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MARTIN J. KEHOE, It
ATTORNEY AT LAW
Impartial Hearing Officer
2009 WESTERN AVENUE
ALBANY, NEW YORK 12203
TELEPHONE (518) 452-8000
FACSIMILE (518) 492-1116
Re: a a —_
Dear All:
Enclosed find my decision/order with respect to the above. By e-mail I am sending a copy to VESID. Thank you.
Truly yours, Martin J. Kehoe, Ii
Impartial Hearing Officer
MJK/jo CC: wout enclosure
UNIVERSITY OF THE STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
IN THE MATTER OF THE IMPARTIAL
HEARING BROUGHT UPON THE
REQUEST OF PARENTS ON BEHALF
OF THEIR CHILD,
AGAINST Decision and Order
Case Identifier # 57748
CENTRAL SCHOOL DISTRICT
INTRODUCTION
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The HaverstrawStony Point Central School District will be referred to as District, the parents as Parents and the student will be referred to as Student. Based on the following analysis, I find that tuition reimbursement is appropriate in this case.
PARENTS’ POSITION
The Parents assert that the District has never grasped the depth and intensity of the Student’s needs. They claim that the Student floundered during his kindergarten and first grade years in District which yielded no meaningful progress in the public school setting. They contend that the current proposed program cannot provide an appropriate education for the Student who requires placement in a small, supportive, classroom with intensive individualized support. The Parents maintain that the Student would not be able to hold focus in the larger regular education setting offered by the District. They also claim a procedural violation in the creation of the Individualized Education Program (IEP). During the 2010-2011 school year the Parents continued the Student in a Private School where he attended the previous year. There, they claim, he flourished. In this hearing the Parents are seeking reimbursement for the tuition incurred thus far during the 2010-2011 school year. They also seek an order directing continued reimbursement for the 2010-2011 school year. (See generally, Ex.s J & IT)
DISTRICT POSITION
The District argues that there are no procedural issues which might invalidate the IEP. Moreover, the IEP was reasonably calculated to provide meaningful educational benefit for the Student while providing for mainstreaming to the maximum extent appropriate. The District also argues that the Private School is not appropriate for the Student as the education is not individually tailored to address the Student’s needs. Finally, the District argues that the equities in this case do not favor the Parents. The District asserts there is no legal basis to continue a privatelyselected program at public expense. (See generally, Ex. B)
THE HEARING
The hearing began on October 19, 2010. The first witness called by the District was the Director of Special Services (the DSS) whose duties include oversight of all of the District’s special education programs. (Tr. pp. 71 — 373) Her testimony carried over to the second hearing date of October 20, 2010.
The hearing continued on November 18, 2010 when the Student’s first grade, regular education teacher testified. (Tr. pp. 387- 489) The next witness was the District’s third grade special education teacher. (the Public 3° Grade SET) (Tr. pp. 490- 597)
The next hearing date was November 19, 2010 when the Parent (mother) testified on direct examination only. (Tr. pp. 604-759) We met again on November 29, 2010 when the Private Psychologist testified concerning the Student’s evaluations. (Tr. pp.764-1027) The following day, November 30, 2010 testimony of the mother continued and concluded. (Tr. pp. 1032-1186) Later that same day the private school special education teacher testified. (Private SET) (1191-1242) Her testimony was suspended and was not completed until the next day.
On December 1, 2010 the Parents called the advocate who historically assisted them with the Student’s educational needs. She testified relative to observations she made and her recollection of the events concerning the Student. (Tr. pp. 1251-1307) Next, the Private SET returned to the stand and completed her testimony. (Tr. pp. 1308-1409) The last witness this day was the reading teacher from the Private School. (Private Reading Teacher) (Tr. pp. 1409- 1489)
On December 13, 2010 the Private Reading Teacher continued. (Tr. pp.1494-1565) Next called by the Parents was the Director of the Private School. (the Director) (Tr. pp. 1566-1762)
On the final day of the hearing the District called the District’s school psychologist for rebuttal. (Tr. pp. 1771-1896) She was followed by another rebuttal witness, the Student’s kindergarten and first grade special education teacher. (Public SET) (Tr. pp. 1908-1956)
STUDENT HISTORY
At the time of the hearing the Student was eight years old, (Ex. 15) a third grader classified as Other Health Impaired, (The Student’s classification is not in dispute in this hearing) (Id. p.1) and unilaterally enrolled by his Parents since the beginning of second grade at the Private School in New Jersey, a private school for students with learning disabilities. He is diagnosed with a Receptive Language Disorder, Phonological Disorder, Disorder NOS, andii BD iso:cer (Ex. JJ) We also demonstrates some problems consistent with P| << EE) > I ©: rises the threshold on the Po Observation Schedule (““ADOS”) for a formal diagnosis. (Ex. 20) The District and Parents recognized the Student’s special education needs from his early years, and the Parents have worked consistently with the District’s Committee on Special Education (CSE). The Student attended the District’s Individualized Education Plan (IEP) placements for preschool, kindergarten and first grade.
In kindergarten, during 2007-2008, the Student received special education services in a half-day, general education setting, consisting of the following:
° Consultant teacher direct, one hour’week. . a 2. one time/week in a group, and one time’ week individua ° twice per week in a group oftwo; and ° time/week in a group.
(Ex. 4) It is during the kindergarten year that the District and the Parents started to see the Student in dramatically different contexts. For example, by the spring of 2008, the District was reporting progress in the half day integrated kindergarten setting:
“(The Student] has grown in all areas this year...{The Student] continues to grow academically and socially. He is presently more available to participate in class lessons.... social and emotional development continues to grow. Over the past few months, [the Student] has become more interactive with peers and adults. He approaches others more appropriately, his eye contact is better, and he enjoys sharing his thoughts and experience... The growth noted socially appears to have positively impacted upon (T)’s availability to learning...” (Ex. “3”, pp.3-5.)
At the same time the Parents were seeing a different “Student”. They were visiting special education programs with self-contained classes in the district, referring their son to medical specialists, asking for increased school interventions in the form of BE <p oving special education advocacy assistance, referring their son to a psychiatrist and gathering evidence to support a different description of their son.
Concerming reports of progress in IEP goals, it was the Parent’s (mother’s) testimony that the District “. . reports don’t represent what I am being told [by the District and others].” (Tr. P.
1160) “What I saw at home and .. . during class parties .. . [My son] would sit by himself. . . at [the District]. There was no interaction with the children. He did interact with adults. But he did not appropriately meet these goals. He was making some progress but not progressing satisfactorily.” (Tr. P. 1164) Notwithstanding the issues that were brewing, the Parent acquiesced to the CSE recommendation in May 2008 that the Student continue on to first grade in a general education class with individual consultant teacher support.
During the Student’s first grade year, he was placed in a general education class in the District with consultant teacher support and related services. Over time it was apparent that the Student was not progressing in reading and wniting, both significant areas of disability for him. (Ex. 18) The Student's first grade, regular education teacher testified that the Student was overwhelmed with his school day and had difficulty managing school routines. He was fT. apprehensive and did not like taking risks; it took him longer to get to the business of learning than his classmates. His major difficulty was a speech and language impairment. (Tr. 393-96)
Again, the CSE reported on a much different Student than the Parents knew. According to the second grade IEP it appears the Student had made a great deal of progress in all areas, with the exception of reading and writing. (Ex. 18, p. 9) He was functioning at or above grade level in math, by the end of first grade. Id. He had also made progress toward achievement of his IEP goals mM and P| Id. Where he demonstrated difficulties, a building level intervention was implemented; the Wilson fundamentals program. (Tr.-333)
During the second grade year the Parents continued to collaborate with the District’s CSE by attending IEP annual review meetings on June 4, 2010 and June 14, 2010 to plan for summer 2010 and the 2010-11 school year, the Student’s third grade year. (Ex.s 1&15)
This time, at the beginning of the Student’s second grade year, based upon the collective advice received from an array of experts (Tr. p. 1176) the Parents enrolled their son in the Private School. (2009-2010) Placed in a small class setting with full day special education instruction at the Private School, the Student gradually embraced his new educational environment. The Parents entered into a stipulation with the District whereby the District agreed to pay for a portion of the Student’s 2009-10 Private School tuition. (Tr. 1296-97)
At the June 14. 2010 CSE meeting, after reviewing the Student’s evaluations, and drafting goals and objectives, the CSE recommended the following placement, for third grade for the Student, in district: (1) placement in a special class for reading and language arts, for ninety minutes per day, to be provided by a teacher who is certified in reading, special education, and general education. (Ex. 15) (Tr. pp. 119-120].
(ii) 40 minutes for supplemental instruction in reading, employing multi-sensory instruction using the Wilson methodology, in a group of two; (i111) instruction for the Student’s other core academic subject with both direct and indirect consultant teacher support. In this regard, the IEP specifically provided:
“(S)pecial Education Teacher will provide direct consultation in all academic classes, except reading language arts, and indirect consultation to the team.” - (iv) — related services of (v) the IEP also indicates that a Functional Behavioral Assessment (FBA) and Behavior Instruction Plan (BIP) will be developed at the beginning of the school year. Id.
The Parents again rejected the District’s placement and notified the District that they would be continuing the Student at the Private School. It is with this background that the impartial hearing began.
LEGAL FRAMEWORK
Reimbursement Generally
This case deals with reimbursement by the District to the Parents for tuition and related expenses incurred in the placement of the Student in a Private School. The standard is set forth in School Committee of the Town of Burlington vs. Department of Education Massachusetts, 471 US 359 (1985); Cerra v. Pawling Cent. Sch. Dist.. 427 F.3d 186, 192 [2d Cir. 2005]: [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 the Board of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim."
' The District CSE suggested, but the Parents declined, the District's offer to provide counseling as a related service, so the [District agreed to provide a counseling consultation on the IEP, which the Parents accepted. (Tr.182-183)
IDEA
The (IDEA) is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilitics residing in the state between the ages of3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
- (A) have been provided at public expense, under public supervision and direction, and without charge, - (B) meet the standards of the state educational agency, - (C) include an appropriate preschool, elementary, or secondary school education in the slate involved. and - (D) are provided in conformity with the individualized education program required under § 614(d) ofthis title. 20 U.S.C. § 601(9).’
A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute... is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP ts, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))
> "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology. psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6))
Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or-educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 61 5(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)
In New York State “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing... ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where ‘““The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.”
Schaffer. 546 U.S. at 537 However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404 (1)(c)
. With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord. Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § , 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted. a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(1)(2) of the IDEA. (20 U.S.C. § 615(1)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)
ANALYSIS
Prong I
The primary issue in this litigation is whether the District provided the Student with a FAPE for the 20010-2011 school year. The Parents have raised both procedural and substantive violations.
Procedural Violations
Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576: Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996): B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5" Cir. 1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with ‘extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)
The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon_R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119. 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itselfa safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide aFAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.
For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “‘...the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176
Procedurally, the Parents complain that they were not able to meaningfully participate in the development of the IEP. They say that they were not given a class profile and did not have an opportunity to view the proposed program. (Ex. K) (Tr. 151-54) The Parents claim a that these issues amount to a procedural violation in the planning for the 2010-11 school year. (Tr. 268-69, 704)
To this I note that the Parents were provided notice of the June 14, 2010 meeting where they participated in the discussion; they were represented by counsel who attended the meeting and the CSE considered relevant administrative data (much of it from the Private School); the CSE developed goals and objectives with parental input, and based upon these goals, proceeded to recommend a placement. (Ex. 16) IDEA does not require Parents to visit the site of a proposed placement in-District prior to a CSE recommendation. Even so, when the Parents requested that opportunity after the CSE meeting, the District acceded to that request. (Ex 26) Moreover, under Cerra v. Pawling CSD, 427 F.3d 186 (2005) there is no obligation to provide a class profile under IDEA particularly when, as here, the class was not yet formulated. (Tr. pp. 152-153)
In sum. given the Parents’ extensive participation in the June 14, 2010 CSE meeting and the District's compliance with other procedural requirements leading to the CSE meeting, I am satisfied that the District fulfilled IDEA's procedural obligations. While the Parents were clearly dissatisfied by the CSE’s seeming intransigence regarding the placement, I cannot conclude that they were denied a meaningful opportunity to participate in the formulation of their son’s IEP.
Substantive Issue
The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S.
10) Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 2" Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, require a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992). Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn.
1998) (citing Rowley)
The question is then, whether the Student can benefit from the delivery of the services in-District in an integrated regular education setting or does the Student require a small class size? There is no dispute that the Student would benefit from instruction in special education, or that the related services which the CSE recommended were warranted. The Parents however, armed with the reports from a medical doctor, (neurological consult - Ex. L - 11/13/07) a psychiatrist, (psychiatric consult - Ex. N - 1/24/08 & 1/31/08) and the educational specialists from the medical college (private psychological study - Ex. S - 2/3/09) claim that this cannot be done in a larger classroom. (ie. More than 12 students) The three sources of opinion are independent of each other, but they seem to speak with a single voice. They are all saying that the small class. size is the basic floor of opportunity.
The pediatric neurologist directed that the Student “. .. absolutely needs to be in a classroom for his curriculum and with individual support. This would most appropriately be termed a communication disordered classroom which would be small size, enriched language communication, full-time program .. .” (Ex. L p. 3) The opinion is reiterated by the same doctor in a follow-up note dated January 15, 2008: “I stand by my report of 11/13/07... A small focused class-with aids is recommended.” A psychiatrist makes a similar suggestion later that . month in her report where she suggests: “A small class size to limit distractions.” (Ex N) About one year later in February 2009 the evaluation from the private psychological study was 1] completed. The report concluded by recommending: “. . . a small, structured, self contained class in a setting that will help [the Student] to improve his speech/language abilities, reduce his anxiety, improve attention, address his behavioral difficulties and develop his social skills.” (Ex. S) The District had long been aware of this chorus of recommendations calling for a small class size but they inexplicably chose to ignore them.
“A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley. 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
The District school psychologist was working with the Student during kindergarten and first grade. She regularly met with the Student in a small group and they worked on strategies to assist in controlling anxiety. reducing frustration and generally helping the Student to operate in school. (Tr. 1774, et. seq.) One would think she would be in the best position at the District to articulate the reasoning for disregarding the opinions of the trio of experts calling for a small class. Oddly, the District did not call her on its direct case.
Instead, the District school psychologist was called as a rebuttal witness for the District relative to a collateral issue. (Tr. pp. 1301 & 1775-1778) During cross examination, and as a result of my own questioning, she was presented the opportunity to opine on many aspects of the Student’s programming and needs. Her testimony generally supported the District placement as appropriate and the least restrictive setting for the Student. However, when asked specifically about small class size (Tr. pp. 1837-1838) and the ability of the student to progress in a mix with non-disabled peers (Tr. pp. 1832-1836) her answers were inconsistent with her earlier evaluative reports (see below) and at times, difficult to understand (Tr. 1849-1852). She was able to reiterate the components of the District’s IEP (Tr. P. 1856) but her conclusion that the Student could function in the District program was unsupported by her own documented evaluations. I resolve this inconsistency in favor of her written documents and afford her testimonial recall less weight. largely based upon the passage of time since she has worked with the Student. Ultimately she conceded the benefits which the Student would enjoy in a small class: “The pace would be slower . . . he had organizational issues”. He would benefit academically in a small class. (Tr. Pp. 1860-1861)
The IDEA requires that ‘““An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs. . .” (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal
No. 93-9).” SRO 02-055
In this regard, the District was on notice of the outside interventions and opinions of the medical doctor. the psychiatrist and the educational specialists from the medical college. They either had the information directly having it available at the CSE meeting, or constructively through the District’s school psychologist who had incorporated the medical doctor’s findings in her own evaluations and who was aware of the psychiatrist’s interventions with the Student. During her own work with the Student, the District school psychologist conducted two psycho-educational evaluations which were committed to reports (Ex.s KK & 19) and she prepared a counseling summary for use at the CSE meeting when the second grade IEP was being formulated (Ex. 21). Her reports are not inconsistent with what the outside specialists had recommended. In many respects they confirm the reports. The District school psychologist wrote: “Although positive peer interactions are modeled for him, [the Student’s] anxiety interferes with him carrying over these strategies to the classroom or unstructured times at school;” (Ex 21) ‘“[The Student] appeared increasingly anxious when he perceived that tasks were going to be difficult. He seemed overwhelmed when provided with increasingly larger portions of visual information. For auditory information he benefitted from repetition when allowed;” (Ex. 19) and “[The Student] appeared to have a wealth of knowledge. However, his difficulties remaining focused, doing what was expected of him and his impulsivity significantly impacted upon his performance.” (Ex KK p.3) Notwithstanding these observations made over the course of nearly two academic years, the District school psychologist made no written recommendation of her own. Rather it was her practice to write in her reports: “All recommendations made by the Committee on Special Education should be followed.” (see, Ex.s KK, 19 & 21) As a side note, I find this practice to be less than helpful.
On the other hand, the Parents candidly provided the District with the Private Psychologist’s Team Conference Summary which was developed by an extensive multidisciplinary team consisting of the Private Psychologist and her colleagues including other psychologists, a speech pathologist, a developmental pediatrician and other professionals. The Private Psychologist reiterated the Team’s significant concerns about the Student’s placement in the District’s recommended program for the 2010-11 school year during testimony:
Our concern was that even though you might provide a lot of services for him, he would still spend a fair amount of time in the larger class and. . . because there are more students there would be more noise... more activity. ... alittle less opportunity for the teacher to interact one-to-one.
And at the same time if he were given services that pulled him out, adequate services, enough services that pulled him out of his class, there would be — we have that small group work but there would be a lot of transitions for him and he would be transitioning back into that large class. ... [i]t can be difficult for a child who has . . . sensory issues and attentional problems and... problems just getting along to come into a large, ongoing group. (Tr. 826-27)
I also credit testimony relating comments made during the June 14, 2010 CSE meeting. There, the Private School staff cautioned that putting the Student in mainstream classes would not work. In her testimony. the Director recalled that her staff tried to explain to the District that, “[The Student] couldn’t do the social studies, he couldn’t do the science in the mainstream, even if a special ed collaborative team teaching teacher was there with him. The group was too large and it was too mainstream. It was taught in the mainstream way, which the Student with his language difficulties would not be able to process.” (Tr. 1649)
The District’s June 14, 2010 recommendation demonstrates a disregard for, inter alia: (1) The Student’s need for fluid transitions between classes; (Tr. 1664) (2) The impact of pulling the Student out of an academic class in the middle of a lesson to receive pullout Wilson reading or related services; (Ex. 44, 45, 46; Tr. 1164-65, 1237) (3) The effect of the Student missing recess, his favorite time of day; (Tr. 1237; Ex. 44, 45, 46) (4) The effect of the Student missing physical education; (Tr. 1663-64; Ex. 44, 45, 46) (5) The impact of the Student missing math, science, social studies; (Exs. 44, 45,46; Tr. 1663-64) His need for consistency and routine; (Tr. 1664) (6) The detrimental effects of the Student missing Writer’s Workshop every day; (Ex. 44, 45, 46 & Tr. 1155-56, 1164-1665) (7) The Student’s expected difficulties functioning in a large class of about 20) students for the majority of his school day where he would not be able to keep pace with the majority of students who could manage the language demands of the general education program: (Tr. 1666) (8) Managing the Student’s distractibility in a large class setting, and (9) The Student’s anxiety when he cannot keep pace with the curriculum and with his classmates and the accompanying need for immediate reassurance. (Ex. 44, 45, 46; Tr. 1654-1669)
With this in mind, I find myself struggling to understand why the District opted out of a small classroom for the Student. Clearly the District developed a program offering specialized education and related serviceswith well qualified service providers. The evaluations to identify the Student's needs were available and the CSE worked to establish appropriate annual goals and short-term instructional objectives related to those needs. While the District has made a studied hypothesis that the Student can proceed in and integrated class they have failed to explain their disregard of the professionally indicated small class. Furthermore the District argues that they Were constrained by the requirement of placing the Student in the Least Restrictive Environment. However, based on the record in this matter, I am not convinced that the Student was in a position to benefit from the potential benefits of an integrated classroom.
Prong IJ
] must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. (3-062; Application of a Child with a Disability, Appeal No. 02-080 In order to meet that burden, respondent must show that the services provided were "proper under the Act." (Carter. 510 U.S. at 12, 15: Burlington, 471 U.S. at 370) 1.e., that the private school offered an educational program which met the student's special education needs. (Application of a Child with a Disability, Appeal No. 01-010) The private school need not employ certified special education teachers or have its own IEP for the student; (Carter, 510 U.S. at 7; Application of a Child with a Disability, Appeal No. 02-014, Application of a Child with a Disability, Appeal No. 01-105)
In the instant case, the Private School in which the Student was unilaterally placed by the Parents is appropriate. This conclusion is supported in part by the District’s IEP where the Present Levels of Performance highlight that the Student “has made gains in reading, whereas he reportedly was a non-reader in September [2009]. Sight-word approach to reading is a strength for him. He now has over 150 mastered sight words, and can read these within a story text. He is now able to track on his own and read stories with several sentences on a page. He has also made growth in oral reading fluency.” (Ex. 15 p.
4 of 10) The IEP “comments” further acknowledge that ‘““Math continues to be a strength for [the Student]. He has become a more confident, cooperative learner and continues to benefit from the daily routine.” (Tr. 264; Ex. 15 p.
6 of 10)
The Private Reading Teacher, the Student’s current reading teacher at the Private School, is a Wilson Level I instructor, who has taught the Student since he enrolled in the Private School in September 2009. (Tr. 1410-15: Ex. Y) For the 2010-11 school year, the Private Reading Teacher provides the Student with instruction in reading, writing, and science. (Tr. 1416-17) For reading, she primarily uses the Wilson method, incorporating a variety of multi-sensory material and instructional methodologies. (Tr. 1420-25, 1429-31) The Private Reading Teacher testified that the Wilson program is comprised of three parts: decoding, encoding and comprehension. She teaches decoding through “tapping out” each sound, and she teaches encoding through the use of magnet boards to spell words. (Tr. 1422-25) She provided a detailed description of Wilson kinesthetic strategies.”
The Private Reading Teacher provides the Student with daily reading instruction in a group with
* The kinesthetic strategies used with the Student include, inter alia, tapping, scooping, punching it out, sky writing, letter cards. white board, Post-lts (Tr. 1428-29, 1440-45) two other students who have similar reading needs. (Tr. 1433, 1435) The Private Psychologist observed the Student in his Wilson reading class at the Private School in November 2010, and she testified that the Student “was engaged the whole time.” (Tr. 869-72)
The results of the Wilson Assessment of Decoding and Encoding (WADE) provide evidence of the Student’s progress in reading at The Private School. Specifically, he demonstrated notable increases in WADE scores for Total Sounds, Total Words and the Total Spelling from September 2009 to September 2010. (Exs. R. X. Y, HH) The DSS testified that the Student’s scores In these areas increased between September 2009 and April 2010, the period of time that the Student attended The Private School. (Tr. 254-58; Exs. R, X) She further testified that the color-coded bar graph illustrating the Student’s progressively increasing WADE score accurately represents the scores reported on the WADE protocols. (Tr. 257-58; Ex. HH)
In January 2009, the Private Psychologist first administered to the Student the Rosewell-Chall Reading Test of Word Analysis Skills. At that time, the Private Psychologist estimated that the Student performed at the early first grade level. (Tr. 839) When the Private Psychologist repeated the Rosewell-Chall in August 2010, “‘He was testing at about... mid second grade level on his phonics, which also was a big jump.” (Tr. 838) The Private Psychologist attributed the Students progress on the Rosewell-Chall to “[hJard work. . . .”’ She explained that “these are learned skills... . [W]e need to be taught these sounds, or at least children, a lot of children do pick things up but this is a systematic instruction in phonics. And [the Student] had been receiving systematic instruction in phonics [at the Private School], so that seemed to be working.” (Tr. 840)
There was testimony that the Student’s declining standard scores on the Woodcock Johnson III (WJ HI) between January 2009 to August 2010 may be attributable, in part, to three factors impacting test score variability: statistical variability, environmental variability (i.e., noise in the test room or medication), and variability of the child’. (Tr. 845-46) The Private Psychologist explained that summer testing can often reflect a student’s regression if there has been a change in program during the summer or if the student has not “. .. been practicing for a while.”° (Tr.
857) This was the case with the Student who was away from The Private School during the summer of 2010 while he attended an in-District summer program which did not provide continuity of instruction. (Tr. 715-17)
The Director and the Private Psychologist testified that the Student is making progress relative to himself as evidenced by increases in grade equivalent scores on the WJ III. (Tr. 1011, 1013, 1698-1700) The Director explained that the Student will not begin to close the gap with same age peers until he masters all the fundamentals — his same age peers are moving up at a “much quicker rate” than the Student because “he has all of these other significant difficulties.” (Tr. 1699)
The Student has made solid academic gains, developed reading skills, improved his self-esteem and fostered meaningful friendships. I am mindful that the Student’s Parents’ placement at the Private School "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Hyde Park CSD, 459 F.3d 356, 363 (2d Cir. 2006) quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000) citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that "the test for the parents’ private placement is that it is appropriate, and not that it is perfect"). Accordingly, I find that the Parents have sustained their burden with respect to Prong IL
* The Private Psychologist explained that “A child who, like the Student, who has these various problems might affect it more that it would affect another child.” (Tr. 847) On the day of the August 3, 2010 testing, she stated that the Student was ery. vigilant, fidgety. easily frustrated, and distracted. (Tr. 847-48) * For example. the Private Psychologist recognizes a decline in Math Fluency scores from 2009 to 2010, but cannot determine whether the decline resulted from regression in math skills or attentional problems. (Tr. 852)
Prong III
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or.by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concems and their intent to enroll their child in a private school at public expense.” (20 U.S.C. § 612[a][{10][C] [iii] [I]°; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy_N., 358 F.3d 150, 160 {1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002), Carmel Central Sch. Dist. v. V.P., 2006 WL 2335140 (2d Cir. Aug. 9, 2006))
* 20 U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . .. may be reduced or denied-- *’ (I)if-- ‘"(aa) at the most recent IEP meeting. . : or ‘‘(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency (iv) Exception. --Notwithstanding the notice requirement in clause (iii)(1), the cost of reimbursement— (I) shall not be reduced or denied for failure to provide such notice if-- ...; or (cc) compliance with clause (111) would likely result in physical harm to the child; and (IT) may. in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice 1f--. (bb) compliance with clause (i11)(1) would likely result in serious emotional! harm to the child The record reflects that the Parent offered the District the requisite notice. Because of this and in consideration of the totality of the record I find no basis under prong III to reduce or deny tuition reimbursement.
It is therefore ORDERED
That the District reimburse the Parents for one-hundred percent of the cost of tuition up to this point at the Private School for the 2010-2011 school year upon presentation of a properly receipted bill for the cost of same; and That going forward, I direct the District to develop and implement at public expense an IEP placing the child in the Private School for the remainder of 2010-2011 school year.
Dated: January 26. 2010
Martin Kehoe, III
Impartial Hearing Officer
Exhibits considered - see Addendum
APPEAL RIGHTS
Appeal to a State Review Officer of the State Education Department A review of the decision of a hearing officer rendered in accordance with New York State Rules and Regulations may be obtained by either the parent or the Board of Education by an appeal to a State Review Officer of the State Education Department. Such a review shall be initiated and conducted in accordance with the provisions of part 279 of Title 8 of The New York State Code of Rules and Regulations. The written decision of the State Review Officer, a copy of which will be mailed to the parent and the Board of Education, shall be final, provided that either party may seek judicial review by means of a proceeding pursuant to Article 78 of the Civil Practice Law and Rules or 20 U.S.C. section 615. Title 8 NYCRR § 279.2 Notice of intention to seek review.
(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form: Notice: The undersigned intends to seek review of the determination of the impartial hearing officer concerning the idenulicauion, evaluauion, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter A copy of the decision of the impartial hearing officer, a hound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the ©ffice of State Review of the New York State Education Department within 10 days after service of this notice.
(b) 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 schoo! district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the schoo! 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.
(c) A notice of intention to seek review shall not be required when the Board of Education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.
PROCEEDINGS
wfWNmp
INDEX
WITNESS DIRECT CROSS REDIRECT RECROSS
72
EXHIBITS:
JOINT
iCNoOH
NUMBER DESCRIPTION FOR ID IN EVID
L June 4th, 2010 IEP, nine pps. 38
2 IEP dated January 22nd, } 10
2009, ten pps. 38 11
3 IEP dated May 21st, 2008, 12 ten pps. 38 13
4 TEP dated January 28th, 14
2008, nine pps. 38
5 IEP of November 29th, 2007, 16 eight pps. 38 1/7
6 IEP of July llth, 2007, 18 nine pps. 38 19
7 IEP of May 23rd, 2007, 20 eight pps. 38 21
8 Annual review document
22
From the a
23 three pps., for schoo] 24 | year 2010-2011 38
NwWf&meO
INDEX CONTINUED:
EXHIBITS:
JOINT
NUMBER ESCRIPTION FOR ID IN EVID
9 y
Annual review document, Ne] two pps., for first grade, 1} 28th, 2009 38
10 progress report for spring
2010 from 38
11 Two pp. educational progress report from the for March 2010 38
12 Three pp. reading special assessment by dated June 10th, 2009 38
13 Five pps. of notes of observations at the in 2010 38
14 Progress reports from the dated
2009-2010, 15 pps. 38
15 June 14th, 2010 IEP, 10 pps. 38
FWN&AwfF
| INDEX CONTINUED:
! EXHIBITS:
JOINT
NUMBER DESCRIPTION FOR ID IN EVID
16 Nine pp. psychoeducational wNoa
| evaluation from | , phD., dated
January 26th, 2009 38
17 One pp. note from dated May 10th, 2009 38
18 IEP of June 22nd, 2009, nine pps. 38
19 Confidential psychological reevaluation from bearing various dates in May of 2009, four pps. 38 : 20 Team conference summary from | dated March 11, 2009, nine pps.
21 Two pp. counseling progress report fror.
dated April 5th, 2009 38
2
3 |
| EXHIBITS:
|
JOINT
| NUMBER DESCRIPTION FOR ID IN EVID
[22] icQNoD from . dated
2/25/09, 11 pps. 38
23 a review summary dated 4/24/09, 10 two pps. 38 11
24 Request for due process dated 12
August 11th, 2010, seven pps. 38 13
25 Two pp. document titled 14
Opening Statement dated
June 4th, 2010 38 (16
26 One pp. June [23], 2010 notes 17 from a visit to 18
38 19
27 class list by teacher printed 20
9/21, 2010, one pp. 38 21
28 Student profile report
1
? INDEX CONTINUED: P
3 EXHISITS:
4 PARENTS ~~
NUNVBERTM DLUSCRIF aur rei oVvIn
5
A TS rout Marroer elated mw bev frye te wee CARL
6
August 17th, 2010 38
7
B Two pps. ietter, -vesponse, 8 | ; | duc mrocecs hearing ranguect
9 | on ot
|
Arsene SBnet SAtL: 39 !
MALT AUN Bim Be -Pat
10 |
C One pp. letter dated August —
11
22nd, 2007 38
12|
3 sume 2OtT, MRO), meagrescs _. oe
13 report 5 pps. 38
14
E Four pps. report dated
15 — june oF *OSD 32
16
- One nn., dated January 2?nd.
17 |
2608, CSE CST proposal sheet [22]. |
T8 -————
G January 21st, 2009 letter
14g one DD. 38
20 aH Awe sm batter dntad
A WIS pepe rece; CO re ae os OI
2h
January 22nd, 2009. -- 28 ..
PNOVDWFoNHP
INDEX CONTINUED:
EXHIBITS:
PARENTS’
NUMBER DESCRIPTION FOR ID IN EVID
J Two pp. email dated
June 15th, 2010 38
One pp. Tetter from D.B. 38
Three pp. letter from 38
NBRPONFeBEP"DOWPBFHIDNBO
Two pp. handwritten note dated January 15th, 2008 38
One pp. Jetter dated
February 20th, 2008 from 38
Five pp. evaluation dated
November 4th of 2008 38
One pp. recommendation dated April 22, 2009 38
Two pp. evaluation dated April! 19, 2010 38
One pp. dated September of 2009, WADE summary 38
Seven pps. assessment
INDEX CONTINUED:
WwNN EXHIBITS:
PARENTS'
NUMBER DESCRIPTION FOR ID IN EVID
T Four pps. educational
OCNMoH
Assessment by 38
U One pp. undated profile from the 38
7 Two pps. handwritten, the 10 first from 11| and the second labeled T.B. 38 12
W Three pps. dated June 4th, 13
2010, a chart 38 14 x WADE, one pp., LS dated April 22nd, 2010 38 16
Y SiX ppS. ‘progress report 17| dated 2009-2010 38 18
Z Five pps. annual review 19 for 2010-2011 school year 38 20
AA One pp. letter sworn to pant on September 21st, 2010
22 from the 38 23 24
INDEX CONTINUED:
EXHIBITS:
PARENTS’
NUMBER DESCRIPTION FOR_ID IN EVID
BB Three pps. contract dated
September 2010 from the 38
CC Qne pp. letter from the
NHBRPeBOFWBHTbU>DPNFHC
dated
September 21st, 2010 38
DD One pp. profile from the , undated 38
EE One pp. copy of a bank check 38
FF One pp. dated June 23, 2010, notes of observation 38
GG One pp. schedule with the student's name on top 38
HH Graph comparison of WADE scores, one pp. 38 : II One pp. email dated : July 21, 2010 38
33 Report dated August 3rd, 2010, four pps. 38 De] rt
INDEX
WITNESS DIRECT CROSS REDIRECT RECROSS
170 310 366
372
EXHIBITS:
PARENTS‘
NUMBER DESCRIPTION FOR ID IN EVID
KK Psychological reevaluation
NBPHFORNEMePpBBWODEFN©UHNFO
dated 12/07, five pps. 171
LL S$/22/08 one pp. letter 171
MM IEP dated 6/18/08, 10 pps. 171
NN Progress report for 2008-2009, four pps. 172 (ore) One page teacher report dated April 29, 2009 172
PP Two pp. permanent record card ending in June ‘09 172
QQ physical therapy
“evaluation dated April 19th, 2010, two pps. 173
RR Annotated present levels of performance list dated June
4th, 2010, three pps. 173 nh JT
FWmCNDUPBwoOYPW
ENODEX
WITNESS DIRECT CROSS REDIRECT RECROSS
387 439 480 486
490 534 594
EXHIBITS:
PARENTS’
NUMBER DESCRIPTION FOR ID IN EVID
SS Document brought to 405 407
NPFBRbONMmePEoaTrWtQNw>©e4o|OniNS)d hearing by TT Class MAPS 981
JOINT
NUMBER DESCRIPTION FOR ID IN EVID
30 Transcript of phone conversation between and 457 462
31 daily schedule for 2010-2011 school year 498 498
32 daily schedule for 2010-2011 school year 498 499
DIRECT -
PWt-mw
THE WITNESS: That's where is.
THE HEARING OFFICER: Okay. All
right, I don't have any other questions now. Thank waogmn you, okay. And we'll go off the record for today.
(Time noted: 3:05 p.m.)
10
11
12 INDEX
13 WITNESS DIRECT CROSS REDIRECT RECROSS
14 604
15
16 EXHIBITS:
17 PARENTS
'
LETTER DESCRIPTION FOR ID IN EVID
18
Y SiX pps. progress report
19 dated 2009-2010 38 603 20 21 22 23 24
1028
NbWHhwN
INDEX
WITNESS DIRECT CROSS REDIRECT RECROSS
790 893 1012 1026
WA 1023
OCNDoY
EXHIBITS:
JOINT
NUMBER DESCRIPTION FOR ID IN EVID
33 CV 763
34 Page 92 from the Examiner's 10 , Manual for the woodcock-Johnson 11
III Test of Achievement 763 12
35 ADOS scoring sheet by 13
765 14
36 Information release completed 15 by for the CERC, 16 four pps. 766 17
37 Handwritten notes from 18 observations at 19 the -, SiX pps., 20 dated 11/5/10 767 21
38 Handwritten notes of 22 from her
23 observation on 11/12/10 at 24 , four pps. 767
1243
OWDCNHwoOPW
INDEX
WITNESS DIRECT CROSS REDIRECT RECROSS
1033 1124 1157
1185
1193
EXHIBITS:
JOINT
NUMBER DESCRIPTION FOR ID IN EVID
40 intake eval
NHBSReMNHPFB0OWNFT&wHYCNDWB©
conducted in 2009 1034 1036
41 Intake referral form 1034 1036
42 Developmental history form 1037 1040
43 Parent conference form 1040 1043
44 Proposed district schedule 1154
45° Proposed district schedule 1154
46 Proposed district schedule 1154
47 current class schedule 1168 1168
PARENTS'
NUMBER DESCRIPTION FOR ID IN EVID
UU Letter sent to parents of from the school psychologist 1138 1139
1490
INDEX
Ad WITNESS DIRECT CROSS REDIRECT RECROSS
1251 1274 1295 1300
ONDWBoYf
1303 1305
1308 1383 1397
1410
EXHIBITS:
10 JOINT
NUMBER DESCRIPTION FOR ID IN EVIO
11
48 Packet of documents 12 brought by 1273 1275 13
14 PARENTS
'
NUMBER DESCRIPTION FOR ID IN EVID
15
YY WADE results from
16
September 2010 1451
17 zz Bar graph representation
18 of three different
19 administrations of the WADE 1457 1463 20 21 22 23 24
17 67
WbNFwhYW wrap it up tomorrow, though. Okay. we'll start at ten.
(Time noted: 5:05 p.m.)
JT [o)
INDEX
WITNESS DIRECT CROSS REDIRECT RECROSS
1496 1531 1552
10 1560
11 1566 (1674 1757 1761
12 1762
13 EXHIBITS:
14 JOINT
NUMBER DESCRIPTION FOR ID IN EVID
15
49 2010-2011 log for 16 the time out room 1510 1510 17
18 PARENTS
'
LETTER DESCRIPTION FOR ID IN EVID
19
AAA Goals and objectives
20 for for speech and
21 language for 2010-2011 1634 1635
22
BBB Goals and objectives for
23 the language arts program
24 for for 2010-2011 1637 1637
1960 bWNFhYN
INDEX
WITNESS DIRECT CROSS REDIRECT RECROSS
_ 1772 1778 1839 1857
1889
1909 1911 1950
10 cNMoam EXHIBITS:
NUMBER
50
JOINT
DESCRIPTION
Document
FOR ID IN EVID
1907 11
51 Document 1907
12
§2 Document 1907 13 14 15 16 17 18 19 20 21 22 23 24
Footnotes
[22] printed September 21st,
[23] 2010, 17 pps. 38 24 29 March 26, ‘O/7 IEP 38 ceCpn — May 7th, y 2010 _ ~ . 38
[22] at .---One.pn. letter dated 23 dated February 3rd of 2009 38 vv Copy of photograph | 1143 1146 WW Copy of photograph 1150 ny iwi XX Copy of photagraph 1152