Impartial Hearing Decision

IMPARTIAL FORMAL HEARING PURSUANT TO

EDUCATIONAL LAW SECTION 4404(1) AND

COMMISSIONER OF EDUCATION REGULATION

SECTION 200.5 BEFORE ESQ.,

IMPARTIAL HEARING OFFICER

_________________________________ In the Matter of the Complaint of DECISION Student with a Disability Against the XXXXXXXXXXXX ___________________________________

PROCEDUARL POSTURE

This Impartial Hearing Officer was appointed to preside over impartial hearing request dated December 20, 2010, received by the District on December 22, 2010. The parent waived the resolution session by means of a letter dated January 13, 2011 and received from the District by this Hearing Officer on January 28, 2011. By means of a letter dated January 18, 2011, IHO E-4, this Hearing Officer initiated the hearing process requesting that the parties contact this office to conduct a pre-hearing conference. In response to said letter, this Hearing Officer received phone calls from the parent and the counsel for the District, both requesting hearing dates. By means of a letter dated January 27, 2011, IHO E-4, this Hearing Officer selected a tentative hearing date, informed the mother by phone, advised the parties of the 5-day Disclosure requirements. Pursuant to independent phone call from the mother, she advised this Hearing Officer that she was seeking counsel. The hearing was adjourned, an extension was granted, as indicated by letter dated February 17, 2011, IHO Exhibit-4.

The hearing commenced on March 4, 2011. The District marked in Exhibits 1-19, 1-17 and 19 were admitted by stipulation. The parent marked Exhibits 1-3, which were admitted by stipulation. IHO Exhibit 1, letter to parties dated January 18, 2011, IHO Exhibit 2, letter to parties dated January 25, 2011, IHO Exhibit 3, letter to parties dated January 27, 2011, IHO Exhibit 4, letter to parties dated February 1, 2011, and IHO Exhibit 5, letter to parties dated February 17, 2011 were marked and subsequently admitted.

SUMMARY OF FACTS

The District’s first witness was , the Director of Special Education. She has been employed in the District for 23 years, 16 as a High School Special Education teacher, and 7 years on special assignment as CSE Chair and LEA Representative, T-14. She is familiar with the student since Grade, having chaired his CSE meetings for the past five (5) years, T-15.

The student’s IEP from the CSE meeting of December 22, 2010, was a program review of a Evaluation, T-16, for the classified student, T-17. The student is in a 12:1 co-taught classroom, receiving Resource Room of 40 minutes per week, and 30 minutes, 3 times per 6-day cycle, T-19. The CSE reviewed a Evaluation by Dr. Dr. ’s findings were that the student did not have disability but the student may benefit from due to his better than normal It should be noted that there were no recommendations for assistive technology, but the recommendation was conveyed to the parent via Dr. ’s report. The only change to the IEP as a result of the CSE meeting of December 22, 2011, was a notation that Dr. . did not find any evidence of a disorder, T-20.

The Director noted that there was a prior due process hearing request, T-21, filed by the parent identified as the D-1, pages 4-6, which was resolved to the satisfaction of the parent as evidenced by a resolution agreement, D-2, T-22, with the exception of a vocational assessment, there does not appear to be any dispute that the District has complied with the terms of the resolution agreement as relevant provisions were 2 ½ hours per week of specialized a Evaluation to be conducted as an IEE by Dr. ., provision of a Netbook for use at home and tutoring by Mrs. The SET also provides assistance in skills, study guides, and class note, T-23.

reviewed Dr. ’s report and it’s nine (9), D-3, recommendations which indicated: (T-25 to T-30)

1. Continue the co-taught classroom.

2. Continue the classroom modifications to address reading delays.

3. Have tests read and extended time on tests.

4. Tutoring using reconstructive language.

5. Exemption from foreign language.

6. Vocational assessment.

7. Recommendation of explanations in classroom, i.e. chunking information.

8. Structured classroom with study guides. 9. Word processing.

The Director testified that all of the recommendations have been implemented as contained in the IEP with the exception of a vocational assessment.

The Dr. report referenced the Admission Assessment, P-1, which was dated July 15, 2010, prior to the resolution agreement without supporting testing by a T-32.

On cross-examination, the parent questioned the Director in a search for answers more than cross-examination, especially expressing concerns about graduation, diplomas, and State Assessments. However, the parent was clear that she was challenging the amount of progress the student was making.

The District’s next witness was the student’s Resource Room teacher, Ms. Ms. . was the student’s Resource Room teacher and has been a District employee for 8-10 years as a Special Education teacher, T-50. She is the Eighth Grade Special Education in a co-taught Resource Room teacher for the student, T-51.

Mrs. testified that she was providing the following services: organizational skills, note taking and test taking and testified that the test accommodations were being followed. Also the note taking, organization issues were being addressed by means of a study guides and highlighting strategies, and by use of a Netbook and Keyboard instruction, T-53. Ms. testified as to the progress the student was making in the Read 180 program, T-53, where the student scored where 950 is the typical score for students of that grade. Mrs. also reviewed the student’s progress reports which indicated an in ELA, in Social Studies, in math, in Science for marking period two which includes midterms, in Social Studies, in math, in Science, T50. The student was receiving tutoring from Mrs. on the Reconstruction Reading program. The witness felt the student was progressing. Also, there was a trip to BOCES to observe the vocational program.

The parent testified in narrative fashion the parent initially testified regarding the student’s medical history being born as a preemie with a lot of medical issues. The student struggled with school, repeated First Grade, and experienced tremendous difficulties because of his severe deficits. The student’s deficits are well documented, but include the areas of memory, abstract reasoning, independent problem solving, and Math computation. He also struggles with reading. Reconstructive Language stresses skills where words are broken down and rebuilt phonetically. This is a very slow process and is being provided by Mrs. as pursuant to the resolution agreement.

ISSUES

It should be noted that the parent has filed a due process hearing request which listed four (4) items of relief:

1. Selection of a different Therapist;

2. Future IEP meetings be tape recorded;

3. That Dr. attend IEP meetings;

4. An impartial hearing reviewing the appropriateness of the student’s placement;

DECISION

ISSUE 1

The District disputed that the parent could challenge personnel decisions of the District in terms of the selection in terms of the selection of therapists, teachers, or other providers. There was no testimony from either party on said issue. The mother challenges the qualifications and performance of the Therapist. The District introduced the progress reports which appeared to be appropriate.

The SRO has stated that a parent cannot contest or challenge District decisions regarding personnel assignments based upon personal preference. See SRO 94-12,

“However, petitioner's preference for a particular related service provider is not determinative of the matter (Application of a Child with a Handicapping Condition, Appeal No. 91-19; Application of a Child with a Disability, Appeal No. 94-12).”

The SRO has also stated in SRO 97-86:”

“Petitioner argues that respondent has offered no compelling reason for changing the boy's speech/language therapist from the individual who worked with him during the

1996-97 school year to its own employee for the 1997-98 school year. She contends that respondent made the change for "bureaucratic convenience". I agree with respondent that it may, in its discretion, select qualified school district employees or contract with qualified independent providers to provide related services to it students (Application of a Child with a Handicapping Condition. Appeal, No. 90-4). I find that respondent was not required to offer an explanation for having a new service provider to provide service during the new school year.” Although the record is fairly brief that there does not appear to be any allegations that the provider is not qualified. Although the district has the burden there is no proof raising any issue of the inappropriateness of the provider, and I so find.

ISSUE 2

The District agreed to tape record all future IEP meetings so said issue is moot. However for further clarification, the SRO ruled in 08-090:

“A CSE must, with certain exceptions, permit a parent to audio tape a CSE meeting regarding the student (Application of a Child with a Handicapping Condition, Appeal No. 90-18; Application of a Child with a Handicapping Condition, 30 Ed. Dep't Rep., Decision No. 12425; see Office of Vocational and Educational Services for Individuals with Disabilities [VESID], guidance on "The

Use of Audio- or Video Tape Recording of CSE/CPSE Meetings" [September

2003]). Such audio recordings have previously been made part of hearing records (see Application of a Child with a Disability, Appeal No. 98-1; Application of the Bd. of Educ., Appeal No. 97-60; Application of a Child with a Disability, Appeal No. 96-58). Formal rules of evidence that are applicable in civil proceedings are generally not strictly applied in impartial hearings (see Application of the Bd. Of

Educ., Appeal No. 05-007; Application of a Child with a Disability, Appeal No.

99-48; Application of a Child with a Disability, Appeal No. 99-5; see also Application of the Bd. of Educ., Appeal No. 91-14)”

ISSUE 3

The District informed the parent that she could invite any individual she wishes to attend future CSE meetings, which would include Dr. This appeared to satisfy the parent, since there was no testimony provided in regards to the said issue.

The Commissioners Regulation Part 200.3(a) (1) (ix) addresses the issue raised by the parent and is controlling regarding the composition of the CSE committees it states

” (1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to… (ix) that other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education.”

Dr who evaluated the student clearly has as expertise in the fields relevant to this students deficits and the district so acknowledged that Dr could attend as an invitee of the parent.

ISSUE 4

The parent raised the issue of the appropriateness of the student’s placement based upon the lack of progress challenging the IEP of December 20, 2011, District 9, page 8 through page 18.

The prior due process hearing request raised the following issues:

1. Reimbursement of tuition to the School;

2. Lack of progress, lack of reasonable and true progress;

3. No testing by Dr. ;

The School tuition reimbursement request is moot since the student never attended the School. The prior due process hearing request was resolved to the satisfaction of the parent by means of a resolution plan agreement.

The element of lack of progress was addressed by means of a resolution plan agreement with the provision of additional services and the Evaluation.

There was testimony that a vocational assessment has not been completed. Part 200.4(d)(2)( I)(X) requires “transition services for students beyond but not later than the first IEP to be in effect when the student is age fifteen (15) (at a younger age, if determined appropriate).”

The Director indicates that there will be a review of the student’s vocational functional ability during an upcoming CSE meeting. Furthermore, any breech of the resolution plan agreement creates a State cause of action for breach of contract that this Independent Hearing Officer does not have jurisdiction.

A review of the IEP of the CSE meeting of December 22, 2010, reveals that additional services agreed to in the resolution plan agreement were included in the IEP of December 22, 2010, indicating a start date of September 7, 2010. Program modifications were continued from the April 1, 2010 CSE generated IEP into the December 22, 2010 CSE IEP. The test accommodations were continued also.

A review of the relevant procedural historical timeline reveals the following: there was a CSE meeting on April 4, 2010, a due process hearing request was filed in July of 2010, and a resolution session agreement was entered into. A subsequent CSE meeting incorporated the additional services of the resolution plan into the IEP. The CSE meeting of December 22, 2010, reviewed Evaluation which was performed as part of the resolution agreement, and then a subsequent due process hearing request submitted on December 22, 2011, alleging lack of progress.

In light of the fact that the due process hearing request in July, 2010, was resolved by means of a resolution plan agreement without a Consent Order there was adjudication resulting from the due process hearing request of July, 2010. As a result, there was no Res Judicata effect. Furthermore, the IEP from the CSE meeting of December 22, 2010, creates a superseding IEP which indicates a start time for services of September 7, 2010. There appears to be no dispute that the services have been provided.

As a result of the aforementioned, the issues of progress, or the lack thereof, is limited in scope from the resolution agreement to present, and I so find.

The witness, Mrs. , testified that there has been progress as reflected in the quarterly report card and progress reports.

The teacher testified the progress the student was receiving from the 180 Reading Program and Mrs. tutoring. The Mother has countered that there has been a lack of progress has been long standing and pervasive; however, the scope of these allegations has been limited as per the prior ruling.

The SRO has stated in 09-003 the following in discussing the mootness doctrine:

“The dispute between the parties in an appeal must at all stages be "real and live," and not "academic," or it risks becoming moot (see Lillbask v.

State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; Patskin v. Bd.

of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30,

2008]Application of a Child with a Disability, Appeal No. 07-139). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd.

of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 00-

037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37). The Individuals with Disabilities Education Act (IDEA) requires a CSE to review and if necessary revise a student's IEP at least annually (see 20 U.S.C. § 1414[d][4][A][i]; 34 C.F.R. §

300.324[b][1][i]; 8 NYCRR 200.4[f]), and each new IEP supersedes the prior IEP in addressing the student's needs (see Application of the Bd. of Educ., Appeal No. 07-047;Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 06-060;

Application of a Child with a Disability, Appeal No. 06-046; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-063). Exceptions to the mootness doctrine apply only in limited situations and are severely circumscribed (City of Los Angeles

v. Lyons, 461 U.S. 95, 109 [1983]; Knaust v. City of Kingston, 157F.3d 86, 88 [2d Cir. 1998]). Mootness may be raised at any stage of litigation (In re Kurtzman, 194 F.3d 54, 58 [2d Cir. 1999]; Application of a Child with a Disability, Appeal No. 07-139)”

Based upon the above I find that the lack of progress prior to the DPHR filed in July and the resulting Resolution Plan agreement is moot. As a result the relevant areas of dispute arise out of the IEP generated by the CSE meeting of December 22, 2010, which had a start date of services of September 7, 2010. In evaluating the parent's claim regarding the lack of progress, the appropriate standard is as follows:

“The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f] [3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by “loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir.

1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere ‘trivial advancement’" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v.

Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch.

Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin

v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. §

300.101[c] [1]; 8 NYCRR 200.4[c] [5]).”

Based upon the increased level of support, the parties agreed to provide before the start of the 201/2011 school year, there is insufficient basis to find that the IEP is not appropriate, as a result I find that the IEP from the CSE Meeting of December 22, 2010 is appropriate. The student’s standardized testing scores reveals that the District has met its burden in demonstrating that the student is making progress this is not unsubstantial progress. The progress is within their parameters of a learning disabled classified student and is not within what a loving parent would consider appropriate.

As a result, I find that the District has provided a free and appropriate education resulting in progress to the student.

FINDINGS

1. I find that there are no allegations that the provider is not qualified. I also find that the providers are not inappropriateness of the provider. 2. I find that the lack of progress prior to the DPHR filed in July and the resulting Resolution Plan agreement is moot. As a result, I find, the relevant areas of dispute arise out of the IEP generated by the CSE meeting of December 22, 2010, which had a start date of services of September 7, 2010. 3. I find that the IEP from the CSE Meeting of December 22, 2010 is appropriate. I also find the student’s standardized testing scores reveals that the District has met its burden in demonstrating that the student is making progress this is not unsubstantial progress. 4. I find that the District has provided a free and appropriate education resulting in progress to the student.

ORDER

I direct that the next annual review, the CSE consider transitional services to address the issue of the transitional services.

PLEASE TAKE NOTICE:

Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 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 provisions of parts 279 of this title. Section 279.2 states:

“ 279. (2)(b).13 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:

(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, 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 bound 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 Office 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 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.

( 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.”

Dated: March 30, 2011

ESQ.

IMPARTIAL HEARING OFFICER