NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student‘s Name:
Date of Birth:
District: 4
Hearing Requested By: Parent
Date of Hearing: January 12, 2011
February 4, 2011
May 10, 2011
May 31, 2011
Record Close Date: July 25, 2011
Hearing Officer: Rachel Potasznik, Esq. Hearing Officer‘s
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 12, 2011
Advocate, Educational Advocacy Services (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2011
Advocate — Student
Parents
Dean/Teacher, (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2011
Advocate — Student
Parents
Educational Advocate (via telephone) — Student
Attorney — DOE
School Psychologist (via telephone) — DOE
Hearing Officer‘s — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2011
Advocate — Student
Parents
Focus Teacher, (via telephone) — Student
Worker, (via telephone) — Student
Attorney — DOE
Principal, School for (via telephone) — DOE
Hearing Officer‘s — DOE
On September 9, 2010 I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the education program of . (‗ .‖); the hearing was held on January 12, February 4, May 10 and 31, 2011. Lists of persons in attendance and documents received in evidence are appended to the record.
BACKGROUND
In the student's prior Individualized Education Program (―IEP‖) developed for the 2009-2010 school year, . was classified as Other Health Impaired (―OHI‖) and the Committee on Education (―CSE‖) recommended a Collaborative Team Teaching (―CTT‖) class with / and services. (Exh. A) At the commencement of this hearing, . was a year old enrolled at the School, (― ‖) a private non-state approved school where he has been enrolled as a student since the grade. On January 15, 2010 the CSE met for a review but decided that additional updated tests were needed to evaluate the student and the CSE reconvened in May 2010. (Exh. 2) A letter dated 3/16/10 from CSE was sent to the parent requesting consent for reevaluation and was signed and returned by the parent consenting to the reevaluation. (Exh. 4) A letter dated May 6, 2010 was sent to the parent with Notice of an IEP Meeting for Reevaluation/Annual review to take place on May 26, 2010. (Exh. 5) On May 26, 2010 a CSE review was held which resulted in the development of an IEP which recommended that . be decertified, classified him as nonhandicapped and recommended placement in a general education class with declassification support services of Education Teacher Support Services (―SETSS‖) one period per day and : once a week for 40 minutes. (Exh. 2) A final notice of recommendation (C10) letter dated June 1, 2010 was sent to the parent with the recommended placement of a public general education school in .'s home zone of The parent sent a letter dated June 22, 2010 to the CSE stating that she observed the recommended program on June 22, 2010 and found it inappropriate due to the class size being too large with only one teacher in the class. The parent also expressed her disagreement with the classification of the student as non-handicapped and Hearing Officer‘s of her intention to re-enroll . at . Due to her disagreement with the CSE's recommendations, she requested an impartial hearing or tuition reimbursement. (Exh. D)
On August 18, 2010 the office of , the parent's advocate sent a letter to the CSE to serve as a 10 day notice letter, expressing its disagreement with the CSE's recommendations and of their intent to enroll their child for 2010-2011 school year at the . (Exh. C) On September 3, 2010 the parents filed a due process complaint, through their advocate, claiming that the Department of Education (―DOE‖) had failed to provide . with Free Appropriate Public Education (―FAPE‖) due to various procedural and substantive violations of the Individuals with Disabilities Education Act (―IDEA‖) and NY State Regulations and again advising the DOE that they were enrolling . at the for the 2010-2011 school year. The complaint requested that the DOE provide: tuition for the ; related services from the last agreed upon IEP and school bus transportation to and from the .
ISSUES
Was decertification appropriate? Were all legal procedures followed?
THE DEPARMENT OF EDUCATION'S POSITION
The DOE claims that the CSE properly decertified and declassified the student and made an appropriate recommendation for the 2010-2011 school year including services to aid the student in transitioning from education to the general education environment. Therefore the student is not entitled to reimbursement under the IDEA and there is no need to address Prong II as there is no education required. The DOE maintained that even if the DOE was found to have improperly decertified the student, the parents failed to show that was an appropriate placement and the equities favor the district because the parent while giving the appearance of cooperation had no intention of placing the student in a public school. However, since decertification was appropriate there is no legal authority to examine the proposed placement. Hearing Officer‘s
, school and a member of the CSE review team, testified that the team recommended that the student be decertified due to his current academic functioning which was on or above grade level in all areas of cognitive and academic development. [Tr. 73-75] She testified about the many evaluations and documents that were considered by the review team in making their determination to decertify the student. She discussed the educational evaluation by Dr. which indicated the student was performing at or above grade level academically. [Tr. 77-79] Ms. testified about the student's teachers reports and the student's grades and GPA which indicated that . was functioning at or grade level. She explained the discrepancy between the district's testing and the 's testing in the area of reading fluency and how that effected the CSE's determination. The CSE relied on the district's evaluations as well as the objective testing performed by the student's private school in making their determination to declassify the student. [Tr. 78] The CSE determined that the student did not meet the classification of Other Health Impairment (OHI) under the IDEA. [Tr. 73-74] Ms. testified that the team discussed a potential diagnosis of
Disorder, however, there was no documentation presented at the meeting to support the diagnosis. Ms. stated that the team believed that the did not adversely affect the student's academic performance and therefore did not indicate a classification of disability of OHI. Ms. testified that the definition of OHI includes a requirement that confirmed medical condition would have to cause the student difficulty performing in his educational environment. [Tr. 81] Ms. stated that decertification supports were recommended for the student to assist in the transition to the general education environment. [Tr. 92-94] These services included SETSS once a day to provide the student with strategies to which he was accustomed during the 2010-2011 school year to address academic management needs, such as graphic organizers and outline planner organizers, extra time to complete work, encouragement asking for clarification when needed to assist the student with self advocacy, and teacher prompts to Hearing Officer‘s refocus for difficulties. (Exh. 2, p. 4) The CSE also recommended once a week to address the student's identified and emotions issues. [Tr. 88]
, principal of the School for , testified that the student would have been offered a seat at the school and she would determine which class the student would be placed after receipt of the student's transcript and a description of his classes. Due to the fact that the student had not taken Regent's exams it was impossible to predict which class the student would be placed before the testing was done. The transition would be made as easy as possible for the student. [Tr. 264-268]
THE PARENTS POSITION
The parent claimed that the decertification by the CSE was improper; the student was denied FAPE; the parents unilateral placement of the student at the was appropriate for the 2010-2011 school year; that they are entitled to tuition reimbursement for and the provision of related services mandated on the IEP.
The parent claimed that the DOE failed to comply with procedural requirements of the IDEA in developing the May 26, 2010 IEP on the following grounds:
1. the DOE failed to provide specific notice to the parent that the primary purpose of the meeting was to declassify the student;
2. the DOE failed as required to do a full reevaluation, and with that information and with input from the parent, identify if any additional data was necessary;
3. the DOE did not inform the parent of her right to request additional assessments after their determination concerning the student's classification.
The parent also claimed that the May 26, 2011 IEP was not reasonably calculated to confer educational benefits on the student because the existing evaluation data available to the CSE did not support the decision to decertify the student from education. They claim that the DOE's determination that the student was functioning in the average range in all areas was not accurate based on the evaluation data because:
1. the April 12, 2010 educational assessment was not an accurate picture of the student's needs; Hearing Officer‘s
2. the determination that the student's - functioning did not impact the student's academic functioning is incorrect;
3. the classroom observations and reports considered by the CSE contradicted the team's decision to declassify the student.
The parent claimed that the CSE's recommendation of general education in a class of to students and SETSS one period a day in a group of students would not meet the student's needs given his need for support throughout the school day; that the recommended general education placement was not appropriate because the principal of the recommended placement stated that it would be ―problematic‖ for the student to enter the school in the grade because he had not taken any exams and in order to the student in June 2011 . would have to take and pass the Regents exams. The student's relative success during the classroom observation and education evaluation stemmed from the accommodations he received for the past years at .
The parent claimed that the was an appropriate placement which offered the student an educational program which met the student's educational needs and where he was able to make progress and that equitable considerations support the parent. In addition to the parent's testimony the parent presented the testimony of , dean and teacher at , , .'s focus teacher at , , worker and , the parent's advocate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The district bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability. The IDEA requires that a board of education evaluate a child with a disability before determining that the child is no longer eligible for classification. Section 1414[c][5]. As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related service provider observations. Section 1414[c][1][A]. After reviewing that information and information provided by the Hearing Officer‘s child's parents, the CSE must identify what, if any, additional data are needed to determine whether the chiold continues to have a disability, the present levels of performance and educational needs of the child, and whether the child continues to need education and related services. 20 USCS 1414[c][1][B]. If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, the board of education shall notify the child's parents of that determination and the reasons for such determination. The CSE must also inform the parent of their right to request an assessment to determine whether the child continues to be a child with a disability. 20 USCS 1414 [c][4][iii].
A CSE is charged with the obligation of determining whether a student meets the criteria for classification as child with an educational disability under the IDEA, once a parent made their child available to the DOE for testing and observations that are required by law. 34 C.F.R. Secs. 300.111, 300.116, 300.301. If it is found that the DOE did not offer services, or that the services offered were inadequate and or inappropriate and the parents show that their chosen program is appropriate and the equitable considerations favor the parents, then the parents can be awarded reimbursement for the tuition payments paid to the unilaterally chosen private school. 34 C.F.R. Sec 300.148(c); Application of a Child with a Disability, Appeal No. 06-132.
The IDEA defines a child with a disability as a child with a specific , mental or condition, ―who by reason thereof needs education and related services.‖ 20 U.S.C. Sec. 1401 (3)(A). In order to be classified as a child with a disability under the Federal regulation as provided in 34 C.F.R. Sec. 300.7[a][1], or under the New York State regulations, 8 N.Y.C.R.R Sec. 200.1[mm], a child must not only have a specific or mental condition, but such condition must adversely impact upon the child's performance to the extent that he or she requires education and or related services. Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of Child Suspect of Having a Disability, Appeal No. 94-42. Hearing Officer‘s
The determination of whether a student's condition adversely affects his or her educational performance such that the student needs education within the meaning of the IDEA, is an issue that has been left for each state to resolve. J.D. v. Pawlett Sch. Dist., 224 F.3d 60,66 (2d Cir. 2000) Courts in New York have consistently held that each student is different and that the effect of his particular impairment on his educational performance must be determined on a case by case basis, with an emphasis on whether the student's actual academic performance is negatively impacted by their disability.
A CSE is responsible for evaluating children with disabilities and/or suspected of having disabilities who reside with the school district. The team must conduct certain assessments that they deem necessary. 20 USCS Sec. 1414(b)(2); 8 NYCRR Sec. 200.4 (b). Upon consideration of all of the materials and discussion with any service providers that they deem necessary, the team must decide whether the student meets the criteria to be classified as a student with a disability. 20 USCS Sec. 1414(d); 8 NYCRR Sec. 200.4 (c). The review team must include all the legally mandated members as required under the IDEA and the New York Ste regulations. 20 USCS Sec. 1414(d)(1)(B); 8 NYCRR Sec. 200.3 (a). The policy considerations of incorporating a full team are to ensure that the CSE team and the parent(s) are provided with all of the appropriate people and expertise necessary to make an informed decision about the course of services which would benefit the student in question, as well as ensure that the parent's due process rights are protected.
Pursuant to New York State regulations, the required participants must include the parent; a regular education teacher if the student is, or may be participating in the general education environment; a school psychologist; a education teacher and/or a related service provider; a district representative who is a representative of the school district, who is also qualified to provide or supervise education is knowledgeable about the general curriculum and the availability of resources of the school district and who may also fulfill the role of another person on the team; a school physician is required if the request is made in writing by the parent(s) at least 72 hours prior to the meeting; a parent Hearing Officer‘s member; any other person that the school district and/or parent designate as having knowledge or expertise regarding the student; and the student if deemed appropriate. 8 NYCCRR Sec. 200.3(a)(1)(i) through (x).
At the CSE review held on May 26, 2010, the CSE was comprised of the student's mother, a general education teacher, who also served as the district representative, a parent member , the student's then current teacher, , the parent's advocate, and the district's school psychologist, . The CSE team was duly constituted as it was comprised of all the legally mandated members. The request of the student's related service providers is discretionary under State law (and not required under Federal law) and the failure of a district to explicitly and personally invite the related service providers does not violate the procedural requirements.
The student's parents were informed by letter, in the Notice of IEP Meeting dated May 6, 2010, that they ―may bring other individuals who have knowledge or expertise regarding your child.‖ (Exh. 5) The parents were not precluded from inviting related service providers to attend and participate in the meeting, nor is there any testimony that the parents requested that the meeting be postponed or rescheduled for the purpose the related service provider's attendance.
The related service providers' absence from the CSE meeting did not render the CSE meeting procedurally invalid. The student did not receive and therapy during the 2010-2011 school year nor at the time of the CSE meeting, therefore there was no / related service provider that could be invited to the meeting. [Tr. 135] No testimony was presented regarding a request for the student's counselor to attend the meeting or that the parent attempted to include the student's counselor at the meeting. The CSE conducted updated evaluations of the student, observed him in his current school environment and reviewed the student's current school progress reports. (Exhs. 7,8,9,10) Hearing Officer‘s
The CSE review team was comprised of the required members. Private psychologists and medical doctors are not required members of a CSE team but parents have the right to bring any person who ―possesses knowledge or expertise regarding the student to a CSE review. 8 NYCRR Sec. 200.3(a)(1)(i) through (x). There was no testimony indicating that the parent asked the CSE team to have any particular person participate in the meeting, but they did avail themselves of the right to bring an advocate from Educational Advocacy Service (―Ease‖). However, there was no evidence that the parent informed the CSE that the student was even being seen by a private psychologist. Despite the fact that the parents did not provide documentation regarding treatment by that psychologist or request his presence at the meeting, the CSE recommended for the student based on the discussions at the meeting. I find that the May 26, 2010 CSE review team was duly constituted under the law.
Procedural errors will not negate the adequacy of an IEP where the child‘s education has not been affected and the parents have not been deprived of meaningful participation in the process. Not all procedural errors render an IEP legally inadequate under the IDEA. Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student‘s right to a FAPE, (b) significantly impeded the parents‘ opportunity to participate in the decision-making process regarding the provision of FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. 1415(f)(3)(E)(ii); 34 C.F.R. 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); E.H. v. Bd. of Educ., 2008 WL 390028 (N.D.N.Y. 2008); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. 2007), aff‘d 2008 WL 3852180 (2d Cir. 2008).
I find the parent's claim of procedural errors to be without merit. But even if there were procedural errors none caused a deprivation of educational benefits. The CSE worked with recent objective evaluative criteria and updated information from the student‘s mother and current teacher, from which it made educated and reasoned professional decisions to change the student‘s classification to reflect his current Hearing Officer‘s functioning and to recommend an appropriate program for the student‘s 2010-2011 school year.
The parents were permitted meaningful participation in the CSE meeting. Federal and State regulations require districts to take steps to ensure that parents are present at their child's IEP meetings and are afforded the opportunity to participate (34 C.F.R. § 300.322; 8 NYCRR 200.5[d]; see Cerra, 427 F.3d at 193; Perricelli, 2007 WL 465211, at *14-15 Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d. 366, 378-79 [S.D.N.Y. 2006]; see also Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]; A.E. v. Westport Bd. of Educ., 2006 WL 3455096 [D. Conn. Nov. 29, 2006]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation See P.K. v. Bedford, 569 F. Supp. 2d at 383 ["A professional disagreement is not an IDEA violation"]; Sch. for and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella, 2006 WL 3697318. The IDEA guarantees an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. I
There was no evidence or factual support for the parent‘s allegations that they were denied meaningful participation or that the CSE ignored the student‘s current teacher‘s input. The credible testimony of psychologist indicated that the CSE considered the student‘s teachers' and mother‘s input and although the parent did not agree with the recommendations, the team made the proper recommendations for the student.
The CSE based its recommendations on recent and proper evaluative criteria. The IDEA requires that a FAPE be tailored to the unique needs of the handicapped child by means of an IEP at a meeting between a qualified representative of the Hearing Officer‘s local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child. The IEP consists of a written document containing: (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." 20 U.S.C. § 1414(d). In developing a particular child‘s IEP, a CSE is required to consider four factors: (1) academic achievement and characteristics, (2) development, (3) development, and (4) managerial or needs.‖ Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007).
The IEP contained valid performance sections that described the students current academic, / , and cognitive functioning. The New York State regulations do not require these sections be based or contain standardized evaluations or testing. See 8 NYCRR §200.4(d); See also Appeal No. 10-004. In Appeal 10-004, the SRO found that an ‗appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs‘ and that ‗a CSE is not required to use its own evaluations in the of an IEP and in the recommendation of an appropriate program for a student. For such purposes, a CSE may rely upon a private evaluation in lieu of conducting its own evaluation.‘ The SRO also noted that there was no testimony that the parents requested the district to conduct any additional evaluations of the student that the district declined to conduct nor did the parents claim the evaluations in the record were deficient in any way. In this case, the district convened an initial meeting on January 15, 2010, but decided that updated evaluations were needed and reconvened in May 2010 after additional evaluations were conducted. The team Hearing Officer‘s included information from recent evaluations and the student‘s current teacher in the present performance sections of the IEP.
The CSE properly decertified the student based on recent evaluations and updated information. The CSE team is required to review all the existing evaluations pertaining to the child, as well as evaluations and information provided by the parent. 34 CFR 300.305 §(a)(1)(i). In the May 26, 2010, annual review meeting, the team considered the student‘s CSE file including an updated education evaluation, containing objective and normative tests, (Exh. 9), a Evaluation, also conducted with a normative and objective test, the CELF 4 (Exh. 7), an updated History Evaluation ( Exh. 8), and reviewed the student‘s most recent school progress reports. [Tr. 71]. The CSE based its recommendation to decertify the student as a student with a disability on updated evaluations.
Upon consideration of all of the materials and discussions among the members of the CSE team, the team is required to determine whether the student meets the criteria to be classified as a student with a disability. 20 USCS §1414(d); 8 NYCRR §200.4(c). The CSE team determined that the student should no longer be classified as a student with a disability and therefore classified the student as non-handicapped, and recommended that he be placed in a general education program with decertification support services. (Exh.
2) Ms. 's testimony indicated how the CSE relied on the district's evaluations as well as the objective testing performed by the student's private school in making their determination to declassify the student. [Tr. 73-78]
The CSE properly determined that the student did not meet the classification of Other Health Impairment (―OHI‖) under the IDEA. [Tr. 73-74] Under the IDEA, Other Health Impairment is defined as having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that—(i) is due to chronic or acute health problems such as Asthma, Deficit Disorder or Deficit Disorder, Diabetes, Epilepsy, a heart condition, Hemophilia, Lead Poisoning, Leukemia, Hearing Officer‘s
Nephritis, Rheumatic Fever, Sickle Cell Anemia, and Tourette Syndrome; and (ii) adversely affects a child's educational performance. 34 CFR 300.8 (c) (9) (emphasis added). It has been uniformly held in the second circuit, when courts interpret New York State law, that both the federal law and New York State Regulations promulgated under IDEA require proof of an adverse impact on ‗educational performance.‘ Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp.2d 282 (S.D.N.Y. 2010). Proof is required of an adverse impact on academic performance, as opposed to development or integration. C.L.J. and C.J. ex rel. A.J. v. Bd. of Educ. E. Islip Union Free Sch. Dist., 679 F.Supp.2d (S.D.N.Y. 2010). I
Ms. testified that the CSE discussed a potential diagnosis of
Disorder, however, there was no documentation presented at the meeting to support the diagnosis. Ms. testified that the team felt that the did not adversely affect the student‘s academic performance and therefore did not indicate a classification of disability of OHI. Ms. testified that the definition of OHI includes a requirement that confirmed medical condition would have to cause the student difficulty performing in his educational environment. [Tr. 81]
, the student's counselor at , testified that he believed tha the student may have fit the clinical definition of ‘s because of his rigidity and difficulty reading cues. However, he did not state how his unofficial diagnosis was impeding the student‘s academic functioning. [Tr. 226-227] Mr. acknowledged that the student has not been officially diagnosed with ‘s that there is no documentary evidence to support his opinion, nor is there any indication that Mr. is actually qualified to make such a diagnosis. [Tr. 248] Mr. , a licensed worker, testified that the student‘s academic functioning was not impacted in the classroom, but rather his relationships with his classroom teachers were impacted by the symptoms which are at times indicative of ‘s. [Tr. 227-228] Hearing Officer‘s
The evidence presented supports the CSE‘s determination that the student did not fit the criteria for a child with an Other Health Impairment under the IDEA, nor was there any indication that the student fits the criteria of a student with an classification. means a developmental disability significantly affecting and non communication and interaction, generally evident before age , that adversely affects a student‘s educational performance. Other characteristics often associated with are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of after age could be diagnosed as having if the criteria in this paragraph are otherwise satisfied.
In C.L.J. and C.J. ex rel. A.J., 679 F. Supp. 2d 299 (E.D.N.Y. 2010), the court found that a student suffering from * deficit disorder+ and ‘s syndrome was not a child with a disability under the IDEA and therefore was ineligible for education services. The District court determined that ―a child‘s difficulties with his disorder, which presumably include and troubles, are not the proper measure of ‗educational performance.‘ Rather, ‗educational performance‘ must be assessed by reference to academic performance which appears to be the principal, if not only guiding factor.‖ In that case because the student was performing at average to above average levels in the classroom and was progressing academically, the Court concluded that his condition was not affecting his educational performance and that he was properly found ineligible for services under IDEA. In this case, the student had previously been a student with a disability eligible for services under the IDEA, therefore he was eligible for decertification services under the IDEA, but the CSE properly found that the student was non-handicapped and is not a student with a disability under the IDEA. Hearing Officer‘s
The CSE properly decertified the student with appropriate decertification supports. When a CSE recommends that a child be declassified, State regulation provides that the CSE's recommendation shall"(a) identify the declassification support services, as defined in section 100.1 (q) of this Title, if any, to be provided to the student; and/or the student's teachers; and (b) indicate the projected date of initiation of such services, the frequency of provision of such services, and the duration of such services, provided that such services shall not continue for more than one year after the student enters the fulltime regular education program" (8 NYCRR 200.4 [c][1][iii]). Declassification support services may include psychological services, work services, and improvement services, non-career , and other appropriate services.
Ms. testified to the decertification supports that were recommended for the student to transition him to the general education environment. [Tr. 92-94, 110] (Exh.
2) The CSE included SETSS to assist the student‘s transition to the general education environment and to continue to provide the strategies to which he may been accustomed during the 2010-2011 school year, including academic management needs, such as graphic organizers and outlines, planners/organizers, extra time to complete work, encouragement asking for clarification when needed to assist the student with selfadvocacy, and teacher prompts to refocus for his difficulties. (See Exh. 2, p. 4) The CSE also included to address the student‘s identified and issues. [Tr. 88]
The Parents’ other allegations either were not developed at hearing or are irrelevant.
Allegations not pursued at hearing must be deemed waived. See Application of a Child With a Disability, Appeal No. 08-037; Application of a Child With a Disability, Appeal No. 05- 080; Application of a Child With a Disability, Appeal No. 04-043; Application of a Child With a Disability, Appeal No. 04-019. There was no evidence at the hearing regarding the alleged deficiencies in the CELF test that was the basis of the and Evaluation nor was there any evidence regarding goals, discussion Hearing Officer‘s of other programs at the meeting, or a transition plan. I find that the evaluations and tests utilized by the district were valid, objective and appropriate. Due to the team‘s decision to decertify the student, the student was no longer a student with a disability under the IDEA and therefore ineligible for those protections. I find that the student was properly decertified by the CSE team and was provided appropriate decertification supports to assist his transition to general education.
Since I find that the student was properly decertified there is no need to address the proposed placement. However, the evidence presented established that the district would have provided the student with a general education placement at the School for for the grade. The principal of that school, Abbie , testified as to how she would have determined the student‘s proper grade level given his transfer from a private, non State approved school to a public school. Although the parents allege that the placement was inappropriate due to the student‘s possible retention based on his failure to take any ‘s examinations during his time at the private placement, the parent has not advanced any legal authority for this speculative argument. Ms. testified that the student would have been offered a seat at the school and that she would have determined where the student would have been placed upon receipt of his transcript and a description of the school‘s classes and would have made his transition as easy as possible. The failure of the student‘s parents to participate in State testing cannot be a bar from the district appropriately recommending a general education placement for a student‘s th grade year. This would imply that a previously parentally (or unilaterally) placed student could never be placed in a public general education program, however appropriate, for their potential graduation year, which would be contrary to both the federal and state intents underlying the IDEIA.
Due to the finding that the district properly declassified and decertified the student, the parent's request for reimbursement for the tuition at a non-public private education school is accordingly denied.
Hearing Officer‘s
ORDER
IT IS THEREFORE ORDERED THAT:
The parent's request for reimbursement is denied and the parent's complaint is dismissed in its entirety. Dated: August 1, 2011
_____________________________
RACHEL POTASZNIK, ESQ.
Impartial Hearing Officer
RP:dl
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
Hearing Officer‘s
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 4, 2011
PARENT
A Impartial Hearing Request, 9/3/10, 6 pages B School Description, Undated, 3 pages C Ten Day Notice Letter and Fax, 9/18/10, 2 pages D Placement Letter, 6/1/10, 2 pages E Letter, 8/30/10, 2 pages F Daily Class Schedule, 2010/2011, 1 page G Attendance Record, 10/29/10, 1 page H School Affidavit, 10/26/10, 1 page I Class Profile, Undated, 3 pages J Progress Report, Undated, 8 pages K Final Report, Various dates, 12 pages L Proof of Payment, 2010 – 2011, 3 pages M IEP, 5/26/10, 7 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 9/3/10, 5 pages 2 IEP, 5/26/10, 7 pages 3 IEP Conference Information, 1/15/10, 1 page 4 Consent for Reevaluation for Parentally Placed Students, 3/16/10, 1 page 5 Notice of IEP Meeting, 5/6/10, 1 page 6 IEP Meeting Minutes, 5/26/10, 2 pages 7 Evaluation, 3/16/10, 7 pages 8 History Update, 3/16/10, 3 pages 9 Eval, 4/12/10, 9 pages 10 Classroom Observation, 1/21/10, 2 pages 11 School Standardized Testing Report 5/5/10, 1 page 12 School Academic Record, Undated, 1 page Hearing Officer‘s
13 School Winter Progress Report, Winter 2010, 8 pages 14 School Fall Report 2009, FALL 2009, 9 pages 15 Classroom Observations, 12/2/09 and 12/15/09, 1 page