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FINDINGS OF FACT AND DECISION
Case Number: 159738
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 3, 2016
June 14, 2016
Actual Record Closed Date: July 8, 2016
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2016
ESQ., Attorney — Student
Representative — DOE
Representative — DOE
Witness — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2016
ESQ., Attorney — Student
Parents
DR., — Student
District Representative — DOE
Ms. , the mother of , filed a request for an impartial hearing on February 3, 2016. An amended request was filed on March 9, 2016, alleging that the Committee on Special Education (“CSE”) failed to develop an appropriate Individualized Education Plan (“IEP”) for the 2015-2016 school year. As a proposed resolution, the parent requested funding/reimbursement for provided by for . (Par. Ex. B).[1] I was designated to hear this matter on February 4, 2016.
An impartial hearing was held on May 3, 2016 and June 14, 2016. The compliance date was extended on two occasions due to availability of witnesses and extensive testimony/issues, and because the parties wished to submit closing briefs. The final compliance date is July 22, 2016. (IHO Ex. I, II).
Evidence at Hearing
is a with a classification of
. (DOE Ex. 1). He is a student at the
(“ ”), a
. (Tr. p. 73). His classification and school placement are not in dispute. (Tr.
pp. 16, 80-81).
began receiving special education services during his year.
He attended a in a community school from to . (Tr.
pp. 68-69). From the until the present, he has attended . (Tr. pp. 70-71).
was performed on January 15, 2013. At that time, received a , and a . An IEP meeting was held on September 25, 2013; and was recommended for placement at . (Par. Ex. I).
When tested on January 14, 2014, his , with a ; and his , with a . An IEP meeting was held on September 17, 2014 .It was reported that ’s was for and for . (Par. Ex. J at
1).
On for the 2014-2015 school year, scored at a and . (Par. Ex . F, G). He was ( ); (when at ). (Tr. pp. 94-95).
On January 4, 2016 (over 15 months after the prior IEP), the Committee on Special Education (“CSE”) met to develop an IEP for . No new formal educational testing was noted on the IEP. It was again reported that ’s was for and for . (DOE Ex. 1 at 13). No explanation was given for the delay in the meeting. (Tr. p. 60).
The IEP includes goals for
. The recommended program was placement in a in a with a staffing ratio of ; and related services of and
. (DOE Ex.1).
, a , was called in to participate
in the January 2016 IEP meeting, after the parent requested that be added to the IEP. (Tr. pp. 10, 18). She testified that in and , and has in . (Tr. p.
14, 33).[2] She stated that was not mentioned at the meeting. (Tr. p. 16).
She testified that a representative from stated that the school provides
. Ms.
testified that, based upon her knowledge of the school, is provided.
(Tr. pp. 28-30).
Ms. , ’s mother, testified that she participated in the January 4, 2016 meeting, and requested additional services for due to his ; including , . She
testified that his teachers had informed her that was . (Tr.
p. 75, 78, 100). Ms. joined the meeting and stated that no additional services could be provided; but that the CSE could consider placing in a different school.
(Tr. p. 77). Ms. explained that she was happy with the school, which addresses ’s ; but that the school does not provide . (Tr. pp.
80-81).
In September 2015, began with . (Tr. p.
84). Ms. does not know whether she informed the CSE that was receiving with . (Tr. pp. 79, 93). She testified that with the , he has demonstrated improvement in . (Tr. p. 85). currently receives ; but Ms. feels he needs , in order to and . (Tr. p. 86). She has only provided because that was all she could afford, . (Tr. p. 87).
On January 7, 2016, Ms. obtained a evaluation of at . She provided it to the school, believing it would also be available to the DOE.
(Tr. p. 84; Par. Ex. C). met the criteria for a diagnosis of .
The testing revealed that were one of ’s .
was also . was recommended.
(Par. Ex. C at 12). She received the results in February. (Tr. p. 97).
Dr. , the , testified that she holds a holds a Master’s Degree in special education and a doctorate degree in general education. (Tr. p.
102). provides for students with special education needs. (Tr. p. 103). at have extensive experience with students with special education needs; but are not necessarily certified. (Tr. p. 104).
Dr. met on August 24, 2015 and conducted various assessments.
(Tr. p. 106). She also reviewed two of is IEP’s. (Tr. p 123). She found that his skills were at a for and ; and at a for and . (Tr. p. 107). She chose an who has done a lot of work with students , who have and in . She testified that has responded well to his work with her. (Tr. pp. 105-106). The has almost completed her master’s degree in ; but is not New York State certified. (Tr. p. 116).
The focus of work with has been on and . Some of his , including , has been incorporated into their work. (Tr. p. 109). has progressed in his . His has also improved. He has improved in his ; but struggles with . (Tr.
p. 111; See Par. Ex. O and P). She testified that he should receive a minimum of ( ) ; and that would be optimal for him.
(Tr. pp. 112-113). The uses ,
. (Par. Ex. D).
sessions are billed at the rate of per hour. (Tr. p. 113). As of the hearing date, the parent had paid a total of for (plus an
). had used . (Tr. p. 114).
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 special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. Application of a Student with a Disability, Appeal No. 11-043.
The parent argues that the January 2016 IEP was defective because it was untimely; it failed to include ; because the predetermined program precluded parental participation; and because the program, without , was not reasonably calculated to enable to receive a meaningful benefit. (IHO Ex .
IV).
Clearly the IEP meeting was four months late. I also agree with the parent that required in order to make meaningful educational progress; and the failure to provide it, renders it substantively inadequate.[3] While Ms.
believed it was provided, as part of the school program, there was no evidence presented that this was the case. Clearly, it was not part of his IEP. (See DOE Ex. 1).
The record indicates that when last formally tested, (in January 14, 2014)
’s was at a and his ability to was at a . The and reported in his January 2016 IEP ( and );was the same reported on his September 2014 IEP. Clearly the school program, with no additional , was not providing with a sufficient level of to enable him to progress.
The DOE argues that it provided a FAPE; however it offers no explanation for the four month delay in the IEP meeting. Nor does it explain how the recommended program was reasonably calculated to enable to overcome his , and progress in his , and . (See IHO III).
For all of the foregoing reasons, I agree with the parent that the DOE failed to prove that the recommended program provided with a FAPE.
I also find that compensatory education, in the form of at , is an appropriate remedy. The record indicates that the program designed by specifically targets ’s and , and that the chosen for him has experience working with students with similar disabilities. The record indicates that has progressed in his and as a result of the provided by the .
Based upon Dr. ’s testimony, I find that of
, throughout the 2015-2016 school year ( ), would have been a sufficient amount of to enable to make meaningful academic progress4. Therefore I find that the parent should be compensated for the (and related fees), for which she paid; and that the remaining should be provided, as a further compensatory remedy.
For all of the foregoing reasons, it is hereby ordered as follows:
1. The DOE shall reimburse the parent for paid for (plus the fee), upon presentation of proof of payment thereof;
2. The DOE fund an additional of services by
, at the rate of per session.
Dated: July 20, 2016
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL:
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be
4
I find that equitable considerations support the parent’s position, in that was , was , and the parent clearly expressed to the CSE that she believed required in order to make academic progress.
reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
STUDENT
A Impartial hearing request, dated 2/3/16, 2 pages.
B Amended hearing request, dated 3/9/16, 3 pages.
C evaluation, dated 1/12/6, 13 pages.
D coaching letter, dated 2/5/16, 1 page.
E coaching test, dated 12/29/15, 8 pages.
F , dated ‘14/15,2 pages.
G , dated ‘14/’15, 2 pages.
H Proof payment, various dates, 10pp
I IEP, '13/'14, 20pp
J IEP, '14/'15, 16pp
K letter, 4/26/16, 1pp
L Progress report, 8/13/14, 9pp
M Receipt, undated, 1pp
N , 1pp
O , 3/29/16, 3pp
P , undated, 4pp
DOE
1 IEP, dated 1/4/16, 16 pages.
2 Notice of IEP meeting, dated 12/11/15, 3 pages.
4 Prior written notice, dated 1/8/16, 4 pages.
5 CSE event log, dated 9/25/13-1/19/16, 2 pages
IHO
I Case follow-up sheet, 5-3-16, 1 p.
II Case follow-up sheet, 6-14-16, 1p.
III Closing Brief (DOE), 7-8-16, 9 pp.
IV. Parent's Closing Brief, 7-8-16, 19 pp.
V. PHC Summary, 4-8-16, 1p.
Footnotes
[1] In her closing statement, the parent requested reimbursement for costs incurred by her for by (in the amount of .) and an order for the Department of Education (“DOE”) to provide with of by , at the rate of per session, as compensatory education (measured at the rate of since September 2015, when the CSE should have convened). (IHO Ex. IV; See. Tr. pp. 88, 125-126 ).
[2] She later testified that he is ; and . She testified that his was not accurately assessed this year, but she assumed he had made progress in the two years since he was assessed, based upon teacher reports. She testified that the fact that he has indicates he is . (Tr. pp. 56-58).
[3] I do not reach the issue of , because it is not relevant to the remedy sought by the parent. I do not find that the program was predetermined, or that the parent was denied meaningful participation in the IEP meeting.