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UNIVERSITY OF THE STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
In the Matter of the Impartial Hearing brought by XXXX and XXXX, on behalf of XXXX,
Petitioners,
-against-
XXXX,
Respondent.
INTRODUCTION AND POSITION OF THE PARTIES
This hearing is held pursuant to Section 200.5(j) of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. Section 200.5(j). Petitioners
XXXX and XXXX (hereinafter referred to as the “Parents”), requested an Impartial Hearing on behalf of their child, XXXX, (hereinafter referred to as the “Student”), contesting on procedural and substantive grounds, the appropriateness of IEP and placement recommendations made by the District’s Committee on Special Education (hereinafter referred to as the “CSE”) for the Student for the 2011/12 and 2012/13 school years. The Parents seek tuition reimbursement for the Student’s unilateral placement at the XXXX (hereinafter referred to as “XXXX”), for the 2011/12 school year. They also seek tuition reimbursement for the Student’s continued placement at XXXX for the 2012/13 school year, to include prospective funding for tuition payments not yet made by them (Exs. IHO-3, IHO-3A, IHO-3B, J-22, J-23, J-24).
The District asserts that the CSE’s recommendations for the 2011/12 school year were appropriate to meet the Student’s individual needs, that XXXX was not an appropriate placement for the Student, and that the equities balance against reimbursement to the Parents. It also asserts that the Parents’ failure to comply with the 10 day notice requirement should preclude any order of reimbursement for the 2011/12 and 2012/13 school years. The District concedes that it did not have an appropriate placement recommendation for the Student for the 2012/13 school year. However, it asserts that the Parents’ unilateral placement of the Student at XXXX is not appropriate, that the equities balance against reimbursement, in that the Parents did not comply with the 10 day notice, which should serve as a bar to tuition reimbursement (R. 899-909).
PROCEDURAL HISTORY
In a Due Process Complaint Notice dated June 26, 2012, the Parents requested an Impartial Hearing to compel payment by the District for tuition expenses for the Student’s unilateral placement by the Parents in XXXX (Ex. IHO-3).
On or about July 27, 2012, the IHO was advised that she was selected to act as Impartial Hearing Officer. In a letter dated July 27, 2012, the IHO received written confirmation of her appointment (Ex. IHO-1).
On August 1, 2012, a pre-hearing telephone conference was held for the purpose of clarifying the issues. Hearing dates were also scheduled (Ex. IHO-6).
There were a total of 7 days of hearing in this matter. The first day of impartial hearing was held on September 6, 2012. Additional hearings were held on September 7, September 11, September 24, October 4, October 5, and October 15, 2012 (R. 1, 217, 328, 546, 768, 1060, 1308).
The District presented 5 witnesses on its direct case. The Parents presented 12 witnesses on their direct case. The District presented no rebuttal case. The transcript is 1,468 pages in length. The District submitted a total of 20 exhibits. The Parents submitted a total of 107 exhibits. The parties also submitted a total of 25 joint exhibits. The Impartial Hearing Officer submitted a total of 19 exhibits. The Impartial Hearing Officer granted a total of 2 requests for extension of the 45 day rule. The IHO also granted two requests by the Parents to amend their Due Process Complaint Notice, on consent of the District (Exs. IHO-3, IHO-3A, IHO-3B, IHO-7, IHO-8, IHO-9, IHO-10, IHO-13, IHO-15, IHO-17, IHO-18). The IHO’s decision was due on December 24, 2012 (Ex. IHO-18). Both parties submitted post-hearing memoranda of law.
ISSUES
In their Due Process Complaint Notice, the Parents stated that the District failed to provide the Student with a free appropriate public education. They state that the Student was classified as XXXX in the XXXX grade. They also state that in the Student’s XXXX grade year, XXXX exhibited XXXX and XXXX and XXXX difficulties, and that the District failed to conduct a XXXX (hereinafter referred to as an “XXXX”) and failed to develop a XXXX (hereinafter referred to as a “XXXX”) to address his educational needs in the XXXX domain. The Parents detailed alternate placements that were recommended by the CSE for the 2011/12 and 2012/13 school years with which they disagreed. The Parents also alleged a number of procedural and substantive violations made by the District, which were amended during the course of the hearing as to the applicable periods of time at which they occurred (Exs. IHO-3, IHO-3A, IHO- 3B).
The District conceded during the course of the Impartial Hearing that the recommendations made by its CSE for the 2012/13 school year were not appropriate. As a result, I need not consider any procedural or substantive issues raised by the Parents with respect to the District’s recommended placement and program for the 2012/13 school year that relate to the appropriateness of its recommendations (R. 900- 909; Exs. IHO-3, IHO-3B).
The District asserts that the CSE’s recommendations for the 2011/12 school year were appropriate to meet the Student’s individual needs, that XXXX is not an appropriate placement for the Student, and that the equities balance against reimbursement to the Parents. They assert that the Parents’ failure to comply with the 10 day notice requirement should preclude any order of reimbursement. The District concedes that it did not have an appropriate placement recommendation for the Student for the 2012/13 school year. However, it asserts that the Parents’ unilateral placement of the Student at XXXX is not appropriate, and that the equities balance against reimbursement, since the Parents did not comply with the 10 day notice, which should serve as a bar since tuition reimbursement (R. 899-909).
FINDINGS OF FACT
The Student, born on XXXX, is currently XXXX years old. The Student attended XXXX programs, including a placement at XXXX when XXXX was XXXX years of age, and another placement at XXXX when XXXX was XXXX and XXXX years old respectively. XXXX also received private XXXX services. The Parent testified that the Student began to have difficulties in XXXX, and that during XXXX, XXXX, and XXXX grades, the Student had XXXX issues, difficulties in XXXX, XXXX, and during XXXX, both in XXXX and in the classroom. According to the XXXX completed by the Parents, the Student suffers from XXXX and XXXX, including XXXX, XXXX, and XXXX. On or about September 3, 2008, just prior to the start of XXXX grade year at the District’s XXXX (hereinafter referred to as “XXXX”), the Parents referred the Student to the CSE for evaluation due to XXXX concerns. The Parents completed an XXXX dated November 8, 2008. XXXX educational strengths were described as XXXX. Weaknesses were described as XXXX (R. 950-952, 1165-1166; Exs. D-1, D-2, D-3).
On November 14, 2008, a classroom observation was performed by XXXX, a XXXX, as part of the referral. XXXX observed that the Student’s strengths were in XXXX. XXXX observed XXXX; that XXXX. He noted that the Student had difficulties in XXXX. He also stated that the Student demonstrated XXXX (Ex. D-4).
XXXX also conducted a XXXX over a number of days in October and November 2008 as part of the referral process. He noted in the Educational Background Information that as a XXXX at the XXXX (hereinafter referred to as “XXXX”) during the 2007/08 school year, the Student performed well XXXX, and was described as XXXX. XXXX had some trouble XXXX. XXXX was provided with occasional XXXX by a district XXXX. XXXX also participated in the XXXX program. XXXX noted “wonderful progress” and XXXX was promoted to grade XXXX (Ex. J-1).
In XXXX grade, the Student continued to XXXX, but again struggled somewhat to XXXX. XXXX administered a XXXX known as the XXXX (i.e., the “XXXX”), in which the Student achieved a XXXX. XXXX composite scores fell XXXX. XXXX believed that XXXX scores were XXXX, in that XXXX and XXXX (Exs. J-1, P-II).
The Student was also administered selected tests from XXXX (the “XXXX”) and the XXXX (the “XXXX”). With the exception of XXXX on XXXX, the Student scored XXXX. XXXX demonstrated sporadic difficulty with XXXX. XXXX also had occasional XXXX. In addition, XXXX demonstrated XXXX (Ex. J-1).
The XXXX were completed. There was a high level of agreement on the results. Both XXXX characterized scores in the XXXX. The Student’s scores fell in the XXXX (Ex. J-1).
Among XXXX’s recommendations was XXXX XXXX and XXXX to address any XXXX, XXXX or XXXX XXXX issues that might have been interfering with the Student’s XXXX. XXXX also recommended XXXX (Ex. J-1).
The CSE met on January 8, 2009 for the Student’s Initial Eligibility Determination Meeting and XXXX. The notes indicate XXXX. The CSE recommended a XXXX. The Parents determined to XXXX, which was supported by the CSE. XXXX was recommended XXXX, together with XXXX and XXXX. The CSE determined to reconvene on January 27, 2009 to review results (R. 952-953; Exs. D-5, P-WW).
In a memorandum dated January 6, 2009, XXXX recommended XXXX as an XXXX, to address XXXX (Ex. D-6). In a memorandum dated February 4, 2009, XXXX recommended XXXX (Ex. D-7). On January 27, 2009, the CSE found the Student to be XXXX. However, it recommended XXXX to continue as XXXX through the end of the year, and for XXXX to possibly continue as XXXX until June of 2009. The CSE determined to reconvene after a February 20, 2009 meeting with XXXX, a XXXX recommended to the Parents by XXXX, a XXXX who is employed by the District (R. 952-953; Exs. D-8, J-3).
On February 3, 2009, a XXXX was completed at the suggestion of the CSE. The Student’s XXXX grade teacher, XXXX, reported that the Student was XXXX, although she indicated that the Student’s XXXX and XXXX. The team decided not to XXXX because XXXX felt XXXX. It was also noted that the Student’s XXXX were being addressed by XXXX, and that issues with XXXX (Ex. J-2).
On April 16, 2009, the CSE met to review the Student’s progress in XXXX, and to review the results of a XXXX evaluation of the Student performed by XXXX (Exs. J-3, D- 9). In XXXX therapy, the Student was becoming XXXX. XXXX was addressed. In XXXX, XXXX was initially XXXX, but the use of XXXX helped the Student XXXX. There was an improvement in XXXX and XXXX demonstrated XXXX (Ex. D-9).
XXXX diagnosed the Student as XXXX with XXXX. It appears that all of the anecdotal information contained in XXXX’s report was provided by the Parents. XXXX also assessed the Student through the use of XXXX. She found XXXX. XXXX stated that the Student’s XXXX (Ex. J-3).
XXXX recommended classification for the Student as XXXX. She noted that XXXX resulted in XXXX (Ex. J-3).
XXXX recommended placement for the Student in an XXXX with a special education teacher who had experience working with XXXX. She also recommended the conduct of an XXXX, by XXXX, to assist with XXXX (Ex. J-3).
XXXX also recommended XXXX to work on XXXX, as well as XXXX. She noted the difficulty in predicting how long such services would be valuable, as XXXX. She also recommended XXXX to improve the Student’s XXXX. She also suggested consideration of XXXX. In addition, she recommended XXXX (Ex. J-3).
On April 16, 2009, the CSE met for a Program Review. XXXX was present. The CSE recommended classification of the Student as XXXX. The Student’s classification is not at issue in this case (R. 571). For the remainder of the XXXX grade, the CSE recommended continued placement in XXXX’s class, together with XXXX 1 time per cycle; XXXX to continue 3 times per cycle, and continued XXXX 1 time per cycle (Exs.
D-9, P-II, P-AAA, P-BBB).
For the 2009/10 school year, the CSE recommended placement for the Student in XXXX grade classroom, which contained XXXX. Recommended related services included XXXX. It also recommended XXXX. The Parents provided consent for a XXXX in a document dated November 9, 2009 (Exs. D-9, D-11, J-14).
For the 2010/11 school year, the CSE recommended continued placement for the Student in XXXX classroom, at the request of the Parents, which contained XXXX. Related services were modified. XXXX was reduced to 1 time in a 6 day cycle for 30 minutes. The IEP notes “tremendous gains in the area of XXXX,” that “XXXX;” and that XXXX The log for May 2, 2011 indicated that the Student engaged in inappropriate XXXX. XXXX was reduced to 1 time in a 6 day cycle for 30 minutes. The IEP notes that the Student “XXXX,” that “XXXX”, and that “XXXX.” XXXX were to be received 3 times in a 6 day cycle, but XXXX for 15 minutes per session “XXXX.” The IEP notes that the Student was making progress in all XXXX goal areas, that “XXXX” and that “XXXX,” but that XXXX. Slowing the Student’s XXXX was also being addressed. The Student’s XXXX services were thereafter reduced to 2 times in a 6 day cycle for 15 minutes. The Student had XXXX. A XXXX continued to be used. The Student was permitted to XXXX. The evidence shows that teachers were provided with a list of accommodations for the classroom, including XXXX. The CSE also recommended XXXX. On November 16, 2010, the IEP was amended to add XXXX. On December 21, 2010, the IEP was also amended to XXXX to occur 2 times in a 6 day cycle for 15 minutes. The Parent signed the notice of proposed services on March 2, 2010 (R. 481, 514-518, 958; Exs. D-10, D-12, D-13, D-14, D-15, PCCC, P-CCCC, P-FFFF, P-PPPP).
XXXX is a special education teacher who taught the Student, together with a XXXX and XXXX for 2 years. She holds degrees in XXXX and XXXX. She has permanent certification in the area of special education and had a XXXX which has since expired. Prior to working for the District, XXXX worked at a private residential program XXXX for a period of 1 year. She also worked at XXXX, now known as the XXXX, for 1 year, with mostly XXXX (R. 343-345).
XXXX began her employment with the District in XXXX in 1990. For 16 years, she was a special education teacher in XXXX. Since that time, she has served in the capacity as a XXXX and as XXXX. XXXX described the XXXX as XXXX. She served as a special education teacher in the Student’s XXXX during the 2009/10 school year, XXXX grade year, and during the 2010/11 school year, XXXX grade year, for 2 hours and 15 minutes per day, focusing primarily with XXXX (R. 345-347, 349-350).
XXXX participated in one in-service class addressing XXXX and in a second class involving “XXXX.” She stated that the District did not provide her with a specific class or training in XXXX. XXXX described the Student during the 2009/10 school year, XXXX grade year, as XXXX, particularly in XXXX, but that XXXX had difficulty with XXXX. She stated that XXXX. The Student XXXX where there was down time in the classroom (R. 348-352, 442-443).
XXXX during the 2009/10 school year, the Student experienced XXXX during XXXX, and XXXX. XXXX testified that the Student did not want XXXX. At times, XXXX XXXX so XXXX. She stated that XXXX approximately 1 time per month, and that it happened more in XXXX grade year than in XXXX grade year. A memorandum from XXXX confirmed that the Student XXXX during the XXXX. On cross-examination, XXXX stated that at times after XXXX, the Student would XXXX. In class, the Student XXXX, and XXXX. XXXX stated that XXXX. On re-direct examination, however, she stated XXXX. On cross-examination, XXXX described the Student as XXXX, a statement confirmed by the Parent (R. 352-359, 384-387, 394-397, 399-402, 408-410, 414, 452-454, 965-966; Exs. P-CC, P-EEEE).
XXXX stated that there were different modes of communication with the Parents regarding the Student’s functioning in the classroom, including XXXX. She stated that the XXXX was designed by her and XXXX, the XXXX, but that it was XXXX by XXXX since she was in the classroom with the Student for the entire day. The Parent confirmed that she received XXXX indicating that the Student was XXXX (R. 360-363, 959; Ex. J-17).
XXXX also stated her awareness of the Student’s XXXX in XXXX grade through discussions with XXXX. The Student engaged in what XXXX referred to as “XXXX,” where XXXX. Sometimes XXXX. Both XXXX and XXXX spoke with the Student about the incidents, but they also XXXX. An e-mail transmission from the Parents to XXXX dated March 2, 2010 confirmed that XXXX during the XXXX grade. There were also XXXX (R. 363-365; Exs. P-PPP, P-QQQ).
XXXX testified about the annual review that was held on March 2, 2010, for the Student’s XXXX grade year, the 2010/11 school year, and her recommendations for placement. She stated her belief that XXXX, XXXX and that XXXX, and that XXXX improved during the XXXX grade. She noted, however, that when XXXX was provided with XXXX during the XXXX grade, XXXX. The Parents wanted the Student to continue in XXXX for the XXXX grade so that XXXX. The CSE ultimately continued to recommend XXXX for the Student for the 2010/11 school year (R. 366, 370-374, 387- 389, 393, 399, 958; Exs. P-OOO, J-15).
XXXX continued to instruct the Student in XXXX during XXXX grade year. She stated that the Student continued to XXXX. The results of the Student’s standardized testing in XXXX and XXXX for the 2010/11 school year reflected XXXX. XXXX also improved, but at times XXXX. She did not recall whether the Student continued to be XXXX. The Student XXXX skills as XXXX, and XXXX continued to work with XXXX, XXXX, and XXXX. However, XXXX also stated that during the course of the 2010/11 school year, suggestions were made by District staff, which was confirmed by the Parent, for XXXX, such as the District’s XXXX class and the XXXX program (the “XXXX”), in response to the Parents’ reluctance in placing the Student in XXXX due to XXXX. XXXX confirmed that the Student did not achieve any of XXXX goals during the 2010/11 school year (R. 374-376, 418-422, 443-444, 502, 959-960; Exs. P-K, P-FF, P- HH).
XXXX continued to use XXXX with the Parents during the 2010/11 school year. She stated that the XXXX changed from XXXX to XXXX. The XXXX dated 9/10/10 through 2/9/11 detailed XXXX. The XXXX in place from 2/11/11 targeted XXXX. The XXX also detailed XXXX. If the Student XXXX. On cross-examination, XXXX confirmed that following a parent-teacher conference held in November 2010, a XXXX was developed for the Student by participants in the meeting. She did not recall whether XXXX. She also confirmed that XXXX. She similarly did not recall whether XXXX. The Parent testified that between November 2010 and February 2011, she XXXX and she received no response. On March 3, 2011, the Parent wrote an e-mail transmission to XXXX stating her concerns about XXXX (R. 376-378, 417-418, 422-429, 456-457, 962-964, 973; Exs. J-18, J-19, P-E, P-DD).
XXXX testified that she administered the XXXX (the “XXXX”) as part of the Student’s triennial evaluation, and that the Student XXXX. She attended the Student’s annual review, in which a recommendation was made for XXXX with placement in a XXXX. The IEP contains a statement that the Student expressed XXXX during the XXXX grade year by XXXX. There is also a notation that the Student needed XXXX, including XXXX; and that XXXX and a XXXX should be developed in the fall. Recommended related services included XXXX. The CSE minutes from the June 10, 2011 meeting reference that the Student has XXXX. Supports for school personnel on behalf of the Student included an XXXX and a XXXX, with consultation to be provided in XXXX. The Parent and XXXX, the District’s Director of Special Education, each testified that the IEP that was initially developed as a result of the CSE meeting did not include a number of the recommendations made at the meeting. The record indicates that a document dated July 11, 2011, was sent to the Parent notifying her that the Board of Education reviewed the CSE’s recommendations for the 2011/12 school year. It does not indicate the date upon which the Board review occurred. In August of 2011, the Parent requested modifications to the document, some of which were agreed to by XXXX. She added information to the IEP, which was not received by the Parent until September 16, 2011 (R. 378-380, 715-727, 1002-1003, 1010-1014, 1229-1230; Exs. P-
L, J-7, J-12, J-25).
XXXX stated her belief that XXXX the Student would be able to succeed in a XXXX for the XXXX grade, since XXXX would have the services of XXXX to address XXXX. She also stated her personal opinion that the Student should not be classified as XXXX, although she could not recall whether the issue of a possible change in the Student’s classification was discussed at any CSE meeting. On re-cross examination, XXXX acknowledged that XXXX (R. 381-382, 447-451, 459; Ex. P-OOO).
XXXX is a certified XXXX for students in XXXX. She was the XXXX in the Student’s XXXX during his XXXX and XXXX grade years. She described the Student as a XXXX, but noted that XXXX. In the XXXX grade, the Student consistently XXXX. Efforts to XXXX were very inconsistent. XXXX also had difficulty XXXX. XXXX participated in XXXX (R. 472-475, 487).
During the 2009/10 school year, XXXX created a XXXX with XXXX that was individualized for the Student. XXXX was inconsistent. XXXX stated her belief that the Student was not XXXX because XXXX. The Student stated to XXXX during the XXXX and XXXX grades that XXXX. At a CSE meeting for the 2010/11 school year, held on March 2, 2010, there was discussion about XXXX, a recommendation with which the Parent disagreed. The CSE determined to recommend XXXX for the Student’s XXXX grade year, with the intent to XXXX for the XXXX grade. The Student continued to have a XXXX. The record contains 3 weekly progress reports completed by XXXX. The Student’s XXXX was marked XXXX (R. 475-480; Exs. J-15, J-17, J-18, J-19, P-JJ).
During the 2010/11 school year, the Student continued to XXXX, with the exception of XXXX, where XXXX. XXXX in the beginning of XXXX grade year was XXXX although XXXX. E-mail transmissions from XXXX and XXXX show that the Student continued to “XXXX”; XXXX took XXXX; XXXX; XXXX; XXXX; XXXX; and XXXX. Problems with XXXX continued as of January of 2011. An e-mail transmission from the Parent to XXXX dated October 19, 2010 confirmed that XXXX. A
Teacher/Parent Conference was held on November 18, 2010 to discuss XXXX. The XXXX was thereafter changed by XXXX and XXXX so that XXXX. On February 24, 2011, the XXXX was modified, with the intent of XXXX. Instead of XXXX, the XXXX advised the Parent that the Student was XXXX. The Parent testified that she was not in favor of XXXX she was really trying to have the best relationship that she could in order to try to work with the teachers to address XXXX. However, on March 3, 2011, she wrote a letter to XXXX expressing her concerns about XXXX. XXXX stated that she never remembered an XXXX being done prior to XXXX. XXXX improved slightly toward the end of the year (R. 481-486, 491-497, 507-509, 514, 965-967, 974-976; Exs. J-13, J-18, J-19, P-AA, P-BB, P-CC, P-DD, P-EE, P-SSS, P-UUU, P-VVV, P-XXX, P-AAAA).
XXXX attended the annual review for the 2011/12 school year. She stated her belief that placement in XXXX for the XXXX grade was an appropriate placement that would allow XXXX. On cross-examination, XXXX acknowledged that there was discussion about alternate placements for the Student in the District’s XXXX classroom located at XXXX, and that she was a participant. She stated her belief that the Student would be XXXX. On re-direct examination, XXXX stated that she did not personally recommend the XXXX class at XXXX, she did not recall who made the recommendation and she did not recall when the recommendation was made, but that it was not at a CSE meeting. She stated that she was somewhat familiar with the XXXX class, but she never visited the program, she did not know the nature of the students in the class, and she was not familiar with the curriculum that was implemented in the class. XXXX, the District’s XXXX and the Student’s XXXX, testified that there were many discussions about placement between XXXX, XXXX, and XXXX, and that placements in the XXXX classroom at XXXX and at XXXX were two of the placements discussed. XXXX also stated that the XXXX was not effective in addressing XXXX, because they did not have the support staff. She also felt that the Student’s XXXX difficulties XXXX. The Parent testified that XXXX and XXXX stated at the CSE meeting held for the 2011/12 school year that the Student had XXXX, and that was the basis for their recommendation for placement of the Student in XXXX grade (R. 488-489, 501-507, 519-524, 672-674, 999-1001; Exs. J-7, J-12).
XXXX is a certified XXXX. He has been employed by the District for 30 years. He is assigned to the District’s XXXX and XXXX. His primary responsibilities include conducting assessments, counseling, consultation, and team leadership. He also assesses students for the District who attend private schools, such as XXXX and XXXX. XXXX took a course in XXXX from the XXXX, and other workshops and self-study in
XXXX (R. 567-570).
XXXX characterized the difference between XXXX and XXXX as the degree of XXXX. He stated that a student can be diagnosed with XXXX yet not be classified as a student with a disability (R. 570-571).
XXXX testified that he became familiar with the Student in the XXXX grade by virtue of his placement in XXXX, as well as by conducting two of his evaluations and attendance at XXXX CSE meetings. XXXX was present at the meeting at which the Student was classified, and he heard XXXX’s presentation of her assessment where she concluded XXXX. He stated that he had some doubts about classifying the Student XXXX, but that he did not voice them at the time of the meeting (R. 572-576; Exs. J-1, D-5, D-9).
XXXX confirmed his attendance at the CSE meeting held on September 23, 2009, which was a Program Review during the XXXX grade. He confirmed that the Parent requested that if XXXX that they be part of the team and have input. She also asked that the CSE consider having an expert XXXX present, and she asked to meet with XXXX to discuss it further. The Parent’s e-mail transmission dated October 26, 2009 to XXXX, the person who chaired the CSE meeting held on September 29, 2009, confirms that the Parent had requested the conduct of XXXX, and XXXX responded that she was “in complete agreement” that XXXX. Development of an XXXX was included in the proposed services notice, which was signed by the Parent on September 23, 2009. XXXX stated that he did not, to his recollection, ever meet with the Parent to discuss conducting XXXX. He stated that XXXX, but at the time he observed him as part of his Initial Referral, he did not see XXXX. His evaluation, however, contained a recommendation of consideration of completion of XXXX. His stated reason for making the recommendation was because there were some XXXX concerns that were happening in the classroom that he felt might respond to XXXX. On cross-examination, XXXX stated that he remembered discussion at the meeting that if XXXX was necessary for the following year, it would be pursued. He confirmed that he has been the chairperson of the team XXXX for 2-3 years at XXXX (R. 577-580, 598, 604-605; Exs. J-1, J-14, D-4, P-HHH, P-UUUU).
XXXX stated that he participated in an XXXX for the Student during his XXXX grade year, on February 3, 2009, but the attendance record does not reflect his participation. He stated that when they approached the point in the meeting where they would XXXX, it was their intention to XXXX but the teacher, XXXX, felt XXXX. She felt XXXX. Unsigned notes attached to the XXXX confirm that the Parent contacted someone in the District to report XXXX. XXXX identified the handwriting as belonging to XXXX, a XXXX employed by the District. On March 27, 2009, the Parent reported that the Student XXXX. XXXX confirmed that he did not participate in any XXXX for the Student during XXXX or XXXX grade years (R. 582-583, 598; Ex. J-2).
XXXX testified about a Re-Evaluation he conducted with the Student on April 6, April 7, May 20, and May 23, 2011. The report was generated on June 3, 2011. The evaluation included XXXX. In his report, XXXX stated his belief that the Student’s results on the XXXX were an inaccurate indicator of XXXX. He needed XXXX. When asked about XXXX then current classroom experience in the XXXX grade classroom, the Student stated that XXXX. He testified that XXXX could have had a positive effect of making the Student XXXX and accommodating XXXX could have XXXX (R. 587-588, 615-616; Ex. J-6).
XXXX had the Student’s teacher and the Parents complete the XXXX which are XXXX (R. 589-590; Exs. J-6, P-J).
XXXX stated that based on his Re-Evaluation, he did not believe that the Student continued to meet the criteria of XXXX, although he earlier testified that he had doubts about the appropriateness of that classification at the meeting at which XXXX was first classified. He stated in his report that some of the Student’s responses hinted at a tendency to XXXX. XXXX made a number of recommendations following the re-evaluation. He recommended continued exposure to XXXX. XXXX stated that he was not aware that the Student’s teachers had XXXX. The results of XXXX’s re-evaluation were never discussed at a CSE meeting. He stated his belief that it would have been useful for the CSE to have the information from the re-evaluation and the XXXX in making placement recommendations for the XXXX grade (R. 590-595, 609-610, 812- 813; Ex. J-6).
XXXX testified that he made a suggestion to the Parent to look at a private school for the Student, but he did not remember when the conversation occurred or who first raised the issue. XXXX, the District’s XXXX, also testified that she had a discussion with the Parent that placement in a private school might possibly be better XXXX. She stated that the conversation did not occur during the XXXX grade. The discussion centered on XXXX. The Parent said she was afraid that XXXX. XXXX suggested that maybe she try another school (R. 613-615, 677-678, 690-691).
XXXX is a certified XXXX. She is also certified as XXXX. She was in private practice until 2005, when she began work for XXXX, working with children and families. She was assigned to the District’s XXXX and XXXX. In 2007, she was hired by the District as XXXX. She met the Student when XXXX was in XXXX. She was asked by his XXXX teacher, XXXX, to XXXX. She described XXXX (R. 623-629).
In February of 2008, the Parent contacted XXXX and asked her to XXXX because she was concerned about XXXX. XXXX also XXXX in the first part of the 2008/09 school year. In the second week of school, XXXX. Beginning in or about January of 2009, XXXX saw the Student for XXXX, during the CSE referral process.
XXXX testified that she told the Parent that the CSE could not provide XXXX without a diagnosis, and she recommended that the Student see XXXX. After the Student was diagnosed by XXXX as XXXX, the CSE recommended XXXX. XXXX provided XXXX until XXXX left XXXX (R. 629-635).
During the 2010/11 school year, XXXX grade year, XXXX was scheduled to see the Student 1 time in a 6 day cycle. Sometimes she saw him more frequently because of XXXX. She also XXXX. She stated that the Student XXXX, but XXXX (R. 635-639; Ex. P-GGGG).
XXXX stated that the majority of the time, the Student XXXX (R. 639-640, 643, 649-651).
XXXX testified that the Student XXXX (R. 640-645, 647-649, 668-669; Ex. P-
GGGG).
XXXX detailed two conversations she had with XXXX. She stated that on November 16, 2010, XXXX stated her opinion that the Student XXXX (R. 652-655, 666- 668, 1220-1222; Ex. P-GGGG).
On cross-examination, XXXX was asked whether XXXX (R. 669-670).
XXXX summarized her participation at the Student’s annual review on June 11, 2011 for the 2011/12 school year. She suggested placement for the Student in XXXX. She stated that the CSE did not adopt her recommendation because the Parents did not agree with the placement. XXXX worked collaboratively with XXXX to develop XXXX (R. 655-660, 687-689; Exs. J-7, J-12, P-L).
XXXX (R. 660-662, 1229-1230; Exs. P-L, J-7).
On re-direct examination, XXXX confirmed that XXXX (R. 691-693; Exs. P-L, J-7, D-20).
XXXX testified that the Student was XXXX. The IEP delivered to the Parents in August 2011 did not include a recommendation for XXXX, but the CSE minutes, contained in a document separate from the IEP, make reference to it. XXXX also recalled discussion about a change in classification to XXXX, but the Parent did not agree with the change and it was ultimately not recommended. There is no indication of such a discussion in the minutes, and XXXX, the District’s Director of Special Education and the CSE Chair at the meeting, did not recall if there was any discussion about classification (R. 662-665, 711-712; Exs. J-7, J-12, P-L).
On the Parents’ direct examination, XXXX stated her belief that the XXXX in place during the Student’s XXXX grade year was somewhat successful, but she thought that parts of it XXXX (R. 680-681).
XXXX stated her belief that the conduct of XXXX was warranted, and she becomes involved when XXXX. She did not believe that an XXXX was ever completed while the Student attended school at XXXX (R. 684-686; Ex. P-GGGG).
XXXX is the District’s Director of Special Education. She has permanent certification as a XXXX, and received a XXXX. She is also certified as XXXX. She began to work in the public schools in 1990, as a full-time XXXX. She was employed for 10 years at the XXXX School District and thereafter began to work for the XXXX. She spent 3 years as a XXXX. She then became the full-time Chairperson of the CSE, the CPSE, and out of district placements for 4 years. In 2005, she became the Coordinator of Special Education, and she thereafter served as the Director of Special Education since January 2006 (R. 694-696).
XXXX took a full semester course in XXXX at XXXX during the time she has worked for XXXX. She also attended various trainings and annual conferences for XXXX, in addition to in-District training conducted by XXXX. XXXX was included as part of the trainings. She described XXXX as XXXX. She also stated that difficulties in
XXXX (R. 696-698).
XXXX testified regard her familiarity with the Student. She became involved during the Student’s XXXX grade year, when XXXX came to her with concerns about the appropriateness of XXXX placement. She stated that the Parents’ concerns centered about what the District would offer for the following year if it the team did not feel that the current placement was meeting XXXX needs. In March of 2011, XXXX arranged for the Parents to visit the XXXX (the “XXXX”) which is the District’s XXXX class for XXXX, and the XXXX class, designed for students with XXXX and XXXX. XXXX confirmed that the Parents made a request to visit the programs. Both classrooms were located in the XXXX. She described the students in the XXXX class as XXXX. XXXX stated her belief that neither the XXXX class nor the XXXX class was appropriate for the Student. The students in the XXXX class were mostly XXXX, and the Student was XXXX. She felt similarly about the XXXX program, in that the XXXX (R. 698-704, 976; Ex. P-MMMM).
On the Parents’ direct case, XXXX testified that there was a meeting in March 2011 between her, XXXX, and the Parents but that she did not recall the purpose or outcome of the meeting. The Parent testified that the meeting was scheduled at her request to address concerns she had about XXXX. The Parent also testified that XXXX. The Parent testified that XXXX asked her at that meeting whether she would consider placing the Student at a private school, XXXX, where her children went. XXXX denied that the exchange occurred. A review of an e-mail transmission from the Student’s father to XXXX indicates that in 2009, XXXX encouraged the Parents to investigate XXXX. XXXX also testified that during the XXXX grade a recommendation was made to complete XXXX with a specialist present, but she did not recall who initiated the recommendation. The Parent testified that a meeting was held in April of 2011 with the Parent, XXXX, XXXX, XXXX, XXXX, and XXXX, the XXXX. She described the nature of the discussions. The Parent stated that XXXX (R. 834-838, 976-981, 1158-1161; Exs. P-G, P-EEE, P-TTT, P-DDDD).
In a letter to XXXX dated March 24, 2011, the Parents requested that the Student’s triennial evaluation be conducted earlier than its projected date of November 11, 2011, given that a change in placement was being considered. The Parents also asked for XXXX and for a XXXX and a XXXX to be included in the evaluation process. On April 26, 2011, the Parent completed a XXXX. She did not answer a question on the form regarding whether she felt that her child was receiving adequate services. On May 11, 2011, the Parent sent an e-mail transmission to XXXX requesting an update on the status of completion of the Student’s triennial testing and inquiring about a possible date for a CSE meeting to review the evaluations (R. 705-706, 993-994; Exs. J-4, D-18, P-I).
On May 19, 2011, XXXX, a XXXX, conducted an XXXX Triennial Report, which was co-signed by XXXX, a XXXX who was employed by the District. The evaluation included a XXXX, as request by the Parents. The scores indicate that the Student XXXX. The document was reviewed by the CSE at the annual review held on June 11, 2011. I note that the IEP does not list the XXXX Triennial Evaluation on the XXXX page of the document, but the tests performed as part of the evaluation and the Student’s results are detailed in the IEP (R. 706-707, 984-987, 1211-1214; Exs. J-5, P-L, P-III, P-
CCCC).
On April 5, 2011 and June 8, 2011, XXXX, a XXXX employed by the District, conducted a Triennial XXXX. In the April 5 report, the evaluator administered the XXXX. The evaluator reported that the Student XXXX (Ex. D-16).
XXXX stated that the Student continued to make gains in XXXX. She stated that overall, the Student demonstrated XXXX (Ex. D-16).
XXXX noted that the Student had XXXX in the XXXX grade. She did not feel them to be a direct result XXXX. She recommended that concerns be discussed with XXXX (Ex. D-16).
At the request of the Parents, on June 6 and June 7, 2011, XXXX administered formal test measures XXXX. She administered the XXXX. The Student’s responses were XXXX. XXXX continued to recommend that the Student be discharged from XXXX. All XXXX evaluations were reviewed by the CSE. I note that the XXXX conducted on April 5, 2011 is not referenced on the XXXX page of the IEP, but the tests performed as part of the evaluation and the Student’s results are detailed in the IEP (R. 707-708; Exs. P-L, D-16, D-17).
XXXX reviewed a Re-Evaluation Report completed by XXXX as part of her testimony, but confirmed that the report was never reviewed by the CSE. A review of the Annual CSE Meeting Information and Attendance confirms that neither XXXX nor XXXX was present at the meeting. Although there was discussion about reconvening the CSE to review XXXX’s report, a meeting never occurred. She stated that XXXX conducted updated XXXX that was reviewed at the meeting. She also testified that the Parents’ request for XXXX, contained in their letter dated March 24, 2011, did not occur prior to the Student’s annual review held on June 10, 2011 because of a shortage of personnel at XXXX. A review of the XXXX reveals that it did not occur until October 5 and October 13, 2011. It also appears that the District’s Special Education Office did not send XXXX information relating to the Student to XXXX until August 16, 2011, a fact testified to by the Parent. The evaluator, XXXX, made recommendations for XXXX. XXXX notes that the CSE team may accept or reject her recommendations, and she invited District personnel to contact her with any questions about the content of the report. There is no indication in the hearing record that the XXXX was ever reviewed by the CSE. The IESP prepared by the District for the 2012/13 school year at a meeting held on June 1, 2012, contains a notation under the Student’s XXXX has been recommended and will be completed by XXXX.” There is no acknowledgement of or reference to the XXXX that occurred on October 5 and October 11, 2011, during the 2011/12 school year. XXXX testified that the CSE approved XXXX at the CSE meeting held in June of 2011, but there is no reference to the issue in either the IEP for the 2011/12 school year or in the CSE minutes. The Parent requested the evaluation in a letter dated March 24, 2011 (R. 708-711, 715, 993-995; Exs. J-4, J-6, J-10, J-11, J-12,
J-16, P-L, P-LL, P-WWWW).
XXXX reviewed the recommendations made by the CSE at the meeting held on June 10, 2011. She confirmed that the CSE recommended XXXX, as contained in the minutes. However, a review of the original IEP indicates a statement, under XXXX, that the Student did not need a XXXX. That statement was thereafter changed to reflect that the Student did need XXXX in the revised IEP that the Parents received after the start of the 2011/12 school year. XXXX stated that XXXX was not conducted nor was a XXXX developed, noting that the Student did not return to XXXX in the fall of 2011. On cross-examination, the Parent confirmed that she appeared at the CSE meeting with an advocate, and that she had an opportunity to speak at the CSE meeting (R. 712-715, 1226-1230; Exs. J-7, J-12, P-L).
XXXX testified that that the Parent contacted her some time after her receipt of the IEP for the 2011/12 school year and they had a telephone conversation in which they discussed the Parents’ concerns with the document. The Parent testified that she received the IEP in August of 2011, but thereafter stated that she did not recall when she received it, but confirmed that as of August 2011 she had notice of what the CSE’s recommendations were. In a letter dated August 19, 2011, the Parent thanked XXXX for taking the time to speak with her and asked that amendments be made to the IEP, as set forth in an attached marked copy of the IEP. The Parent sent a letter with the proposed corrections, and asked if the requested changes could not be made, to please schedule a CSE meeting. XXXX testified that she added information that was discussed at the June 11, 2011 CSE meeting but was not included in the IEP sent to the Parents. That information included the following: XXXX. A review of the proposed services notice from the meeting held on June 10, 2011 shows that the Parent’s signature does not appear on the form. Requests by the Parents to delete certain comments on the IEP were not honored as they were statements made by evaluators as part of their reports of testing. The original IEP also contained only 5 XXXX goals, and XXXX added 6 additional goals, including goals regarding XXXX. The revised IEP was not received by the Parents until after the start of the 2011/12 school year (R. 715- 727, 999, 1002-1004, 1006, 1010-1014, 1229-1230, 1370-1372; Exs. J-7, P-L, D-19).
On cross-examination, XXXX confirmed that the changes requested by the Parent on the telephone were discussed at the CSE meeting on June 11, 2011, but that they were omitted from the IEP sent to the Parents in August of 2011. She also confirmed that a substitute secretary in the Special Education Officer mailed the revised IEP and the XXXX to XXXX on September 16, 2011 (R. 824-826; Ex. J-8).
XXXX stated that at no time during their discussion in August of 2011 did the Parent indicate where the Student would be attending school for the XXXX grade, and she was not aware that the Student would not be returning to the District through a release of records from XXXX signed by the Parent on September 1, 2011. The release of records form was sent to XXXX, and XXXX testified that her office was not located in that building. The Parent testified that at the time of her phone call to XXXX in August of 2011 regarding proposed changes to the IEP, the Parents had already determined to send the Student to XXXX. XXXX received a letter from the Parent dated October 7, 2011 requesting records and advising that she did not want any of the related services to be provided to the Student in his classroom at XXXX, with the exception of the XXXX, until an IESP meeting was scheduled. The Parent sent XXXX a letter dated November 28, 2011 informing her that she removed the Student from the XXXX and placed XXXX in a private school because the District was not providing XXXX with an appropriate placement. On cross-examination, the Parent confirmed that she did not provide any detail as to her concerns regarding the District’s proposed placement, and that she did not state her intention to enroll the Student at a private school at public expense. She also requested copies of certain school records, the District’s policies and procedures to request an independent educational evaluation, and a copy of the District’s New York State Special Education Plan. XXXX sent most items to the Parent on November 29, 2011, with the exception of recorded observations used to measure progress on the Student’s goals The evidence shows that on September 7, 2011, the Parent sent an e- mail transmission to follow up on her request for changes to the IEP, that she signed a contract for the Student’s attendance at XXXX on September 7, 2011, and that she did not want the District to send the modified IEP to the private school until she had an opportunity to review it. The Parent stated that she received the modified IEP on September 16, 2011, that not all of her requested changes were made, and that it appeared that the document was provided to XXXX prior to her having had an opportunity to review it first, as agreed. On cross-examination, the Parent confirmed that on September 1, 2011, she signed a consent form for release of records to XXXX, but that she did not specify not to release a copy of the Student’s IEP for the 2011/12 school year. On re-direct examination, the Parent confirmed that she sent an e-mail transmission to XXXX specifically stating that she did not want the IEP to be sent to XXXX without having had an opportunity to review it (R. 727-733, 1083-1086, 1097- 1098, 1170-1172, 1228-1230, 1259-1263; Exs. J-8, J-9, J-21, P-M, P-N, P-O, P-HHHH,
P-IIII).
XXXX testified that the Progress Report for IEP goals for the XXXX quarter of the 2010/11 school year was incomplete with respect to several of the Student’s annual goals in the XXXX. The record reflects that the incomplete entries in the XXXX area were the responsibility of XXXX, the special education teacher (R. 840-841; Ex. P-H).
XXXX confirmed that XXXX’s Re-Evaluation Report was not reviewed at the CSE meeting on June 10, 2011, and a review of the record confirms XXXX’s testimony that he was not present at that CSE meeting. XXXX stated her agreement with XXXX’s statement that a review of the report may have been useful in making recommendations for the XXXX grade. XXXX testified that XXXX never indicated to her during the 2011/12 school year his belief that the Student was not XXXX. She also stated that XXXX never indicated to her during the 2011/12 school year that she felt the Student should have been classified as XXXX, although XXXX said that she had very many concerns about the Student’s XXXX. She also stated that she did not recall the CSE recommending a re-evaluation to re-establish XXXX diagnosis of XXXX. The record reflects that the Student was diagnosed with XXXX, a condition XXXX, by XXXX and XXXX was thereafter classified by the CSE with XXXX (R. 710, 841-844; Exs. J-6, J-12, P-LL).
XXXX testified that the conduct of XXXX would not have been useful in making recommendations for the Student for the 2011/12 school year. She did not recall whether progress on the Student’s IEP goals was discussed at the annual review held on June 10, 2011. The Parent testified that the XXXX quarter IEP goals were not reviewed at the meeting, and that she did not receive the goal report until June 24, 2011, after the date that the annual review was held. XXXX confirmed that the Student’s teachers discussed considering the XXXX or XXXX programs as possible placements, and that XXXX testified that she did not feel that XXXX was appropriate. She did not recall whether XXXX made that statement at the CSE meeting. The Parent testified that they expressed their concern that XXXX would not be appropriate, because the Student would not have XXXX, and that the teachers in the XXXX were already having difficulty XXXX. XXXX stated to the Parent that the XXXX are designed for students with XXXX and not XXXX. XXXX testified that the final placement recommendation was for XXXX, although it was not contained in the CSE minutes. The IEP lists XXXX. The record contains no indication that the Student has difficulty with XXXX. That statement was changed at the Parents’ request to, “XXXX” a fact borne out by the evidence (R. 845-853, 997, 999; Exs. J-7, J-12, P-L).
XXXX also testified regarding the CSE meetings held on March 2, 2012 and June 1, 2012 with regard to the Student’s placement for the 2012/13 school year. She confirmed that XXXX’s Re-Evaluation Report dated June 3, 2011 was not reviewed at either of the two annual review meetings held in preparation for a placement recommendation for the 2012/13 school year. XXXX stated that she did not know who chaired the meetings, but confirmed that she was involved with the search for a placement in another XXXX in the District or an out of district program at either XXXX or a program in the XXXX School District. The CSE Meeting Information and Attendance confirms the absence of XXXX and XXXX. The minutes of the March 2 meeting indicate that the Parent raised the issue of the exploration of an outside placement. The record reflects that the Parent visited two classrooms at XXXX program located in the XXXX, and she was given class profiles of the students that she observed in the classrooms toward the end of the 2011/12 school year (R. 854-866; Exs. J-12, P-R, P-
S, P-KK).
XXXX testified that the CSE’s final recommendation for placement for the Student for the 2012/13 school year was XXXX, referenced in the IESP and in the CSE minutes as either XXXX or XXXX, outside of the Student’s attendance zone. On re-direct examination, XXXX stated her belief that XXXX located outside of the Student’s attendance zone were recommended due to issues between the Parents and the staff at XXXX. In August 2012, the Parents received busing information regarding transportation of the Student to XXXX for the 2012/13 school year (R. 866-868, 872- 873; Exs. J-12, J-16, P-DDDDD).
XXXX is a certified XXXX who has contracted her services to the District for 12 years. She provided XXXX to the Student during the 2010/11 school year. She was called for the purpose of authenticating her notes from XXXX. Her notes of a conversation with XXXX on September 23, 2010, indicate consideration of a XXXX with XXXX. There is a note from January 25, 2011 regarding a response to an inquiry by the Parent about use of XXXX. XXXX spoke with XXXX, who stated that XXXX. The Parent confirmed that XXXX and others who participated in a classroom meeting stated that the Student’s problems in the classroom were XXXX, and not caused by XXXX (R. 878-884, 965-966, 968-970; Ex. P-III).
XXXX is a XXXX who has been employed by the District for 28 years. She was also the CSE Chairperson who conducted the Student’s initial eligibility determination meeting and other meetings regarding XXXX. She was called for the purpose of authenticating her notes from a telephone conversation she had with the Parent on January 27, 2009. She also identified documents that she completed with respect to services the Student would receiving following CSE meetings that occurred on January 8 and January 27, 2009 (R. 885-899; Exs. P-DDD, P-OOOO, D-5, D-8).
The Parent testified that the Student began to attend XXXX in September of 2011 and that XXXX thrived there. On cross-examination, she stated that she did not recall the date upon which the Student was formally accepted into the program for the 2011/12 school year. She reviewed a letter that she received from XXXX dated September 6, 2011 advising that the Student was accepted into the program, and she testified that she signed the enrollment contract on September 7, 2011. She also testified that she received written notice on September 6, 2011 that her request for financial aid was approved, but she did not remember the date upon which she applied for financial aid. The tuition for the 2011/12 school year at XXXX was XXXX. The Parents received a grant in the amount of XXXX. Their total tuition cost was XXXX. Statements from the Parents’ credit card account confirm payments in the amount of XXXX. On re-direct examination, the Parent stated that the agreement to provide financial aid was the result of a meeting that she had with XXXX, the Headmaster of XXXX, and that the process for obtaining financial aid had changed for the 2012/13 school year. On her direct examination, the Parent stated that XXXX was very willing to make changes to the program and to provide an individualized program for XXXX based on XXXX specific needs, including XXXX. On cross-examination, the Parent confirmed that she did not ask the District for XXXX. She was told that XXXX. The Parent spoke about XXXX (R. 1104-1121, 1166-1170, 1249-1252, 1254-1255; Exs. J-11, J-20, J-21,
P-U, P-SSSS, P-VVVV, P-EEEEE).
Part of the XXXX conducted by XXXX involved two classroom observations at XXXX, in XXXX’s class. The Student needed XXXX. He did not XXXX (Ex. J-11).
XXXX returned on another day to observe and work with the Student during an actual XXXX. XXXX noted that the teacher had XXXX (R. 1426-1427; Ex. J-12).
On cross-examination, the Parent confirmed that during the XXXX and XXXX grades in the District, the Student XXXX. She also stated that during the XXXX and XXXX grades, the Student had difficulties XXXX (R. 1179-1183, 1192-1193; Ex. P-U).
Also on cross-examination, the Parent confirmed that the Student XXXX (R. 1184-1191, 1240-1242; Exs. P-L, P-M, P-U).
In addition, the Parent confirmed that the Student XXXX. She also pointed out on re-direct examination that the District’s counsel had only referenced the negative comments and that many portions of the narrative reports are positive in nature (R. 1193-1211, 1258-1259; Ex. P-U).
A review of the Student’s Report Cards from XXXX for the 2011/12 school year shows XXXX. In the XXXX (Exs. P-U, P-W).
In XXXX, the Student XXXX (R. 1199; Ex. P-U).
In XXXX, the Student XXXX (Ex. P-U).
In XXXX, XXXX was described as XXXX (Ex. P-U).
In XXXX, XXXX had XXXX (Exs. P-U, P-YYYY, P-ZZZZ).
In XXXX, XXXX was described as XXXX (Ex. P-U).
Initially in XXXX, the Student was described as XXXX (Ex. P-U).
XXXX was not XXXX. There were no reports for each of the remaining quarters (Ex. P-U).
In XXXX, the Student XXXX (Ex. P-U).
On re-direct examination, the Parent stated that as a child with XXXX, there are things that the Student will always need to work on and learn in regard to XXXX (R. 1252-1254).
The Parent stated that in February of 2012, they received a letter from XXXX regarding drastic reductions in financial aid for the 2012/13 school year, and that enrollment contracts for the 2012/13 school year would have to be signed by March 1, 2012 to insure a spot. She stated that the Parents were permitted to withdraw their application by June 30, 2012 with a full refund. The total amount for tuition for the Student for the 2012/13 school year was XXXX. The Parents received financial aid in the amount of XXXX. The record shows that the Parents made payments on XXXX. On cross-examination, the Parent testified that she signed the re-enrollment contract on February 29, 2012, and she never withdrew the Student from the program. In addition, the Parent applied for financial aid at some time prior to the time they signed the re-enrollment contract, and the record shows that an award was granted in a letter dated February 13, 2012. On re-direct examination, the Parent stated that XXXX adopted a formal process for the application for financial aid, which required an application together with financial information, which was prioritized by level of need. She stated she did not recall the date she filled out the application, but that she was notified of her grant amount on February 13, 2012. The Parent could not recall whether she provided notice to the District, other than the Due Process Complaint Notice, that she would be seeking tuition reimbursement for the 2012/13 school year. On re-direct examination, the Parent reference discussions reflected in the CSE minutes about the Parents’ inability to continue to finance the Student’s placement at XXXX, and the CSE Chairperson’s comments that it was not a program that the District was permitted to pay for as it was not a state-approved private school. The Parent also testified that she stated at the CSE meeting that it was her understanding that if payment was ordered by a hearing officer, that the District could pay for a non-approved school, and stated her intent to file for a hearing (R. 1121-1126, 1174-1176, 1178-1179, 1255-1257, 1263- 1274; Exs. J-12, J-22, P-T, P-QQQQ, P-RRRR, P-BBBBB, P-CCCCC, P-FFFFF).
The Parent testified that she contacted the District to schedule an IESP meeting to discuss placement for the 2012/13 school year. She detailed the discussions about placement which I will not detail here, as the District conceded that its placement recommendations for the 2012/13 year were inappropriate. The Parent visited a XXXX as it was a possible recommendation that the CSE would make for the Student’s placement for the 2012/13 school year. She also attended the CSE meetings that were held on March 2, 2012 and June 1, 2012 for the 2012/13 school year. She advised the CSE at the June 1, 2012 meeting that she would be filing for a due process hearing.
Following the meeting, she obtained a due process complaint form from XXXX (R. 1127-1138; Ex. P-Q).
XXXX is the Headmaster of XXXX. He has been employed in that capacity for 6 years. He has been the headmaster of independent schools for 23 years. XXXX is New York State certified at the superintendent level. He stated that the mission of XXXX is to XXXX (R. 1330-1333).
XXXX testified that the XXXX is accredited by both New York State as a non-public school and by the New York State Association of Independent Schools (the “NYSAIS”). He also stated that 100% of the students who attend XXXX go to college. He stated that the School does not administer the Regents, but they provide NYSAIS diplomas, which are recognized nationally and internationally, and are recognized as a full diploma by New York State. The Parent submitted into evidence a description of XXXX, as well as XXXX Parent/Student Handbook (R. 1333-1334; Exs. P-Y, P-AAAAA).
XXXX stated that he has known the Student for slightly over a year as a student in XXXX class. He has visited XXXX’s class and has sat in on the class. He testified that did not enter the classroom for the specific purpose of observing the Student, nor was he ever asked to. The enrollment for the 2011/12 school year was slightly over XXXX. On cross-examination, XXXX stated that the XXXX day of school for the 2011/12 school year was September 8, 2011. During the 2012/13 school year, there were just slightly below XXXX. There is 1 section of each group, and there are XXXX with 1 teacher (R. 1334-1338, 1355-1356).
XXXX stated that when he entered the Student’s classes, he observed that the Student was XXXX. On cross-examination, XXXX stated that during the 2011/12 school year he only observed the Student by his general observation of XXXX as part of his classroom, and that during the 2012/13 school he interacted with XXXX through XXXX. He stated that these were not official observations, and he took no notes of his observations (R. 1338-1340, 1356-1358).
When asked his opinion as to whether XXXX was an appropriate placement for the Student, he stated that he could only go by a before and after. He stated that XXXX (R. 1340-1345).
On cross-examination, XXXX testified that the Student did not XXXX (R. 1358- 1360; Ex. P-U).
Also on cross-examination, XXXX testified that there was no XXXX; that XXXX was not approved by New York State as a special education school, and that it has never applied for approval as a special education provider, because that was not its mission; and that individual class teachers XXXX (R. 1360-1365).
XXXX stated that he was made aware by the Parent that the Student XXXX. He stated that the Parent was very involved with the School community (R. 1346-1347).
XXXX testified that XXXX (R. 1347-1349).
XXXX stated that he did not have any opportunities to observe the Student in XXXX during the 2012/13 school year, other than just passing through and observing that XXXX had settled in. He stated his opinion that the Student’s placement at XXXX was appropriate. He stated that the Student XXXX (R. 1351-1352, 1365-1368).
The Student’s father testified that at the end of the Student’s XXXX grade year he was asked to sign paperwork at the CSE meeting to indicate agreement with the CSE’s recommendations, and that he and the Student’s mother declined to sign the paperwork for XXXX because District staff stated in February of 2011 that XXXX (R. 1370-1372, 1378).
The Student’s father testified that that his wife asked XXXX, the District’s CSE Chairperson who chaired the meeting for the 2012/13 school year, whether XXXX would be a possible placement recommendation that could be made and XXXX responded that it was not on the approved list and could not be recommended by the CSE. On cross-examination, the Student’s father stated that he did not remember specifically stating to XXXX that he would be placing the Student at XXXX for the 2012/13 school year. He stated that the Student’s mother asked whether placement at XXXX could come about as a result of a fair hearing and she responded that it potentially could. He testified that his wife walked to the special education office to obtain a due process complaint form, which was provided to her by XXXX (R. 1376-1377, 1379).
XXXX is employed by the District as a CSE Chairperson who also has responsibilities as a XXXX. She has been employed by the District for 11 years. XXXX chaired the Student’s CSE meetings that were held in March and June of 2012. She did not chair any other CSE meetings regarding the Student (R. 1383-1384).
XXXX testified that at one of the two CSE meetings, the Parents stated that they could no longer afford the placement at XXXX and she stated that the District could not recommend placement there because it was not an approved special education placement. She did not recall the Parent’s specific response as to whether or not they stated that they wanted the Student to remain at XXXX. She also did not recall whether there was discussion about any circumstances under which the District could pay for placement in a non-approved school (R. 1390-1391).
On cross-examination, XXXX confirmed the accuracy of the CSE minutes and stated that they did not contain any indication that the Parents intended to enroll the Student at XXXX for the 2012/13 school year and seek tuition reimbursement from the District. She also stated that at neither meeting held in March nor June 2012 did the Parents specifically state that they would be seeking tuition reimbursement from the District (R. 1392-1393; Ex. J-12).
On re-direct examination, XXXX stated her recollection that the CSE meeting held in June 2012 was tabled because the Parents sought time to think about the recommendations and that they would get back to the CSE. She also stated that no other meeting was scheduled because the Parents filed their due process complaint. On July 16, 2012, XXXX sent a Prior Written Notice of Proposed Revocation of Parental Consent, based on the Parents’ revocation of consent for special education services (R. 1393-1395; Ex. P-KKKK).
XXXX is a special education teacher who has been employed by the District for 7 years. She is certified in XXXX. She provided services at XXXX during the 2011/12 school year. She never worked directly with the Student, although she provided XXXX services at XXXX for other students for 7 years. She attended the Student’s CSE meetings in March and June 2012 (R. 1397-1399).
XXXX testified that the March 2012 meeting lasted 3 hours and she recalled XXXX being present at that meeting. She stated her recollection that the discussions were the same at both the March 2012 and the June 2012 meetings. She stated her recollection that at one or both meetings the Parents stated their intention to keep the Student at XXXX. She also recalled the Parents indicating that they would be looking to file a due process complaint and that the Parents stated that they were not happy with the placement recommended by the CSE (R. 1400-1408).
On cross-examination, XXXX stated that at the time of the CSE meetings the Student was already enrolled at XXXX and that they did not say that they were seeking tuition reimbursement for the placement. She described the services that she provided at XXXX as XXXX. She worked with 2 students at XXXX who were diagnosed with XXXX. One student graduated some time ago and the other student still attends the School (R. 1408-1410).
Also on cross-examination, XXXX stated that during the 2011/12 school year that although they tried to provide the Student with XXXX at XXXX, there were not enough XXXX. She also stated that the District had a XXXX during the 2011/12 school year. She stated that there was XXXX (R. 1412-1418).
XXXX also testified on cross-examination that the XXXX grade class setting at XXXX was XXXX (R. 1418-1420).
On re-direct examination, XXXX stated that in the public schools there are XXXX. XXXX focused more on successes, because they do not want the students to feel badly. She stated that as a result, students rarely get failing grades (R. 1420-1425).
Also on re-direct examination, XXXX stated that she was familiar with XXXX’s class in that she worked with a student in this Student’s class during the 2011/12 school year, XXXX grade year. She stated her familiarity with XXXX (R. 1426-1427).
CONCLUSIONS OF LAW
Two purposes behind the Individuals with Disabilities Education Act (“IDEA”) [20 U.S.C. Sections 1400-1482] are (1) to ensure that students with disabilities have available to them a free appropriate public education (“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 [20 U.S.C. Section 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S.Ct. 2484, 2491 (2009); Board of Education v. Rowley, 458 U.S. 176, 206-207 (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 [Rowley, 458 U.S. at 206-207; Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. While school district are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [A.C. c. Board of Education of the Chappaqua Central School District, 553 F.3d 165 (2009); Grim v. Rhinebeck Central School District, 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Central School District, 2007 U.S. Dist. LEXIS 9873 (S.D.N.Y. 2007); see also O’Toole v. Olathe District School Unified School District No. 233, 144 F.3d 692, 701 (10th Cir. 1998)]. 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 [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. Appx. 20, 2008 U.S. App.
LEXIS 17947].
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. Section 1415(f)(3)(E)(i); 34 C.F.R. Section 300.513]. 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 School District, 142 F.3d 119, 130; 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 School District, 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 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 U.S. Dist. LEXIS 9873, at *46]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [Mrs. B. v. Milford Board of Education, 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”). In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [20 U.S.C. Section 1412(a)(5)(A); 34 C.F.R. Sections 300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. Sections 200.1(cc), 200.6(a)(1); see P. v. Newington Board of Education, 546 F.3d 111, 114 (2d. Cir. 2008); Gagliardo v. Arlington Central School District, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; E.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Education, 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. Section 300.101(c)(1); 8 N.Y.C.R.R. 200.4(c)(5)]. The proper inquiry as to the appropriateness of an IEP is whether the IEP was reasonably calculated to confer educational benefit at the time the CSE devised the IEP. Antonaccio v. Board of Education of the Arlington Central School District, et. al., 281 F.Supp.2d 710, 724-725 (S.D.N.Y. 2003); Application of the Board of Education of Harrison Central School District, Appeal No. 04-034.
The IDEA permits education in more segregated settings such as dedicated special education classrooms, the home, hospitals and private institutions ‘when the nature or severity of a child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily’ [Viola v. Arlington Central School District, 414 F.Supp.2d 366, 376 (S.D.N.Y. 2006); Board of Education of Poughkeepsie City School District v. O’Shea, 353 F.Supp.2d 449, 454 (S.D.N.Y. 2005) [quoting Walczak, 142 F.3d 119, 122 (2d Cir. 1988)].
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. Section 300.320(a)(1); 8 N.Y.C.R.R. Section 200.4(d)(2)], establishes annual goals related to those needs [34 C.F.R. Section 300.320(a)(2)(i); 8 N.Y.C.R.R. Section 200.4(d)(2)(iii)], and provides for the use of appropriate special education services [34 C.F.R. Section 300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v); see Application of the Department of Education, Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Department of Education, Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9]. Subsequent to its development, an IEP must be properly implemented [8 N.Y.C.R.R. Section 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087].
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. Education Law Section 4404(1)(c); see M.P.G. v. New York City Department of Education, 2010 WL 3398256 at *7 (S.D.N.Y. August 27, 2010; Application of the Board of Education, Appeal No. 10-097; Application for a Review of a Determination by a Hearing Officer, Appeal No. 10-123; Application for a Review of a Determination by a Hearing Officer, Appeal No. 10-101.
It is well settled that a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim [Florence County School District Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Department of Education, 471 U.S. 359, 369-370 (1985)]. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA [471 U.S. at 370-71; Gagliardo v. Arlington Central School District, 489 F.3d 105, 111 (2d Cir. 2007); Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE [Burlington, 471 U.S. at 370-71; see 20 U.S.C. Section 1412(a)(10)(C)(ii); 34 C.F.R. Section 300.148].
In a recent decision, the United States District Court for the Southern District of New York held, in Mr. and Mrs. A. o/b/o D.A. v. New York City Department of Education, 769 F.Supp.2d 403 (S.D.N.Y. 2011), that where parents have satisfied each of the Burlington factors, the Court’s “broad discretion: to grant such relief as ... is appropriate” under 20 U.S.C. Section 1415(i)(2)(c)(iii) includes the power, in a proper case, to award retroactive direct payment of private school tuition. The Court stated that within this Circuit, a number of courts have stated or suggested in dicta that a direct tuition remedy is available where parents have presented a meritorious Burlington claim but lack the financial means to pay private school tuition out-of-pocket, citing the Northern District of New York’s decision in Connors v. Mills, 34 F.Supp.2d 795 (N.D.N.Y. 1998).
In a recent SRO decision, Application of a Student with a Disability, Appeal No. 11-041 (June 9, 2011), the State Review Officer referenced the holding in Mr. and Mrs. A. v. New York City Department of Education, Id., as a case of first impression, where the Court held that “[w]here ... parents lack the financial resources to “front” the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief. The Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs. Id. The SRO assigned to the parents the burden of production and persuasion with respect to whether they have the financial resources to “front” the costs of the private school. He noted that the District Court did not establish what should be considered as part of parents’ “financial resources” for purposes of determining their ability to pay the costs of tuition for a private school. The SRO stated that it is unclear whether a determination of a parent’s financial resources should take into account only his or her annual wages or whether it should also consider items such as cash or its equivalents that the parent has on hand, the parent’s ability to access financing, other investments, the unrealized earning potential of a nonworking parent, or the value of luxury items belonging to the parent just to name a few (citing Connors, 34 F.Supp.2d at 806 n. 6).
A private school placement must be “proper under the Act” [Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370], i.e., the private school offered an educational program which met the Student’s special education needs [see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp.2d at 419]. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement [Carter, 510 U.S. at 14]. The private school need not employ certified special education teachers or have its own IEP for the student [Carter, 510 U.S. 7; Application of the Board of Education, Appeal No. 08-085; Application of the Department of Education, Appeal No. 08-025; Application of the Board of Education, Appeal No. 08-016; Application of the Board of Education, Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-105]. Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” [Gagliardo, 489 F.3d at 112; see M.S. v. Board of Education, 231 F.3d 96, 104 (2d Cir. 2000)]. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement ...” [Gagliardo, 489 F.3d at 112; Frank G. v. Board of Education, 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions)]. Parents need not show that the placement provides every special service necessary to maximize the student’s potential [Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 (citing Berger v. Medina City School District, 348 F.3d 513, 522 (6th Cir. 2003)(stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”)]. A “private placement is only appropriate if it provides ‘educational instruction specifically designed to meet the unique needs of a handicapped child’” [Gagliardo, 489 F.3d at 115 (emphasis in original), citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89].
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
[Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65].
The final criterion for an award of tuition reimbursement is whether the parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA [Burlington, 471 U.S. at 374; M.C. v. Voluntown Board of Education, 226 F.3d 60, 68 (2d Cir. 2000)]; see Carter, 510 U.S. at 16 [“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”]. Such considerations “include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” [Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530, 533 (N.D.N.Y. 2001), citing Town of Burlington v. Department of Education, 736 F.2d at 773, 801-02 (XXXX Cir. 1984) aff’d 471 U.S. 359 (1985). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent’s conduct precluded the CSE’s ability to develop an appropriate IEP [Warren G. v. Cumberland County School District, 190 F.3d 80, 86 (3d Cir. 1999); see Application of the Board of Education, Appeal No. 04-102; Application of the Board of Education, Appeal No. 04-026.
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense [20 U.S.C. Section 1412(a)(10)(C)(iii)(I); see 34 C.F.R. Section 300.148(d)(1)]. This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools” [Greenland School District v. Amy N., 358 F.3d 150, 160 (XXXX Cir. 2004)]. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with the statutory provision [Greenland, 358 F.3d at 160; Ms. M. v. Portland School Committee, 360 F.3d 267 (XXXX Cir. 2004); Berger v. Medina City School District, 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public School Committee, 315 F.3d 21, 27 (XXXX Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial School District, 2007 WL 3085854, at *13 (E.D. Pa. October 22, 2007)].
The record includes 2 IEPs for the 2011/12 school year, one developed in June 2011 and another one developed in conjunction with the Parent’s written and verbal requests for changes to the June 2011 IEP that she submitted in August 2011. A CSE may revise a child’s IEP from time to time. The amended IEP supersedes the initial IEP [Application of a Child with a Disability, Appeal No. 96-78]. However, the relevant IEP in tuition reimbursement award cases is the IEP which the parent had at the time the parent removed the child from the public school and unilaterally enrolled the child in a private school [or re-enrolled the child in a private school]. The SRO’s decisions have been consistent in that regard. [See Application of the Board of Education of the Irvington Union Free School District, Appeal No. 01-035 (February 22, 2002); Application of the Red Hook Central School District, Appeal No. 00-053 (November 15, 2000); Application of a Child with a Disability, Appeal No. 04-046 (August 25, 2004); Application of the Board of Education of the Hyde Park Central School District, Appeal No. 02-052 (March 11, 2002); Application of a Child with a Disability, Appeal No. 01-019 (February 13, 2001); Application of a Child with a Disability, Appeal No. 01-010 (March 13, 2001); Application of the Board of Education of the Pine Plains Central School District, Appeal No. 00-072 (November 6, 2000); Application of the Board of Education of the Bethlehem Central School District, Appeal No. 99-94 (December 7, 2000); Application of a Child with a Disability, Appeal No. 98-14 (January 14, 1999)].
The Parent testified that she received the IEP from the June 10, 2011 meeting by mail sometime in August 2011. The Parent received a letter dated July 11, 2011, notifying her that the Board of Education reviewed the CSE’s recommendations made on June 10, 2011. The Parent also testified that she called XXXX and made requests for various changes to the IEP, which she wanted completed prior to the start of the 2011/12 school year. She sought to review the changes before sending the IEP to the private school. The Parent testified that she received the modified IEP on September 16, 2011. The District was unable to produce the cover letter that accompanied the modified IEP. The Parent’s testimony, that she received the June 10, 2011 IEP sometime in August 2011, that she sent a letter to XXXX requesting modifications to the IEP on August 19, 2011, and that she received the modified IEP for the 2011/12 school on September 16, 2011, after the start of the 2011/12 school year, is unrebutted. The Parent also testified that she received the CSE minutes as an attachment in an e-mail she received from XXXX on July 24, 2012 (R. 1010, 1013; Exs. P-L, P-T, J-12, J-25). I find that the applicable IEP to be considered by the IHO for appropriateness with respect to the 2011/12 school year is Parents’ Exhibit L, since that is the IEP that was in the Parent’s possession as of the date she enrolled the Student at XXXX (R. 1010, 1013; Exs. P-L, P-T, J-12, J-25).
In a recent decision of the United States Court of Appeals for the Second Circuit, R.E. et.al, v New York City Department of Education, 694 F.3d 167 (2d Cir. 2012), the Court held that courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision and may not consider “retrospective testimony” regarding services not listed in the IEP. However, the Court rejected a rigid “four-corners rule” that would prevent a court from considering evidence explicating the written terms of the IEP. In the R.E. case, parents challenged the use of testimony by Departmental personnel about the educational program the student would have received if he or she had attended public school, which the Court termed “retrospective testimony.” The Second Circuit held that retrospective testimony about what would have happened if a student had accepted the Department’s proposed placement must be limited to testimony regarding the services described in the student’s IEP. Moreover, such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the IEP. Id., at 174-175. In addition, testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP in a Burlington/Carter proceeding. Id. 185-186. The
Second Circuit did, however, reject a rigid “four corners” rule prohibiting testimony that goes beyond the face of the IEP. While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP. Id. at 186.
The SRO has held that educational programs from prior school years can be reviewed to determine the appropriateness of a program recommendation for a current year, even if a parent did not request an impartial hearing with respect to the prior school years. Application of the Board of Education of the Red Hook Central School District, Appeal No. 00-053 (November 15, 2000). The SRO has also held that educational programming for prior years is useable as a frame of reference for an IHO’s determination even if the parent did not request an impartial hearing in those prior years. Application of the Board of Education of the Pine Plains Central School District, Appeal No. 00-072 (November 6, 2000).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. establishes annual goals related to those needs, and provides for the use of appropriate special education services. Subsequent to its development, an IEP must be properly implemented.
Section 200.4(d) of the Regulations of the Commissioner of Education set forth requirements with respect to provision of a recommendation by the CSE to the board of education. Pursuant to Section 200.4(d)(2) for students who have been determined to be eligible for special education services, the CSE must develop an IEP. In developing the recommendations for the IEP, the CSE must consider the results of the most recent evaluations (emphasis supplied). The evidence shows that at the Parents’ request, the Student’s triennial evaluation was conducted earlier than originally planned, since the CSE was considering a possible change in placement. As part of the Student’s triennial evaluation, XXXX conducted a re-evaluation that included a XXXX, XXXX, and a XXXX assessment. XXXX administered a test of XXXX, i.e., the XXXX, and selected tests of XXXX, i.e., the XXXX. He also had the Parents and the Student’s teacher complete the XXXX, consisting of XXXX. The evidence shows that the re-evaluation was never reviewed by the CSE, nor did XXXX ever review the results of the re-evaluation at any CSE meeting. The results of the re-evaluation, conducted on April 6, April 7, May 20, and May 23, were generated in a report dated June 3, 2011, prior to the annual review that was held on June 10, 2011. Both XXXX and XXXX testified that it would have been useful for the CSE to have had the information from the re-evaluation and the XXXX in making placement recommendations for the XXXX grade. A review of the IEP shows that the Student’s updated test scores on the XXXX, the XXXX, and the XXXX were inserted into in the IEP, however I find that the CSE’s failure to review the Student’s most recent XXXX evaluation and consider XXXX’s conclusions and recommendations contained in his report violated Section 200.4(d)(2) of the Commissioner’s Regulations, and the procedural inadequacy impeded the Student’s right to FAPE (R. 590-596, 843- 844; Exs. J-4, J-6).
Section 200.4(d)(2) of the Commissioner’s Regulations also requires certain information to be contained in an IEP [See also the New York State Education Department publication entitled, Guide to Quality Individualized Education Program (IEP) Development and Implementation, February 2010 (Revised December 2010)]. Section 200.4(d)(2)(iii) requires that the IEP list measurable annual goals, including academic and functional goals, consistent with the student’s needs and abilities. I find that the goals contained in the Student’s IEP for the 2011/12 school year fail to fully address XXXX needs, as identified in the body of the IEP. The evidence shows that the Student has XXXX, but the IEP contains no annual goal to address the issue. The evidence also shows that the Student has XXXX, yet there is no annual goal relating to identification of strategies for XXXX. The evidence shows that the Student XXXX, but there is no annual goal to address XXXX need in that area. The evidence shows that the Student is XXXX, but there is no goal to address that need. The evidence shows that the Student has difficulties XXXX, but there is no goal to address that need. The evidence shows that the Student has difficulty with XXXX, yet there is no goal contained in the IEP to address that issue. The record reflects that this Student is XXXX. The Parent testified that goals were not discussed at the CSE meeting held on June 6, 2011, a contention that was not rebutted by any of the CSE’s participants, and the District’s efforts to add appropriate goals to address additional areas of need after the fact did not permit for the participation in the development of the goals by the Parents (R. 725; Exs. P-L, J-7). In sum, a review of the goals contained in the IEP shows that there are a lack of goals relating to the student’s needs and abilities, in violation of Section 200.4(d)(2)(iii). I find that the procedural inadequacy significantly impeded the Parents’ opportunity to participate in the decision-making process, resulting in a denial of FAPE.
Section 200.4(d)(2)(v)(a) of the Commissioner’s Regulations provides that the IEP shall indicate the recommended special education program and services, including related services, and supplementary aids and services that will be provided to the student to advance appropriately toward attaining the annual goals; to be involved in and progress in the general education curriculum and to participate in extracurricular and other nonacademic activities; and to be educated and participate with other students with disabilities and nondisabled students in such activities. The evidence shows that the District failed to include XXXX as a related service on the IEP. In addition, the IEP fails to detail XXXX, including use of XXXX. The IEP also does not contain a recommendation granting the Parents’ request for XXXX, which XXXX indicated was approved by the CSE at its meeting held on June 10, 2011 (R. 711; Exs.
P-L, J-7, J-12).
I find that the District’s failure to include the related service of XXXX, which is most appropriate for this Student, given XXXX, together with associated information as to frequency and duration of the service, coupled with its failure to include the XXXX that were to be provided to the Student to permit XXXX, constitutes a violation of Section 200.4(d)(v), and that the procedural inadequacy caused a deprivation of educational benefits, denying the Student a FAPE.
The evidence shows that District staff members recommended the conduct of a XXXX for the Student since the XXXX grade. In a XXXX Evaluation conducted as part of the Student’s initial referral in October and November 2008, XXXX recommended the consideration of XXXX. In a report dated April 12, 2009, XXXX, an outside evaluator, agreed with XXXX’s recommendation for XXXX. In connection with a program review during the Student’s XXXX grade year, XXXX stated that she was “in complete agreement” that XXXX. During the Student’s XXXX grade year, XXXX stated her belief that XXXX was warranted, referencing a conversation she had with XXXX about XXXX. Notes by XXXX, dated September 23, 2010, reference a discussion with XXXX and XXXX about XXXX to address the Student’s XXXX. XXXX also stated her belief that XXXX was warranted. She stated that during a conference held in the 2010/11 school year, recommendations were made to XXXX. The CSE recommended XXXX as part of its recommendations at the meeting held on June 10, 2011. The IEP reflects a specific recommendation for XXXX and a XXXX. XXXX stated that an XXXX was not conducted nor was a XXXX, noting that the Student did not return to XXXX in the fall of 2011. The record reflects that the Parent provided written consent for XXXX on November 9, 2009 (R. 679-686, 835-838, 850-851; Exs. J-1, J-3, D-11, P-HHH, P-III, P-GGGG, P-UUUU).
The District argues that its failure to conduct an XXXX was not a procedural defect that rose to the level of a denial of FAPE, citing A.C. ex. Rel. M.C. v. Board of Education of the Chappaqua Central School District, 553 F.3d 165 (2d Cir. 2009). I note that the Second Circuit held that the failure to XXXX did not violate FAPE if the IEP adequately identified XXXX. Notably in A.C., none of the District’s personnel believed that XXXX was necessary for the Student, and the Court held that the IEP in that case provided for XXXX. A review of the relevant IEP for the 2011/12 school year identifies the Student’s difficulties with XXXX and XXXX. The IEP also identifies that the Student XXXX, and that the Student needs XXXX. The IEP includes 5 goals to address some of those issues, and a recommendation for XXXX to address the identified needs. The CSE also recommended XXXX as a support for school personnel on behalf of the Student [which was never conducted]. Although the IEP describes the Student’s XXXX issues, no specific strategies are described in the IEP to address the Student’s XXXX. Under the circumstances presented in this case, I find that the District’s failure to conduct an XXXX during the 2011/12 school year rises to the level of a denial of FAPE, as the IEP does not XXXX.
Although I understand that the Student did not return to the District following the 2010/11 school year and has since attended XXXX that does not absolve the District from its responsibilities to continue to evaluate the Student and make educational recommendations for XXXX. I note that the District was able to arrange for the completion of XXXX at XXXX, also as recommended for XXXX as part of the CSE’s IEP for the 2011/12 school year, as XXXX testified. See Application of the Board of Education, Appeal No. 09-045 (May 8, 2009).
With respect to the Parents’ allegations regarding their request to amend records, I find that I do not have jurisdiction to hear that issue. See Application of a Student with a Disability, Appeal No. 08-106 (November 19, 2008).
In sum, I find that the District failed to meet its burden of proof with respect to the first prong of the Burlington/Carter analysis. Given that the District conceded the appropriateness of its IEP for the 2012/13 school year, I need not address the Parents’ allegations of procedural violations against the District for the 2012/13 school year.
Having found that the District’s IEP for the 2011/12 school year to be inappropriate, and the District having conceded the appropriateness of the IEP it developed for the Student for the 2012/13 school year, the burden shifts to the Parents to prove the appropriateness of the Student’s placements at the XXXX for the 2011/12 and 2012/13 school years.
The Parents cite to the testimony of XXXX in support of their assertion that the Student made tremendous personal growth at XXXX. The evidence shows that XXXX stated that he has known the Student for slightly over a year as a student in XXXX’s class. He testified that he did not conduct an observation of the Student in XXXX’s class, and the record is devoid of any evidence that he observed the Student in any of XXXX classes at XXXX. He also stated that he was never asked to observe the Student in any of XXXX classes. In addition, he does not teach XXXX and XXXX grade students (R. 1334, 1338, 1355-1358).
XXXX testified that during the 2011/12 school year, the Student did not XXXX. He stated that these were not official observations, and he took no notes of his observations (R. 1339-1340, 1357).
XXXX described the student population as “XXXX.” He stated that XXXX has a XXXX. The Parent also acknowledged a dissimilarity of needs between the Student and XXXX in XXXX’s class in an e-mail transmission to XXXX and other members of the XXXX community. She stated that XXXX was “remarkable in his ability to deal with what has been a very difficult and large class.” She also stated that XXXX had “a challenging group of students who range[d] from XXXX.” XXXX described the School as XXXX (R. 1342-1344; Ex. P-ZZZZ).
XXXX confirmed that the Student did not have a XXXX. He also had no discussions with any of the Student’s teachers regarding difficulties they experienced with the Student, as set forth in the Student’s Report Cards for the 2011/12 school year, including difficulties with XXXX (R. 1358-1360; Ex. P-U).
XXXX testified that there was no XXXX on staff at XXXX; that during the 2011/12 school year there were two XXXX; that during the 2012/13 school year, there was one XXXX and that no one at XXXX provided XXXX to the Student during the 2011/12 and 2012/13 school years. He stated that there was no XXXX (R. 1360-1365).
XXXX stated that he did not have any opportunities to observe the Student in XXXX classroom setting during the 2012/13 school year, other than just passing through and observing that XXXX had settled in. There is no testimony from any of XXXX teachers and there are no reports in evidence that shed any light about how XXXX is performing during the 2012/13 school year (R. 1351-1352).
Part of the XXXX conducted by XXXX involved two classroom observations at XXXX, in XXXX’s class. The Student XXXX. XXXX did not observe the Student in any of XXXX other classes at XXXX (Ex. J-11).
XXXX returned on another day to observe and work with the Student during an actual XXXX. She noted that XXXX (R. 1426-1427; Ex. J-12).
XXXX stated that during the 2011/12 school year that although they tried to provide the Student with XXXX at XXXX, there was not XXXX. She also stated that the District had a XXXX in-District during the 2011/12 school year. XXXX confirmed that there was no XXXX. The evidence shows that the Parents declined all related services offered by the District, with the exception of XXXX (R. 1412-1418; Ex. J-9).
XXXX also confirmed that during the past 7 years she was in every class at XXXX with the exception of the XXXX. She stated that the classrooms at XXXX are
XXXX (R. 1418-1420).
XXXX stated that in the public schools there are XXXX. XXXX focused more on successes, because they do not want the students to feel badly. She stated that as a result, students rarely get failing grades (R. 1420-1425).
XXXX stated that she was familiar with XXXX’s class in that she worked with a student in this Student’s class during the 2011/12 school year, his XXXX grade year. She stated that XXXX. She stated that XXXX (R. 1426-1427).
Although the Student’s XXXX, the evidence shows that XXXX continued to experience the same difficulties XXXX as XXXX experienced in the District. The Student continued to XXXX (R. 1179-1183, 1192-1211; Ex P-U).
Moreover, the Student was XXXX (R. 638-641, 1193-1211, 1258-1259; Exs. P-U,
P-GGGG).
I find that there is no evidence in the record with respect to the provision by XXXX of educational instruction to the Student that was specifically designed to meet his unique needs, which were XXXX, XXXX, and XXXX based. The parties are in agreement that this Student does not possess XXXX, and that was not an area of the IEP that the Parent requested to change (Ex. P-L at p. 11).
In sum, I find that the Parents have not met their burden in proving that XXXX is an appropriate placement for the Student. The evidence shows that while the Student experienced some successes in XXXX placement at XXXX, XXXX continued to experience the same XXXX, XXXX, and XXXX issues that XXXX had as a student in the District’s program. The Parents’ request for tuition reimbursement is denied.
Having found that the Parents have not met their burden, I need not make a determination as to whether the Parents’ claim is supported by equitable considerations. The necessary inquiry is at an end [See Burlington, 471 U.S. 359 (1985); see also Gagliardo, 489 F.3d 105, 115 (2d Cir. 2007); M.C. v. Voluntown Bd. of Education, 226 F.3d 60, 66 (2d Cir. 2000); Application of the Board of Education, Appeal No. 10-005].
ORDER
Based upon the above, it is hereby
ORDERED, that the Parents’ application for a finding that the District failed to offer FAPE to the Student for the 2011/12 and 2012/13 school years is hereby granted; and it is further
ORDERED, that the Parents’ application for a finding that XXXX is an appropriate placement for the Student for the 2011/12 and 2012/13 school years is hereby denied; and it is further
ORDERED, that the Parents’ request for tuition reimbursement for the Student’s placement at XXXX for the 2011/12 school year is hereby denied; and it is further
ORDERED, that the Parents’ request for tuition reimbursement for the Student’s continued placement at XXXX for the 2012/13 school year, to include prospective funding for tuition payments not yet made by them, is hereby denied.
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the Parents and/or the XXXX have a right to appeal this decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the Parents plan to appeal the decision, a notice of intention to seek review shall be personally served upon the School District not less than 10 days before service of a copy of the petition for review upon the School District, and within 25 days from the date of the decision sought to be reviewed, so that a certified copy of the hearing record may be prepared for submission by the School District. If the School District plans to appeal the decision, the District shall file a certified copy of the hearing record together with its petition.
An appealing parties’ petition for review shall be personally served upon the opposing party 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 4 days subsequent thereto shall be excluded in computing the 25- or 35-day period [8 NYCRR Section 279.2(b)].
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DATED: December 24, 2012
New City, New York
____________________________________
WENDY K. BRANDENBURG, ESQ.
Impartial Hearing Officer