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FINDINGS OF FACT AND DECISION
Student's Name:
School District:
Hearing Requested By: Parents
Hearing Officer: Dora M. Lassinger
NYS Identifier No.:
NAMES AND TITLES OF PERSONS WHO APPEARED November 30, 2017 December 14, 2017 January 25, 2018 February 15, 2018
Attorney — District
Director of Special Education — District
Esq. Attorney — Parents
Mother — Parents
Father — Parents
Esq. Attorney — District
Director of Special Education — District
Esq. Attorney — Parents
Mother — Parents
Special Education Teacher — Parents
School Psychologist — Parents
Esq. Attorney — District
Director of Special Education — District
Esq. Attorney — Parents
Mother — Parents
Special Education Teacher — Parents
School — Parents
Teacher, School — Parents
Esq. Attorney — District
Director of Special Education — District
Esq. Attorney — Parents
Mother — Parents
Father — Parents
School — Parents
On September 8, 2017, the parents of. (hereinafter referred to as “the student”) requested an impartial hearing alleging that the student was denied a Free Appropriate Public Education (“FAPE”) and seeking tuition reimbursement, and reimbursement for, for their unilateral placement of the student at the school (hereinafter “”) for the 2017-2018 school year.
The parents alleged that the student was denied a FAPE because the evaluations were insufficient, because the school district failed to offer appropriate because the recommended program does not offer sufficient instruction and the classes are too large, and because the school district’s proposed placement does not provide the student with an appropriate grouping. The parents also requested an order directing the School District to fund the student’s placement at during the pendency of these proceedings.[1] (SD 1).
I was designated to hear this matter on September 8, 2017. A pre-hearing telephone conference was held on October 17, 2017; and an impartial hearing was held on November 30 and December 14, 2017; and January 25 and February 15, 2018. The compliance date was extended on four occasions, due to the extensive testimony, unavailability of witnesses; and because of delays caused by the weather, with a final compliance date of March 6, 2018. (IHO
Ex. I, IV).
Background
The student is an year old boy (born) with a classification of ability. His classification is not disputed. (SD 1, 3, p. 1). He attended a private School for kindergarten and first grade.
Subsequently, he entered the public school system; and , by agreement of the parents and the school district. (Tr. pp.172, 279)
For the 2014/2015 school year, the parents placed the student at where he was considered a grade student. He has remained there since that time, and is currently considered a grade student, in the Program, at. (Tr. pp. 423, 602, 769).
Evaluations and Challenged Program
In January 2016, the parents secured a Evaluation of the student at of (hereinafter “”). At that time, he was a grade student at. On testing, the student achieved a range with an score in, and scores in
On the), the student was reading on a grade level with scores of grade equivalent score)
for grade equivalent () for and) for. He performed at the level for equivalent, score) and grade equivalent, score); and at the level for equivalent score) and equivalent, score) (SD 5, p.3).
On the (based upon completed by his parents) the student’s scores were. On a separate measure of, he scored in the percentile.
School records indicated he had made in skills; but progress in, since he was last tested in May 2015. It was noted that his skills are and he shows skills, and skills. His overall was marked by skills. He also. It was reported that his constellation of symptoms has been referred to as a “”.
He was diagnosed with with; and with a.
It was recommended that the student receive individualized instruction with a to learning, and utilizing different methods to determine what works best. Specific recommendations included an evaluation; skills; and assistance with reading (during). For, the evaluator recommended the use of It was further recommended that be incorporated into his educational plan. was also recommended. (SD-5).
In March 2016, the school district also conducted evaluations of the student, as part of an annual review. On the, performed on March 15, 2016, the student achieved a total test composite in the percentile ( equivalent). His individual scores ranged from equivalent for, to the early level for. (SD-6).
On the Tests, also performed in March 2016, the student’s total was at a equivalent. (SD-
7).
An evaluation was also performed on March 16, 2016. It was noted that the student’s presents with decreased, and that he was level ranges with both. It was noted that the student was very the (with the). He benefited from the to help with both. The that the provided helped with the and gave him positive feedback.
It was recommended that the student be given (which utilizes ); access to a classroom (a that provides that can be customized for individualized needs) , and, use of, access to a to use; practice with, and training on the, through . (SD-8).
An re-evaluation was performed on March 18, 2016. The student exhibited. (SD-9).
Additional academic testing was performed on September 26, 2016. At the time, the student was considered a grade student at n On the, the student scored at a level for, and received a total score in the equivalent). (SD 11, p. 1). A sample dated September 2016 was e.
(Id. p. 2). On a test of he achieved a grade. (Id. p. 3). On the, he scored at the level for. A score was not reported. (Id. p. 4).
On April 26, 2017, , a teacher employed by the school district, performed additional educational testing, using the. According to testing, the student continued to demonstrate (with scores for); scores for; and. (SD-12, p.3).
Nevertheless, testing indicated from prior testing performed at with the same instrument, in January 2016. The student’s standard score for; and his score for. His score for grade equivalent). In, his score grade equivalent). (SD 5, 12, Tr. pp. 328-332).
On May 8, 2017, , performed a), with. (SD-16). The student’s scores all fell within the, except that the student) than his peers. Although had previously been noted to be his score in this area was in the range. His a score was just within the “range, indicating he may have some.
(Tr. pp. 286-287).
On 2017, , the school district’s Director of Special Education accompanied teacher, and, for an observation of the student at. (Tr. pp. 209-211). grade teacher at School (the site recommended for the student), prepared written reports of her observations; and testified at the hearing.
observed the student during a one-half hour session of, as he worked an based lesson, consisting of, using. She also observed him in a class, where he worked independently on an art project. For she observed him in a students; where he finished his assignment before the other students. The lesson included a review of addition and subtraction with regrouping, ordering numbers and multiplying single digit numbers. The instruction included the use of, for a multiplication lesson. (SD- 14; Tr. pp. 208, 211-212, 223).
testified that the student did well with the review and the multiplication lesson. (Tr. p.
216). The skills they were working on were at a grade level. (Tr. p. 252). She testified that within the school district, (where the student would be considered a grader), the math instruction would have included “curriculum driven skills” including geometry, fractions and division. (Tr.
pp. 213-215). She acknowledged, however, that the student would have, which are taught in grade. (Tr. pp. 255-257).
During a break in her observation, Ms. administered the The student performed. (SD-15,
Tr. p. 224, 227). On the (which tests specific skills such as) he achieved a. On the (which is more open-ended), he achieved a score of), with an overall score of). (SD-15; Tr. pp. 225-226). She testified that the student would require an environment with to support his skills. (Tr. p. 228).
A CSE review was held on, 2017. The meeting was chaired by the Director of Special Education for the school district. and the mother also participated in the meeting. The other participants were a general education teacher, an; and two representatives from, who was the student’s (SD-3, SD 30, p.2).
testified that she prepared for the meeting by reviewing the student’s records, and evaluations, and participating in the classroom observations at. (Tr. pp. 53, 73-74).
She also prepared a class profile of the children who were then students in the classroom at which was being recommended for the student. (Tr. pp. 159-160; Par. Ex. G).[2]
The team also received progress reports from. (Tr. pp. 91-93). The meeting lasted approximately three hours, and staff participated for the first half of the meeting. (Tr. p. 90). The school district had the student’s first and second quarter report cards. (Tr. p. 91, S.D. 30, 31).
The student’s first quarter report card includes a summary of his work with his. She reported his progress in. She stated that he has begun to write in more. (SD 30, p. 2). His math teacher reported the student’s progress in developing, and transferring the knowledge to complete problems; using. (Id. p. 4). His program also included science (); and theatre, where the students focused on the different facets of storytelling, including a performance in front of an audience; where the students traced the beginnings of ancient civilizations, including work on a.
(Id. pp. 5-8).
In the second quarter report, described her work with the student, including strategies for work independently. (SD 31, p. 2). In math, the student became more fluent in, and applying these skills to solve word problems. He also fully understood, in terms of. (Id. p. 3).The student’s report cards reflect that at, he was considered a grade student during the 2016/2017.
(SD 31). He was also considered a student (in transition), as grade were combined. (Tr. pp. 634-
635).
During the course of the meeting, provided a packet of information, which was also reviewed. (Tr. p. 93). This included SD 17 (a description of the student’s progress in); and the student’s third quarter report card (SD 32). staff reported that the student was progressing in reading and math; and that he continued to have some difficulties with, which warranted. (Tr. pp.
93-93). Specifically, it was reported that he needed instruction in skills. (Tr. p. 96).
During the third quarter, reported covering various. (SD 32, p. 2). The student’s math teacher reported that the class reviewed and sharpened skills up to the; solved and created word problems;, and were introduced to the basic fundamentals of. (SD 32, p. 3). In it was reported that the student learned about foundations of ancient civilizations and participated with a reading of a related novel. (Id. p. 4). In science (Chemistry), the student participated in experiments, and organized and presented data in numerical and graph forms. (Id. p. 5).
At the meeting, reported that the student received math instruction in a group with a staffing ratio of \ (in which he was grouped with multiple grades, \); and s and science with a staffing ratio of \, with multiple grades (\). (Tr. p. 95).
\ performed its own testing and reported the greatest improvement in remained a weakness.[3] It was reported that the student was performing largely in the of progress. It was reported that the s class involves collaboration and team work. (SD 3 p. 2). The team reviewed the updated academic testing, noting that in the areas of his scores were; and in, his scores were.
He scored in the for solving. The was also reviewed. It was noted that on the, the student scored within the range. Areas of strength were in, where he scored in the e range. (SD3, p. 2).
testified that during the course of the CSE review, there was no disagreement regarding the student’s functioning, as described in the school district’s updated evaluations. Nor was there any disagreement regarding the proposed goals. (Tr. pp. 97-98).
The student’s strengths and weaknesses were summarized; with weaknesses noted in skills. Strengths were noted in skills. It was noted that he needs to improve skills, and that he would be assisted by. It was further reported that he needs a in the classroom;; and. (SD 3, p. 8).
The CSE recommended that the student receive instruction in his core academic areas in a special class His program would include English Language Arts (“ELA”) daily for one and one-half hours math for one hour per day a daily for forty-five minutes and his for thirty minutes
(SD 3, pp. 1, 3; Tr. pp. 107-108).
explained that for ELA, the student would be grouped with students according to their functioning, with the help of the. (Tr. pp. 101-103). Similarly, for math, the student would be grouped with students based upon their level of need, and provided with r. (Tr. p. 104). Reading in a) was recommended, based upon information from that he receives reading instruction using.
(Tr. p. 106). testified that the school district has teachers. (Tr. pp. 153-154).
The IEP also includes recommendations for modifications and accommodations including. For, the IEP provides for. (SD 3, p. 13).
The CSE also recommended, once per week individually for thirty minutes and once per week for thirty minutes in a small group and six times per year;, once per week for thirty minutes and Consultations from a); and consisting of a consultations. (SD 3 pp. 13-14). programming was recommended for academics (a total of); once per week and once per week. (SD 3, p. 15).
The IEP also provides for a, for one and one-half hours per day, to support the student in, in light of his. (Tr. p. 112). explained that the would allow him to be, in an unstructured setting.
(Tr. p. 157).
She testified that no one at the meeting voiced disagreement with any aspect of the Committee’s description of the student’s functioning levels, or its recommendations. (Tr. pp. 97-
119). She testified that there were no requests for additional. (Tr. pp. 119-120). testified that the recommended program would have been appropriate to address the student’s needs. (Tr. p
.127).
testified that, at the conclusion of the meeting, the parents were offered the opportunity to bring the student to the school for a non-academic activity such as music or art; or during a time when the class was. (Tr. pp. 123-124). She does not recall the parent making any request to come observe the recommended program, either during or subsequent to the meeting. testified that if such a request were made, she would have had to follow-up on it to make sure it actually occurred. (Tr. p. 126).
testified that the school district is cautious about parent visits. (Tr. p. 136). She testified as follows:
“we typically don’t have parents visit every program in the district and then start picking and choosing services and programs in the various schools”. (Tr. p. 136).
She did testify, however, that visits are arranged when requested, and if appropriate. (Tr.
p. 138).
acknowledged that the parents cooperated in providing consents for evaluations. (Tr. p.
140).
testified that the recommended school, , serves students in kindergarten through fifth grade (roughly five to ten years old). (Tr. p. 136). She stated that, as the student he would be considered a grader within the school district; although considers him a grader. Within the school district, sixth grade students attend the middle school, (or another program which meets their needs). (Tr. p. 147). The recommended school has a class for students in grades 3-5, which would be the class the student would be placed in. (Tr. p. 160). She testified that there was no discussion at the meeting about whether the student should be in an elementary school or a middle school. (Tr. p. 164). also testified that, in her opinion, the recommended program was appropriate, because it was a highly supportive. (Tr. p. 236). She testified that the would help the student with his; and would help him develop his skills (Tr. pp. 240-241). She recalled that there was a discussion at the meeting concerning the possibility of having the student come back to the school for a, or to the special class (during a period when a) to facilitate his transition back to the school. She testified credibly that the mother did not make ask to come in to see the recommended programs. (Tr. pp. 237-239).
who also participated in the CSE review, did not recall the parent asking to visit the recommended programs. (Tr. pp. 313-314). She shared the opinion that the recommended program was appropriate. (Tr. p. 317).
, the teacher of the recommended class, testified that she is a certified special education teacher (K-12). This is her year teaching a. (Tr. pp. 373-374). During the current school year, there are eleven students in the class. The majority are classified as. (Tr. p. 379). Other classifications within the class include One of the students has a. (Tr. pp. 380-381). She testified that the class includes students in the third, fourth and fifth grades. She did not know the age of the youngest student. (Tr. pp. 384-385). She testified that based upon what she knew about the student (from his testing and meetings she attended) he would be appropriate for her class. (Tr. p.
386).
recalls that at the 2017 CSE review, there was a discussion about having the student visit the class. (Tr. p. 391). She testified credibly that the parent did not ask to visit any of the programs recommended at the meeting. (Tr. p. 398). She also testified that no parent of a prospective student has visited the class in three years. (Tr. p. 397).
Parental Placement
of the testified that he holds a Bachelor’s Degree in English, additional work toward a Master’s Degree in English, and a . degree. He does not hold any degrees or certifications in education. (Tr. pp. 414-415). He was trained at in 1995, where he also taught for five years as a, and as a classroom teacher in literature. He has also taught at the School as an English teacher and an. (Tr. p. 415). He does not hold any certifications in. (Tr. p. 567).
testified that was founded as a school specializing in students with (Tr. p. 419). The philosophy of the school is that students with who have sufficient cognitive strengths; are capable of acquiring course work content information, if instructed in a small group setting by teachers trained in the.[4] The school is not approved by New York State as a special education school. (Tr. pp. 420-421).
The school serves students with disabilities, in grades 2 through 12. In most cases, the students have or other. (Tr. p. 424). The school also accepts students who. (Tr. p. 425). Students in second through fifth grade are taught in one building, in the “”. Middle School students (grades six through 10) travel more between buildings. (Tr. pp. 422-423, 428). Classes at range in size from three to twelve students. (Tr. p. 434).
During the current school year, the student’s class consists of seven students in grades six and seven. His program also includes, and math in a small group, on his skills level. Except in math, students are grouped according to grade level, or a neighboring grade level. (Tr. pp. 434-
435, 439).
The student receives for minutes, working on skills; and a daily study hall, proctored by an member of the faculty.
(Tr. p. 440). The curriculum at focuses on key skills, with subject matter related to what students would receive in a mainstream setting in New York State. It does not, however, follow the Common Core or New York State standards. (Tr. p. 443).
All of the teaching at the school is influenced by the approach and philosophy; and teachers assure that is not a hindrance, and think about how to make teaching as as possible. (Tr.
p. 576). Students acquire knowledge through direct, hands-on project based and inquiry-based learning. When s used, it is students; so that no student is ever in class. (Tr. pp. 630-631).
Students at use in fifth grade, in subject matter classes. In sixth grade, the students are introduced to in a very limited way, and have a by the end of the sixth grade year. (Tr. pp. 446,
449). The student has been using an this year. (Tr. p. 627). does not offer. (Tr. p. 626).
Teachers at have at least a Bachelor’s Degree. Some faculty members have Master’s Degrees, and some are certified. (Tr. p. 449). According to Mr., teaching staff are required to participate in a two week, course in consisting of 70 hours of lecture. receive ongoing training by who is on staff; and regular evaluations. (Tr. p. 450). Staff at the school performs formal assessments of the students in September and May, each year. (Tr. p. 453).
For the first quarter of the current school year, the student’s program consists of,
Primary class); 1, Integrated Sciences 2, Art, 1,. The student achieved grades in the for academic subjects (where graded). His reported that the student worked to skills. She stated that the student will be working on (Par. Ex. E, p. 2). His math teacher reported that the student consistently worked to further develop his skills; and his ability to use to solve problems. (Par. Ex, E p. 3).
Mr. testified that the school has a coordinator for who works with teachers to make sure that the students are challenged, while their needs are being recognized. (Tr. p. 488). He testified that the student receives support for his skills, in. (Tr. p. 492). He testified that is appropriate for the student as he benefits form the, and the small group classes, with trained teachers. (Tr.
pp. 493-494).
On, 2017, the parents signed a contract enrolling the student at for the 2017-2018 school year, with a non-refundable deposit of $ (due on, 2017); and a total tuition of $. (Par. Ex.
F, p. 1). Mr. testified that the school would not hold a place for student whose parent had not signed the contract and paid the initial deposit. (Tr. p. 474). The parents’ obligations under the contract became 2017. (Par. Ex. F, p. 1)
In a separate letter dated 2017, Mr. clarified that a clause in the enrollment contract frees the parents of all obligations under the contract, if the student’s home school district provides a FAPE in an IEP by 2017. (Par. Ex. F, p. 2; Par. Ex. H).
Reviewing the formal assessments performed by between September 8, 2016 and September 8, 2017, Mr. noted progress in skills and (as measured on the subtest of the).[5] Mr. has also observed a growth in his and in his ability to. (Tr. p. 484).
, the student’s teacher for the current school year (and during the prior school year), testified that he has a Bachelor’s Degree in Communications, and a Master’s Degree in Education, in. Prior to coming to his teaching experience included teaching in an independent school in New York City, and at a junior boarding school in. This is his third year at, and he is the middle school teacher. (Tr. pp. 499-500, 518-519).
The class combines history and literature; and during the first quarter involves co-teaching with an art teacher, where the students work on a big project. (Tr. p. 501). This year, the class consists of eight students in sixth and seventh grade. (Tr. p. 504). The student uses a. (Tr.
pp. 538-540).
The students study the history of ancient Greece and related literature, consisting of a”.
(Tr. p. 505). The students had related writing assignments, and a related art project. During the Spring, the students will learn about Ancient Rome and read a”. (Tr. pp. 505-508). The students will have additional writing assignments related to this unit; and are learning to create visual presentations, digitally. Mr. supplements the curriculum with material from the internet. (Tr. pp.
509-510).
On cross-examination, Mr. testified that his consisted of in-service seminars, talks and professional development. He could not quantify the amount of his training. (Tr. p. 524). He does not possess any. (Tr. p. 525).
During the 2016-2017 school year, the student’s s Class included fifth and sixth grade students. (Tr. p. 530). Mr. compared a book in that it reads left to right, and up and down, with. (Tr. p. 536). He testified that the student was not required to; as Mr. read it to the class. The student was successful in comprehending the novel with the. (Tr. p. 537). Mr. does not use textbooks. (Tr. p. 540). He testified that he because the students are and. He testified that the students read novels on their own; and he would not like them to feel they have to in class. Nor does he ask them outside of class. (Tr. p. 553).
He testified that during the current school year, the student’s writing assignments consisted mostly of. Mr. made himself available to answer questions about the assignment. The student did not use a for the writing he was doing in Mr. class; though he would use for production of writing in the classroom. (Tr. pp. 546-548). Mr. did not administer tests or quizzes to the student. (Tr. p. 549). The student’s grade in the first quarter) was based upon homework, individual projects and group projects. (Tr. p .556).
, the, testified that he has a Master’s Degree in and is certified in as a licensed. He does not hold any New York State certifications. (Tr. pp. 676, 706). He has been at for three years. During the past two years, he has worked there full-time. (Tr. p. 678). He provides for students. He also does for students, and staff training. (Tr. pp. 679-670).
Mr. began working with the student in April 2016; and then provided during the 2016- 2017 school year. were typically. (Tr. pp. 681-682 began in April 2016, because the student was that had developed within the class. (Tr. p. 726). This would occur during unstructured time, during lunch and in the playground. (Tr. p. 728).
Mr. described the student as bright, personable, very interested in. His impact his school functioning. (Tr. p. 683). He testified that the student is and that when confronted by the “gruff” behavior of middle school boys, he will that are not his. Mr. works with him in identifying his, and him, through. (Tr. pp. 685-686).
He testified that during the 2016-2017 school year, the student progressed in and developing. (Tr. p. 686). The improvement resulted from, combined with better staff supervision during lunch and recess; and a weekly which Mr. provided to the class. (Tr. pp. 730-731).
Mr. testified that it would be inappropriate for the student to be educated as a fifth grader in an elementary school, during the 2017-2018 school year; because he passed his fifth grade classes well, and earned the right to be a sixth grader. In addition, it would be very stigmatizing to place him with third and fourth grade students. He stated that placing him in an elementary school with little children, would make the student feel as if he were “going backwards instead of forward”. (Tr. pp. 689-690).
He also feels it would be stigmatizing for the student to be accompanied by for lunch, recess and specials; as the student is capable of doing these things. (Tr. p. 693).
During the current school year, Mr. began seeing the student every other week, and is presently seeing him weekly. is focused on addressing the student’s within the class; especially with new students who joined the class. (Tr. pp. 697-689).
He described the student’s, but still. (Tr. p. 699). Although the student was previously diagnosed with , Mr. does not see him. (Tr. p. 703). Mr. works with the student in developing his skills, including understanding other people, their thoughts and feelings; (Tr. pp. 704-705).
Parent’s Testimony
The student’s mother testified that the student received early intervention services to address. For preschool, he received a combination of a services. (Tr. p. 763). He attended kindergarten and first grade in a School. As he began to experience academic difficulty, the parents had him evaluated and met with the CSE to develop a public school program. (Tr. pp.
764-767).
Because the student was, the parents and the principal of the elementary school the student would attend (), decided that he should grade. The student was placed in a class with approximately students. (Tr. p. 768).
The student entered the following year, where he was considered a third grade student, based upon his age. He was then grouped academically, according to his level of need. (Tr. p.
769).
The student’s mother testified that she participated in the, 2017 CSE review. She specifically recalled asking about issues, since the student used, and was transitioning to a. (Tr.
p. 772). She testified that she asked if the students had and was told that they do not have; but they do have access to. (Tr. pp. 788, 820). She testified that currently, the student uses at home and at school to receive assignments. (Tr. p. 785). He uses an, and a He also uses (Tr. pp. 819-
820).
The student’s mother testified that at the CSE meeting, there was a discussion of the proposed class, which would consist of. She testified that she asked Ms. to see the class, but was told that this is not something that the school does. Ms. also told her that the grouping at the time might not be the same students who would be in the class next year, so that she “may not get the same picture”. (Tr. pp. 774-775). She did not recall the student being invited to the class.[6]
She testified as follows:
“I turned to Miss to ask what are the students like in the class and she pulled back a little bit and I thought may I am not supposed to ask that, can you just tell me what the kids are like and still I rephrased it, and I said I felt she was uncomfortable. So I rephrased it and said you know ., you tested him you see ., do you think he is the right fit for this class and she said yes, she thought he would fit right in. So I followed up with could I visit the class, could I see the class. She said no, that doesn’t happen in the school, parents don’t come to the class, that’s not something that the school does”. (Tr. pp. 773-774).
She later testified that she asked whether the student could come visit the class and spend a little time, but was told he could not. Instead he was offered the opportunity to participate in a. (Tr. pp. 773-774).
She recalls knowing that the class would include a grouping of several grades; but did not recall when she learned that the class would consist of third to fifth graders. She testified that her inability to see the class made it difficult to make a decision, as the parents did not have enough information about the class. (Tr. pp. 775-776).
The student does not receive. The student’s mother testified that during the 2016-2017 school year, the parents privately brought him to an and implemented some suggestions for. She stated that his has improved. (Tr. pp. 790-791).
The student’s mother testified that the student works on reading comprehension at home, by summarizing what he reads, in assignments given by. He is now transitioning from the, and is working on . He can write out his homework by or typing; and submits written legible printed text. He also uses for writing assignments. (Tr. pp. 796-798). She feels that the student has benefited from the support provided by Mr. in learning to, e and deal with some. (Tr. p. 799).
She testified that his math instruction is individualized to his level, so that he is not overwhelmed with math concepts he cannot handle. She stated that he is very responsible with his homework.
(Tr. pp. 801-802).
The mother testified that during the Resolution Session, held on 2017, she again asked to seek the proposed class; but that she was not invited to see it. She testified that at that time, she also asked to see a class in the middle school; but did not receive a response. (Tr. pp. 776-
777, 835). She later testified that she could not recall specifically if she asked to see the class at, during the Resolution Session. (Tr. p. 836). When questioned further, she acknowledged, that the only district program she asked to see during the resolution session was for a possible placement for the 2018-2019 school year. (Tr. pp. 837; 852).
She stated that she did not ask about a middle school program during the course of the CSE review because the district called the meeting, and did not have a representative from the middle school. (Tr. p. 828).
The student’s mother believes it would be inappropriate to place the student in a class with third to fifth graders, because last year he attended classes with fifth and sixth graders, and this year with sixth and seventh graders. She testified that he has functioned well in those groups, and that pushing him back to a group of younger students would be bad for his. (Tr. p. 779).
The mother testified that at the, 2017 meeting, there was no discussion about the student’s grade level. (Tr. p. 780). She disagrees with the recommended reading group, and the recommended class size (which she feels would be too large and. She feels that the student does not need for lunch and specials, and that it would be detrimental to his sense of independence and capability. (Tr. pp. 781-784). On cross-examination, she acknowledged that at the challenged CSE review, she never stated that she felt the proposed classes were too large, that the student required instruction; or that the would be inappropriate. (Tr. pp. 843-844).
On August 14, 2017, the parents sent written notice to of their intention to place the student at or the 2017-2018 school year and seek funding for the school district. As reasons for rejecting the proposed program the parents wrote:
“There is no individual reading instruction for him, classes are too big for him, and it is not a unified program”. (Par. Ex. A).
In their written notice, the parents did not ask to see the proposed class; or indicate that they were rejecting the program due to the inappropriate grouping, or their inability to see the class.
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The
IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002. The statute ensures an “appropriate” education ,”not one that provides everything that might be thought desirable by loving parents” Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998), quoting Tucker v. Bay Shore Union Free School District, 873 F. 2d 563, 567 (2d Cir. 1989).
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S.
359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).
School District’s Program
In their due process request, the parents alleged that the student was denied a FAPE because the evaluations were insufficient, because the school district failed to offer appropriate , because the recommended program does not offer sufficient individual instruction and the classes are too large, and because the school district’s proposed placement does not provide the student with an appropriate grouping.
A. Evaluations
In their closing brief, the only aspect of the evaluation process which the parents challenged was the school district’s failure to update the evaluation, which was performed in March 2016. (IHO Ex. VII, p. 16). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, 8 N.Y.C.R.R. 200.4 [b][6][vii]. I find that the school district conducted an exhaustive evaluation of the student, in all areas related to the suspected disability, prior to the, 2017 IEP meeting. The evaluation included updated academic testing, a , a measure of his and an update.
I do not agree that an updated evaluation was indicated. As reported by the mother, at the time of the, 2017 CSE review, the student was still using the d. (Tr. p. 772). The evaluation reflected that the student was very comfortable using the). (SD Ex. 8). The 2017 IEP incorporates the evaluation’s recommendations for. (SD Ex. 3, p. 14). The student’s mother testified that the student uses He is also familiar with (Tr. pp. 819-820).
B. Recommended Program (Including)
The parents argue that the proposed program is deficient because it does not provide instruction, because the class would be too big for the student; because it does not provide a
“unified program”, because a is inappropriate for the student, and because the IEP includes access to a r, rather than. (IHO Ex. VII, p. 6).
I find that the recommended program, which combined a small special class with small group instruction; in addition to and twelve month programming, was reasonably calculated to enable the student to make educational progress.
The recommended program is consistent with the most recent evaluation which recommended. The record does not support the parents’ argument that a class of students, with one teacher and would be too large for the student. At the CSE review, Mr. the representative, told the CSE that student’s classes are taught with a staffing ratio of. (Tr. p. 95). Mr. testified that classes at range in size from students. (Tr. p. 434).
Furthermore, the record does not support the parents’ contention that the student continued to require in order to progress in reading. When the was performed by Ms. on April 26, 2017, the student achieved cores for. (SD Ex. 12, p. 3).’s own testing in September 2017 indicated that he was reading at a level. (Par. Ex. D).
While the student was accustomed to working with an , and access to an was recommended in the evaluation; I do not find that the school district’s failure to recommend that he be assigned his own constituted a denial of FAPE. The record indicates that the IEP also provides for access to different to aid the student with; as well as.
Finally, while the parent’s concern about assigning a to the student was supported by the testimony of Mr.; I do not find that the recommendation of this service constituted a denial of FAPE, as the parents were free to decline this specific recommendation while accepting the rest of the program. See 34 C.F. R. 300.300(d)(3); 8 NYCRR 200.5(2). Moreover, the parents did not challenge the recommendation for the in either the due process complaint or their notice of their intent to unilaterally place the student. (SD Ex 1, Par. Ex. B).
C. Recommended Class
In their complaint, the parents alleged that the school district’s placements failed to appropriately group the student with students who have similar needs. (SD Ex. 1). In their closing brief, the parents argued (based upon the class profile presented at the hearing), that the student would not be appropriately grouped with students who were, or who had needs. With respect to the composition of the current classroom (as described in the testimony of Ms.), they argued that he would not be appropriately grouped with students who had, or who required a.
(IHO Ex. VII , p. 15).7 In addition, the parents argue that the proposed class exceeds the 36 month age range required by 8 NYCRR 200.6(h)(5), because it covers student from four grade levels.[8]
The school district argues that I lack jurisdiction to consider the parents’ challenge to the appropriateness of placing the student in a multi-graded class, because the issue was not raised in the due process complaint. (IHO Ex. VI, p 8). Citing R.E. v. New York City Dep’t of Education
694 F. 3d 167 (2d Cir. 2012), the school district further argues that any challenge to the manner in which the IEP would be implemented; or the classroom grouping, is speculative and impermissible. (IHO Ex. VI, pp. 21-22).
I find that the parents’ challenge to the appropriateness of the class grouping includes the challenge to the ages and grades of the student; and that it is within my jurisdiction to consider the issue
In M.O. and G.O. v. New York City Department of Education, 793 F. 3d 236 (2d Cir
2015), the Second Circuit clarified that R.E. does not foreclose all prospective challenges to a proposed placement school’s capacity to implement a child’s IEP. In C.U. v. New York City 8 NYCRR 200.6(h)(5) provides that the chronological age range within special classes of students with disabilities who are less than 16 years of age shall not exceed 36 months. Dept of Education , 32 F. Supp. 3d 210 (S.D.N.Y. 2014) and F.B. and EB v. New York City Department of Education, 132 F. Supp. 3d 522 (S.D.N.Y 2014), the Courts found that parents have the right to evaluate a school, to determine whether it can be reasonably expected to satisfy the child’s IEP. None of the cases cited, however, held that a parent has the right to a class profile or to observe the proposed class.
I credit the parent’s testimony that she inquired about the students in the recommended class; and whether the placement would be a good fit for her son. I also find that the school district was less than forthcoming with information about the students in the class. Although had prepared a class profile; she did not offer to share it with the parent.
While I find that the parent inquired about the class, I do not find that she specifically asked to visit it; either at the CSE meeting or at the subsequent Resolution Session. Four school district witnesses testified credibly that no such request was made at the CSE review. The mother contradicted herself when questioned about her requests to visit (or have her son) visit the proposed class and the class at the middle school. The parents did not mention their concerns about not being able to view the class, in their ten day notice. (Par. Ex. A).
I do not find, however, that the parents’ failure to request a visit foreclosed their challenge to the appropriateness of the class to meet their son’s needs. I find that the mother did inquire about the class at the CSE meeting, and that she was entitled to information necessary to determine whether the IEP could be implemented at the school. C.U. V. New York City Dept. of Education supra; F.B. and EB v. New York City Department of Education, supra.
While the mother was not certain when she learned that the proposed class included third grade students; she was aware that it was a multi-grade class. (Tr. pp. 775-776). I credit both the parent and Mr. that it would be detrimental to the student’s self-esteem and psychological wellbeing to place him in an elementary school, with children much younger than himself. At the time of the CSE review, the student was successfully progressing through the fifth grade at; attending classes with sixth grade students, and would be entering middle school the following year. (S.D. Ex. 30, 31, 32). In addition, with the assistance of Mr., he was learning to with middle school age students, and was interacting well with his peers. (Tr. p. 686). I find that third and fourth grade students would have different levels of social and physical development than the student; and that placement in the proposed class at elementary school would not constitute an appropriate grouping. See 8 NYCRR 200.5(h)(2).
Furthermore, it does not require speculation to conclude that a class that combines this student, who is chronologically a sixth grader, with third grade students; would most likely run afoul of the regulatory requirement that the ages of the students not exceed 36 months. Ms.
denied knowledge of the age of the youngest student, (Tr. pp. 384-385); and the school district did not otherwise dispute the parents’ claim that the class would be out of compliance with the 36 month limit. Therefore, the parents’ challenge to the placement school upon this ground is permissible. See M.O. v. and G.O., supra; G.S. and A.S ex rel. K.S. . v. New York City Dep’t of Educ. 68 IDELR 154 (S.D.N.Y. 2016); E.P. ex rel. B.G.. v. New York City Dep’t of Educ.,
68 IDELR 21 (S.D.N.Y. 2016).
I agree with the school district, however, that the parents’ other challenges to the class grouping (based upon the classifications of the students, their need for a, are speculative, and not a basis for me to find that there was a denial of FAPE. G.S. and A.S ex rel. K.S. v. New York City Dep’t of Educ., supra; E.P. ex rel. B.G.. v. New York City Dep’t of Educ., supra; R.C. v.
Byram Hills Sch. Dist., 906 F. Supp. 2d 256 (S.D.N.Y. 2012).
Nevertheless, for the reasons stated above, I find that the school district failed to meet its burden of proving the appropriateness of its recommendation to place the student in a third to fifth grade special class within an elementary school; and that therefore the student was denied a
FAPE.
Appropriateness of Parental Placement
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006)
(citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).
The school district argues that the parents failed to meet this burden in that the parental placement provided no opportunity for the student to interact with typically developed peers; no evidence was presented regarding the profiles or learning characteristics of the other students
(except that they all had), and because the school does not offer The school district points out that teachers are only required to have a Bachelor’s degree; that the student did not have a textbook for, and was not required to read the material being taught; and that his counselor was not licensed in New York. (IHO Ex. VI, pp. 25-26).
The testimony and documents in evidence establish that at, the student receives for reading and writing, math instruction in a small class geared to his level of functioning, when needed, and placement in classes with students close to his chronological age. Testing performed by the school district in April 2017 indicated improvement from prior testing performed in January 2016. The student demonstrated improvement in . (SD Ex. 5, 12).
Progress reports received in evidence demonstrated that the student was receiving math, instruction geared to his level, and that he was progressing in the curriculum. Reports from his also demonstrated his progress in reading and writing. (SD Ex. 30, 31, 32). Although Mr. is not licensed in New York as a, his education and experience qualify him to provide to the students; and the record indicates that the student progressed with Mr. support. (Tr. pp. 286-287; 676,
686).
Although the school district’s testing indicates that the student would benefit from; the record indicates that his difficulty with is accommodated at through the use of. (Tr. pp. 538-540).
Therefore, I do not find that the fact that is not provided renders the program inappropriate to meet his needs.
While a hearing officer may consider the restrictiveness of the parental placement in determining whether it was appropriate, parents are not subject to the same mainstreaming requirements as a school board. M.S. on behalf of S.S. v. Board of Education of the City School District of the City of Yonkers, 231 F. 3d 96 (2d Cir. 2000). Taking into account the student’s needs, I do not find that the restrictiveness of the parental placement renders it inappropriate.
Although I share the school district’s concerns about the appropriateness of the type of instruction the student is receiving in his s class (e.g., being novel, when he demonstrates reading skills which are level); overall I find that the school is meeting his unique needs, and that he is benefiting from the instruction provided. Therefore, I find that the parental placement is appropriate.
Equitable Considerations
Although not argued in its closing memorandum, the school district argued in its response to the due process complaint, and in its opening statement, that equities do not support an order of reimbursement. (S.D. 2; Tr. p. 32).
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.
Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226
F. 3d 60 (2d Cir. 2000). Tuition reimbursement may be reduced or denied, if the parents neither inform the CSE of their disagreement with the proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sec. 1412[a][10][C][iii][I]; Application of the Board of Education, Appeal No. 08-084.
The fact that the parents signed an enrollment contract and paid a deposit toward their child’s tuition should not defeat a claim for reimbursement, where the deposit was required to secure a placement, and the parent otherwise cooperated with the school district; particularly where the deposit is refundable. See S.C. and J.C. ex rel. T.C. v. Katonah-Lewisboro Central School District, 175 F. Supp. 3d 237 (S.D.N.Y. 2016).
The record indicates that the parents shared their private evaluation with the school district and made the student available for testing by the school district. The mother participated in the CSE review and gave the required ten day notice. (Par. Ex. A). While the parents should have provided notice of their objection to the proposed school, I do not find that their failure to do so should defeat their right to reimbursement; as it was the school district’s duty, in the first instance, to recommend a placement suitable to the student’s age. It is unfortunate that the school district did not respond to the parent’s request to visit the Middle School; even if it was for consideration of a future placement.
The record indicates that the parents had to sign a contract and pay a deposit to secure a place for their son. (Tr. p. 474). Furthermore, Mr. clarified that the parents would be freed of all obligations under the contract if the student was offered a FAPE by June 30, 2017. (Par. Ex. F,
p. 2; Par. Ex. H). The tuition charged ($) is reasonable, taking into account that the school provides, classes and.
In summary, I find that there are no equitable considerations which should defeat or reduce the parent’s right to be reimbursed for the student’s tuition at n for the 2017-2018 school year. [9]
ORDER
For all of the foregoing reasons, it is hereby ordered that the school district shall reimburse the parents for their tuition expenses at for the 2017-2018 school year (to the extent not already funded, pursuant to the student’s pendency entitlement), upon presentation of proof of payment thereof.
Dated: March 5, 2018 ___________________________________
DORA M. LASSINGER
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
Directions and forms can be found in the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
School District
1. Due Process Complaint, 9/7/17, 8 pp.
2. Answer to Due Process Complaint, 11/23/17, 3 pp.
3. IEP dated 5/19/17, 17 pp.
4. Classroom Observations, 10/28/15, 6 pp.
5. Evaluation, 1/14/16 , 10 pp.
6. Evaluation, 3/15/16, 21 pp.
7. , 3/15/16, 5 pp.
8. Evaluation, 3/16/16, 3 pp.
9. Re-Evaluation, 3/18/16, 3 pp.
10. Re-Evaluation, 3/18/16, 2 pp.
11. 9/2016 4 pp.
12. Evaluation, 3/28/17, 5 pp.
13. Re-Evaluation, 4/5/16, 3 pp.
14. Classroom Observations, 4/21/17, 6 pp.
15. l Evaluation, 4/21/17, 1 p.
16. Evaluation, 5/8/17, 4 pp.
17. Evaluation, 5/17/17, 2 pp.
18. Letter from to Parents, 2/23/17, 2 pp.
19. Parent Nonpublic School Placement Acknowledgement/Consent Form, 2/28/17 1p.
20. Prior Written Notice, 3/8/17, 1 p.
21. Consent Form, 3/16/17, 1 p.
22. Prior Written Notice, 4/26/17, 3 pp.
23. Consent Form, 4/26/17, 1 p.
24. Meeting Notice, 5/1/17, 1 p.
25. Meeting Notice, 5/1/17, 1p.
26. Prior Written Notice, 5/19/17, 2 pp.
27. Notice of Board of Education Review for Special Education, 6/27/17, 1p.
28. Related Services Referral, 8/8/17, 1p.
29. Quarter 3 Progress Report, 2015-2016, 6 pp.
30. Quarter 1 Progress Report, 12/7/16, 10 pp.
31. Quarter 2 Progress Report, 2/8/17, 11 pp.
32. Quarter 3 Progress Report, 5/8/17, 10 pp.
33. Minutes of CSE Review, Undated, 2 pp.
Parents
A. Notice Letter from Parent to District, 8/14/17, 1p,
B. Impartial Hearing Complaint, 9/7/17, 1 p.
C. Evaluation, 1/16,
10 pp.
D. Testing Summary, 2017-2018, 1 p.
E. Progress Report, first quarter 2017-2018, 11/16/17, 10 pp.
F. Contract, 2017-2018, 1/31/17, 3 pp.
G. Class Profile, Undated, 1 p.
IHO Exhibits
I. Pre-hearing conference summary, 10/17/17, 1 p.
II. Email correspondence regarding pendency, 9/11/17 to 9/17/17, 2 pp.
III. Proposed Subpoena and related email correspondence, 11/28/17, 3 pp.
IV. Extensions of compliance date, various dates, 3 pp.
V. Email correspondence regarding 1/25/18 hearing, 1/22/18 to 1/25/18, 3 pp.
VI. Closing Brief, School District, 2/26/18, 30 pp.
VII. Closing Brief, Parents, 2/26/18, 19 pp.
Footnotes
[1] After the school district recognized as the pendency placement, the parents withdrew their request for a pendency order. (IHO Ex. II).
[2] The class profile was not provided to the parent at the CSE review; but was disclosed in response to a document request; and a direction from me that the school district turn over existing class profiles for the 2017-2018 school year. (A subpoena was also submitted to me two days before the hearing, but was subsequently withdrawn). (IHO Ex. III, Tr. pp. 19-21). testified that in preparation for the CSE review, she also had information about the students in the classroom. She stated that this type of information is not typically shared with parents, unless it is requested. (Tr. p. 161).
[3] According to a testing summary from the \ School, between September 2016 and September 2017, the student progressed in \ in September 2017; math (\remained a grade in September 2017). (Par. Ex. D).
[4] a approach to skills. (Tr. p. 436).
[5] The testing summary indicates he progressed from a equivalent on the subtest, in September 2016, to a equivalent in September 2017. On the subtest, he progressed from a equivalent. (Par. Ex. D).
[6] She later testified, however, that he was possibly invited to come to the school for a special, such as art or music. She also testified that he was possibly invited to come for lunch. (Tr. pp. 831-832).
[8] NYCRR 200.5(h)(3) provides that a special class shall be composed of students with disabilities with similar individual needs.
[9] Although the parents requested reimbursement for expenses in their due process complaint, no evidence was presented that they were billed for the student’s. Accordingly, the parents’ request for reimbursement for is denied.