NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
IN THE MATTER OF THE IMPARTIAL HEARING REQUESTED BY MS. ON
BEHALF OF FEMALE X, FROM THE ACTION OF THE COMMITTEE ON SPECIAL
EDUCATION OF THE I SCHOOL DISTRICT: SED # 73072
Parents’ Counsel: , Esq. District Counsel: , Esq.
INTRODUCTION
This hearing is governed by IDEA, 20 USC 1400 et seq., and its implementing regulations, 34 CFR 300 et seq., and NYS Education Law 4404 et seq., and its implementing regulations, 8 NYCRR 200.5 et seq.
Parent requested this hearing by letter received 09/11/12. D 59-2 thru 59-4. The School District appointed me on 09/12/12, and responded to the hearing request on 09/17/12. D 59-1; D
60. I sent my initial letter (4 pages) to the attorneys on 09/18/12 (copy attached as IHO Ex. 1). The pre-hearing conference was held on 10/03/12. The hearing was held on 10/17/12. Tr. 10. The record closed on 11/12/12, which was the day that the attorneys submitted closing arguments. Tr. 15. The decision is due on 11/26/12. Tr. 15.
It was a closed hearing. Six witnesses testified: (1) School District’s Middle School CSE Chair (Tr. 26-82); (2) School District’s CSE Chair (Tr. 83-104); (3) a School Psychologist at School District (Tr. 105-146); (4) Dr. , an independent educational psychologist (Tr. 149-192); (5) MAD, Boarding School Headmaster (Tr. 196-208); and (6) the Parent (Tr. 209-257). The transcript contains 258 pages. Exhibits entered into evidence were District (“D”) 1-3, 5-12, 14-60, and Parent 1 (a-f), 2 (a-y), 3 (a-j), 4 (a-f), 5 (a-b), 6 (a-p), 7 (a-g), 8 (a-k), 9 (a-g), 10, 11 (a-c), 12-14. Complete exhibit lists (7 pages) are attached hereto.
My findings of fact and conclusions of law [total # of pages herein 16] are attached hereto and have been mailed to the attorneys by certified mail, return receipt requested.
PLEASE TAKE NOTICE! Within 35 days of the date of this decision, the parent and/or school district has THE RIGHT TO APPEAL this decision to the State Review Officer of the NYS Education Dep't under Education Law Section 4404 and IDEA.
"The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35- day period." 8 NYCRR 279.2(b).
Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. 8 NYCRR Part 279 contains the rules of procedure. Directions and forms can be found in the website of the Office of State Review: www.sro.nysed.gov/part279home.html.
Impartial Hearing Officer: Joan B. Alexander, Esq.,
Date: 11/17/12
ISSUE
Must the School District reimburse Parent for the expense of her child’s education at a private, out-of-state residential boarding school, not approved by the NYS Commissioner of Education, at which Parent unilaterally placed her child?
ORDER
No. Parent is not entitled to reimbursement from the School District for her unilateral placement of her child at a private school.
FINDINGS OF FACT
Background
Female X resides with Parent in the School District (“District”). X is a student at a private, outof-state residential boarding school, not approved by the NYS Commissioner of Education. Parent placed her there for the current academic year. X was 13 years old at the time of the hearing, and is classified as “ ”. Classification is not at issue.
X’s Educational Programs
X was a student at one of the District’s elementary schools from kindergarten through 4th grade. Tr. 229. X has not attended a public school since the end of her 4th grade year (i.e., June 2009). Tr. 87-88. At no time did Parent indicate to the District that she intended to re-enroll X in the District. Tr. 88.
During 1st grade (2005-2006), the District evaluated X to determine if she was a student with a disability. D 3, 6, 9. Initially, the District did not classify X. D 5, 7, 8. Then, in May 2006, the District prepared a Section 504 Plan, which provided X with . D 11-12.
In May 2008, X’s 3d grade (2007-2008) classroom teacher noted X was at a grade level, and making in (“her and are ”). D 24-1. However, X was . D 24-2. X was referred to the District’s CSE. D 25. A school psychologist reported that X had a
1 . D 21. The CSE classified X as . D 26-1. For 4th grade (2008-2009), the IEPs included services and . D 26-1; 29-1; 30-5. Supports included: . D 26-2; 29-2, 4; 30-6. X was also given testing modifications, and the number of those testing modifications increased during her grade year. (id.) X received Academic Intervention Support in . D 21-1; 26-3; 29-3; 30-7.
1
Similar results were reported by Parent’s private educational diagnostician in October 2007. D 19-8, 19-9. The IEPs for grade2 noted that X , which impacted her progress in general education in the areas of . D 26-2, 3; 29-3; 30-7. In May 2009, at the end of grade, X’s special education teacher noted that X was grade level. 3 D 33-1.
For grade (2009-2010), the CSE developed an IEP. D 36. Compared to the prior IEP, program modifications were added and was reduced. D 35. Then, by letter dated August 25, 2009, Parent advised the District that she would be enrolling X in the School. is a private school located in the geographic boundaries of the District. D 37; Tr. 86. By letter dated February 10, 2010, Parent requested that the CSE maintain X’s IEP and disability classification, although X was not then receiving services. D 38.
For grade (2010-2011), Parent requested special education services for X at the School, and acknowledged that Parent had placed X at the W School at her own expense. D 39.
On November 16, 2010, Parent attended a CSE meeting, at which the CSE developed a grade (2010-2011) IEP that provided program and testing accommodations, and , all at the School. Tr. 87; D 40-41. The CSE and Parent agreed that X would receive no special education services. Tr. 87, 233-234; D 41-5. The CSE discussed reevaluation with Parent, but made no specific plans. D 41-1, 41-6.
In the spring of 2011, X left the School, and Parent home-schooled her. Tr. 29, 87-88, 183-184; D 44-2. The District made several efforts to schedule a CSE meeting with Parent, but she did not want to meet. Tr. 87-88.
For grade (2011-2012), Parent unilaterally enrolled X in the School. is a private school located in the geographic boundaries of the H Public School District (“H District”).4 Tr. 88, 234-235; D 43-1.
The H Evaluation: March 2012
In March 2012, H District completed an evaluation of X. D 43. H District School Psychologist (“HSP”) administered the . D 43.
X’s scores were as follows:
2 And in subsequent years, too. D 36-3; 40-3; 49-4. See also D 33-1; 43-7. 3 Unfortunately, the CSE did not notice that one year before! Compare D 24-1 with D 33-1. 4 The date that X enrolled at School is not entirely clear. D 42-2 indicates that Parent submitted a medical form in February 2011 on the date stamp and in February 2012 in handwriting. HSP’s 03/12 report states that X transferred to the H District in September 2011. D 43-1. Unfortunately, Parent was unhappy with X’s experience at both the and Schools. Tr. 184, 234. X’s academic achievement scores, measured by scores. Tr. 185. Her scores were:
X’s curriculum-based results were likewise :
HSP concluded that X presented with characteristics consistent with D 43-7. (See also D 43-5; Tr. 194-195 re .)
HSP recommended the following educational strategies and accommodations to address X’s
5 6 educational weaknesses: (1) keep the ; (2) present ; (3) pair 7 8 ; (4) be ; (5) pair ; (6) ; (7)
9 provide ; (8) provide tests10; (9) allow responses/activities11; (10) provide ; (11) provide ; (12) read problems 12; (13) allow process13; (14) if X booklet14; and (15) provide 15
. D 43-8.
5 The IEP at issue noted / provided same in program modifications. D 49-7. 6 The IEP at issue provided same in program modifications. D 49-6. 7 The IEP at issue provided same in program modifications. D 49-7. 8 The IEP at issue provided same in program modifications. D 49-6. 9 The IEP at issue provided same in program modifications at D 49-6, and testing accommodations at D 49-8. 10 The IEP at issue provided same in testing accommodations. D 49-8. 11 The IEP at issue provided same in program modifications at D 49-6, and testing accommodations at D 49-8. 12 The IEP at issue provided same in program modifications. D 49-6, 49-7. 13 The IEP at issue provided same in needs at D 49-3, and program modifications at D 49-6. 14 The IEP at issue provided same in testing accommodations. D 49-8. 15 The IEP at issue provided same in as a related service. D 49-1.
Spring 2012 – July 30, 2012
In the spring of 2012, Middle School CSE Chair contacted Parent to schedule a spring CSE meeting. Tr. 29-30. Parent responded that she preferred that District CSE Chair convene a CSE meeting rather than Middle School CSE Chair. Tr. 30. Parent said that she would contact District CSE Chair to arrange it. Tr. 30. Middle School CSE Chair reported that conversation to District CSE Chair. Tr. 30.
On July 26, 2012, the District next heard from Parent, who requested that District CSE Chair convene the CSE. D 50. District CSE Chair convened two CSE meetings in August 2012. Tr.
89. Middle School CSE Chair’s next contact with X was at those CSE meetings. Tr. 30-31.
On July 27, 2012, Parent informed the District that she had determined that the “most appropriate educational setting” for X was ). Parent further requested that the District perform an evaluation to address the appropriateness of , and noted that she (Parent) might request evaluation at public expense. D 51, 54-2; Tr. 242.
On July 30, 2012, Parent forwarded to the District a copy of HSP’s report, and requested that the District notify her (in advance of any testing, and as soon as possible) which tests the District would perform. D 52.
On August 12, 2012, the District informed Parent that of tests would be performed, and that the District’s School Psychologist (“SchPsych”) was willing to contact Parent directly if she desired more specific information. D 53. Parent inquired the reason that the District had ordered additional testing, because Parent recalled that the District had earlier stated that HSP’s report was comprehensive. D 53.
During the next few days, Parent requested clarification regarding the need for further testing. (Tr. 240), and denied that she’d requested it (D 54-2). The District responded that it was conducting an additional evaluation because Parent had so requested, and further noted that additional testing would be helpful, as well as testing to follow up on X’s . D 54-1, 54-3, 55.
On August 16, 2012, Parent stated that she had requested a at public expense, but had received no response. Parent then stated that the District CSE Chair said that the District might seek additional testing after reviewing HSP’s report, but that the District’s Special Education supervisor said that HSP’s report was comprehensive. Parent wants a complete, well-documented and well-reasoned IEP, as soon as possible, and wishes to collaborate by making X available for further testing or doing whatever is needed to achieve that goal. D 55.
The District’s Supplemental Evaluation
On August 17, 2012, SchPsych conducted a supplemental evaluation of X in order to determine her current educational needs. D 44-2. SchPsych has evaluated “probably somewhere near a thousand” students with disabilities. Tr. 106-07. SchPsych noted that: (1) results from several previous evaluations placed X in ; (2) the only exception was the evaluation; (3) this in 2007; and (4) children with that would be inconsistent with X’s results. Thus, SchPsych characterized this ”. D 44-2. Tr. 110.
SchPsych noted that: (1) results from , and (2) the most recent range. D 44-2.
SchPsych administered the . X scored in the . D 44-3.
SchPsych also administered the . D 44-4.
SchPsych opined that X could benefit from interventions and accommodations in order to access
16 17 the general education curriculum. Specifically, she recommended: ; ; 18 19 20 ; ; and . D 44-4.
To address X’s academic engagement issues, SchPsych recommended that teachers 21 ; provide ; and . Finally, SchPsych suggested that 22 . D 44-5.
Dr. G’s Report
In June 2012, Parent retained Dr. G of , LLC, to recommend for X. D 46-1; Tr. 159-160. Dr. G has a master’s degree in clinical community psychology and a doctorate degree in educational psychology. Tr. 149. She opined that none of the District’s teachers were , none of the IEPs , and the District . Tr. 163-164, 169-170, 173 – 175.
Dr. G worked as a school counselor in PA and was qualified in PA to assess students for disabilities under IDEA. Tr. 191. Dr. G is not a special education teacher. Tr. 191. She has never taught in a resource room, observed a resource room in the District, or worked as a consultant teacher. Tr. 190-191. She is not now and has never been licensed as a school psychologist in the NYS. Tr. 191-192. Dr. G never observed X in a classroom environment or spoke with any of X’s teachers. Tr. 179-183.
Dr. G’s assessment was based solely on a review of X’s academic records and evaluations, an interview of X while the Parent was present, and conversations with adult family friends, X’s summer camp counselor and X’s . Tr. 181, 184-185.
16 The IEP at issue provided same by . D 49-6. 17 The IEP at issue provided same by use of testing accommodations. D 49-8. 18 The IEP at issue provided same in program modifications. D 49-6. 19 The IEP at issue provided same in program modifications and testing accommodations. D 49-6, 49-8. 20 The IEP at issue provides same in , program modifications and testing accommodations. D 49-5, 49-6, 49-8. 21 The IEP at issue noted that X needs concerns. D 49-4 (see both at top, and at bottom). 22 The IEP at issue provided same by (D 49-4 at top), (D 49-4 at bottom), and annual goal related to (D 49-5). Dr. G opined that “the only means of getting [X] to working with adolescents who have a similar profile as [X].” D 46-18.
Dr. G opined that an appropriate learning environment for X would be . In particular,
23 Dr. G recommended a , and ”. D 46.
Dr. G also recommended frequent tests24. D 46-18.
The August 21, 2012 CSE Meeting
On August 21, 2012, the CSE met to formulate an IEP for X for the 2012-2013 year. D 45-1.
Parent arrived at the CSE meeting, and provided the CSE with the 28-page report dated that same day by her consultant, Dr. G. D 45-1; Tr. 32, 119, 253-254. Parent stated that she was not interested in participating in the development of the IEP with the CSE, but had contributed to the meeting by presenting Dr. G’s report.25 Parent left the meeting after about 20 minutes, and while SchPsych was presenting her report and HSP’s report. Parent was given SchPsych’s written report. The meeting was about 40 minutes in length. D 45-3; Tr. 31-32, 90, 116, 242-243, 247.
The CSE members were not given, and therefore did not have an opportunity to review, Dr. G’s report before the August 21, 2012 meeting. As a result, District CSE Chair suggested that the CSE could be reconvened to address Dr. G’s report. Tr. 89, 119; D 57.
SchPsych discussed her own as well as HSP’s results. SchPsych disagreed with one of HSP’s test results, i.e., . Tr. 110-111, 144. SchPsych opined that X does not present with (Tr. 130), but that X is appropriately classified . Tr. 116-117, 142-143.
The CSE determined that: (1) X should (Tr. 117) and (2) the least restrictive environment (“LRE”) to provide a FAPE was at a public school in the District.26 Tr. 100. The CSE prepared an IEP that provided for numerous special education services to address X’s needs as per the evaluations. (pp. 5, 7 and 8, herein) D 45-3, 45-4, 49.
The IEP referenced HSP’s and SchPsych’s evaluations, as well as Dr. G’s opinions, including that X . D 49-2, 49-3. The CSE recommended an achievement. D 45-4, 45-5. Parent hasn’t made X available for said testing. Tr.248-249.
The IEP recognized X’s academic needs, as follows: (1) ; (2) in ; (3) ; (4) concepts. D 49-3, 49-4.
23 The IEP at issue provided same in its daily services. D 49-1. 24 The IEP at issue provided the opportunity for services (D 49-1), and in its program modifications (D 49-6), and in its testing accommodations (D 49-8). 25 Parent had not been given a draft IEP before the meeting, and so she didn’t know the direction of the CSE’s deliberations or what the CSE might produce. Parent received the IEP shortly after the meeting. Tr. 243-246. 26 Parent was informed that the CSE must place students in the LRE, and as a result, its first consideration is whether it can provide FAPE in the District. D 57-1. The IEP provided special education services: (1) ; (2) ; and
(3) .”). D 49, 49-3; Tr. 33, 91.
The IEP provided program modifications consistent with HSP’s, SchPsych’s and Dr. G’s recommendations (pp. 5, 7 and 8, herein): (1) access to ; (2) clear and specific ”); (3) provide tasks; (4) “ completing; (5) tasks; (6) modified %; (7) ; (8) pair ; and (9) .D 49-6, 49-7.
The IEP provided testing accommodations consistent with said 3 recommendations (pp. 5, 7 and 8, herein): (1) ; (2) ; (3) ; and (4) use of r. D 49-8.
The IEP provided annual goals and short-term objectives: (1) samples; (2)
samples; and (3) demonstrating . D 49-5.
The August 28, 2012 CSE Meeting
On August 21, 2012, after the CSE meeting, Parent noted that she had “asked that [the District] evaluate and address each of [Dr. G’s] recommendations, most particularly [X]’s ….” She further noted that “if the [District] disagrees with , I asked that you provide a detailed, well-reasoned explanation for the reason rejecting .” D 56. (See also D 57-2, 58 wherein Parent requested said explanation in writing as a pre-condition to Parent attending the August 28 meeting.) The District did not provide said written explanation, but said that it would be discussed at a CSE meeting. Tr. 247, 254, 256-257.
On August 22, 2012, the District replied to Parent, and recommended that the CSE be reconvened because Parent and the District were unable to exchange their most recent reports (i.e., Dr. G’s and SchPsych’s) until the morning of the August 21, 2012 CSE. D 57-1.
On August 24, 2012, the District wrote to Parent, stating that:
the appropriate place to review the recommendation of your consultant is at a CSE meeting. If you believe the IEP does not address the concerns you have or the recommendations of your consultant you should raise them at the CSE meeting. You are welcome to invite your consultant to the CSE meeting… I believe that the district , but the CSE can address all of your concerns at a meeting. D 58-3; Tr. 254-256. (emphasis added)
On August 28, 2012, Parent appeared at the CSE meeting. She announced that she would be , and then, after about 15-20 minutes, she left. The meeting was about one hour in length. Tr. 34-35, 92.
When the CSE was discussing Dr. G’s 28-page report and subsequent 2-page letter, Parent was no longer in attendance. Tr. 74. SchPsych reviewed Dr. G’s recommendations with the CSE in Parent’s absence. Tr. 45-48, 74, 92-93, 120; D 48-4 thru 48-7. SchPsych stated that Dr. G’s 28page report is a review of existing records, but doesn’t evaluate and doesn’t present new information. Tr. 119. Middle School CSE Chair personally read (to herself, not aloud) Dr. G’s 28-page report (D 46) but didn’t personally read Dr. G’s 2-page letter (D 47). Tr. 38-39. Middle School Chair believed that the other CSE members had read both. Tr. 44.
The CSE concluded that the IEP (developed on August 21, 2012) appropriately addressed all of X’s needs, including X’s . Tr. 73-74, 120, 125-126.
At no time did Parent request that the District provide to the teachers
who would be working with X. Tr. 73, 93. Following the August 28, 2012 meeting, Parent unilaterally . Tr. 249.
CONCLUSIONS OF LAW
A board of education may be required to reimburse a parent for her expenditures for private educational services obtained for a student by her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. Florence County SD Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Ed, 471 U.S. 359, 369-70 (1985).
The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County SD Four v. Carter, supra.). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; SRO 92-7, 93-9). To meet its burden, the board of education must show that the recommended program is: (1) reasonably calculated to allow the child to receive educational benefit (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]; Walczak v. Florida UFSD, 142 F. 3d 119, 132), and (2) in the LRE for the child. 20 USC § 1412(a)(5); 34 CFR §§ 300.114(a)(2)(i, ii); 8 NYCRR 200.1 (cc), 200.4 (d)(4)(ii)(a, b), 200.6 (a)(1). (emphasis added)
An appropriate program begins with an IEP. An IEP must describe the special education services to be provided to a child in order to address her special education needs. Among other things, it must reflect the results of evaluations to identify the child's needs, describe the child’s present levels of performance, set forth annual goals and short-term instructional objectives related to the child’s educational deficits, describe supplementary aids and services, and describe the testing modifications that the child needs. 8 NYCRR 200.4(d)(2)(i, ii); D.D. ex rel. V.D. v. NYC Bd. of Ed, 465 F.3d 503, 508 (2d Cir.2006) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988).
The placement of a student in the LRE shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate with other students who do not have disabilities; and (3) be as close as possible to the student’s home. 8 NYCRR 200.1(cc); 8 NYCRR 200.4(d)(4)(ii)(b).
In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as her disabled peers (Daniel R. v. El Paso ISD, 874 F.2d 1036 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of her IEP in a regular education program, and with the assistance of supplementary aids or services (Mavis v. Sobol, 839 F. Supp. 968 [NDNY 1994]).
The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon SD, 995 F.2d 1204 [3d Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, such as language and role modeling with nondisabled peers (Greer v. Rome City SD, 950 F.2d 688 [11th Cir. 1991]).
In addition to determining the benefit to a student in being placed in a regular education class, the CSE must also consider what effect a disabled student's presence in a regular education class would have on other children in that class (Daniel R., 874 F.2d at 1049; Greer, 950 F.2d at 697; SRO 94-23).
POINT I: I FIND THAT THE IEP PROVIDED X WITH A FAPE.
The IEP Was Supported By Accurate And Up-To-Date Evaluations.
I find that in formulating the IEP, the CSE relied on and referenced the results of, and adopted many of the recommendations contained in, the comprehensive evaluation conducted by HSP, the supplemental evaluation performed by SchPsych, and the report written by Parent’s consultant, Dr. G. (See pp. 5, 7 and 8, herein.) Thus, I find that the IEP was based on a current and detailed understanding of X’s academic strengths and weaknesses.
Although Parent alleged that the District failed to “conduct testing and evaluations sufficient to deny the [Parent’s] demand for , the evidence provided no basis for questioning the validity of either HSP’s or SchPsych’s results. Notably, Parent did not identify:
(1) any additional test instruments that should have been administered beyond these administered by HSP or SchPsych, or (2) any suspected areas of disability that were not evaluated. Instead, Parent testified that she herself did not make X available for additional testing that was requested by the CSE. D 45-4, 45-5; Tr. 248-249.
Dr. G objected to SchPsych’s characterization of the ” D 47-1.
SchPsych explained that she so characterized the tests. Tr. 110. SchPsych further testified that the administered to X. Tr. 122.
To Date, X Has Been Making Satisfactory Academic Progress.
Dr. G has cited the scatter in X’s in 2012, and in particular the test. Parent argued that these scores indicate that X . This argument is specious. These scores simply confirm that X .
The appropriate scores to consider in determining whether X has been making adequate academic progress are not the cognitive scores, but the achievement test results, and X’s achievement scores are generally in the average range. HSP’s 2012 evaluation revealed that ranges. D 43-5.
Even if the test scores indicated some lack of progress (which they do not), this would not establish that X cannot be educated in a public school with appropriate special education. She has not been in a public school for the last three years. Tr. 192. The programs she has been in are not even remotely similar to what was recommended in the IEP.
The IEP Was Appropriate And Reasonably Calculated To Provide Educational Benefits to X.
The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d 119, 130 (2d Cir. 1998) (quoting Tucker v. Bay Shore UFSD, 873 F.2d 563, 567 (2d Cir. 1989)). School districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Walczak, 142 F.3d at 132). I find that the IEP was appropriate, and reasonably calculated to provide educational benefits to X.
Parent argued that X . I reject that argument.
” is not a classification under the Commissioner’s Regulations. 8 NYCRR 200.1(zz). More importantly, there is no evidence that the District’s professionals must be specifically and formally trained in order to understand X’s learning needs or to provide X with a FAPE. To the contrary, the District has consistently acknowledged that X’s disproportionately affects her . Tr. 99.
The IEP addressed all of X’s areas of concern, as identified by HSP, SchPsych and Dr. G. It was tailored to X’s present levels of academic achievement and her unique learning characteristics, including her present levels of intellectual functioning, adaptive behavior, expected rate of progress and learning style. 8 NYCRR 200.1(ww)(3)(i). The IEP appropriately offered program modifications and testing accommodations to maximize X’s opportunity to succeed.
In response to Dr. G’s recommendations (as well as HSP’s and SchPsych’s), the IEP provided:
(1) daily ; (2) daily ; and (3) weekly needs, including: (a) a , and (b) . Tr. 74, 77, 126; D 46, 49.
The District’s special education teachers are qualified to and can provide X with the recommended by Dr. G. Middle School CSE Chair, who is also a certified special education teacher, confirmed that resource room teachers are qualified to help X “develop greater .” See Tr. 78; D 46-19. In addition, Parent argued that students , unlike other students with disabilities: (1) specified in the Commissioner’s Regulations and delivered by certified special education teachers, but (2) can be educated profiles. I reject that argument.
Parent failed to prove that X in the District. There is no proof that X in particular, or students general, must be educated in a homogenous residential school setting in order to progress academically.
Moreover, Dr. G’s conclusions violate the LRE requirement of IDEA. (See p. 11, herein.)
Throughout the hearing, Parent’s counsel suggested that the CSE failed to consider for X.[29] Parent’s counsel misunderstood the CSE’s role.
The CSE was obliged to place X in the LRE, and was thus obliged to first consider whether she could receive educational benefits in her home public school. Parent was so informed. D 57-1.
After the CSE determined that X could receive FAPE in her home public school, then the CSE had no need to evaluate the Parent’s request for a placement in a private school. Likewise, the CSE was not obliged to find the “best” placement for X, but only to recommend one that was reasonably calculated to provide educational benefit. Walczak, 142 F.3d at 132. Many students might enjoy attending a private boarding school, but this does not make it the LRE in which they can receive FAPE.
Furthermore, I find that the District’s refusal to X’s educational needs.
In addition, I reject Parent’s arguments that the goals on the IEP at issue: (1) are identical to those in prior IEPs, and (2) lack measurable criteria. Goals on prior IEPs are substantially different from these, and evaluative criteria here are clear and measurable.
The Absence of Pedagogical Instructions in the IEP Does Not Constitute A Denial of FAPE.
An IEP should accurately identify a student’s needs, establish annual goals related to those needs, and provide for the use of appropriate special education services. 8 NYCRR 200.4(d)(2)(v); Application of the Dep’t of Education, Appeal No. 07-018. Dr. G testified that the IEP was inadequate because it did not specify the methods by which X’s special education teachers should implement the IEP. Tr. 188 - 189. I reject that argument.
Dr. G noted that if a teacher did not know that X , then the teacher might not know how to appropriately implement the services in the IEP to address X’s needs. Dr. G testified that absence of pedagogical content renders the IEP inappropriate. Dr. G acknowledged that pedagogical instructions are “missing from all IEPs.” Tr. 188.
Dr. G’s opinions regarding the adequacy of the contents of the IEP have no basis in law. The Commissioner’s Regulations do not require that an IEP contain specific pedagogical instructions. “A CSE is not required to specify methodology on an IEP and the precise teaching methodology to be used by a child’s teacher is generally a matter left to the teacher.” Application of a Child with a Disability, Appeal No. 07-052 (citing Application of a Child with a Disability, Appeal No. 06-022; Application of a Child with a Disability, Appeal No. 05-053; Application of the Bd. of Educ., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 02-022…).
Nor do Dr. G’s opinions have any basis in fact. The IEPs have always described X’s . Tr. 190; D 49-6. The IEP at issue identifies X’s academic strengths and weaknesses, and specifically provides suggestions regarding appropriate techniques to target X’s weaknesses. For example, the IEP provides that “X needs . D 49-3.
Whether the IEP would be appropriate if a teacher did not know that X has been diagnosed with is irrelevant, because the IEP at issue, like all previous IEPs developed for X by the District, specifically states that X has .
POINT II: I FIND THAT THE PARENT’S UNILATERAL PLACEMENT WAS NOT
APPROPRIATE
A parent seeking reimbursement for a unilateral placement must prove that the unilateral placement is appropriate. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007). In other words, the parent must demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the child, supported by such services as are necessary to permit the child to benefit from the instruction.
Parent introduced no proof that : (1) developed or implemented any individualized education plan for X, or (2) is providing X with any services to address her specific and individual educational needs. Consequently, Parent has failed to satisfy its burden of proof that was an appropriate placement for X.
POINT III: I FIND THAT EQUITABLE CONSIDERATIONS DO NOT SUPPORT
PARENT
I find that Parent did not provide timely notice to the District, before X’s enrollment at , of Parent’s rejection of the District’s proposed placement, including stating Parent’s concerns and Parent’s intention to enroll X at at public expense. 34 CFR 300.148 (d) (1) requires Parent to express her concerns about the District’s proposed placement, whether in writing or at a CSE meeting. Parent did not do so. Instead, Parent notified the District of her decision to place X at before the CSE met, formulated an IEP, and proposed a placement. (D 51, 54-2, 55-2) Furthermore, Parent declined to express her concerns at either CSE meeting.
In addition, tuition reimbursement should be denied where a parent fails to cooperate with a school district or otherwise frustrates a district’s attempt to offer a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). At all times, the District considered Parent’s concerns and welcomed Parent’s participation in developing an IEP for X. The District expeditiously ordered SchPsych’s evaluation and convened a CSE to develop an IEP after receiving Parent’s request on July 26, 2012, notwithstanding Parent’s statement on July 27, 2012, prior to the CSE meetings, that she had determined that was the “most appropriate educational setting” for X. D 50-1, 51-1.
Parent attended the August 21, 2012, CSE meeting only long enough to deliver a copy of Dr. G’s report. D 45-1. She declined to participate in the development of X’s IEP and made no suggestions or recommendations for services to enhance the IEP. Tr. 116.
Parent attended the August 28, 2012, CSE meeting only long enough to inform the District that she would be enrolling X at . Although the District disagreed with Parent that a placement was the LRE for X, the District incorporated Dr. G’s observations and recommendations (other than the placement) into the IEP. The District invited Parent and Dr. G to attend the CSE meetings and discuss Parent’s concerns.
In short, while the District was willing to considering Parent’s recommendations to improve the IEP, Parent refused to meaningfully participate in the CSE meetings and refused to offer constructive feedback regarding her concerns with the IEP developed by the District. Rather, she presented the as an ultimatum to the District before considering, in good faith, whether the services provided by the District would be sufficient to offer X a FAPE.
I find that Parent failed to cooperate with the District in its attempts to provide X with a FAPE in the LRE, and the equities do not support reimbursement.
It is unfortunate that Parent believed that she was entitled to a written explanation of the CSE’s reasons for . The District correctly informed her that the CSE would review her consultant’s and SchPsych’s reports at the CSE meeting, to which she was invited. D 58-2.
The District also correctly informed Parent that: (1) the CSE is required to place students in the LRE in which they can receive FAPE, and (2) as a result, before the CSE could consider , the CSE had to determine whether FAPE could be provided in the District. D 57-1.
It is unfortunate that Parent believed that the District may have reviewed HSP’s March 2012 evaluation in the spring, without Parent’s participation (D 52-1). That belief may indicate a misunderstanding of the CSE process.
It is unfortunate that Parent may have wanted an evaluation at public expense, but didn’t know (and/or didn’t understand) the requirements imposed on parents who wish to obtain such evaluations, and/or the CSE’s procedures concerning such evaluations (D 51-1, 54-1).
It is also unfortunate that Parent waited until late July to respond to the District’s invitation to schedule the 2012 CSE meeting. The District had attempted to schedule the CSE meeting in the spring. Parent’s apparent misunderstandings might have been avoided if there had been more time between the CSE meetings concerning the 2012-2013 academic year, and the actual beginning of the 2012-2013 academic year.
STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
_______________________________________________ In the Matter of the Complaint of T and MS. MOTHER, as parent of T,
Petitioners,
-against-
CITY SCHOOL DISTRICT,
Respondent. _______________________________________________
AMENDED INDEX TO EXHIBITS
| 1 | GRADE 1: |
| a | ICSD Title 1 Reading/Writing Report, 2/14/2006, pages 19-21 |
| b | Three writing examples written by Lan, pages 23-26 |
| c | ICSD Confidential Psychological Evaluation, July 2006, pages 32-34 |
| d | ICSD Regular Education Compensatory Academic Intervention Services (REC-AIS) Notification Letter, October 2006, page 36 |
| e | ICSD Regular Education Compensatory Academic Intervention Services (REC-AIS) Notification Letter, 12/2/2006, page 38 |
| f | November 2006 Reading/Writing Report, page 37 |
| 2 | GRADE 2: |
| a | Elementary Section 504 Accommodation Plan, 6/13/2007- Elementary Section 504 Accommodation Plan, 2006-2007, pages 41-42 |
| c | ICSD u Therapy Annual Review, 5/24/2007, pages 43-44 |
| d | ICSD Therapy Annual Review, 5/24/2007, pages 45-46 |
| e | June 2007 Report from , Fall Creek Elementary, pages 47-48 |
| f | June 2007 Reading/Writing Report, page 49 |
| g | ICSD AIS Report for Mathematics, Grade 2, pages 50-52 |
| h | 2nd Grade Progress Report, 2006-2007, page 53 |
| i | Peel Writing Evaluation, Grade 2, page 54 Page - 1 - of 5 |
| j | End of the year writing sample, 2nd Grade, pages 55-58 |
| k | 2nd Grade Progress Report, November 2006-2007, pages 59-61 |
| l | Peel Writing Evaluation, November, pages 62-63 |
| m | Library Work, 2006-2007, page 64 |
| n | ICSD Art Progress Report 2006-2007, February, page 65 |
| o | Physical Education Progress Report, 2006-2007, June, page 66 |
| p | Vocal Music Progress Report, 2006-2007, June, page 67 |
| q | Vocal Music Progress Report, 2006-2007, November, page 68 |
| r | Physical Education Progress Report, 2006-2007, November, page 69 |
| s | Art Progress Report, 2006-2007, November, page 70 |
| t | ICSD K-2 Progress Report: Stages of Reading Development, page 71 |
| u | ICSD K-2 Progress Report: Stages of Writing Development, page 72 |
| v | Lan, November 7th Free Write, page 73 |
| w | Letter confirming appointment, 29 July 2007, page 83 |
| x | Letter Dr. October 11, 2007, page 84 |
| y | Notes from testing on , October 1, 2007, pages 85-87 |
| 3 | GRADE 3: |
| a | Fall Creek Elementary Section 504 Accommodation Plan, 6/13/2007- 6/13/2008, pages 88-89 |
| b | Letter from CSE Chairperson to January 16, 2008, page 90 |
| c | Parent Report, New York State Education Department, pages 91-94 |
| d | Letter , May 8, 2008 RE: Section 504 Committee Meeting, page 95 |
| e | ICSD Student Directory, September 14, 2008, pages 104-110 |
| f | Content Area Studies, Teacher Report on Social Development and Work Habits, page 111 |
| g | Letter from Principal to re Need for Academic Intervention Services, October 9, 2008, page 112 |
| h | Elementary Summary of Academic Intervention Services, page 113 |
| i | ICSD PEEL Writing Sample, June 2008, page 122 |
| j | Progress Report of AIS, 2008-2009, pages 123-124 |
4. GRADE 4
a. Letter Special Education Teacher to
March 5, 2009 enclosing IEP Goals, page 133-136
Page - 2 - of 5
b. Letter , M.D. to M.D. November 12, 2009, pages, 143-144
c. Letter M.D. November 18, 2009, page 145
d. End of the Year Curriculum Report 2009-2010, page 146-151
e. Grade Five/Six Handwork, pages 152-153
f. Neo Trial Summary, February 4, 2009, page 154
5. 2007 CORRESPONDENCE
a. 9/26/2007 email from
164-165
6. 2008 CORRESPONDENCE
a. 12/13/2008 email from -Rosenthal, pages 166-
167
b. 12/10/2008 email from and prior email, pages
168-169
c. 12/10/2008 email from -Rosenthal and prior emails, pages 170-172
d. 7/11/2012 email to page 173
e. 10/29/2008 email from and prior
emails, pages 174-175
f. 10/27/2008 email from , pages 176-
181
g. Article Written by “The Right Approach is Key with
”, page 182
h. 10/16/2008, email from and prior emails, pages 183-189
i. 9/22/2008 email from and prior emails, pages 190-192
j. 9/23/2008 email from pages 193-194
k. 5/28/2008 email from and prior
emails, pages 195-196
l. 5/4/2008 email from , pages 197-198
m. 4/7/2008 email from and prior email, pages
199-200
n. 4/6/2008 email from , page 201
o. 3/17/2008 email from 5:24 pm, page 202
p. 3/17/2008 email from 9:11 pm, page 203
7. 2009 CORRESPONDENCE
a. 5/14/2009 email from and prior email, pages 204-205
Page - 3 - of 5
b. 4/28/2009 email from and prior emails, pages 206-
208
c. 4/25/2009 email from and prior emails, pages 209-
211
d. 4/20/2009 email from , page 212
e. 4/8/2009 email from Rosenthal, pages 213-214
f. 1/9/2009 email from , pages 215-216
g. 1/8/2012 email from , page 217
8. 2012 CORRESPONDENCE
a. 8/27/2012 email from , page 218
b. 8/23/2012 email from and prior emails, pages 219-
225
c. 8/24/2012 email from 9:40 am, page 226
d. 8/24/2012 email from 5:26 pm and prior emails, pages 227-229
e. 8/16/2012 email from , 10:47 am and prior emails, pages 230-232
f. 8/21/2012 email from and prior emails, pages 233-
235
g. 8/16/2012 email from 3:09 pm and prior emails, pages 236-237
h. 8/14/2012 email from and prior emails, pages 238-
244
i. 8/17/2012 email from , page 245
j. 8/17/2012 email from and prior emails, pages 246-
247
k. 7/26/2012 email from and prior emails, pages 248-249
9. RESOURCES, RESEARCH, ARTICLES
a. Thomspson, Sue. The Source for Nonverbal Learning Disabilities, pages 250-257
b. NLD From the Inside Out, Talking to Parents, Teachers, and Teens about Growing Up with Nonverbal Learning Disabilities by Michael
Brian Murphy, pages 258-282
c. Understanding Nonverbal Learning Disabilities, Presentation
Transcript by Binyamin Goldman, PsyD, pages 283-289
d. Misconceptions and Questions & Answers about NLD, pages 290-302
e. LD Online Developing an Educational Plans for the Student with
NLD, by Sue Thompson, M.A., C.E. (1998), pages 303-311
Page - 4 - of 5
f. Insights on Learning Disabilities, Effective Individualized Educational
Plans: Do Something Special with Learning Styles! By Nathalis
Wamba and Kenneth J. Dunn, pages 312-323
g. NLD Ontario, NLD and the Middle School Transition, pages 324-325
10. PROGRESS REPORTS K-5 ELEMENTARY, pages 326-362
11. MISCELLANEOUS DOCUMENTS
| a | Samples of s school work, pages 363-379 |
| b | Miscellaneous Progress Reports, pages 380-395 |
| c | Eye Exam Record 5/12/2006, page 396 |
| 12 | EXPENSES, pages 397-410 |
| 13 | AGREEMENT, pages 411-414 |
| 14 | , pages 415-416 |
Page - 5 - of 5
Footnotes
[27] In contrast, the goal on 11/16/10 IEP addresses X’s ability to (D 40-5), and the goals on the 05/14/09 IEP address X’s ability to (D 36-5, 36-6).
[28] Parent argued at hearing and in her closing brief, however, that the District should have specially trained its staff in NVLD both in preparation for the CSE meetings and for working with X.
[29] In writing to the District, Parent used the words “best” on August 16, 2012 (D 55-2), and “most appropriate educational setting” on July 27, 2012 (D 51-1). It’s understandable, but it’s not relevant to IDEA.