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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: November 23, 2011
December 2, 2011 Actual Record Close Date: December 8, 2011 Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 23, 2011
Advocate — Student
Parents
Interpreter — Student
District Representative — DOE
District Representative — DOE
Assistant Principal (via telephone) — DOE
School Psychologist (via telephone) — DOE
NYC DOE CBST Deputy Supervisor (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2011
Advocate — Student
Parents
Teacher (via telephone) — Student
Interpreter — Student
Interpreter — Student
District Representative — DOE
— DOE
I. PROCEDURAL HISTORY
This hearing was requested on September 8, 2011 by the parent pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to modify components of the student‟s individualized education program (“IEP”), including the student‟s educational classification, special class size and related service recommendations (Ex. SD-1).[1] I was appointed by the DOE to hear this matter on November 7, 2011, following the recusal of another hearing officer. Hearings in this matter were held on: November 23, 2011 and December 2, 2011. Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
At the time of September 12, 2011 meeting of the DOE‟S Committee on Special Education (the “CSE"), the student was a ) year old student classified with an .
The student began to after a pediatrician noticed at age . The student was in an program at the . While the parent noted progress in the student‟s skills, the student did not reportedly learn much (Exs. SD-4 at 1, SD-9 at 1.
The student started in a small class at in (the 2007/08 school year). With assistance at home from the student‟s parent, the student was able and by the end of the school year and was promoted to the (Ex. SD-9 at 1).
The student was administered the standard battery of the and of – Third edition (“ ”) in April 2008. The student‟s overall (full scale IQ) measured in the deficient range of . During the same assessment, the student was also administered the , to assess her functioning in . Herachievement scores placed her in the in the areas of (Ex. SD-4 at 2-3).
According to the Scales parent form, the student was functioning as a ) year old child at that time. She attained an age equivalent of in the communication domain.
In her and , she had an age equivalent of . The student‟s motor skills were also delayed with an age equivalency of . Overall, the student‟s composite fell within the (Ex. SD-4 at 3).
While in the grade (the 2008/09 school year), the student learned except for ” and could things but not (Ex. SD-9 at 1-2).
During the student‟s grade (the 2009/10 school year), the student was classified as having a and attended a special class, supplemented by and therapy.[2] Despite at school, the student reportedly could , with the exception of her recognition of a few sight words. When speaking, the student had in a and would digress to . The student could only recognize numbers up to “3.” The student also exhibited difficulty in retaining information. In addition to her special education program, the student attended an academic program at Teacher‟s College. Given the student‟s “significant and difficulties,” the student‟s grade teacher requested a reevaluation of the student, believing “that a setting with students on a similar level would help [the student] develop more appropriate skills and may also help her ” (Exs. SD-4 at 1, SD-9 at 1-2).
In a December 11, 2009 update, the social worker noted:
[The student] is a grader in a small class. She has been receiving services in the context of a small class since she was and has not been progressing sufficiently. She scores in the deficient range in her IQ an it is believed that another program suited to her needs may be more beneficial (Ex. SD-9 at 4).
On December 14, 2009, the student was administered a set of tests from the Tests of in order to assess her functioning in . The student was also administered some subtests from the to assess her . According to the student‟s scores on those assessments, her relative academic strengths were on a reading task that measured her ability to and on a task which measured her ability in analysis to the pronunciation of unfamiliar words. The student had considerable difficulty in all areas measured by the achievement assessment. Overall, the student obtained grade equivalent scores which placed her at approximately an early level in (Ex. SD-4 at 3-5).
During the 2010/11 school year, the student‟s grade, the student “was in a school for children with and it did not fit her needs. It seemed extreme for her” (Ex. SD-5 at 1). In a letter dated March 15, 2011, the parent requested a reevaluation of the student by the CSE (Ex. SD-8). In a letter dated April 4, 2011, the DOE acknowledged the parent‟s March 15th reevaluation request (Ex. SD-6).
In a letter dated August 3, 2011, the parent was issued a P-1R or Nickerson letter
(R. 101; Ex. SD-10).[3] The letter stated, in relevant part:
Your child has been referred for special education services. At this time, the New York City Department of Education (DOE) is not able to provide the special education services recommended for your child. Therefore, you now have the legal right to place your child in an appropriate special education program in a New York State Education Department (SED) approved private day school. All tuition and transportation charges will be paid by the DOE and the SED if the placement is appropriate, and there will be no cost to you.
...
The DOE will continue to make every effort to find an appropriate public special education program for your child. If an appropriate public school program is found, we will telephone you and send you a final notice of recommendation with the placement site being offered (Ex. SD-10).
On August 25, 2011, the student was tested and . Dr. , a licensed who performed the evaluation, stated that the student “understands some of and but perhaps is slightly more proficient . Translation of items into did not seem to facilitate her success” (Ex. SD-5 at 3).
Formal quantitative assessment of the student‟s overall intellectual functioning, using the , placed the student in range (FSIQ 40). All four composite scores (i.e., )
measured in the intellectually range (Ex. SD-5 at 3, 7, 9).
The was administered with the parent as the informant. An composite score of was obtained, which corresponded to the level of everyday functioning (Ex. SD-5 at 4, 7).
The and the were administered in order to assess the student‟s educational skills (Ex. SD-5 at 5-7). The student‟s scores on those assessments were as follows:
Woodcock-Johnson III (English)
Reading
Letter-Word Identification -
Passage Comprehension -
Written Language
Spelling -
Mathematics
Calculation -
Applied Problems -
Bateria III Woodcock-Muñoz (Spanish)
Reading
Letter-Word Identification -
Passage Comprehension -
Written Language
Spelling -
In a notice dated September 9, 2011, the parent was invited to a CSE meeting scheduled for September 12, 2011 (Ex. SD-2). At the meeting, the CSE reviewed the August 25, 2011 evaluation which indicated that the student displays “ , , and ” and that “her measured in the range” (Ex. SD-3 at 14). The CSE classified the student as having an (Ex. SD-3 at 13).
Given the recommendation of Ms. , the student‟s special class teacher, that the student needs “a small, highly structured environment with few distractions and opportunities to practice and repeat tasks for academic success,” the CSE concluded that the student “would benefit from the continuation of an environment that is and that provides a small teacher-to-student ratio (12:1:1) in order for her to receive the attention that she needs when facing academic tasks” (Ex. SD-3 at 2). The CSE recommended for the 2011/12 school year, the student‟s grade, that she receive all of her academic instruction in a special class supplemented by , individual and / , individual , (R. 24, 27; Ex. SD-3 at 10, 13).
III. POSITIONS OF THE PARTIES
A. The Parents
The student should be classified as and not as a student with a . The student has been in a five years, despite the fact that her primary language is . Due to her improper placement in previously years, the student has not made progress. (R. 16-17). The student should be recommended for an special class, and her related service recommendations should be modified, which will allow the student to attend a bilingual special class program at the School (R. 265-266; Ex. SD-1).
B. The Department of Education
The parent‟s due process complaint should be dismissed. The student is properly classified as having an . The student has been offered a free appropriate public education (“FAPE”) and is deriving educational benefit from her current program, a special class at (a District specialized school), supported by related services of , , , and ESL (R. 17-18, 266-267).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA‟s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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 a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
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. See 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.” See 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting Rowley, 458 U.S. at 192.
The student‟s recommended program must also be provided in the LRE. See 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); 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. 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).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student‟s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Classification
The DOE bears the burden of establishing the appropriateness of the classification recommended by its CSE. See, e.g., Application of a Child with a Disability (Bd. of Educ. of the City of New York), Appeal No. 00-019 (SRO Feb. 12, 2001). In order to be classified as a child with a disability under Federal regulation, see 34 C.F.R. § 300.8(a), or its State counterpart, see 8 NYCRR § 200.1(zz), a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child‟s performance to the extent that he or she requires special education and/or related services, see Application of a Child Suspected of Having a Disability (Bd. of Educ. Rochester City Sch. Dist.), Appeal No. 95-13 (SRO April 20, 1995).
I find that the student is properly classified as having an intellectual disability (R. 69; Ex. SD-1 at 13). “Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student‟s educational performance.” 8 NYCRR § 200.1(zz)(7). The student‟s level of cognitive functioning, measured in 2008 using the WPPSI-III and in 2011 using the WISC-IV, has consistently been measured in the intellectually deficient range (R. 65-66, 145, 161; Exs. SD-4 at 4, SD-5 at 3, 8-9).
A low IQ score, however, is not determinative of the appropriateness of a classification as intellectual disabled, unless the child also has concurrent deficits in adaptive behavior. See, e.g., Application of a Child with a Disability (Ellenville Cent. Sch. Dist.), Appeal No. 94-17 (SRO July 14, 1994). Here, on a 2011 administration of the Vineland-II, the student also scored on the moderately low level in the communication, daily living skills and socialization domains. On the of the , the student scored at the level due to times per week, times per week, difficulty and (Ex. SD-5 at 4-5). These scores, in conjunction with the student‟s scores, are indicative of an .
Alternatively, the information in the record before me does not provide any basis for concluding that the student possesses a (R. 63-64, 69; Ex. SD-3 at 14). problems that are primarily the result of an intellectual disability are specifically excluded from the educational classification of . See 8 NYCRR § 200.1(zz)(6). Additionally, no evidence has been offered to establish that the additional procedures for identifying students with learning disabilities were exhausted in this case. See 8 NYCRR § 200.4(j).
C. Appropriateness of DOE‟s 12:1:1 Special Class
I find that the proposed public program was reasonably calculated to confer benefit on the student because it is providing her with sufficient personalized instruction to permit him to benefit educationally from that instruction. See Rowley, 458 U.S. at 203.
The student currently participates in a (English) special class, supplemented by ESL (R. 154, 162; Ex. SD-3 at 14). Ms. s opinion that the student when material is taught in rather than is consistent with Dr. ‟s comment on the August 25, 2011 evaluation that the student is “slightly more proficient in ” (R. 64-65, 140, 154, 162, 166; Ex. SD-5 at 3).
The student is suitably grouped for instructional purposes with other students of similar age and educational needs. See 8 NYCRR §§ 200.1(ww)(3)(ii), 200.6(a)(3), (h)(2)-(3). All of the other students in Ms. special class are between the ages of ( ) and ) and are educationally classified as having (R. 67, 149).
I find that Ms. , who has been the student‟s both last year (2010/11) and this year (2011/2), credibly testified that the student is making in her current program (R. 67-68, 89-90, 139, 161). Ms. stated that the student is making progress on her reading goals and objectives and will master her goal with the assistance of a structured environment and by following classroom routines (R. 90, 151-153; Ex. SD-3 at 5). The student has made “ ” in her social development and Ms. has not observed the student exhibit , , or at external events which might warrant a (R. 90, 155-157; Ex. SD-3 at
3).
I also find that the student‟s current related service recommendations are consistent with her present levels of functioning, as set forth in September 12, 2011 IEP, and that no credible evidence was offered warranting a revision of the student‟s related service recommendations (Ex. SD-3 at 3, 10, 13).
Alternatively, while the parent seeks for the student to be educated in an setting, the hearing record does not reflect that the needs were so environment would not provide sufficient adult support for the student (R. 62, 149-150, 158-159; Ex. SD-3 at 3, 14). To the extent that the parent also advocated at the hearing for the student to be placed in a (a claim not raised in the September 8, 2011 due process complaint), I find that the record of the student‟s relatively performance in such a class during her second grade year (the 2009/10) mitigates against such a placement (Exs. SD-4 at 1, SD-9 at 1-2, 4).
It appears that many, if not all, of the parent‟s requested IEP changes were predicated on conditions set by the School (an approved nonpublic school), which, if satisfied, would reportedly accept the student for enrollment (R. 53-54, 56-59, 70). I do not find, however, that the School‟s conditional acceptance of the student triggered the DOE‟s obligation to fund the student‟s placement at that location (pursuant to the August 3, 2011 Nickerson letter) since the School‟s conditions suggest that the profile of students appropriately educated at that institution is significantly different from the educational needs of this student (R. 71, 99; Exs. SD-1, SD-3, SD-4, SD-5, SD-9, SD10).
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The paent‟s September 8, 2011 due process complaint is dismissed in all respects. Dated: December 23, 2011
________________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:jj
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 NOVEMBER 23, 2011
DEPARTMENT OF EDUCATION
1 Due Process Complaint Notice/Impartial Hearing Request, 9/8/11, 2 pp. 2 IEP Meeting Invitation, 9/9/11, 2 pp. 3 IEP, 9/12/11, 16 pp. 4 Psycho-Educational Report, 12/15/09, 6 pp. 5 Bilingual Psycho-Educational Evaluation, 8/25/11, 12 pp. 6 Re-Evaluation Request, 4/4/11, 2 pp. 7 Student Progress Report, 5/18/11, 2 pp. 8 Letter from Parent, 5/15/11, 1 p. 9 Social History Update, 12/11/09 4 pp. 10 P1-R (Nickerson) Letter, 8/3/11, 1 p. 11 E-mail Correspondence, 8/5/11, 1 p.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student‟s educational performance. 8 NYCRR § 200.1(zz)(11).
[3] A “Nickerson letter” is a letter from the DOE authorizing a parent to place a student in a State-approved non-public school at no cost to the parent (R. 98). See Jose P. v. Ambach, No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982). The remedy of a “Nickerson letter” is intended to address the situation in which a student has not been evaluated within thirty (30) days or placed within sixty (60) days of referral to the CSE (R. 97). See M.S. v. New York City Dep’t of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010).
[4] The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] Behavior intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports to address that behavior. 8 NYCRR § 200.1(mmm).