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Findings of Fact and Decision
FINDINGS OF FACT AND DECISION
Case No: XXXXX
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Hearing Dates:
Record Close Date:
Hearing Officer: Findings of Fact and Decision
PERSONS WHO APPEARED ON
Mother
Attorney for Parent
Director Secondary Sp. Ed District
Attorney for District
PERSONS WHO APPEARED ON
Mother
District Representative
Attorney for District
Special Ed. Teacher District
Special Ed. Teacher District
School psychologist District
PERSONS WHO APPEARED ON
Mother
Attorney for Parent
District Representative
Attorney for District
Asst. Headmaster, Parents
Psychologist -- Parents
Student Parents
PERSONS WHO APPEARED ON
Mother Parents
Attorney for Parent
District Representative District
Attorney for District
PERSONS WHO APPEARED ON JANUARY
Mother
District Representative Findings of Fact and Decision
Attorney for District
Assistant Technology Specialist District
Chair of H.S. Special Ed. Dept. District Findings of Fact and Decision
BACKGROUND
The Parents submitted a hearing request, dated July , and I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The hearing request seeks reimbursement for tuition at the XXXX School (“XXXX”) for the and school years.
The hearing request in this case alleges that the programs offered by the District for the two years in question were inappropriate in that they (X) failed to proffer an appropriate reading program that allows the Student to show meaningful progress; (X) failed to offer a fully integrated program where the teachers are not only qualified in their general education discipline, but are also specially trained to teach severe students; (X) failed to identify and accommodate extended school day services which are critical to a student with this level of disability, including but not limited to one on one subject specific tutoring daily; general education classes of no more than ten students, and extensive study halls with specialists in XXXXX and core subjects available for help on homework; and (X) failed to offer technological assistance, such as XXXXX with complete backup and faculty participation, and other software programs designed to assist learners. (Exh. A, pp. X – X)
EVIDENCE
The District submitted as evidence an individualized education program (an “IEP”), dated , for the school year The IEP sets forth the following recommended program:
The XXXX IEP also sets forth a recommendation of the related service of The XXXX IEP includes
The recommendation includes
.
The XXXX IEP sets forth that the Student “has
The XXXX IEP sets forth that academic testing was not done by the District because the Mother Findings of Fact and Decision
. The XXXX IEP notes that the Student’s previous standardized testing and his current progress at XXXX were reviewed.
The XXXX IEP asserts that according to teacher reports, the Student was The Committee on Special Education (the “CSE”) determined that the Student had the following needs
The parties both submitted an IEP, dated
The XXXX IEP sets forth the following program:
The XXXX IEP sets forth no related services.
The XXXX IEP sets forth the following
The XXXX IEP sets forth
The parties both submitted as evidence (Exhibits F and XX; hereafter “the XXXX Evaluation”).
The XXXX XXXX Evaluation reported, by way of background, that the Student The XXXX XXXX Evaluation reported as behavioral observations, that the Student The Student attained a full scale IQ score of XX on the WISC-IV, which placed him in A more detailed analysis of the testing suggested
The Student was tested on the Comprehensive Test of Phonological Processing to assess his sound sequencing and sound blending skills;
The examiner notes
The examiner noted
On the WISC-IV tasks of
The examiner also found that the Student
Overall, the findings indicated that the Student The examiner noted
Both parties submitted a Evaluation, dated , and conducted by of the XXXX School (Exhibits G and XX; hereafter, the “XXXX evaluation”). The evaluation found that the Student’s full scale IQ was The Student scored in the Testing on the Woodcock-Johnson – II indicated that the Student
Dr. Findings of Fact and Decision
Dr.
The parties both submitted the Admission Assessment from the XXXX School, dated , the Director of Secondary Special Education, testified for the District. Ms. testified that she chaired the annual review meeting for the IEP
(T. XXX). She testified that she understood that the Student
Ms. testified that his
Ms. testified
Ms. testified that
She testified that general education classes
She testified that the
, a special education teacher for the District, testified for the District. She testified that she taught
Ms. testified that the Student’s testing on the Woodcock-Johnson II Achievement Test on Ms. testified that she would concentrate on
She testified that a student
She testified with respect
, a special education teacher for the District, testified for the District. She testified that the Ms. testified that his
Ms. testified that at the
, a school psychologist, testified for the District. Ms. XXXXX chaired the CSE meeting for the XXXX – XXXX IEP. She testified that
She testified that she did not recall any disagreement regarding the accuracy of the way the Student’s functioning levels were described (T. XXX)
Ms. testified that
The Mother testified regarding the development of the IEP The Mother testified that she attended the CSE meetings that were the subject of this hearing (T. XXX). In testifying regarding the XXXX IEP, she stated with regard to She testified that the Student The Mother testified that she was not sure whether Findings of Fact and Decision
She testified with respect to the years that are the subject of this hearing, that she considered bringing him back to the District, but that the Student With respect to the XXXX IEP, the Mother testified that , the Assistant Headmaster and Director of the , testified for the Parents. He testified that
Upon cross-examination, he testified that his understanding is that XXXX in not
The Student testified that
APPLICABLE STANDARDS
A school district 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 district were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, XXX U.S. X (XXXX); Sch. Comm. of Burlington v. Dep't of Educ., XXX U.S. XXX, XXX-XX (XXXX)).
A school district offers an appropriate program "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, XXX U.S. at XXX). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., XXX F.Xd XXX, XXX (Xd Cir. XXXX); see Rowley, XXX U.S. at XXX). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, XXX F.Xd at XXX, quoting Tucker v. Bay Shore Union Free Sch. Dist., XXX F.Xd XXX, XXX (Xd Cir. XXXX) (citations omitted); see Grim, XXX F.Xd at XXX). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, XXX U.S. at XXX, XXX; Grim, XXX F.Xd at XXX; Walczak, XXX F.Xd at XXX). 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, XXX F.Xd at XXX, quoting Walczak, XXX F.Xd at XXX (citations omitted); see P. v. Newington Bd. of Educ., XXX F.Xd XXX, XXX-XX (Xd Cir. XXXX); Perricelli, XXXX WL XXXXXX, at *XX). The IEP must be "reasonably calculated to provide some Findings of Fact and Decision 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., XXX F.Xd XXXX, XXXX [Xd Cir. XXXX]; see Rowley, XXX U.S. at XXX). The student's recommended program must also be provided in the least restrictive environment (LRE) (XX U.S.C. §
XXXX(a)(X)(A); XX C.F.R. §§ XXX.XXX(a)(X)(i]) XXX.XXX(a)(X); X NYCRR
XXX.X(cc), XXX.X(a)(X).
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 (Educ. Law § XXXX(X)(c)).
FINDINGS OF FACT AND DECISION
The Parents argue that “a child with this level of disability” can not “be provided with educational benefits in a large public high school such as the one he would attend should he be in the district” (Exh. XIV, p. X). A review of the background of the development of the IEPs for the years in question, indicates that in the summer before In the end, the Parents decided that the Student’s needs. The District has offered a program I note at the outset, that the District is required to offer services which meet the Student’s unique educational needs.
The New York State Regulations of the Commissioner of Education provide that:
“(ww) Special education means specially designed individualized or group instruction or special services or programs, as defined in subdivision X of section XXXX of the Education Law, and special transportation, provided at no cost to the parent, to meet the unique needs of students with disabilities...
(X) For the purposes of this definition:
(i) The individual needs of a student shall be determined by a committee on special education in accordance with the provisions of section XXX.X of this Part upon consideration of the present levels of performance and expected learning outcomes of the student. Such individual-need determinations shall provide the basis for written annual goals, direction for the provision of appropriate educational programs and services and development of an individualized education program for the student. The areas to be considered shall include:
(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, Findings of Fact and Decision level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;
(b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments;
(c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and
(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. Management needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) of this subparagraph.
(ii) Group instruction means instruction of students grouped together according to similarity of individual needs for the purpose of special education. The curriculum and instruction provided to such groups shall be consistent with the individual needs of each student in the group, and the instruction required to meet the individual needs of any one student in the group shall not consistently detract from the instruction provided other students in the group.” XNYCRR§XXX.X(ww) (Italics added)
The first level of inquiry, then, is to determine the unique needs of the Student. The XXXX IEP indicates that the Student’s needs are
The Parents argue that the Student requires a
A review of the Student’s academic achievement, functional performance and learning characteristics indicate that the I note that the background information on the XXXX XXXX Evaluation indicates that “he appears This supports the expectation that he would function well in a general education classroom. In addition, his learning would have been appropriately supported by the I note as well that in his Academic Report the history teacher noted that The IEP provides goals which address the Student’s needs. There is no assertion that these goals are inappropriate. The IEP includes Findings of Fact and Decision
The Parents argue that the District failed to offer sufficient
I also note that at XXXX, the Student is
The Parents further argue that the Student requires
The Parents further argue that the program offered by the District would not
Ms. testified
The Parents expressed concerns regarding the Student’s
I note that the Parents argue that the IEPs in both XXXX and XXXX were procedurally flawed in that none of the participants in the CSE had any first hand knowledge of the Student or the programs that the Student was currently attending However, the Parents did not raise procedural allegations in the hearing request and therefore I do not consider them. I further note that the IEPs for both school years were developed with the participation of staff from XXXX.
The XXXX IEP indicates that the Student’s needs were
She also testified that programming for
The XXXX IEP included
In short, the Student was well positioned to
I find that the programs recommended for both the XXXX-XXXX and the XXXX-XXXX school years were reasonably calculated to provide educational benefits.
Having determined that the District offered an appropriate program, I do not need to address the appropriateness of the XXXX School. However, I note that the XXXX School is
It is also notable that based upon a comparison of testing on the Woodcock Johnson before beginning at XXXX and after being there for A review of the Academic Reports from XXXX indicates that the Student
In his Academic Reports on March XX, XXXX, the teacher notes
I note that XXXX does not
The Academic Report from
In addition, it does not appear that Findings of Fact and Decision
Regarding the equitable factors, I note that the Parents informed the District of their intent to place the Student at IEP meeting (See exh. X, p. X) and the IEP meeting However, the Parents did not cooperate fully with the CSE.
Having found that the District offered an appropriate placement for the XXXXXXXX and the XXXX-XXXX school years, I deny the Parents’ request for tuition reimbursement.
Date:
______________________________
.
Impartial Hearing Officer Findings of Fact and Decision
PLEASE TAKE NOTICE
Within XX days of the date of this decision, the parents and/or the school district has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section XXXX of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than XX days before service of a copy of the petition for review upon such school district, and within XX days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within XX 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 XX- or XX-day period.” (XNYCRRXXX.X(b)). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and forms for filing an appeal can be found in the Office of State Review website: www.sro.nysed.gov/appeals.html.
Findings of Fact and Decision
DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER X, XXXX
Parents’ Exhibits Date of Exhibit No. of Pages
A. Due Process Complaint X/XX/XX XX
B. [No exhibit]
C. Decision and Order X/XX/XX XX
D (X) IEP XX/XX/XX XX
D (X) IEP X/X/XX XX
D (X) IEP X/X/XX X
D (X) IEP X/XX/XX X
D (X) IEP XX/XX/XX X
D (X) IEP X/XX/XX XX
(including CSE Draft Data Form)
D (X) IEP X/X/XX XX
E (X) Academic Report X/X/XX X
E (X) Academic Report X/X/XX X
E (X) Academic Report X/XX/XX X
F. and Educ. Eval. – XXXX Jan and Feb. XXXX
XX
G. Evaluation -- XXXX Jan. XXXX XX
H. Learning profile – Lindamood-Bell X/XX/XX X
I. Confidential Report X/XX/XX X
J. Confidential Report X/XX/XX X
K. Admissions Assessment – XXXX X/XX/XX X
L. Testing XX/XX and X/XX/XX X
M. [No Exhibit] Findings of Fact and Decision
N. [No Exhibit]
District’s Exhibits Date of Exhibit No. of Pages
X. Due process complaint (with date received stamp) X/X/XX XX
X. District Response XX/XX/XX XX
X. IEP XX/XX/XX X
X. IEP X/X/XX X
X. IEP X/X/XX X
X. IEP X/XX/XX X
X. IEP XX/XX/XX X
X. IEP X/XX/XX X
X. IEP X/X/XX X
XX. IEP X/X/XX XX
XX. Confidential Report X/XX/XX X
XX. Confidential Report X/XX/XX X
XX [No exhibit]
XX. Educational evaluation X/XX/XX X
XX. evaluation Sept. XXXX X
XX. Social and Developmental History X/XX/XX X
XX. Score Report X/XX/XX X
XX. Re-testing summary X/X/XX X
XX. and Educ. Eval. -- XXXX Jan/Feb. XXXX XX
XX. Report card – XX-XX, XX-XX, X
XX-XX
Findings of Fact and Decision
XX. Psychoeducational Eval. -- XXXX Jan. XXXX XX
XX. Student Advisor Report, X/XX/XX XX
Academic Report X/XX/XX
Advisor Report XX/XX/XX
Academic Report XX/XX/XX
Advisor Report X/X/XX
Academic Report X/XX/XX
Advisor Report X/XX/XX
Academic Report X/X/XX
XX. Academic Report XX/XX/XX XX Student Advisor Report X/XX/XX Advisor Report XX/XX/XX Academic Report XX/XX/XX Advisor Report X/X/XX
XX. Academic Report XX/X/XX XX Academic Report XX/XX/XX Academic Report X/XX/XX
XX. Admissions Assessment – XXXX X/XX/XX X
XX (X) Transcript – XXXX X/XX/XX X
XX (X) Transcript – XXXX X/X/XX X
XX. Student Testing Record – XXXX X/XX/XX X
XX. Student Testing Record – XXXX X/XX/XX X
XX. Student Report XX/XX X
XX Student Report XX/XX X
XX. Letter from Dr. X/X/XX X
XX. Letter from Dr. X/XX/XX X
XX. Parent Unilateral placement form X/XX/XX X
XX. Letter from Dr. X/XX/XX X
XX. Private School Invitation for CSE X/XX/XX X Findings of Fact and Decision
XX. Committee Recommendation letter X/XX/XX X
XX. Notice of Bd. of Ed. Review for Sp. Ed. X/XX/XX X XX [No exhibit]
XX. CSE Consent for Reevaluation Second Notice XX/XX/XX X
XX. Signed Consent XX/XX/XX X
XX. [No Exhibit]
XX. Student Invitation X/XX/XX X
XX. Private School Invitation X/XX/XX X
XX. Subcommittee annual review meeting letter X/XX/XX X
XX. Notice of Bd. of Ed. Review for Sp. Ed. X/XX/XX X
XX. Committee Recommendation letter X/XX/XX X
XX. Notice of intent to request reimbursement X/X/XX X
XX. Letter from Dr. X/X/XX X
XX. Letter from Dr. X/X/XX X
XX. Wilson Reading System Scope and Sequence Undated X
DOCUMENTATION ENTERED INTO RECORD ON JANUARY XX, XXXX
Parents’ Exhibits Date of Exhibit No. of Pages
O. Testimony of XX/XX/XX XX
P. Testimony of X/X/XX XX
DOCUMENTS ENTERED INTO THE RECORD AFTER THE HEARING
District Exhibits Date of Exhibit No. of Pages
XX. Transcripts from prior hearing X/XX/XX XX
Findings of Fact and Decision
XX. Transcripts from prior hearing X/X/XX XX
| I | Email from IHO to attorneys XX/X/XX X (including prior correspondence) |
| II | Email from Mr. to IHO XX/X/XX X |
| III | Letter from Mr. to IHO XX/X/XX X |
| IV | Letter from Mr. to IHO XX/XX/XX X |
| V | Email from Mr. to IHO and XX/XX/XX X |
| Mr | (including prior correspondence) |
| VI | Email from IHO to attorneys XX/XX/XX X (including prior correspondence) |
| VII | Email from IHO to attorneys X/X/XX X (including prior correspondence) |
| VIII | Letter from Mr. to XX/XX/XX XX |
| Mr | , copied to IHO (with attachments) |
| IX | Letter from Mr. to IHO XX/XX/XX X |
| X | Letter from Mr. to IHO XX/XX/XX X |
| XI | Email from IHO to attorneys X/XX/XX X |
| X | Email correspondence among IHO and X/XX/XX – X/XX/XX X parties |
| XI | Email correspondence among IHO and X/XX/XX (X:XX pm) X parties |
| XII | Email correspondence from IHO to X/X/XX (X:XX pm) X attorneys. |
XIII Memorandum of Law of District X/XX/XX XX
XIV Memorandum of Law of Parents X/XX/XX XX