpose than to rebut Parents’ assertion that the OT program MR received at CA was appropriate. (Tr. 5015.) For that reason, I do not consider Dr. Olson’s rebuttal testimony for the purpose of supporting the District’s post-hearing argument that its OT recommendation for MR for the 2012-2013 and 2013-2014 school years was appropriate. In New York, Districts have the burden of proving that their program and service recommendations for disabled children under the IDEA are appropriate, and the District simply failed to offer testimony of an OT toward meeting that burden. Accordingly, I FIND that the District failed to prove that its recommended OT services were appropriate for the 2012-2013 and 2013-2014 school years. Consequently, I FURTHER FIND that the District’s OT recommendations for the 2012-2013 and 2013-2014 school years were inappropriate.
Procedural violations
Parents’ argument that District’s evaluations and recommendations were untimely has merit. District counters that the first question that must be addressed is when the District’s obligation to offer MR a FAPE began. MR’s Parents officially referred her to the CSE on
9/11/12, (Ex. 28), and District received Parents’ signed consent for the initial evaluations on
9/19/12, (Ex. 26). Thus, in accordance with 8 NYCRR §200.4(b)(1) and (7), the initial evaluations were required to be completed within 60 calendar days from receipt of consent, which was November 19, 2012, and the District had completed the lion’s share of the evaluations by then. (See Exs. 13, 14, 15, 16, 17.) 8 NYCRR §200.4(d), on the other hand, renumbering thousands of pages that follow the erroneous page numbers, I have placed an “A,” along with my initials, on each of the seven pages in question so that the second set of the repeated page numbers appears in the transcript as 4988A, 4989A, 4990A, etc. Repeated page numbers notwithstanding, all of the text that appears on the affected pages is correct. requires that, for a student not previously identified as having a disability, the board of education shall arrange for the appropriate special education programs and services within 60 school days from receipt of consent, or by December 19, 2012.[16] Thus, the District correctly notes that it had no duty of FAPE to MR before December 19, 2012, and it argues that “[a]ny slight delay in getting a finalized IEP to the parents after December 19, 2012, was de minimis, particularly in light of the intervening school vacation.” (Ex. 97-22.)
On its face, this “slight delay” violated IDEA procedure, and the District admits as much.
District correctly calculates that the 60-school-day requirement for MR’s services to begin started on December 19, 2012, and it admits that Parents did not receive the IEP until January 11, 2013, a tacit acknowledgment that it failed to deliver the IEP in a timely fashion. It argues, however, that the 10-school-day delay was de minimis and does not amount to a violation of FAPE. As Parents point to no harm resulting to them or to MR from the District’s tardy delivery of the IEP, I FIND that the untimeliness of the IEP does not rise to a material violation and does not, on its own, constitute a deprivation of FAPE.
The one evaluation that the District failed to complete by the 60-day deadline was Dr.
Hess’s assistive technology evaluation of MR. Despite MR’s well-documented fine-motor deficits and her use of assistive technology at CA to enhance her reading and writing skills, it is undisputed that the District did not seek Parents’ consent to perform an assistive technology evaluation of their child until after the CSE had met for the third time. No satisfactory explanation exists in the record as to why the District failed to bring Dr. Hess into the discussion regarding MR’s needs before March 2013. Once the District sought and received consent for the evaluation, Dr. Hess spent one-and-a-half hours with MR to assess whether she might benefit from AT in her education program. The fact that in his judgment she “required assistive tech services to meet her needs” means that the evaluations that District staff administered to MR before Dr. Hess’s involvement, though adequate in each area of testing, failed to assess her in all her areas of suspected disability, in violation of the IDEA. See 20 U.S.C. §1414(b)(3)(B); 34 C.F.R. §300.304(c)(4); 8 NYCRR §200.4(b)(6)(vii). Evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related-services needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. § 300.304(c)(6); 8 NYCRR §200.4(b)(6)(ix). SRO Appeal No. 08-015. I FIND that such failure to perform an AT evaluation in time for the December 2012 and February 2013 CSE meetings was a procedural violation. The question is whether the clear procedural violation rises to the level of a material violation.
As noted above, an IHO can only find that a procedural violation amounts to a deprivation of FAPE when it “impeded the child's right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the decision-making process,” or “caused a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii). Here, the significance of Dr. Hess’s recommendation, regular AT consultations, use of hardware, software, adjustments as necessary to meet her reading, writing and fine motor needs, underscores the fact that without such AT,
MR’s needs would have gone unmet. When an AT expert concludes that assistive technology is necessary for a child to receive education benefits, as Dr. Hess’s report and his testimony unequivocally did, I must conclude that a recommendation for an education program that fails to recommend such AT and related support for that child by definition deprives that child of educational benefits. Accordingly, I FIND that the District’s failure to evaluate MR for AT before March 2013 categorically deprived her of a FAPE before that time. Considering that Dr.
Hess’s evaluation and recommendations were unavailable to any of the three CSEs teams that met before June 20, 2013, I FURTHER FIND that the procedural violation materially impeded
MR’s right to a FAPE for the 2012-2013 school year. Considering, however, that Dr. Hess’s evaluation was fully discussed and his recommendations for MR were fully incorporated into the June 20, 2013, IEP, for the 2013-2014 school year and the May 7, 2014, IEP for the 2014-2015 school year, I FIND that the procedurally based deprivation of FAPE based on failure to evaluate
MR in all areas of suspected disability does not extend beyond the 2012-2013 year.
Next, my inquiry turns to whether any of the IEPs proffered for the relevant portion of the 2012-2013 school year substantively offered MR a FAPE. As I have found, above, that District’s speech recommendation was inadequate until February 2013, that the OT recommendation was inadequate for the full 2012-2013 and 2013-2014 school years, and that without the AT recommendation, both of the 2012-2013 IEPs failed to meet MR’s needs, I FURTHER FIND that the December 2012 and February 2013 IEPs were not reasonably calculated for MR to receive an educational benefit. In light of the foregoing, and considering that the District’s obligation to provide a FAPE commenced on December 19, 2012, I FIND that the District failed to offer a FAPE to MR for that portion of the 2012-2013 school year from December 19, 2012, through June 21, 2013.
B. MR’s Placement at CA for 2012-2013 and 2013-2014 Was Appropriate
When determining whether a parent’s unilateral placement is appropriate, “Prong II” of the argument, the issue turns on whether the placement is reasonably calculated to enable the child to receive an educational benefit. See Frank G. v. Bd. of Ed., 459 F.3d 356 (2d Cir. 2006).
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo v. Arlington Central School Dist., 489 F.3d 105 at 112 (2d Cir. 2007)(internal citations omitted).
The Second Circuit Court of Appeals holding in Frank G. embraces the concept that the appropriateness of the parent’s unilateral placement is subject to a somewhat less stringent standard of review. It held that the unilateral placement need not offer the child an IEP or employ certified or licensed special education teachers, see Frank G. at 364, and that the “test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Id. (internal quotations omitted). More recently, the Second Circuit held in R.E. that “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” See Frank G., 459 F. 3d 356 at 364-65. However, review of the private placement at this stage of Burlington/Carter review is more informal than review of the original IEP: a private placement need not meet the IDEA requirement for a FAPE and is not subject to the same mainstreaming requirement as a public placement.” (Internal citation omitted) R.E., 694 F.3d 167 at 187, fn3.
The Southern District held that “insofar as the CSE elected to utilize and rely upon the reports and assessments” of a private school, as the District did in MR’s case, their reliance on such materials weighs in favor of the appropriateness of the private placement. A.D. v. Bd. of Educ. of the City Sch. Dist. of New York, 690 F.Supp.2d at 208 (S.D.N.Y. 2010). ). Here, the District’s own witness at hearing admitted reliance upon the reports of the CA staff in formulating not only the 2012-2013 District IEP but also the 2013-2014 document. (See, generally, the record; Exs. 97-
4, 97-13; Tr. 5789-90, 5792-95, 6290-300.)
Here, the record fully supports Parents’ argument that the Children’s Academy was reasonably calculated for MR to receive educational benefit as required by Rowley and the somewhat relaxed standard of Frank G. Although the law does not require that Parents’ unilateral placement be staffed by licensed special-education teachers, (see Gagliardo, above), MR’s teacher Mr. Heimann was dually certified in New York as a general- and special-education teacher. (Tr. 2874, 2938.) The District’s own evaluators admitted that MR had made progress at CA during the 2012-2013 and 2013-2014 school years. (Tr. 4443, 5519, 5610-15, 5642.) It is undisputed that MR’s program at CA was tailored to her individual needs through small-group instruction, social-emotional support, academic and therapy goals written to address her needs, and generous speech-language and occupational therapy services.
MR started attending CA in September 2012. CA is a small, private special school that focuses on language development. MR’s 2012-2013 classroom had five students, two teachers and a therapist, so she enjoyed a small student-to-teacher ratio there, which the District agreed was necessary for her. (Tr. 804-05.) While it is true that CA had little to no evaluative information about MR before she began attending there, the certified occupational therapist and speech-language pathologist assessed her skills through standard measures soon after her arrival at CA, and the math teacher used informal measures to glean that her math skills were at the Kindergarten to second-grade level.[17] Mr. Heimann, who taught MR math in 2012-2013, astutely reviewed the UnicornMaths report from U.K and recognized that it painted a rosier picture of
MR’s abilities than actually existed.[18] (Tr. 2920, 2950-56.) From his informal assessment, he created math goals for her that targeted her various areas of weakness, and MR progressed slowly through the goals, learning to count from 1 to 10 with confidence. District argues that, in order to meet their burden to prove that their unilateral placement at CA was appropriate, Parents must demonstrate that CA provided MR with educational instruction specially designed to meet her unique educational needs that would permit her to benefit from instruction (Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105, at 112 [2nd Cir. 2007] and Frank G. v. Brd. of Educ., 459 F3d 356 at 364-365 [2nd Cir. 2006]). Parents demonstrated through the testimony of MR’s teacher and her therapists that CA specifically designed goals to match MR’s needs. CA’s therapists and Dr. Soifer testified that CA grouped MR with peers who served as good language models for her. What’s more, testimony of District staff repeatedly emphasized the District’s reliance on the reports and opinions of the CA staff in formulating appropriate goals for MR, consistent with the Southern District Court in A.D. 690 F.Supp.2d at 208. In light of the foregoing, I FIND that Parents proved that CA delivered specially designed instruction to meet
MR’s needs as a child with a disability so that she could benefit from instruction. In light of the progress MR demonstrated as a student at CA for the 2012-2013 and 2013-2014 school years, I FURTHER FIND that MR made actual progress there during that time frame.
Similarly, CA’s OT evaluation of MR signaled her deficits, fine motor and sensory, CA staff wrote IEP goals to address her deficits, and she made slow progress toward her goals. The
District presented a rebuttal case at hearing in which Dr. Olson testified that school-based OT should focus on basic life skills as opposed to the underlying-skills and sensory-integration focus emphasized at CA. (Tr. 1838-39.) It is undisputed, however, that Dr. Olson’s evaluation of MR found similar deficits to what the CA evaluations found. (Compare Ex. 8 and Ex. 17.) Both evaluations revealed that MR presented with sensory differences from children her age and that she had deficits in gross motor, fine motor and visual motor skills. As described above, Dr.
Olson believed that school-based OT should focus on functional skills as opposed to the more clinical approach advanced by CA, which included sensory integration and the emphasis on underlying skills. (See, generally, District’s Rebuttal Case, Tr. 4821-4956, 4993-5186.) Here, the fact that the professional opinions of certified occupational therapists can and do diverge on the appropriate form and intensity of treatment for a child does not mean that one approach is necessarily wrong or inappropriate. The fact that CA used a clinical approach does not on the face of it suggest that its OT for MR was not reasonably calculated for her to receive educational benefit. It is undisputed that MR made progress toward her OT goals at CA, that her fine motor skills increased, and that her sensory needs were well managed in the sensory gym. Thus, in spite of Dr. Olson’s opinion to the contrary, I FIND that the OT that CA provided for MR during the school day was appropriate, albeit at greater frequency and intensity than Dr. Olson believed was necessary. In light of the specific goals that CA created for MR across content and therapy areas that targeted her unique needs, in light of the presence of effective certified teachers and therapists to provide MR with instruction and support, I FIND that CA’s 2012-2013 school day program for MR was reasonably calculated to offer her educational benefits. What’s more, in light of her documented progress in the record from September 2012 through the end of June 2014, I FIND that MR made actual progress at CA. Accordingly, I FIND that Parents’ unilateral placement of MR at Children’s Academy for the 2012-2013 and 2013-2014 school years was appropriate.
C. The Equities Favor the Parents
In 1997, Congress amended the IDEA, providing parents the opportunity to obtain tuition reimbursement when their school district fails to provide their child with FAPE in a timely manner and parents consequently place their child in an appropriate private-school placement.
See 20 USC §1412 (a)(10)(C)(ii). Congress imposed limitations on parents’ request for such tuition reimbursement in certain circumstances, including limiting reimbursement when a parent acts unreasonably. See 34 CFR §300.148(d). The IDEA allows that a reimbursement award may be reduced or denied if the parents, among other things, fail to timely notify the school district that they intend to enroll their child in a private school at public expense, fail to make their child available for evaluation, or otherwise act unreasonably. See 20 U.S.C. §1412(a)(10)(c)(iii). Once the trier of fact has found in favor of a disabled child on the first two prongs, then she should determine whether equitable considerations (Prong III) support the parents’ claim and order appropriate relief. See Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996). The parent’s pursuit of a private school placement after a district failed to offer FAPE to their child is an insufficient basis for denying a claim for tuition reimbursement absent the parent’s failure to cooperate with the development of an IEP and interference in the placement process. See N.R. v. Dept. of Educ.
of the City of New York, 2009 WL 874061 (S.D.N.Y.).
Although District argues that Parents never intended that MR should attend anything but a private school, the evidence does not support that charge. Parent repeatedly testified that she was open to considering the Mamaroneck Public Schools for her daughter and that she had heard that the District had good programs. What’s more, Dr. Minotti testified that he believed Parents were open to considering the District’s program had they found them to be appropriate for MR.
(Tr. 256.) District argues that Parents’ hiring of education consultant Davida Sherwood at the cost of $5000.00, (Exs. 91, 92), to find a special school for their daughter in the United States while they were still living in England evinces their intention that she attend only a private school here. That charge might be more persuasive but for the fact that no evidence in the record suggests that MR’s Parents knew anything specific about the public school system here and the ready availability of quality public special-education programs. (Tr. 398-99.) The history of the family’s attempts to find suitable schooling for their daughter in England illustrates the point.
(Tr. 1722-41.) Not only was a small special-education classroom not available in a public school in England at the time, but Parents could not even access professionals who could evaluate MR’s deficits, as the psychologist they hired to test her gave up and refunded their money. (Tr. 1789-
81.) When MR did find a small private placement, it had more students in the classroom than what Mamaroneck ultimately offered, and MR was assigned “a shadow,” who was a “lovely lady” who really wanted to help MR but who had no training. (Tr. 1724.) District argues that Parents’ decision by May 29, 2012, nearly three months before they actually relocated to the States, that MR would attend CA evinces their intent to place her in a private school when it actually underscores how eager they were to secure a school for her before they left their home in England. (Tr. 1748, 1757.) It is undisputed that Parents informed CA that they were considering district options for MR, (Tr. 1772), and the school’s director told them if they found an appropriate program in the District, their contract payments would be returned pro rata, (Tr.1655-1657). Considering that Parents contacted the District very soon after their re-location to Larchmont in order to explore whether it had a suitable program for MR, the fact that they secured a school for their daughter before they came cannot be held against them given the importance they placed on her attending a suitable school. Similarly, Parents’ retaining an attorney at some indefinite time19 “after their arrival in the U.S,” (Ex. 97-29), and hiring Dr.
19
Beyond the January 11, 2013, date of Parents’ letter to District that first rejected the recommended program, the Soifer, referred to them by their attorney, to play an “advocacy” role and to serve “as an expert witness in regard to a reimbursement case” prompted the District to further charge that Parents had no intent whatsoever to even consider changing MR’s placement from CA. (Id.) It is undisputed, however, that Parents had no idea how to go about finding a school for MR, that that situation led them to seek advice from other parents with children with disabilities, and that that advice led them to Ms. Sherwood’s services.[20] (Tr. 1751-52.)
At the hearing, the District presented no evidence, testimonial or documentary, that the parents failed to cooperate with the CSE at any time during the development of MR’s program for the 2012-2013, 2013-2014 or 2014-2015 school years or that they otherwise impeded the CSE in developing an appropriate program for their child. On the contrary, Dr. Minotti repeatedly testified that MR’s Parents were a very cooperative family in general and that they never refused consent for any evaluation that the District requested. It is undisputed that Parents attended both December 2012 CSE meetings and that Mrs. P-R visited both the 8:1:2 and 12:1:2 classrooms upon the District’s suggestion. District makes no claim that Parents failed to provide timely notice of their decision to keep MR at CA and to seek public funding for the private placement once they determined that the District’s program was inappropriate. Further, no evidence in the record suggests that the parents obstructed the selection of an appropriate placement. Finally, the District presented no claim or evidence suggesting that the $58,330.00 tuition at the Children’s Academy from September 2012 through June 2013, (Ex. E-1), or that the $70,000.00 tuition at CA for the 12-month 2013-2014 school year, (Ex. F-1), was record is silent on when Parents first sought the legal services of Gary Mayerson and Associates. (See fn 4, above.) unreasonable. Considering that the Parents fully cooperated with the CSE at all times, that they visited both programs at Hommocks, notified the District in writing that they were continuing
MR’s placement at CA and that they would seek public funding for the placement, I FIND that the equities favor the parents, and I FURTHER FIND that there are no equitable reasons limiting tuition reimbursement in this matter. Based on the foregoing, I FIND that the equities support full reimbursement for the relevant portion of MR’s 2012-2013 tuition at CA and for the
$9712.92 cost of her tuition there for July and August of 2013. I make an Order below for the District to reimburse Parents $36,618.28 for MR’s CA tuition from December 19, 2012, through June 21, 2013. (See ORDERS, below, for calculation of the tuition awards.) To that end, I make further Order below for Parents to submit to the District attendance records and proof of tuition payment for the time period above.
D. The District Offered a FAPE to MR from September 2013 through June 2014
For the 2013-2014 school year, the District offered MR the same full-time 8:1:2 special class program for MR that it had offered for her in 2012-2013, along with individual and group speech, OT, social services group, assistive technology and related consultation support, and parent training/counseling. The IEP recognized the important fact that MR needed assistive technology going forward in order to receive education benefits. Dr. Hess attended the June 2013 IEP meeting, his evaluation was fully discussed, and his recommendations for MR were fully incorporated into the June 20, 2013, IEP, for the 2013-2014 school year. Dr. Hess’s extensive recommendations provided MR with multi-modal supports in eading and writing, along with graphic and auditory supports, and included twice-monthly consultations with the AT specialist to ensure that the AT would be appropriately incorporated into MR’s program. (Exs. 5a-2, 5a17.) Dr. Hess also explained that consultation with the teacher, and possibly with MR, was necessary in order to integrate AT into the curriculum “in a way that is individualized to [her]
needs.” (Ex. 88 at 202.) All of the technologies recommended by Dr. Hess were available in the District, (Tr. 6391-93), and the CSE adopted all of his recommendations, (compare Ex. 88 at 200-202 to Ex. 5a at 19, 20.)
Ms. Linkowski described her 8:1:2 class in detail. She testified that the 8:1:2 program was ungraded, individualized and included group activities to support common needs. (Tr. 744,
749.) All of her students had language needs, and classroom activities were designed to provide individual or small group instruction to promote acquisition of pragmatic language, academic information and ADL skills. (Tr. 750.) Some of the instruction in the class was ABA-based and data-driven, and all instruction was individualized to meet the needs of the children. (Tr. 750-
51.) She described the roles of the additional staff in the program, including the two paraprofessionals who supported instruction in the class. (Tr. 753.) She also explained that the speech-language and occupational therapists consulted with her and the students in the classroom to help the students generalize their targeted skills. (Tr. 531.) Although Mrs. P-R’s impression of the classroom was that some of the students in the 8:1:2 used augmentative communication devices, (Tr. 1908-10), Ms. Linkowski testified that the 8:1:2 program was language-rich and that MR would have benefited from the language support there, (Tr. 808-11.) She described the direct and indirect support provided by the speech therapist, including the therapist’s meeting with her and her staff to make sure that the whole staff worked on the goals throughout the school day. (Tr. 792-94.) Although she is not an occupational therapist, she is in a position to know about the supports available in her class, so she testified that two hours of OT was built into the program, in additional to the individual OT session recommended by the CSE. The OT supports available in the classroom included activities of daily living (“ADL”) and organization activities throughout the day and the provision of a sensory area for MR. (Tr. 794-99.) The fact that the 4 hours of speech and 2 hours of OT were built into the 8:1:2 program appears clearly in the IEP. (Ex. 5a-11.) Based on the foregoing, I FIND that the 8:1:2 program was reasonably calculated to provide a meaningful educational benefit to MR.
At the June 20, 2013, CSE meeting, various CA staff members participated via telephone, and they provided additional information regarding MR’s functioning and gave input on the proposed goals, which were reviewed individually. (Tr. 4434, 4444-45, 4459.) Although the speech-language pathologists and the occupational therapists from the District and from CA once again disagreed on what level and focus of services would be appropriate for MR, (Tr. 1920-22), no one at the meeting voiced any objection to the goals or to the description of her then-current functioning levels, (Tr. 572-73, 4445). The hearing testimony contains detailed analysis of the services goals, and Parents’ claim that MR’s services goals are inappropriate is not supported in the record. It is undisputed that the District modified the goals in response to input from CA.
Based on the record, I FIND that the IEP’s goals are appropriate. I have considered Parents’ remaining procedural arguments and find them to be without merit.
The June 20, 2013, IEP offered the same 8:1:2 classroom as did the February 26, 2013, IEP, with the same 4 hours of speech built into the program and the same recommendation for 1 individual speech session and 4 group speech sessions per week. As I have found above that District offered MR an appropriate level of speech services with the recommendation in the February 26, 2013, IEP, I FIND that the June 20, 2013, IEP’s identical offer of speech services is likewise appropriate for MR.
As I have found, for reasons set forth fully above, (See section A of this Decision), that the OT recommendation was inadequate for the 2013-2014 school year, I must now consider whether the June 2013 IEP is appropriate nonetheless. I have found that the June 20, 2013, CSE recommended an IEP with appropriate goals, appropriate speech services, individually tailored
AT recommendations, and an 8:1:2 program reasonably calculated for MR’s receipt of meaningful educational benefits. Despite the fact that District failed to prove that its OT recommendation was appropriate, I have found that the IEP goals were appropriate, and the 1:1 OT session afforded some opportunity for MR to progress toward mastery of her goals. Further, it is undisputed that the recommended 8:1:2 program has 2 hours of OT built into it with the staff working on ADL and organizational skills with the students throughout the day. Thus, I cannot conclude that in such program her OT needs would have gone entirely unmet. For that reason, despite what may have been an inadequate OT recommendation, the overall benefits of the program recommended on June 20, 2013, combine for an effective package of services. In light of the foregoing, I FIND that the June 20, 2013, IEP was reasonably calculated to provide meaningful education benefit to MR from September 9, 2013, through June 26, 2014.
Accordingly, I FURTHER FIND that the District offered a FAPE to MR for the 10-month portion of the 2013-2014 school year.
E. District Failed to Offer MR a FAPE for July and August of 2013
In contrast, none of the careful consideration of MR’s needs was evident in the District’s offer of the 12:1:2 classroom and services that comprised her recommended ESY program for the summer of 2013. At the June 20, 2013, CSE meeting, at the same time the team drafted an appropriate program for MR in its 8:1:2 program for the regular school year, the team recommended an extended-school year (ESY) program with a larger student-to-teacher ratio for her.[21] The same team that determined MR needed a student-to-teacher ratio that amounted to between 2:1 and 3:1 to begin in September 2013, inexplicable relegated her to a 12:1:2 program for the 6-week extended school year that would start in July, two months before the recommended 8:1:2 program would start in September. The size and staffing of that program amounted to a significant enlargement of the student-to-teacher ratio and operated as a drastic reduction in proposed individual attention for MR. It is undisputed that the District made the ESY recommendation with little explanation during the meeting, (Tr. 1927), and nothing indicates that the 12:1:2 summer program was reasonably calculated to prevent significant regression for MR as the topic appears not to have been discussed with any specificity. At hearing, Dr. Minotti explained that the 12:1:2 ESY recommendation was for the summer program and was for “maintenance of skills.” (Tr.235.) When asked on cross-examination whether the 8:1:2 program was available for the summer months, Dr. Minotti said that it “would have been” had the District believed MR needed that type of program. (Tr. 242.) The record does not explain how the drastically reduced amount of service would prevent substantial regression for MR over the summer of 2013. Despite Parents’ assertion at hearing, (Tr.236-39), and in the hearing request that the program recommendation for the summer of 2013 was inappropriate, (Ex. A at p7 ¶ 36, at p10), District makes no argument in its post-hearing brief that its ESY recommendation for summer 2013 was appropriate, (see Ex. 97 at pp 22-24). Given the paucity of discussion regarding the appropriateness of the summer 2013 recommendation and further considering that the District makes no argument to counter Parents’ repeated claims that it was inappropriate, I FIND that the District failed to prove that its recommendation for MR’s summer
2013 program was appropriate. I FURTHER FIND that the District failed to offer MR a FAPE for the ESY program from July 1, 2013, to August 9, 2013. As I have found, above, that the services and program that MR received at CA for that time period22 were appropriate for her, I make an Order below for District to reimburse Parents for the cost of her tuition at CA from July 1, 2013, to August 9, 2013. As Parents offered no proof of payment of tuition for that time period at hearing, I make an Order below for Parents to submit proof of attendance and payment of
MR’s tuition at CA from July 1, 2013, to August 9, 2013.
F. District Offered a FAPE to MR for the 2014-2015 School Year
Regarding the 2014-2015 IEP developed by the CSE, based upon the information then available to the CSE, including information provided by CA, such IEP was reasonable and appropriate. No one at the meeting disagreed with the description of MR’s then-current functioning levels, and it is undisputed that MR’s goals were developed based upon those functioning levels. Parent, CA staff and District staff agreed that MR had made considerable progress in the year since District staff had last observed her at CA, (Tr. 4433, 5519, 5610-15,
5642), and the District took her progress into consideration when recommending a less-restrictive program for her for the 2014-2015 school year, (Tr. 5514). Based upon the information available to the CSE at the May 2014 meeting and upon professional judgment of the District staff, the District recommended the 12:1:2 program at Hommocks with enhanced staffing, assistive technology, individual and group speech therapy and individual OT. The fact that CA staff favored a more-restrictive program for MR, including more frequent delivery of related services, does not make the District recommendations inappropriate. On the contrary,
22 CA’s 12-month program, which ran from July 2013 to June 2014, offered academic instruction in the classroom from 9 a.m. to 3 p.m. (Ex. F.) District staff determined, based in part on the similarities between MR’s learning profile and that of the other students, that the 12:1:2 classroom was the least-restrictive environment for MR.
While her placement at CA was not subject to the same mainstreaming requirements faced by the District under the IDEA, R.E., 694 F.3d 167 at 187 fn3, once it determined that MR was not unable to participate in appropriate activities with age-appropriate non-disabled peers, the public school was bound to provide MR with such opportunities, see 20 USC § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204, and the 12:1:2 program offered her that chance.
Dr. Olson testified at hearing, explaining how MR’s needs should be addressed in a school setting to focus on supporting her in the classroom and teaching self-care skills necessary for independent living. (Tr. 6285-86.) The team developed MR’s OT goals for the year using the latest OT progress report from CA, (Tr. 62980300), and no one voiced disagreement with the goals at the May 2014 CSE meeting. The team recommended two 1:1 OT sessions for MR, (Ex.
AAA15), twice its recommendation for the 2013-2014 school year, (compare Ex. 5a-18).
Parents’ procedural challenges to the 2014-2015 IEP are likewise without merit. Parents’ claim in their complaint letter, (Ex. YY), asserting that they were deprived of their right to meaningful participation in the formulation of MR’s program because the District denied their request to visit the recommended 12:1:2 program after the May 2014 meeting suggests that the IDEA affords Parents a general right to visit a proposed placement and that the District prevented them from exercising that putative right. As the Southern District Court of New York very recently decided in F.B. and E.B., obo L.B. v New York City Dept. of Educ., 14 Civ. 3902
(S.D.N.Y 9/21/15), a parent’s IDEA right to meaningfully participate in formulation of an IEP means, at a minimum, the right to obtain relevant and timely information as to the proposed school. (Quoting V.S., 25 F. Supp. 3d at 299; C.U., 23 F. Supp. 3d at 227.) The Southern District Court explained the “violation of the parents’ right to timely information to assess the propriety of a proposed placement” was the sole basis of the court’s ruling there and that it did not reach the question of whether the right to information included the “right to visit” a proposed school placement. F.B. at n.9. The F.B. case arose in the New York City Department of Education, where parents had no way of knowing at the end of the IEP meeting what school among many would be recommended for their child and whether that school would be able to implement the proposed IEP. That case contrasts sharply from the instant matter, where Parents knew by the end of the May 7, 2014, CSE meeting that the District was recommending the 12:1:2 program at
Hommocks for MR, a program that had been described in detail to them at that meeting and in previous meetings, a program that had not changed significantly from the previous year when Parent and Dr. Soifer visited the program and observed the students there. Hence, it cannot be said that the District’s non-response to Parents’ request to re-visit the Hommocks program after the May 2014 meeting deprived Parents of their right to receive relevant information about the program. Consequently, I FIND that Parents were afforded relevant information about the program in a timely manner in accordance with their rights under the IDEA despite being denied their request to re-visit the program.
Parents’ claim that the students with whom MR would have been grouped in the 12:1:2 at
Hommocks were inappropriate is factually baseless. At the May 2014 meeting, District shared with Parents the projected class profile of the students in the 12:1:2 classroom for 2014-2015 and explained that the students shared similar cognitive and academic levels with MR. The District further explained that the other students would be good language models for MR as they were social, fully verbal and the staff focused on facilitating social interactions between the students as an important part of the program. Parents’ claim regarding the alleged inadequacy of the functional grouping in the classroom, in the face of District’s thorough description of the profiles of the proposed students in the class, falls short. Based on the foregoing, I FIND that the functional grouping in the proposed 12:1:2 classroom was adequate.
Although she testified that the May 7, 2014, meeting ended abruptly, (Tr. 7485-87),
Parent said that the meeting lasted for one hour to one hour and 15 minutes, (Tr. 7439). She admits that goals were discussed at the meeting, and that two new goals were added after discussion. (Tr. 7452.) It is undisputed that Parents had no involvement in drafting the transition plan, (Tr. 7489), but given the participation via telephone of various CA staff members throughout the meeting, and given the District’s recommendation at the meeting for enhanced staffing for MR to help her with all transitions through the building to prevent her from becoming overwhelmed, nothing in the record suggests that Parents did not have an opportunity to participate meaningfully in the formulation of MR’s IEP. Consequently, I FIND that Parents had a meaningful opportunity to participate in the May 2014-2015 CSE meeting and that nothing in the administration of the meeting amounts to a procedural error that operated to deprive MR of
FAPE. I have considered Parents’ remaining claims23 regarding the 2014-2015 school year and find them to be without merit.
It is undisputed that Parents genuinely believe that the smaller, full-time special class setting at CA with its clinical approach to therapy, high level of services, and small student-to-teacher ratio was appropriate for MR. It is also undisputed that District’s recommendation for MR offered fewer services and less-intense support that what she enjoyed at CA, but my inquiry involves what is appropriate, not what might be best or more desirable. Per Rowley, the District need not maximize MR’s potential or provide every service sought by her loving family, as
23 District’s failure to provide transportation to MR from home to CA for the summer of 2014 is the sole exception, but that failure is not a FAPE deprivation. I have awarded Parents reimbursement for the cost of transporting MR to and from CA for the summer of 2014, and the award is set forth in detail below. recognized in Walczak. Based on the foregoing facts and analysis, I FIND that the services and program recommended by the District for MR for the 12-month 2014-2015 school year from July 1, 2014, through June 25, 2015, comprises a program reasonably calculated to provide meaningful educational benefit to her. Thus, I FURTHER FIND that the May 7, 2014, IEP offered a FAPE to MR for the entire 2014-2015 school year. Under the Burlington-Carter analysis, when a district offers a FAPE, tuition reimbursement is not available, so I do not analyze whether the private school was appropriate for MR for the 2014-2015 school year.
G. Transportation
New York Education Law, Article 89 §4402(4)(a) provides that “[t]he board of education or the board of trustees of each school district shall provide suitable transportation to and from special classes or programs … as specified in subdivisions two and four of section forty-four hundred one of this article.” §4402(4)(d) states,
“Notwithstanding any other provision of law, such board shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.”
For the 2012-2013 school year, Parents asked the District whether they could provide transportation for MR to CA, and the District said no. (Exs. Y, Z; Tr. 249-52, 1784-85.) Dr. Minotti cited two reasons for rejecting Parents’ transportation request: (1)
the request was untimely, and (2) the program at CA was not a similar program to what the District was offering. (Tr. 251-52.) It is unclear from the record as to when Parents initially requested transportation. Parents’ letter of January 11, 2013, (Ex. Y), is the Parents’ first written request for transportation in the record, but testimony from Dr. Minotti and Mrs. P-
R suggests that the initial request occurred during Parents’ informal meeting with Dr.
Minotti in early September 2012, (Tr. 121, 358, 1784-85); Dr. Minotti also recalled that Parents requested transportation during the December 12, 2012, initial IEP meeting, but that they did not speak about it again on the follow-up meeting on December 17. (Tr. 352-
53.) At the December 17, 2012, meeting the CSE classified MR as child with multiple- disabilities eligible to receive special-education programs and services under the IDEA.
(Ex. 4-1; Tr. 45-46.) The recommended services in the IEP included special transportation in the form of door-to-door transportation and an attendant on the bus to provide adult supervision. (Ex. 4-18.) At the time of Parents’ initial oral request for transportation for MR to CA, then, MR was not yet classified by the District. (Tr. 358.)
For the 2013-2014 school year, the District provided transportation for MR to CA, (Tr. 252), and Parents make no claim regarding transportation for the 2013-2014 school year. Parent testified, however, that District stopped providing transportation to CA for MR in the summer of 2014, (Tr. 7500-503), so Parent drove MR to and from school in July and August of 2014 and incurred the costs of transportation. Parent Exhibit HHHH shows that MR was present for school during that time period for 25 days. The District resumed transportation of MR to CA in September 2014, however, and Parent had had no further concerns regarding transportation since then. (Tr. 7503-04.)
As noted above, “the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.” SRO Decision No.
14-154 (citing Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). Here, District makes no argument regarding transportation in its post-hearing brief or even in its opening argument, so I FIND that it has failed to prove that its refusal to provide MR with door-to-door transportation to CA for the portion of the 2012-2013 school year from December 19, 2012, through June 21, 2013, and for the summer of 2014 from July 1, 2014, through August 11, 2014, was proper under the law. Accordingly, I FIND that District failed to provide MR transportation to CA to which she was entitled under the New York Education Law for those time periods.
In an abundance of caution on this claim, however, I analyze whether MR was entitled to transportation here and whether Parents are now thus entitled to reimbursement for the cost of transporting MR to CA for the time periods in question. As Dr. Minotti estimated that the distance between MR’s home and CA was about 20 miles,[24] (Tr. 357-
58), I FIND that the travel distance between home and the nonpublic school is less than 50 miles and is thus within the mile limit specified in the statute. I FURTHER FIND that
MR, for whom the District prepared an IEP for the 2012-2013, 2013-2014 and 2014-2015 school years, is a “child with a handicapping condition,” and that she has been identified as such by the District since December 17, 2012.
The District denied transportation for the 2012-2013 school year and for July and August of 2014; the 12-month school year begins in July. The record supports Parents assertion that they requested transportation early in the 2012-2013 school year, that they repeated their request at the first December 2012 IEP meeting, and that the District refused to provide transportation for MR to CA at any time during the 2012-2013 school year. On February 27, 2014, Parents submitted a written request for transportation for 2014-2015. (Exs. EEE, 97 at 13.) The form clearly states, and by 2014 Parent was fully aware, (Tr. 7504), that “[a]pplications must be submitted and received by the Transportation Department no later than 4:00 pm on Tues April 1,
2014,” (Ex. EEE2). The application further states that “Parents not residing in the District on April 1, 2014, must submit application(s) within 30 days of establish residence in the District.”
(Id.) Per the fax transmission receipt, (Ex. EEE3), the application was received via fax at the District on February 27, well in advance of the April 1 deadline, and District makes no claim that the application was untimely. I FIND that Parents’ request for transportation for MR to CA for the 2014-2015 school year was timely.
As for the relevant portion of the 2012-2013 school year, the only question that remains is whether MR attended the nonpublic school, here CA, “for the purposes of receiving services or programs similar to special education programs recommended for such child by the local committee on special education.” New York Ed. Law §4402(4)(d). The District has repeatedly argued in it post-hearing brief and presented via witness testimony that the District’s 8:1:2 program was a small structured program with multi-disciplinary supports similar to MR’s program at CA. (Tr. 5519. 5526, 5561-63.) What’s more, the District’s recommended related services of speech and occupational therapy, while distinguishable as to frequency and intensity, are also similar to that at CA, given that all the related services in both places were delivered by certified speech language pathologist and occupation therapist, each working on goals especially created for MR in her demonstrated areas of weakness. Accordingly, I FIND that the program at CA was similar to that offered by the District for the 2012-2013 school year from December 19, 2012, through June 21, 2013.
MR was officially classified as a child with a disability in need of special education services under the IDEA on December 17, 2012. The District admits that, in accordance with the required timelines for completing evaluations and initiating services, its obligation to provide special education and services to MR began on December 19, 2012. Its obligation to provide suitable transportation to MR pursuant to New York Education Law §4402(4)(d) began on the same day. As the District recommended door-to-door bus service with an attendant for adult supervision, (Exs. 4-18; AAA-19), I FIND that that recommendation represents suitable transportation for MR. I FURTHER FIND that as demonstrated in this analysis, MR meets the conditions of New York Education Law §4402(4)(d).
In light of my findings above, I FIND that as a matter of law, the District was required to provide suitable transportation to MR to CA from December 19, 2012, through June 21, 2013, as
MR meets the conditions of New York Education Law §4402(4)(d). Through its IEPs that provided for door-to-door special transportation for MR, District has shown that door-to-door, home-to-school transportation is suitable transportation for MR here. Based on the foregoing, I FIND that the District was required to provide door-to-door school bus transportation for MR to and from CA and that it failed to do so, making it necessary for Parents to arrange for her transportation. I make an Order below for District to reimburse Parents for the costs of transporting MR to CA from December 19, 2012, through June 21, 2013, and from July 1, 2014, through August 11, 2014. As Parent submitted no proof of costs or payment thereof, I make an Order below for Parents to provide proof of MR’s attendance25 and proof of payment of costs during the time periods in question. Costs shall include applicable tolls and mileage for one round-trip between CA and MR’s home per each day of attendance, for a maximum of 142 days.[26] As I have found that the distance from home to school is 22.4 miles, I FIND that said round-trips are eligible for reimbursement for 45 miles per day at the IRS rate for the applicable time periods.
ORDERS
I HEREBY GRANT Parents’ request for tuition reimbursement for a portion of the 2012- 2013 school year at Children’s Academy. As I have granted Parents’ request for tuition reimbursement and as Parents do not explain what compensatory services MR might thus be entitled to, I HEREBY DENY Parents’ request for compensatory services. As Parent submitted no proof of attendance or proof of payment for the 2012-2013 school year at CA, I FURTHER ORDER that Parents SHALL SUBMIT PROOF of attendance and payment within 30 days of the date of this Decision. I FURTHER ORDER that within 30 days of receipt of said proof of attendance and payment, the District SHALL REIMBURSE Parents for tuition costs for MR at CA from December 19, 2012, to June 21, 2013, in the amount of $36,618.28.[27] As I have
FOUND, above, that the additional afterschool speech that MR received from December 2012
25 According to the attendance record, MR was present for 25 days during summer 2014. (See Ex. HHHH.) For the period from December 2012 through June 2013, no attendance information appears in the record. through June 2013 and beyond, while beneficial to her, was not necessary for her to receive a FAPE, I HEREBY DENY Parents’ request for reimbursement for any and all after-school speech therapy that MR received at the McCarton Center.
For the 12-month 2013-2014 school year, which started in July 2013, CA charged Parents
$70,000.00 for tuition. (Ex. F.) New York Education Law requires 180 days of instruction for state aid purposes. §3604(4)(a). Besides the 180 school days of the regular school year, programs providing services during July and August must operate at least 30 school days, which includes the holiday for July 4, making 29 days the length of extended-school year special program. In fashioning MR’s remedy for the District’s failure to provide a FAPE for the summer of 2013, then, I divide the 12-month tuition cost by 209, the number of days in the school year under this analysis, for a daily cost of $334.93, and multiply the daily cost of the program by 29 for the length of the District’s summer program in days, for a cost of $9712.92 for the summer 2013 program. As Parents submitted no proof of MR’s attendance at CA for the summer of 2013, I HEREBY ORDER that within 30 days of the date of this Decision Parents SHALL SUBMIT to the District proof of MR’s attendance at CA for the summer of 2013 and proof of payment of the tuition for the same time period. I FURTHER ORDER that, within 30 days of receipt of proof of attendance and proof of payment, District SHALL REIMBURSE Parents in the amount of
$9,712.92 for the summer 2013 program at CA.
As I have FOUND, above, that the District offered a FAPE to the student from September 1, 2013, through June 30, 2014, and from July 1, 2014, through June 30, 2015, I HEREBY DENY Parents’ request for tuition reimbursement for those time periods at the private school. For the same reason, I HEREBY FURTHER DENY Parents’ request for reimbursement for the cost of after-school occupational therapy MR received at the McCarton center from September 2013 and beyond. As the District offered a FAPE to MR from September 1, 2013, through June 30, 2014, and from July 1, 2014, through June 30, 2015, compensatory services are not available, and I likewise DENY Parents’ request for same.
Finally, I HEREBY ORDER District to reimburse Parents for the costs of transporting
MR to CA from December 19, 2012, through June 21, 2013, and from July 1, 2014, through August 11, 2014. Costs shall include applicable tolls and mileage for one round-trip between CA and MR’s home per each day of attendance, for a maximum of 142 days. I have found, above, that round-trips are eligible for reimbursement for 45 miles per day at the IRS rate for the applicable time periods. As Parents have submitted no proof of attendance or payment of costs, I FURTHER ORDER Parents to provide District with proof of MR’s attendance and proof of payment of costs during the time periods in question. I FURTHER ORDER that, within 30 days of receipt of proof of attendance and payment, DISTRICT SHALL REIMBURSE Parents for transportation costs as described herein.
It is So Ordered
Dated October 25, 2015
________________________
Jean M. Lucasey,
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
Evidence Presented at Hearing
IHRS Case No. 77904
SCHOOL DISTRICT EXHIBITS (# Pages)
Complaint Letters and Answers
1. Withdrawn
2. 9/15/13 Answer (4 pages)
IEPs
3. 12/12/12 Draft IEP (11 pages)
4. 12/17/12 Revised IEP (18 pages)
5. 2/26/13 IEP (19 pages)
5a. 6/20/13 IEP (22 pages)
Evaluations
6. 6/2012 Report 2011-2012 from teacher Claire Bredahl (7 pages)
7. 7/3/12 Report and IMDP from UnicornMaths Studio (2 pages)
8. 9/11/12 Occupational Therapy Evaluation (17 pages)
9. 9/21/12 Comprehensive Speech and Language Evaluation (8 pages)
10. 9/24/12 Child & Adolescent Health Examination Form (1 page)
11. 9/28/12 BOT 2 Initial OT Assessment (8 pages)
12. 10/11/12 Classroom Observation by Cecilia Anon, School Psychologist (3 pages)
13. 10/18/12 and 11/07/12 Educational Evaluation (4 pages)
14. 10/19/12 Speech and Language Evaluation (3 pages)
15. 10/22/12 and 11/7/12 Re-Evaluation (7 pages)
16. 11/7/12 Social and Development History (4 pages)
17. 11/12/12 Occupational Therapy Evaluation of November 6, 2012 (3 pages)
18. 11/30/12 Addendum to Speech-Language Evaluation (4 pages)
19. 4/12/13 Report of School Observation (20 pages)
Correspondence
20. 3/13/13 Letter from Minotti to Prost responding to request to observe District’s 12-1-2
class (1 page)
21. 8/2/12 Letter from Minotti to Mr. & Mrs. Prost regarding transportation request for
Mathilde Robert (1 page)
22. 8/28/12 Email from Herman to Corbett regarding registering of a new special needs student (1 page)
23. 8/31/12 Email from Kramer to Herman requesting information be sent to Susan Corbett and Celia Anon (1 page)
24. 9/8/12 Email from Minotti advising of new student Mathilde Robert (1 page)
25. 9/10/12 Proposed Referral for Evaluation and Request for Consent (3 pages)
26. 9/10/12 Signed Consent for Initial Evaluation dated 9/13/12 (1 page)
27. 9/10/12 Signed Consent for Initial Evaluation dated 9/20/12 (1 page)
28. 9/11/12 Letter from Olivier Robert and Anne Prost to Minotti advising him of their interest in having Mathilde evaluated (1 page)
29. 9/13/12 Email from Minotti to Mrs. Prost advising she will be receiving a letter regarding the evaluation process, with attached letter from Ms. Prost advising she has not found
MR’s school report (2 pages)
30. 9/14/12 Letter from Minotti to Mr. & and Mrs. Oliver Robert advising that a Referral for Evaluation letter with a Request for Consent had been sent (1 page)
31. 9/19/12 Revised Proposed Referral for Evaluation and Request for Consent (3 pages)
32. 9/28/12 Email from Corbett to Anon and Ruf transmitting signed consent for evaluation with Speech/Language (1 page)
33. 10/9/12 Email from Ruf to Corbett advising that an OT eval is needed and advising to re-send the consent with the added evaluation (1 page)
34. 10/10/12 Proposed Reevaluation/Additional Assessment and Request for Consent (3 pages)
35. 10/10/12 Signed Consent for Occupational Therapy Evaluation dated 10/11/12 (1 page)
36. 11/29/12 Letter from Minotti to Mr. and Mrs. Robert advising that the evaluations have been completed in preparation for the 12/12/12 Committee on Special Education and requesting previous reports evaluations or school records (1 page)
37. 11/21/12 Meeting Notice, Committee on Special Education (CSE) for 12/12/12 (2 pages)
38. 11/21/12 Revised Meeting Notice, Committee on Special Education (CSE) for 12/12/12
(2 pages)
39. 12/12/12 Meeting Notice, Committee on Special Education (CSE) for 12/17/12 (2 pages)
40. 12/17/12 Proposed Initial Eligibility for Special Education and Request for Consent (3 pages)
41. 1/9/13 Email from Ruf to Corbett advising of contact person for The Children’s Academy
(2 pages)
42. Withdrawn
43. 1/11/13 Email from Ruf to Corbett and Kramer advising of status of CSE and evaluations and reports (1 page)
44. 1/15/13 Letter from Mr. Robert and Mrs. Prost agreeing that Mathilde meets the criteria to be classified as a student with a disability and stating reasons with the District’s IEP is otherwise inappropriate (3 pages)
45. 1/16/13 Parents who Place their Children in Nonpublic Schools letter from Minotti (3 pages)
46. 1/17/13 Letter from Minotti to Mr. Robert and Ms. Prost enclosing 12/17/12 IEP and asking them to consider having Mathilde attend the recommended program at Hommocks
Middle School (1 page)
47. 1/22/13 Letter from Minotti to Mr. and Mrs. Robert responding to their concerns about the IEP and asking to convene a CSE (1 page)
48. 1/28/13 Letter from Anne Prost and Oliver Robert consenting to a meeting with the CSE
(1 page)
49. 1/30/13 Letter from Minotti to Mr. Robert and Ms. Prost advising they will be in contact to arrange the CSE Meeting (1 page)
50. 2/11/13 Meeting Notice, Committee on Special Education (CSE) for 2/26/13 (2 pages)
51. 2/15/13 Second Request, Parents who Place their Children in Nonpublic Schools letter from Minotti (5 pages)
52. 3/18/13 Letter from Anne Prost-Robert and Oliver Robert to Minotti requesting clarification of 3/13/13 letter (1 page)
53. 3/22/13 Letter from Minotti to Mr. Robert and Mrs. Prost approving a parent and consultant to observe services and programs available to Mathilde at Hommocks Middle School (1 page)
54. 5/13/13 Proposed Continuation for Special Education (2 pages)
55. 5/23/13 Letter from Minotti to Mr. Robert and Ms. Prost regarding reconvening the CSE for Mathilde to discuss the 2012-2013 IEP recommendation and plan for 2013-2014 (1 page)
56. 5/24/13 Letter from Lydia Soifer to Mr. Robert and Ms. Prost with summary of observations and program descriptions from Hommocks Middle School visit (8 pages)
57. 6/14/13 Letter from Oliver Robert and Anne Prost-Robert outlining reasons with the District’s proposed IEP continues to be inappropriate (4 pages)
58. 7/1/13 Invitation for a Resolution Session from Minotti to Mr. & Mrs. Oliver Robert, acknowledging receipt of due process complaint notice (2 pages)
59. 7/2/13 Letter from Minotti to Mr. Robert and Mrs. Prost enclosing parent training topics and recommended Social Skill training groups (1 page)
60. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from October 2012 (2 pages) (bates stamped: M. Robert - Ruf - 1 and 2)
61. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from November 2012 (1 page) (bates stamped: M. Robert - Ruf - 3)
62. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 2012 (8 pages) (bates stamped: M. Robert - Ruf - 67-74)
63. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3, 2012 (1 page) (bates stamped: M. Robert - Ruf - 4)
64. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3 & 4, 2012 (1 page) (bates stamped: M. Robert - Ruf - 5)
65. 10/4/13 10:30 a.m. Email from Ruf to Lambert forwarding subsequent email correspondences from December 3 & 4, 2012 (2 pages)
66. 10/4/13 10:32 a.m. Email from Ruf to Lambert forwarding subsequent email correspondences from December 3 & 4, 2012 (2 pages) (bates stamped: M. Robert - Ruf - 8 and 9)
67. 10/4/13 10:32 a.m. Email from Ruf to Lambert forwarding subsequent email correspondences from December 3 & 4, 2012 (3 pages) (bates stamped: M. Robert - Ruf - 10- 12)
68. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3, 4 & 5, 2012 with attached OT evaluation (27 pages) (bates stamped: M. Robert - Ruf - 13-39)
69. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3, 4 & 5, 2012 (4 pages) (bates stamped: M. Robert - Ruf - 40-43)
70. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3-6, 2012 (4 pages) (bates stamped: M. Robert - Ruf - 44-47)
71. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 4-6, 2012 regarding exclusion of attachment of speech report (2 pages) (bates stamped: M. Robert - Ruf - 48 and 49)
72. 10/4/13 10:33 a.m. Email from Ruf to Lambert forwarding subsequent email correspondences from December 3-6, 2012 (5 pages) (bates stamped: M. Robert - Ruf -50-54)
73. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3-6, 2012 (2 pages) (bates stamped: M. Robert - Ruf - 55-56)
74. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3-6, 2012 (3 pages) (bates stamped: M. Robert - Ruf - 57-59)
75. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3-7 and 10, 2012 (7 pages) (bates stamped: M. Robert - Ruf - 60-66)
76. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3-7, 10 and 14, 2012 with attached updated goals (15 pages) (bates stamped: M. Robert - Ruf - 75-89)
77. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from December 3-7, 10, 14 and 16, 2012 (9 pages) (bates stamped: M. Robert - Ruf - 90-98)
78. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences between Ms. Arita and Miss P. from February 7 & 8, 2013 (2 pages) (bates stamped: M. Robert - Ruf - 99-100)
79. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondence from
Maura Linkowski to Ms. Arita from April 2, 2013 (1 page) (bates stamped: M. Robert -Ruf - 101)
80. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondences from May 2013 (2 pages) (bates stamped: M. Robert - Ruf - 102-103)
81. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondence from May 2013 with attached classroom report (15 pages) (bates stamped: M. Robert - Ruf -104-118)
82. 10/4/13 Email from Ruf to Lambert forwarding subsequent email correspondence from June 2013 with attached March speech report and IEP (8 pages) (bates stamped: M. Robert - Ruf - 119-126)
83. Mamaroneck Union Free School District School Calendar for 2012-2013 (1 page)
84. 4/8/13 Classroom Observation by Maura Linkowski (3 pages)
85. 4/8/13 Classroom Observation by Nancy Albertson (2 pages)
86. 7/3/12 Report (49 pages) (bates stamped: Robert - Children’s Academy Subpoena - 1-49)
87. Children’s Academy Subpoena Response (506 pages)
88. 10/9/13 Soifer Center Subpoena Response (276 pages)
89. March 2013-May 2014 Soifer Center Invoice (2 pages)
90. 6/26/14 Letter brief (2 pages)
91. 12/7/11 Invoice (1 page)
92. 5/11/12 Invoice (1 page)
93. 3/20/14 Classroom Observation (2 pages)
94. Dr. Olson CV (14 pages)
95. 3/12/14 Classroom Observation (3 pages)
96. 4/15/13 Classroom Observation Report by Dr. Hess (2 pages)
97. 7/20/15 District’s Post-hearing Brief (31 pages plus cover and tables)
PARENT EXHIBIT LIST
Numbering EVIDENCE DESCRIPTION Date of # of
Sequence Evidence Pgs
A Demand for Due Process and fax confirmation 06-27-13 14
B 2012-2013 Individualized Education Program 02-26-13 21
C 2013-2014 Draft IEP 06-20-13 20
D Letter from parent to district 06-14-13 07
E 2012-2013 School year contract 07-24-12 05
Children’s Academy
F 2013-2014 School year contract 05-07-13 04
Children’s Academy
G Speech Report 03-01-13 04
Children’s Academy
By: Victoria King MS., CCC-SLP TSSLD
H Speech Report 11-30-12 04
Children’s Academy
By: Victoria King MS., CCC-SLP TSSLD
I Progress Report 03-01-13 04
Children’s Academy
By: Tanya Bizzarro, MS Childhood Sp Ed.
J Report of School Observation 04-12-13 07
The Soifer Center for Learning and Child
Development
By: Lydia H. Soifer, Ph.D.
K Report 05-24-13 08
The Soifer Center for Learning and Child
Development
By: Lydia H. Soifer, Ph.D.
L Email from Ms. Ruf Enclosing updated Goals 12-14-12 09
M District Updated Goals draft 12-17-12 05
N Email From Mr. Minotti 09-11-12 01
O Letter from Parent to Mr. Minotti 09-11-12 02
P Letter to Dr. Schaps 07-19-12 01
Q Email to Mr. Minotti 07-23-12 01
R Fax and Email from parent to district 06-01-13 05
S Letter from Mr. Minotti 03-22-13 01
T Letter from Mr. Minotti 05-23-13 01
U Email from Andrew Hess 04-02-13 01
V Consent for Initial Evaluation 09-10-12 01
W Letter to Ms. Ruf, child examination form and 11-16-12 14
ABASII
X Email to Mr. Minotti 03-18-13 03 Y Letter from Parent to district 01-11-13 03 Z Letter from Parent to district 01-28-13 03 AA Subpoena Response: District meeting notes Various 12 BB Subpoena Response: Notes from Evernote provided 10-05-13 01 by Andrew Hess CC Subpoena Response: District Emails 10-04-13 75 DD Projected Hommocks Class profiles 2013-2014 01 EE Email communication between parent and 11-09-12 to 02
Mara Morello- Linkowski 11-14-12 FF Nancy Kendall Undated 02
Curriculum Vitae GG Withdrawn HH Lydia Soifer Undated 03
Curriculum Vitae II Adam Heimann Undated 03
Curriculum Vitae JJ Aleksandra Berns Undated 03
Curriculum Vitae KK Math IEP Goals July 2013 02
Children’s Academy
Teacher: Adam Heimann, MA LL Language Arts IEP Goals July 2013 04
Children’s Academy
Teachers: Lauren Genshaft, MS CCC-SLP
Adam Heimann MA MM Occupational Therapy Progress Report 02-14-14 10
Children’s Academy
By: Lely Li, MS, OTR/L NN Mid-Year Progress Report and Assmnt. Summary 02-15-14 06
Children's Academy
By: Adam Heimann MA
Debbie Doan, BA
Rebecca Birch, MA
Riley Alvord, MS
Nancy Kendall, MS OO Speech-Language Progress Report 02-17-14 03
Children’s Academy
By: Aleksandra Berns, MS, CCC-SLP, TSSLD PP Occupational Therapy IEP Goals Feb. 2014 03
Children's Academy
By: Lely Li, MS, OTR/L QQ Speech Therapy IEP Goals 2013-2014 03
Children's Academy
By: Victoria King MS, CCC-SLP
Aleksandra Berns M.S., CCC-SLP RR Roxanne Chess Undated 03
Curriculum Vitae SS Lely Li, MS, OTR/L Undated 02
Curriculum Vitae TT OT Afterschool Treatment Notes Sep. 2013- 37
By: Roxanne Chess, MS, OTR/L April 2014
Lely Li, MS, OTR/L UU Contact Sheet 3-12-13 02 VV Hommocks Middle School Class Profiles 2013-2014 01 WW* Letter Brief 6/25/2014 03 WW Withdrawn XX Affidavit of Victoria King 11/20/2014 7 YY Demand for Due Process and fax confirmation 06-27-14 11 ZZ Mamaroneck Union Free School District Draft IEP 05-07-14 16 AAA Mamaroneck Union Free School District IEP 05-07-14 19 BBB Language Arts IEP Goals July 2013 04 CCC Children’s Academy Occupational Therapy Report 02-14-14 13 DDD Children’s Academy Mid Year Progress Report and 02-15-14 6
Assessment EEE Transportation Form and Fax confirmation 02-27-14 03 FFF Letter from the District to the parents 03-27-14 03 GGG Letter to the District from the parents with Fax 04-02-14 03 confirmation HHH Prior Written Notice of Proposed Continuation for 05-07-14 02
Special Ed. III Letter to the District from the parents with Fax 05-17-14 03 confirmation JJJ Letter to Dr. Minotti from the parents with Fax 05-22-14 03 confirmation KKK Letter to the District from the parents with Fax 06-16-14 05 confirmation LLL Occupational Therapy IEP Goals July 2014 06 MMM Letter from Dr. Minotti to the parents 07-10-14 02 NNN Resolution Session Response 07-14-14 02 OOO Letter from the parent to Dr. Minotti with fax 07-29-14 03 confirmation PPP Letter to the District from the parents 11-10-14 01 QQQ Letter to the District from the parents 11-30-14 02 RRR Projected Hommocks Class Profiles 14-15 01 SSS Kristen Arita’s Notes Undated 13 TTT Resume of Maria Khawaja Undated 04 UUU Envelope Postmarked May 1, 2014 Containing 05-01-14 01
District Observation Reports and Transition Plan VVV Mamaroneck UFSD Classroom Observation 03-12-14 03
By: Maura Morello-Linkowski, MST, BCBA
(unsigned) WWW Mamaroneck Public School District Classroom 03-20-14 02
Observation By: Laurette Olson, PhD, OTR-L XXX Mamaroneck UFSD Classroom Observation 04-25-14 02
By: Kristen Arita, MSeD, PD YYY Mamaroneck UFSD Classroom Observation 03-12-14 03
By: Nancy Albertson ZZZ Mamaroneck Union Free School District Transition Undated 01
Plan AAAA Regression Statement by Adam Heimann and Alex 06-03-14 02
Berns of Children’s Academy BBBB Children’s Academy Mid-Year Academic Report 02-12-15 15 and IEP Goals CCCC Children’s Academy OT Progress Report and IEP 02-12-15 14
Goals DDDD Children’s Academy Speech Progress Report and 02-02-15 06
IEP Goals EEEE McCarton Center Affidavit 04-21-15 01 FFFF Children’s Academy Affidavit 04-21-15 01 GGGG Children’s Academy Enrollment Contract 2014-2015 07-11-14 05 HHHH Children’s Academy Attendance Record 2014-2015 01 IIII Children’s Academy Classroom Schedule 2014-2015 03 JJJJ Resume of Sarah Chajka Undated 03 KKKK Post-marked Envelope from District to Parent 06-04-14 01 LLLL One Page Letter to the Parents from Dr. Minotti
Dated June 12 of 2014 MMMM Parents’ Post-Hearing Brief 7-20-15 30
Submitted by Impartial Hearing Officer
No. Date Description Pages
i 8/7/13 Email Granting Extension 1
ii 9/23/13 Order Granting Extension 1
iii 11/4/13 Order Granting Extension 1
iv 11/25/13 Order Granting Extension 1
v 1/10/14 Order Granting Extension 1 vi 2/10/14 Order Granting Extension 1 vii 3/3/14 Order Granting Extension 1 viii 4/10/14 Order Granting Extension 1 ix 5/6/14 Order Granting Extension 1 x 6/12/14 Order Granting Extension 1 xi 7/1/14 Order Granting Extension 1 xii 8/6/14 Order Granting Extension 1
xiii 9/3/14 Order Granting Extension 1
xiv 10/16/14 Order Granting Extension 1
xv 11/14/14 Order Granting Extension 1
xvi 12/11/14 Order of Consolidation 3
xvii 1/16/15 Order Granting Extension 1
xviii 2/12/15 Order Granting Extension 1
xix 3/19/15 Order Granting Extension 1
xx 4/13/15 Order Granting Extension 1
xxi 5/1/15 Order Granting Extension 1
xxii 5/15/15 Order Granting Extension 1
xxiii 6/30/15 Order Granting Extension 1
xxiv 8/17/15 Email Granting Extension 1
xxv 9/23/13 Signed Subpoena: Dist. to Private School 2 xxvi 9/23/13 Signed Subpoena: Dist. to Lydia Soifer 2 xxvii 9/30/13 Signed Subpoena: Parent to Dist. 1 xxviii 1/13/14 Signed Subpoena: Dist. to Private School 3 xxix 9/11/15 Order Granting Extension 1
Additional Documents in the Hearing Record (not exhibits):
• Bound copies of written transcript of the Impartial Hearing (Vols. 1-34)
• Electronic copies of written transcript (USB drive, enclosed)
Footnotes
[1] See Exhibits 6 and 7, a July 2012 progress report from MR’s classroom in England, and a report from MR’s math program, respectively. Notably, no quantitative measures are contained in either report with mostly qualitative anecdotal descriptions of the skills MR worked on there.
[5] According to the email date stamp and the standard calendar, June 1, 2013, was a Saturday.
[6] Parents’ transportation application, dated February 27, 2014, notes that they were requesting transportation to and from CA for 2014-2015 but that they remained “open to what the District may offer.” They note that the application was for the purpose of preserving their request for transportation to CA. (Ex. EEE.)
[8] In a follow up question after Mr. Heimann testified that the 2013-2014 Language Arts IEP Goals were written by the previous year’s language art teacher, (see Tr. 2881), Parents’ attorney mischaracterized his earlier testimony and suggested that Mr. Heimann had written the goals, (Tr. 2882). The record is clear that in 2012-2013 Mr. Heimann served only as MR’s math teacher, (Tr. 2876, 2878), and that he only began teaching her language arts in September 2013, (Tr. 2876). The Language Arts IEP Goals were written in July 2013, before Mr. Heimann was teaching MR that subject. (Ex. LL.)
[9] For example, Mr. Heimann wrote the background, math, social studies, music and language arts sections, and the recommendations for MR’s February 2014 mid-year progress report, which appears in the record as Exhibit NN. (Tr. 3151-52.)
[10] Ms. King initially attempted to administer the CELF for a student MR’s age, but she soon abandoned that version in favor of the form normed for 5-to-8 year-olds. Although the scores on the test for younger children could not be accurately normed for MR, Ms. King explained how she used the results as a guide, analyzing each subtest to ascertain MR’s level of functioning. She explained how her analysis informed her clinical opinion of MR’s functioning level and allowed her to formulate goals for MR in line with her strengths and weaknesses. (Tr. 4373- 4376.)
[12] Parent testified that the cost of the after-school therapy at the McCarton Center was $155 per session and that Parents had paid for the services in full. (Tr. 1942.)
[14] I emphasize here that my finding is not that the afterschool speech was inappropriate but that it was not necessary in order for MR to receive educational benefit as her pre-December receipt of individual and classroom speech unquestionably resulted in progress for her across all speech domains.
[16] See Ex. 83, District’s School Calendar for 2012-2013.
[17] CA performed standardized therapy evaluations even though the IDEA does not require that a private school evaluate a child in order to qualify as an appropriate placement for a child with a disability. See, e.g., Frank G., Gagliardo, above.
[18] For example, the UnicornMaths report of July 3, 2012, noted that “[MR] knows her bonds of 10, doubles and halves, odd [and] even numbers and can count in 2s and 10s. She knows and can copy 2D shapes including square, triangle, circle and rectangle.” (Ex. 7-1.) Mr. Heimann testified that MR did not have mastery of the tasks touted in the Unicorn report, and he explained how he wrote math goals for her that targeted her continued areas of weakness.
[20] District points to the fact that Parents “needed no help to find a private school for their” two sons, (Ex. 97-29), neither of which had special needs, as evidence that Parents eschewed public schools in general. It is undisputed that the public schools in London did not have a suitable educational placement for MR. (Tr. 1780.) Mrs. P-R fully explained that French nationals who live outside France rely on the French Lycee to educate their children in the French language and curriculum around the world. (Tr. 1745-47.) The New York metro area boasts two such schools: one in New York City, and one in Mamaroneck. Parents chose the French school in Mamaroneck and decided to make their residence in neighboring Larchmont.
[21] The recommendation for the 12:1:2 summer 2013 program for MR appeared as early as the December 17, 2012, IEP, (Ex. 4), appeared again in the February 26, 2013, IEP, (Ex. 5), and finally in the June 20, 2013, IEP, (Ex. 5a).
[24] I take judicial notice of Google Maps estimate of distance between MR’s home in Larchmont at 4 Margaret Lane and Children’s academy at 350 E 82nd Street in New York, NY 10028 is 22.4 miles. www.google.com/maps visited on September 27, 2015.
[26] According to the District’s 2012-2013 School Calendar, (Ex. 83), the period from December 19, 2012, inclusive, through June 21, 2013, had 113 school days (not including “conference days”). As the record is silent on whether students attended school on “giveback days” April 1, 2013, and May 24, 2013, I include said “giveback days” as school days in fashioning the award. I take judicial notice of the fact that the number of weekdays from July 1, 2014, to August 11, 2014, was 30 and that Friday, July 4, 2014, was a federal holiday, thus not a school day. Consequently, there were 29 school days for the summer of 2014.
[27] As I have found above, the District’s obligation to provide a FAPE to MR began on December 19, 2012, and the last school day of the regular 2012-2013 school year was June 21, 2013, I FURTHER FIND that the relevant time period encompassed 113 school days. (See Ex. 83.) CA charged MR $58,330.00 for the tuition from September 2012 to June 2013. Using 180 school days as the standard, under this analysis, her tuition amounted to a cost of $324.06 per day. Multiplying the daily cost by 113 days equals $36,618.28 for the relevant time period.