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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 7, 2011
Actual Record Close Date: November 4, 2011
Hearing Officer: Martin J. Kehoe, III, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2011
Attorney — Student
Parents
District Representative, D — DOE
Assistant Principal (via telephone) — DOE
Classroom Teacher (via telephone) — DOE
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 Department of Education of the City of New York will be referred to as District, the parent as Parent and the student will be referred to as Student. Based on the following analysis, I find that a Free Appropriate Public Education (FAPE) was denied to the Student since the beginning of her grade school year. In order to rectify this situation, I direct the District to fund a comprehensive Independent Educational Evaluation (IEE), conduct a and reconvene a meeting of the Committee on Special Education (CSE) for the purpose of proposing an Individualized Education Program for the Student. Additionally there is a request for make-up services for counseling and tutoring. To a limited extent, these make-up services will be ordered.
PARENT’S POSITION
The Parent asserts that the District has never grasped the depth and intensity of the Student’s needs. She claims that the Student was not offered appropriate services for several years such that her education has yielded no meaningful progress in the public school setting. In the complaint notice dated June 20, 2011 (Parent Exhibit X), the Parent’s attorney stated that the District failed to provide a free appropriate public education in the least restrictive environment for the 2010-2011 school year to date.
The Parent claims: denial of the opportunity to participate in the IEP process; the Parent believes that both IEPs are deficient; the IEP developed on May 8, 2010 did not include measurable and meaningful goals and objectives, or short term objectives, and the recommendations were made without evaluations, assessments, or reports. Moreover, the transition plan was made without involving the Student or the Parent.
Likewise, the IEP of February 28, 2011 did not include measurable and meaningful goals and objectives, or short term objectives. This IEP made recommendations without evaluations, assessments, or reports. As stated by the attorney, “The IEP did not provide for the Student’s , , , needs, and did not provide skills training.”
The Parent is requesting the following relief: payment for independent , and , , and processing evaluations, to be conducted by providers chosen by the Parent; for the CSE to meet within ten days after the evaluations are conducted to develop a new IEP; for a for the Student and a ; and for make-up services for and Special Education Teacher Support Services (SETSS), including home based special education services, to the extent that the Student did not receive these services.
DISTRICT POSITION
Notwithstanding the apparent procedural and substantive infirmities of past educational programming, the District contends that the current IEP was reasonably calculated to provide meaningful educational benefit for the Student while providing for to the maximum extent appropriate. The District witnesses and the Parent generally concur that the current school setting is desirable and appropriate for the Student.
THE HEARING
The hearing began and was finished on September 7, 2011. The first witness called by the District was the assistant principal of the District’s High School where the Student currently attends.(Pp. 70-115, transcript) The next witness was the District’s special education teacher for math and history for the Student in her current program. (Pp. 119- 142, transcript) Finally, the Parent (mother) testified. (Pp. 143-156, transcript)
STUDENT HISTORY
At the time of the hearing, the Student was old, (P. 4 transcript) an grader classified as . (The Student’s classification is not in dispute in this hearing 1) The Student had been receiving SETSS, beginning in 2003 and beginning in 2006. The Student was placed in a general education class in a high school in 2009 without updated evaluations or assessments. The CSE met in December 2009. (although some of the IEP is dated May 8, 2010 (Ex. N), and it is not clear when it was written) Another IEP was written on February 28, 2011 (Ex. W) which classified the Student as a Student with an
1 The Parent’s concern about the classification of is not that it is necessarily incorrect, but that the Student was classified that way for the February 2011 IEP, but the Parent was not at the meeting, and the classification should be based on an evaluation. , and recommended placement in a day treatment school. It is with this background that the impartial hearing began.
TESTIMONY
The District called the assistant principal of the school where the Student currently attends as the first witness. She described a 12 month day treatment program with academic classes, individual and , art and music therapy, and accommodations for testing; there is a in the classroom. The school also offers an afterschool program for 45 minutes two days a week with academic help, and an online program to obtain extra credits, but the student is not participating in these programs. (The assistant principal later said the student was not advised about them.) (P. 102, transcript) Although it is indicated on the IEP, the student is not in an integrated co-teaching class in math. When asked how the school evaluates the students’ progress, the assistant principal stated they are evaluated on their “ , the results of teacher-made exams, state exams, and report cards.” (P.86, transcript) The assistant principal gave the opinion that the student is , the ” (p.87), and the student is in an appropriate placement.
When questioned by the Student’s attorney, the assistant principal stated she had only met the student twice, during classroom visits, but not one-on-one. The assistant principal thought that a social history had been conducted for the Student, but it was not. The Student does not have a ) on the IEP, and had not been given a functional behavior assessment. The assistant principal stated that they were implementing a transition plan. The assistant principal said the Student is in a co-educational class of nine students, who are all classified as , and that the Student is on the “ and (P. 107 transcript) and reads at level; the Student’s math and reading skills are level.
The Student’s math and history teacher testified that the Student is “ level” in those subjects. (P. 122, transcript) When asked about the Student’s functioning, the teacher stated that it is . Sometimes during the 45 minute class, the Student is “absolutely , , and .” At other times, the Student “will want to get another student’s attention, and she’ll be . She’ll .” (P. 122, transcript) The teacher did not know whether there was a or whether the plan. There is a used for the program in which students are given points all day for . (P. 123, transcript)
The teacher teaches the whole class but allows time to work with the students individually in the classroom. If the Parent or Student request it, the teacher will work with the Student during lunch or the Student’s recreational time. (P. 124, transcript) The Students are evaluated on their “ s.” (p. 128, transcript)
The teacher stated that the Parent has spoken to him about issues, but not concerns. The Student has on several occasions.(P. 129 transcript The Student sometimes has to be . The Student is allowed to go to a or at any time. In the teacher’s opinion, the Student is in an appropriate placement.
The Parent testified that when the Student was in the previous high school (a music and dance school), the Student did not receive SETSS or , although these services were supposed to be delivered. The Parent stated that she was not informed that the IEP was developed on May 8, 2010, and did not attend the IEP meeting, or the previous one. (P. 197-198, transcript) In the music and dance school, the Student was in a general education setting with 20 students for classes. A psychiatrist sent a letter to the District requesting the Student receive a evaluation, (Parent exhibit O) but the Parent stated it was not conducted. (P. 149, transcript) In February, the Parent received a letter about the Student’s , and spoke to the , , and about the need for further testing. (P. 151, transcript) The Parent stated that she spoke to the about the need for an evaluation; according to the Parent, the psychologist was going to schedule one at a time convenient for the Parent, but then did the evaluation another day, without the Parent present. (P. 154, transcript) In addition, the Parent was not informed about the changes in the Student’s program after the IEP meeting, and did not receive the IEP until the middle of March. (P. 153, transcript) In February, the Parent decided to move the Student to the current school at the recommendation of the , (P. 154, transcript) and the Student began attending the school in March. The Parent stated that she is “very satisfied” with the program and the Student is making progress. (P.155, transcript)
The Parent testified that the Student did not receive the required in the previous school in grades, and also did not receive extra academic assistance. Therefore, the Parent requested at home tutoring from the District at the beginning of grade. (P.p. 166168, transcript)
The Parent is requesting make up services for the and SETSS. Regarding counseling the Parent’s Attorney calculated services deficit as, “about ten months worth of services time four sessions a month, 40 sessions of counseling, give or take.” (P. 172, transcript)
Regarding SETTS the Parent is requesting an additional ten hours of tutoring a week and states that the Student needs it in order to reach and maintain her grade level.(P.p. 177-178, transcript); it would add up to 400 hours, according to the Parent’s attorney. (P. 179, transcript)
LEGAL FRAMEWORK
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 disabilities residing in the state between the ages of 3 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 state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[2]
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 is, 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))
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. § 615(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).
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., 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)
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(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)
ANALYSIS
The primary issue in this litigation is whether the District provided the Student with a FAPE for the 2010-2011 school year to date. The Parent has 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 (5th 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)
Procedurally, the Parent complains that she was not able to meaningfully participate in the development of the IEP. She said that she was not informed of the CSE meetings and did not have an opportunity to view the proposed program. (Ex. W) The Parent claims that these issues amount to a procedural violation in the planning for the 2011-12 school year. While Parent participation is critical to the IEP process, the record does not indicate that the failure to invite the Parent actually impacted upon the Student’s programming. See, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE])
However the Parent also claims the IEP was not based upon updated evaluative materials. 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 The District has not adequately met this challenge. The records from the District are outdated (see exhibits 48 and 10) except for the psycho-educational evaluation of February 11, 2011. I note that the Parent had sought educational evaluations but the District has been reticent on this point. Because the evaluations are incomplete it is impossible to say if the resultant IEP is appropriate. This is so despite the general testimony of the Special Education teacher that the current program is appropriate and notwithstanding the Parent’s apparent satisfaction with the program. To remedy this deficiency I direct the District to fund the following independent educational evaluations:
evaluation; evaluation; and evaluations.
Further I direct the District to conduct a functional behavioral assessment. I direct the CSE to reconvene to consider the results of updated evaluative materials within ten days of the receipt of the evaluations. Because of the practical issue of organizing the evaluations and production of reports, I direct the Parent to proceed forthwith with the scheduling of these evaluations and to report to the District concerning timing and progress of the reports. The first communication should be no later than December 15, 2011 and monthly progress reports should be submitted to the District thereafter. If the independent evaluations are not complete by January 15, 2012 the District is instructed to conduct evaluations in-district and proceed to a CSE meeting directly thereafter. 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. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd 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)
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. In her current placement the Student can access counseling and related services throughout the day. (P. 154 transcript, but see P. 161, transcript where it is indicated there is no tutorial or after school program) However these services were not delivered for the majority of the 2010-2011 school year. Accordingly I shall order make up services.
I believe the calculation of the Parent’s attorney of 400 hours of SETSS services and 40 hours of counseling may be technically accurate; however, I am unwilling to order that amount of services without baseline information and/or an objective opinion outlining the Student’s current needs in these areas. Accordingly, I direct that the District provide Related Service Authorizations for ten hours of SETSS a week and one hour a week of counseling per week retroactively from July 1, 2011 until such time that the CSE will reconvene with the aid of the updated evaluative materials as ordered herein. At that time, the CSE will determine if and to what extent the related services are warranted going forward.
It is therefore ORDERED That the District fund the following independent educational evaluations:
evaluation; evaluation; and processing evaluations.
That the District conduct a .
That the Parent proceed forthwith with the scheduling of these evaluations and to report to the District concerning timing and progress of the reports. The first communication should be no later than December 15, 2011 and monthly progress reports should be submitted to the District thereafter. If the independent evaluations are not complete by January 15, 2012 the District is instructed to conduct evaluations in-district and proceed to a CSE meeting thereafter.
I direct that the District provide Related Service Authorizations for ten hours of SETSS per week and one hour a week of counseling per week retroactively from July 1, 2011 until such time that the CSE will reconvene with the aid of the updated evaluative materials as ordered herein. At that time, the CSE will determine if and to what extent the related services are warranted going forward. Dated: November 22, 2011
_____________________________
MARTIN J. KEHOE, III, ESQ.
Impartial Hearing Officer
MJK:dl
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 7, 2011
PARENT
A Notice of Request for Review of IEP, 9/23/08, 1 p. B C-2 Consent Reevaluation/Triennial Evaluation, 9/23/08, 1 p. C IEP, 11/13/08, 11 pp. D Student Progress Report, 5/18/09, 4 pp. E Student Progress Report, Undated, 2 pp. F Student Progress Report, 5/18/09, 5 pp. G Student Progress Report, 5/18/09, 3 pp. H Progress Report, 5/19/09, 1 p. I NYCBOE EPC/CSE Conference Result Form, 5/21/09, 1 p. J Final Notice of Recommendation Annual Review or Reevaluation, 5/21/09 K IEP, 5/21/09, 16 pp. L Grade Specific Performance Indicators, 11/11/09, 13 pp. M Classwork Criteria, Undated, 1 p. N IEP, 12/23/09, 12 pp. O Letter form Center, 10/28/10, 1 p. P Promotion in Doubt, 2/1/11, 1 p. Q Student Report Card, 2/3/11, 1 p. R Student Permanent Record, 2/3/11, 1 p. S Letter from School Psychologist, 2/10/11, 1 p. T M-2 Meeting Notice for EPC/CSE Review, 2/10/11, 1 p. U Report, 2/10/11, 5 pp. V Notice of IEP TransitionPlanning Meeting, 2/28/11, 1 p. W IEP, 2/28/11, 13 pp. X Request for Due Process, 6/29/11, 6 pp.
DEPARTMENT OF EDUCATION
1 Impartial Hearing Request, 6/29/11, 6 pp. 2 IEP, 2/28/11, 13 pp. 3 Resolution Agreement, 7/21/11, 3 pp. 4 E-1 Social History, 11/17/03, 7 pp. 5 Evaluation Report, 5/3/06, 3 pp. 6 Evaluation, 1/13/04, 3 pp. 7 Evaluation Report, Various Dates, 5 pp. 8 Social History Update, 5/10/06, 2 pp. 9 Attendance, Various Dates, 1 p. 10 Pupil Progress Report, Various Dates, 2 pp. 11 Teacher’s Report, 7/13/11 1 p. 12 NYCDOE Student Permanent Record, Various Dates, 1 p. 13 Report, 2/10/11, 5 pp. 14 Letter from Child and Adolescent Psychiatrist, 10/28/10, 1 p.
IMPARTIAL HEARING OFFICER
I Parent’s Due Process Complaint Notice, 8/23/11, 3 pp. II District’s Motion to Dismiss, 11/9/11(2); Parental Withdrawal of Consent for Special Education Services (District Exh. 1)(1); Notice of Termination of Special Education ServicesDue to Parental Withdrawal of Consent (District Exh. 2) (2), 5
pp.
Footnotes
[2] "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 and , , , recreation, including , social work services, , including , and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as