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FINDINGS OF FACT AND DECISION
P-12 Education
Office of Special Education
Student’s Name: Student
Date of Birth: [Redacted text]
Hearing Requested by: Parent
Decision Due Date: June 30, 2012
Record Close Date: June 16, 2012
Hearing Officer: Hearing Officer
Titles of Persons Who Appeared
October 13, 2011
Educational Advocate (parent)
School District Attorney #1
School District Attorney #2
Also Present:
Parent
Special Education Director (School District) Parent Attorney
Law Intern #1
October 14, 2011
Educational Advocate
School District Attorney #1
School District Attorney #2
Also Present:
Parent
Special Ed Director
Parent Attorney
Law Intern #2 Law Intern
November 4, 2011
Parent Attorney
School District Attorney #1
School District Attorney #2
Also Present:
Parent
Special Education Director
Educational Advocate
Special Ed Chairperson
November 29, 2011
Parent Attorney
School District Attorney #1
School District Attorney #2
Also Present:
Parent
Special Education Director
Witness
Special Education Chairperson
January 9, 2012
Parent Attorney
School District Attorney #1
School District Attorney #2
Also Present:
Parent
Special Education Director
Observer #1
Witness
Special Education Chairperson
School Psychologist
School Behavior Consultant
Special Ed Teacher
January 19, 2012
Parent Attorney
School District Attorney #1
School District Attorney #2
Also Present:
Parent
Witness
General Education Teacher
Speech/Language Pathologist (School District)
Special Education Director
January 23, 2012
Parent Attorney
School District Attorney #1
School District Attorney #2
Also Present:
Parent
Special Education Director
Witness
Community Program Director (parent)
School District Superintendent
Resource Room Teacher
Parent
February 14, 2012
Parent Attorney
School District Attorney #1
School District Attorney #2 Also Present:
Observer #2
Special Education Director
Witness
Parent
February 27, 2012
Parent Attorney
School District Attorney #1
School District Attorney #2
Witness
Parent
March 1, 2012
Parent Attorney
School District Attorney #1
School District Attorney #2
Also Present:
Observer #3
Special Education Director
Parent
Witness
School Board Member
Educational Advocate
Parent
March 5, 2012
Parent Attorney
School District Attorney #1
Also Present:
Special Education Director Parent
Witness
Attendance Officer
March 6, 2012
Parent Attorney
School District Attorney #1
Also Present:
Observer #4
Special Education Director
Parent
Witness
Behavioral Consultant
Special Services Assistant Supervisor
March 28, 2012
Parent Attorney
School District Attorney #1
Also Present:
Special Education Director
Parent
Witness
Teacher
Private School Special Education Director
March 29 2012
Parent Attorney
School District Attorney #1
Also Present:
Special Education Director
Parent Observer #5
Witness
Observer #6
Special Education Chairperson
April 16, 2012
Parent Attorney
School District Attorney #1
Also Present:
Special Education Director
Parent
Witness
Assistant Principal
Special Education Chairperson
Teacher
District Clerk
Special Ed Director
April 25, 2012
Parent Attorney
School District Attorney #1
Also Present:
Special Education Director
Parent
Witness
Special Education Director
Parent
Educational Advocate
Teacher
DISTRICT EXHIBITS
10. DISTRICT 2011-2012 IEP dated April 28, 2011 (13 pages) (1A-1M) CSE attendance sign-in sheets for April 28, 2011 meeting (1 page) aSeS’. Board of Education Minutes for April 28, 2011 CSE meeting (3 pages) April 11, 2011 Elementary District Evaluation #1 (7 pages) (4A-4G) December 6, 2010 Evaluation #2 (7 pages) (5A-5G) November 3, 2010 - Evaluation #3 (6 pages) (6A-6F) November 19, 2010 - January 26, 2011 Elementary District Evaluation #3 (10 pages) January 26, 2011 - Narrative Report #1 (1 page) Six Teacher Reports - January 2011 (6 pages) (9A-9F) - Teacher Report (CSE Form) (1 page) April 26, 2011 DOE
11. Elementary District Evaluation #1 (4 pages) (11A-11D) 12; November 18, 2010 Elementary District Child's Assessment (9 pages) October 17, 2010 DOE
13. Evaluation #5 (8 pages) (13A-13H) May 13, 2010 DOE
14. Elementary District Evaluation #6 (15 pages) L). CSE Social History dated January 21, 2007 (5 pages) (1SA-15E) 16. August 3, 2011 Fax (3 pages) (16A-16C) June 5, 2009 DOE
Ed. Signed "Recommendation of CSE" dated July 21, 2011 (1 page)
18. Letter dated June 27, 2011 to parent from Special Ed Director with attachment from SED (4 pages)
19, Letter dated June 7, 2011 from parent to Special Ed Director (2 pages) (19A-19B) 20. Fax dated 5-31-11 from parent to --------- and Special Ed Director (8pages) (20A20H) 21, Letter dated June 29, 2011 to Parent/Guardian from Special Ed Director (1 page) DOE
z. Letter dated May 12, 2011 to parents from Special Ed Director (3 pages) (22A22C) Pia Letter dated May 2, 2011 to parent from Special Ed Director (prior Written Notice)(2 pages) (23A-23B)
24. Continuation of Special Education Services dated April 28, 2011 (1 page) DOE
25. Committee of Special Education Additional Parent Member Attendance Sheet (1page) DOE
26. Fax cover sheet dated April 27, 2011 with letter dated April 26, 2011 addressed to Special Ed Chairperson and Special Services Assistant Supervisor (3 pages) DOE
(26A-26B) “2SA" "2SE"
27. Letter dated January 3, 2011 to Elementary District Special Services Assistant Supervisor from Parent (2 pages) (27A-27B)
28. | Due process complaint dated August 15, 2011: A-H
29. Impartial Hearing Officer Appointment Letter dated August 23, 2011 (7 pages) (pages 29A-G)
30. Offer of Resolution Session letter dated August 24, 2011 (3 pages) (30A-'30C)
31. Fax dated August 30, 2011 confirmation of attendance at Resolution Session (3 pages) (31A- 31C)
32. District Response to Due Process complaint dated August 30, 2011 (21 pages) (32A-U)
33. Special Ed Director, District, Director of Special Education (2 pages) (33A-33B)
34. Special Ed Chairperson, District, Chairperson of Special Education (2 pages) (34A-34B)
35. | School Psychologist (2 pages) (35A-35B)
36. Private School information from its website (5 pages) (36A-36E)
37. Transportation Request to Private School dated March 31, 2011 (5 pages) (37 A-37E)
38. District Registration packet (12 pages) (38A-38L)
39. | Undated Notice of Appearance for Parent’s attorney (1 page) (Stamped received 10/19111)
40. Correspondence to Elementary District UFSD dated June/July 2010 (6 pages) (40A-40F)
41. Tutoring documents 6 pages) (40A-40F)
42. Tutoring documents (1 page)
43. Class profile (1 page)
44, Elementary District 6" grade 2010-2011 IEP dated April 28, 2011 (10 pages)
45. Elementary District 6"" grade 2010-2011 IEP dated February 16, 2011 (10 pages)
46. Elementary District 6" grade 2010-2011 IEP dated November 24, 2010 (11 pages)
47. Elementary District 6" grade 2010-2011 IEP dated June 23, 2010 (11 pages)
48. Letter dated June 28, 2011 from Parent to Special Ed Director (1 Page)
49, Invitation Letter dated April 14, 2011 from Special Services Assistant Supervisor to Parent (1 page)
50. | Attendance sheet CSE meeting 4/28/11 (1 page)
51. | Resume - Speech/Language Pathologist (2 pages)
52. IEP with Special Ed Chairperson’s Notes (10 pages)
53. Student’s 6 Grade Report Card (2 pages)
54. | Subpoena Document Private School (140 pages)
55. | Memo Board of Education Meeting 5/20/11 (4 pages)
56. Minutes of Board Meeting 5/24/11 (2 pages)
57. Correspondence 2/18/12 (2 pages) and Correspondence, 2/12/12 (4 pages)
58. Districts letters to familiar resolution meetings (20 pages)
PARENT’S EXHIBITS
L. IEP for 2011/12 school year from Private School (11 pages)
2. IEP for 2011/12 school year from District School (11 pages) DOE
3. IEP goals process report (5 pages) DOE
4. Evaluation #4 dated May 13, 2010 (8 pages) DOE
35. Letter from M.D. dated October 18, 2011 (1 page) DOE
6. Current Testing Results from Private School (11 pages) de Testing Result from October 10, 2010 (12 pages) DOE
8. State Testing Results from the following school years (10 pages) a. 2010-2011 6" grade/English language Arts/ Mathematics b. 2009-2010 5TM grade/English Language Arts/Math/Social Studies c. 2008-2009 4TM grade d. 2007-2008 3 grade/English/Mathematics DOE
9. Minutes of Elementary School Transition meeting on April 28, 2011 (2 pages) DOE
10. Notice of Resolution Meeting from Special Ed Director dated (2pages) August 24, 2011 DOE ig. Resolution meeting notes from September 1, 2011 (3 pages)
12. Letter to Assistant Principal at District 9/26/11 (1 page) DOE
13. Letter to Assistant Principal, dated Sept. 19, 2011 (1 page) DOE
14. Letter to Attendance Assistant at District dated 9/12/11 (1 page) DOE
AS. Report from Police Dept. dated September 10, 2011 (2 pages)
16. Letter to Special Ed Chairperson Assistant Director of Special Education of District dated August 2, 2011 (1 page) iyJ Letter to Administrative Assistant to the Superintendent of District dated August 3, 2011 (2 pages) DOE
18. Letter from Parent to Special Ed Director dated June 28, 2011 (1 page) DOE
9. Letter from Special Ed Director to Parent dated June 27, 2011 (4 pages) DOE
20. Letter from Parent to Special Ed Director dated June 7, 2011 (2 pages) DOE zi. Letter from Parent to Special Services Assistant Supervisor and Special Ed Chairperson dated April 26, 2011 (2 pages)
22. Letter from Special Ed Director to Parent dated May 2, 2011 (3 pages DOE
23. Class Profile, District High School Proposed Class from Student (1 page) DOE
24. Student Progress Report from District, October 2011 (1 page DOE
25. Student Progress report from Private School dated October 11, 2011 (1 page report card) DOE
26. Explanation of Program at Private School brochure (3 pages) pag8 Letter from School Nurse, District School, dated October 12, 2011 (1 page)
28. Parent Family History, (3 pages) DOE
29. Parent letter to School District Superintendent dated 2/2/12 (1 page) DOE
30. School District Superintendent’s letter to Parent (2 pages)
as Commissioner’s Decision (2 pages) DOE
a. No Child Left Behind Notice on District’s website explaining failure of District to meet the requirements with regard to Special Education (1 page)
INTRODUCTION
On the above dates I conducted hearings pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. section 1415 (f) (3) regarding a special education program for Students with a disability, New York State Department of Education Case # 65293. The hearing was conducted at the District. The Student’s parent submitted a request for an impartial hearing through their Advocate on August 15, 2011. At the hearing, the District was represented by School District Attorney #1, Esq. and the Parent was represented by its’ counsel.
A list of witnesses and documents received into evidence is attached in this decision.
BACKGROUND
The District, the Respondent herein, is a central high school district which operates five (5) junior/senior high schools (including High School). The District assumes jurisdiction of Students in grades 7-12 (including ungraded Students who have attained the age of 11 years, 9 months) residing within its’ boundaries.
Student is a thirteen-year-old (DOB [Redacted text]) classified with a disability who was educated in a general education mainstream setting within the sixth grade at Elementary School during the 2010-2011 school year. Student’s sixth grade program was a fully mainstreamed “------- ” class of --- Students with a ----- aide, a ----- room and won-n--- services. Elementary School is operated by the Elementary School District (“elementary district”) which has jurisdiction over Students residing within its’ boundaries until they complete sixth grade. The Elementary District and the recommended placement High School District are two separate legal entities. As an incoming seventh grader, Student came under the jurisdiction of the District on July 1, 2011.
THE PARENTS POSITION
By June of 2011, after much discussion, the District offered Student a modified General Education placement: Student was to be mainstreamed into a class of ----- or 1] more Students for the following periods: gym, lunch, home & careers, health and computer. It was Parent’s position that her child would be in a danger in this environment.
As a part of the proposed program offered by the District, Student would be placed in a general education reading program consisting of --- General Education Students, back to back double period classes, requiring that she transition from place to place.
Parent alleges that the failure of the District to provide for Special Education Students was “flagged” by the New York State Education Department and the following was posted on their website: (Parents Exhibit #32): Notice on School District website, “The No Child Left Behind Act. “dated ----, 2011, from Superintendent informing the parents of the School District that Students with disabilities failed to make required AYP for 2010-11.
Parent maintained that an attorney, School District Attorney #2 and a legal intern attended the Resolution Meeting on behalf of the District on September 2, 2011 and that she was not represented by an attorney. Additionally, there were no IEP Goals developed for the 2011 Extended School Year (ESY) program, despite the fact that the change-over date was July 1, 2011. Parent maintains she never received an ESY IEP Goals Progress Report for the summer 2011 and did not receive a written notice for the denial of additional ---- therapy at the April 27, 2011 transition meeting. Parent alleges that she did not receive a copy of the Part B Procedural Safeguards Notice and that same was faxed to her only after she requested same. Additionally, the Parent maintained that the IEP and recommended placement was inappropriate to meet the child’s needs.
PARENT’S CASE
At the impartial hearing, the Parent called the following witnesses: Community Program Director, School District Superintendent, Superintendent of School District; Parent member; Parent; School Board Member, Parent’s Advocate; Attendance Officer; Behavioral Consultant; Special Services Assistant Supervisor; Teacher (private school); Private School Special Education Director; Observer #6, District --------- ; Special Ed Chairperson; District Director of Special Education; District Clerk; Teacher (district school); Assistant Principal (school district); and Teacher (school district).
The parent testified, after being duly sworn, that to the best of her recollection her daughter was first diagnosed with a disability in November 2000 (T. 721 lines 23) and Student has numerous health problems and is required to take medications (T. 722 lines 8-12). Parent stated that she notified the early intervention department in her school district and it was recommended that Student have a medical consultation (T. 731 liens 14); there was a diagnosis (T. 731 line 10). In 5" grade, the Elementary District referred and paid for an evaluation by a Dr. to assist in determining an appropriate placement and if additional therapy and or a particular teaching methodology was required, as “her child was completely “ ------- “a(t, Tao: nes 7-12), The witness stated that she attended a resolution conference meeting on September 1, 2011, and recalled that the attendees were Special Ed Director, Special Ed Chairperson, and School District Attorney #2, a legal intern, herself and her advocate Educational Advocate (T. 706). Educational Advocate informed School District Attorney #2 that she was not an attorney and that School District Attorney #2 should not be at the meeting. Additionally, she (School District Attorney #2) did not leave and “more or less tried to intimidate me” (parent). (T. 707 lines 10-16). Parent testified that School District Attorney #2 was “very nasty”, accused her (parent) of being nervous and accused her of putting ideas into her daughter’s head about not going to the District School (T. 708 lines 9114). Parent described Special Education Director as being “appropriate” at the meeting which lasted 45 minutes; she stated that Resource Room Teacher was taking notes at the meeting, wherein it was noted that Mom is ------ .” (T. 742 lines 20).
The witness was directed to Exhibit #4 wherein she noted that Dr.---- in his recommendations stated that Student should not be with children that have significant behavioral issues, and in her opinion the proposed placement by her school district did not address said concerns (T. 743 lines 18). Parent was referred to Exhibit #23 which was a class profile wherein there was information that there were -------- children in the proposed class, and that this placement belies the recommendations of Dr. (T. 744 lines
10-25). Parent opined that a “large suburban high school” did not fall under the category of a small structured program. Upon further questioning of the witness, she stated that her daughter never attended the recommended placement, however, she was informed that the school nurse went to the proposed classroom looking for her daughter, and inexplicably, she received a report card that her child was performing wonderfully in gym (T. 746 lines 1-9). The parent stated that the proposed IEP recommended a reading program called San nnnn * and that based upon her observation of the program, there were approximately --- children in the class with 3 different stations; she observed the program in the District High School and was uncertain if the class was special education or general education (T. 748 lines 4-11). Parent also stated that head phones are required for the program and that her daughter has -------- issues and could not tolerate wearing head phones (T. 749 lines 5-18).
The parent testified that the recommended placement was too large for her child, that her anxiety would increase and she would “ ”. In describing her child’s experience in 6" grade at the Elementary School, she stated that Student did not communicate or even say “hello” until March as she was “ “(T. 17 lines 19-23). The 6" grade class was a general education class and Student was assigned a --------- ------- , and Teacher. Student’s teacher informed her that she had a difficult time getting through to Student as “ “ , and that she was not learning (T. 752 lines 14-20).
The parent described interactions with the School at the Child’s Elementary School as being “difficult”. More particularly, although a . De insisted on several occasions that her daughter be placed on , despite the fact that her daughter’s personal physicians, who are licensed medical doctors, advised against same. She also stated that Dr.----"s participation in the development of the IEP increased her skepticism for the recommended placement (T. 759 lines 18-22).
The witness was directed to Exhibit #5 (Dr. report), which recommended placement in a school environment that would decrease the child’s and -------- eat! was noted that if Student was placed in a large educational setting, her level would increase, and her medical condition would be exacerbated. Additionally, it was recommended that a teaching approach be utilized to assist Student to build her self confidence, and to foster independence (T. 761 lines 12-16).
Parent described the summer program which was to serve as an interim placement between the end of the child’s elementary school year to the beginning of the recommended placement as a “nightmare” (T. 765 lines 4). A special education teacher was recommended to provide services after the 4" of July through the middle of August. Additionally, it was not until July 21, that she received any information from the school regarding the summer program. A teacher was provided by the District, and recommended that instruction be provided at the library, as she did not wish to travel to parent’s ex husband’s home. Shortly after the program began at the library, her daughter reacted by crying, tantruming, and texting to her from the library. Parent presented her complaints to the district and the teacher was removed (T. 768 lines 2).
The witness testified that from the time the prior school year ended until the IEP meeting the district provided support, including school consultant, and a social worker. Consultant came to her home for parent training and to observe Student. Social worker attempted to organize a small play group, but apparently neither consultant nor social worker informed the other children’s parents that Student was in the group and the group abruptly ended (T. 791 lines 2-9).
Parent stated that___ Teacher was the only person at the CSE meeting who stated that Student would be unsuccessful in the recommended school program (T. 801 lines 14-19); he opined that Student was and delayed. Parent described several meetings in the 6" grade leading up to the transition meeting. She stated that it was not until the October 2010 meeting that she realized Student was in a regular education classroom. Student was not succeeding and the meeting was being conducted to assess if additional supports could be provided (T. 807 lines 1-2). The parent retained Educational Advocate to accompany her to the meeting in order to assess the need for additional supports. Testing was administered and a follow up meeting was conducted in January 2011. Educational Advocate reviewed the assessments which were described as atrocious and indicated regression.
On April 28, 2011, there was a transition meeting held with at least 10 people, including: . There was no parent member present and Parent stated that she waived her rights, as she took the day off to attend the meeting and that it would take too long to reconvene. (T. 817 lines 18-23). Additionally, Parent stated that the educational assessment that was recommended and paid for by the Elementary District was not presented at the meeting and that there was general consensus that Student works best in very ----- groups. The witness further stated that at some point during the meeting the IEP staff members from the District began creating her child’s IEP; however, they failed to consider recommendations from the report from Dr. ---- most importantly, that Student required structured classrooms with peers that were similar to her (T. 821 lines 15).
The parent described her tour of the recommended placement at the District school and she stated that her daughter was “clinging to me, very anxiety ridden as we walked around” (T. 822 lines 1-4). The parent testified that most of the members of the team had not met her child, and there came a time when Special Education Chairperson made a recommendation for a “regular education class” (T. 824 lines 14). The witness’ recollection was that all of the team members from Student’s prior school objected to the recommendation, however she did not recall if any of the staff at the District School objected to the recommended placement (T. 825 lines 1-5). The witness also stated that she expressed her concerns about her child attending the District School and informed the team that she and her child visited the Private School, however the team disregarded her input and adhered to their recommendation (T. 826 lines 6-12).
The next meeting was on July 21, 2011. Parent was accompanied by Educational Advocate and discussions ensued concerning the summer program which was not timely implemented (T. 829 lines 9-12).
The witness stated that a person who identified himself as Attendance Officer, the attendance monitor for the district visited her residence. He was at her daughter’s bus stop on the first day of school, the second day of school, the third day of school, the fourth day of school and many times thereafter (T. 845). She believed that Attendance Officer had been to her apartment more than 80 times. Parent filed complaints with the District School and had Student’s bus route changed, wherein her child was picked up at the corner near her home and then transported to Private School (T. 848 lines 23-25). The witness identified Exhibit #12, which were her letters to the District regarding the above.
Parent stated that her daughter has been attending Private School and has done a “360 turn around”. She is able to get dressed by herself, pack her book bag, get ready, wait for her bus, do her homework independently, and most noteworthy she made honorable mention (T. 80 lines 12-20).
The parent had concerns that according to her child’s IEP that Student was on regent’s track which was not obtainable. At Private School, the school has its own diplomas which are recognized by many colleges. Private School was building on Student’s deficits so that she is able to learn (T. 871 lines 20). Additionally, her child’s self confidence was improving, she is happy, proud and her life has changed. Her class was described as follows: ---- children with ----- teacher and “extremely sae @ Ii 872 lines 9) and the students in the school were similar to her. Student is provided with related services, however she does not miss her core subjects (T. 873 lines 7). Additionally, she receives by getting up and walking outside to another building as her classes are scattered in three small buildings on the premises.
The next witness called by the parent was School Board Member, a member of the local school board. She stated that to the best of her knowledge there are records concerning district employees’ attendance, but she was uncertain as to the reason Attendance Officer’s time cards show partial time at work (T. 1016 lines 3) and she was unaware that Attendance Officer was allegedly out side of parent’s apartment at least 90 times during the present school year (T. 1018 lines 18-21). She did not have knowledge of any employee that worked for the school district being outside of parent’s apartment (T. 1019 lines 11-14). Exhibits #33 A — D were shown to the witness wherein she identified them as photos depicting Avenue. (T. 1030 lines 16-19)
The next witness was an Educational Advocate and was present at a resolution conference on September 2, 2011 (T. 1041 lines 23-25). At the meeting, she and the Parent were greeted by Special Education Director, who informed them that it was her intention to have an attorney present, wherein she proceeded to call School District Attorney #2, who arrived shortly thereafter with a legal intern (T. 1042 lines 15-18). She also testified that she informed Special Ed Director that she was not an attorney and that it was not appropriate for the district to have an attorney at a resolution conference. She replied that she “didn’t care and that she was going to stay.” (T. 1042 lines 22-25). The Vy witness stated that she and her client could have left, but her client chose to continue at the meeting to try to resolve issues. (T. 1043 lines 15).
Special Ed Director handed out a class profile for the recommended class, consisting of a --------- class for -------- classes, including science, social studies and math; English was the “ program”, which was presented in two periods a day and implemented in a group of ------- children, wherein she believed that more than half of the Students were “ ” (T. 1043 lines 17-25). The remainder of the classes could have up to -------- children in a class for music, art, career, home economics, gym and lunch. (T. 1044 lines 2-9). Educational Advocate stated that during the prior school year Student attended the Elementary School in a regular education classroom with a ----- n---- , and that the placement failed because it was too overwhelming (T. 1044 lines 17-21). The witness stated that Student “--------- ” in an environment that is too large, and that the --------- classroom, although having only ------ children in it, was not appropriate, as it could go up to --------- Students, even if it was for only --------- periods a day. It was also her impression that School District Attorney #2 tried to get the parent to try out the program, despite the fact that they felt it was overwhelming (T. 1045 lines 21-25).
The witness reviewed Student’s records and opined that there was clearly regression, wherein the child went from the -------- percentile to -------percentile across the board (T. 1046 lines 12-14). It was her perception that members of the team “try to belittle” the parent and pressure her into believing that “their program was the right program”. (T. 1048 lines 5-9), Educational Advocate testified that the proposals made at the resolution meeting were the same as those offered at the IEP meeting. Furthermore, that the purpose of the April 28, 2011 meeting was to transition Student from School to the District School, and there were representatives from both schools. The Director and Chairperson from Elementary School and Special Ed Chairperson took on the responsibilities on behalf of the School District. Special Services Assistant Superintendent read the --------- evaluation and recommendations, wherein it was stated that a small environment was appropriate for Student (T. 1060 lines 6-9). She recalled that all of the witnesses from the outgoing school district opined that Student learns best in small groups (T. 1060 lines 25). The witness stated that Special Ed Chairperson made a recommendation that Student go into mainstream setting at the District School and that she was stunned as to the recommendation of putting a child like Student with a disability into the mainstream, as the director of the elementary school, clearly stated that “it didn’t work” (T. 1062 lines 6). Special Ed Chairperson then stated that “there is another program we can put her in, a wa--------- program”. She explained that in the program -------- of the classes had a maximum of Students and Student would be the rest of the day. Educational Advocate believed that this was also inappropriate and would be overwhelming (T. 1062 lines 16).
Educational Advocate stated that the transformation of Student from the time Student was a Student at Elementary School to the time she saw her in January 2012, was remarkable. More particularly, she appeared more confident and was thriving in a smaller, nurturing environment which focuses on learning and education, as opposed to an environment in the public school in a large class (T. 1067 lines 7-11). In her opinion, Private School is an appropriate placement as there are children with similar needs, small classes, and cohesiveness in small groups (T. 1070 lines 19-22). The placement offered by the District was inappropriate as the class was too large and the entire school including the middle school/high school would be overwhelming (T. 1074 lines 2-4).
Attendance Officer testified that he is an attendance officer at the District School and that his duties include overlooking grades 7-12. He performs residency checks for the district for incoming 7" graders that may be coming to the school and any new Students that enter during the school year (T. 1100). Attendance Officer stated that his hours were from 6 am to 1 pm. He visited the parent’s home, as it is the District’s policy to visit all families which are “rentals” in our district. (T. 1101 lines 23-25). Following his visit he reported “that she (parent) lived at the address provided and denied making any other additional visits to the home.
Upon cross examination, the witness was shown Exhibits #33A — D, marked for identification, wherein he stated that he recognized the photo as depicting Avenue, approximately one mile from the train station, going east bound and that a black sedan was parked on the south side of the street. He stated that it was not his vehicle, that he has never driven a vehicle resembling the vehicle depicted in the photo and denied that the person in the photo was him (T. 1111 lines 21), Upon redirect examination, the witness stated there were no other truant officers or employees with his responsibility in the school district.
The next witness to testify was School District Assistant Supervisor, who stated that she is employed by the Elementary School District and had much contact with Student (T. 1135 line 18). As Assistant to the Superintendent for special services in her school district, her role is to review placements for all special education Students and to oversee the CSE process in grades pre k through 6"" grade. To the best of her recollection, Student had always been in a general education setting, with support including a variety of -services and a consultant (T. 1137 lines 18-23). She agreed that the CSE recognized that Student struggled academically in the 5" grade that her behavior in school was opposed to that at home, and an evaluation was initiated. Dr. ----- administered the evaluation, on behalf of the elementary district, and suggested a class. Although Dr. --- felt that there would be an appropriate placement for student the parent wanted to investigate other options. Accordingly, Student’s IEP for 6" was revised, and placement at and was an option. However, after visiting the sites, both she and the parent felt that these placements were not appropriate.
The witness agreed that Parent was cooperative in supplying medical information and recalled being informed about the child’s hearing difficulties. The child was referred for two audiograms and had ear surgery (T. 1143 line 7).
Special Services Assistant Superintendent stated that she spoke with Dr. --- regarding his evaluation, and his conclusions were similar with respect to a diagnosis of . He recommended a class which she was not necessarily in agreement with, and Special Services Assistant Superintendent stated that he never came to see the child functioning at school (T. 1144 line 8). The witness had recollection of the transition meeting, conducted on April 28, 2011, and stated that Special Ed Chairperson discussed the programs that would be available. Recommendations were made for -------- wonene= classes with services; however she did not remember the specifics or correcting Special Ed Chairperson on anything at the meeting.
Upon cross examination of the witness, she stated that the recommendations made for the child in 6" grade were implemented and appropriate (T. 1149 lines 19). She described Student’s progress in that she graduated with her peers and that most of the child’s test scores were up. Furthermore, Special Services Assistant Superintendent stated that there were many supports in place for Student and even though she was recommended to a general education setting. There was a teacher who worked directly with the staff and Student Additionally, there was a specialist who would draft plans to help the child in a general education setting as well as providers. (T. 1163 lines 7-14).
Consultant stated that she worked with Student and that part of her job involved working in the home environment. She had discussions with the parent regarding giving Student fewer choices of clothing to wear in order to cut down on indecision and tantruming (T. 1126 lines 3-8). Additionally, there were discussions concerning prompting that was used in the school environment, so that the Parent could follow through at home with similar prompts. The witness observed Student “------ “at school wherein she pretended to be busy, and she leaned over and shielded her work, to deter anyone from working with her. Consultant stated that Parent was cooperative and took her advice. Although Student “ ” and was unsuccessful in eliminating “------- ” Dy the end of the school year, much effort was put into getting Student to allow assistance from adults. (T. 1131 lines 13-17).
The next witness to testify was Teacher, who stated that she is a social studies and English arts teacher at the private school and that Student is a child who attends private school in the --------- class ratio (T. 1191). She opined that the child’s routine was rigid and structured wherein the children receive daily prompting to be able to move from task to task (T. 1191 lines 19-22). She described a typical day for Student at Private School and stated that because it is such a class she has good sense of what the child is capable of doing. She described Student as requiring an extensive amount of time to provide a response to any type of question and that she is provided the opportunity to do so; Student’s answers are correct ----% of the time(T. 1193).
Private School has a self advocacy and mentoring program which meets once a week wherein she learns to advocate for herself. Student is in a -------- setting (T. 1194).
The school is networked throughout the entire building, and much of the lessons consist of technology based questions, with organizers being utilized. She described Student as a “--------- learner” that requires --------- organizers (T. 1195). In her opinion, it would not be acceptable to have a child in class who does not or . In such an instance, a child study team would meet to discus tactics and strategies to assist the Student (T. 1196).
Teacher described the benefits of a -------- classroom, wherein there is more opportunity to do group projects, however stated that in the --------- class there is more attention on an individual basis which is important for Student She believed that a -------- classroom setting class is preferable to a . The witness stated that Student is making progress at the school in speech, math, and science, and that the school conducts study meetings to assist the child in accomplishing her goals. In the class, Student sits within close proximity to the and is able to follow routines that are in place for her. Student has the ability to begin assignments ------ out of --------- times independently; however, she does require subtle redirection, an extraordinary amount of response time, and a lot of patience/assistance (T. 1201). If a classroom had more than --- o----- children, Student would be able to move from station to station, however might not be able to complete tasks as she requires an extraordinary amount of assistance
Upon cross examination, Teacher described her background and stated that she has a Masters Degree and special training in children with , and she teaches a workshop on --------- at College. (T. 1205). The other ------- Students in her classroom were all classified with disabilities; however, none of them are classified with or . The witness works with Student and is her social studies and English arts teacher. Related services are not provided during core subject periods. Student receives reading instruction utilizing the “--------- Program” and a writing program named “-------- w--------- *. She described the program, wherein Student meets with her mentor one time a week for minutes, and the main goal is to prepare Students to enter society feeling confident, knowing their strengths and weaknesses, and knowing how to advocate for themselves (T. 1212).
The witness reviewed Student’s grades through the second marking period and stated that she averaged in the --------- ’s; she scored an --------- on her English Mid Term Exam and a on her American History exam. She described Student as being pe. very well liked by her peers and has made “very solid friendships since September’ (T. 1220); Student is an active child and enjoys physical activities (T. 1221).
Upon redirect examination, Teacher stated that Term I was a great success, there was constant interaction with the parent who was quite involved and that the child is making “meaningful educational progress”. The witness was directed to the 201 1/2012 IEP generated by the district where the private school is located , wherein recommendations were made for a resource room and stated that Student is being provided with this recommendation. In her opinion the ------ recommendation is appropriate. The “----- Program” is not utilized at Private School as the “--------- Program” is the program of choice. Student is receiving --------- services, including: ------ twice a week, in a group of ; twice a week, ; and . Additionally, as per the IEP, a and one hour after school would be appropriate if Student were in a setting. Student has a and instruction with Teacher for Math and Science. Teacher stated the Private School has not implemented a plan for Student. A plan was drawn up; however, with the the child’s demands were able to be met (T. 1230).
Special Ed Director testified that she is the Director of special education at the Private School and that the school’s mission statement is dedicated to providing a small, nurturing and supportive setting to reluctant learners and Students with a variety of different disabilities. Furthermore, the philosophy is that it is acceptable to learn differently and education is provided with the emotional and social support to enable each Student to reach the highest potential and become productive members of a global society (1245). She stated that Private School is an appropriate placement for Student, as the school provides a ----- learning environment, wherein there is focus on instruction. Additionally, technology is integrated into the programs, wherein lessons have an \ and component (1246). Special Ed Director testified that it is her understanding from the teachers and report cards that Student is “doing quite well”, flourishing in her environment, and making solid progress academically and socially (T. 1247). Student knows the routine, has a structured classroom which cuts down anxiety, directions are explained to her using clear language and she is given the processing time that she requires. Additionally, an IEP which recommendeda education in a ----suburban high school would not be an appropriate placement (T. 1250). The witness described the physical layout of the Private School consisting of three small buildings, including classrooms, gymnasiums, cafeteria, nursing office, reading room and an occupational therapy room. She stated that the school offers “clubs”, such as art, sports, lifestyle, yearbook and Student counsel. There are -------- children in Student’s gym class and -------- children in the lunchroom (T. 1252).
Student has a difficult time with and to address these problems, the staff “ ” into units; Student is provided with organizers to that Student has had a very positive year and does not “ ; Upon cross examination of the witness, she stated that she chairs CSE meetings, and works with the teachers to make certain that the IEP’s are implemented, testing modifications are carried out, Students receive their services, and, that all curricular areas are addressed. The school does not have related service providers on staff, however they are in the building and are “contracted out” (T. 1260). She stated that Private School does not utilize standardized English/ Language Arts or Math Test for 7" graders. Lastly, the witness reviewed the child’s IEP from district where the private school is located and believed that all of her needs are being met, and that she is making appropriate educational progress in the least restrictive environment (T. 1280).
The next witness to testify was School Psychologist. He stated that he is employed by the District as a School Psychologist. His duties include administration of psychological and educational evaluations, following all Students that are placed out of district, and participating in CSE Committee meetings (T. 1289). School Psychologist stated that he participated at the transition meeting for Student on April 28, 2011, and Student was recommended for a program; he did not recall Special Education Chairperson recommending a placement (T. 1294). School Psychologist stated that he was familiar with the which can be utilized with children to test : , and provides a “generalized IQ” (T. 1301). He described a score of within the low range of average; he described “-------
2 ” as a sub test, which addresses : and other things. The witness stated that he never met Student and does not have independent recollection as to why a recommendation for a program was not made for her (T. 1317). School Psychologist stated that an assessment encompasses “knowing community, social skills, community living skills and functioning in every day life” (T. 1319). Additionally, if Student attended the school, the psychologist would have the opportunity to meet with her and recommend if appropriate (T. 1322).
Upon cross examination of the witness, School Psychologist stated that he was in agreement with the CSE’s recommendation (T. 1323) and believed that appropriate education and services could be provided.
Upon redirect examination, the witness stated that his position at the transition meeting was representing the school as the district’s school psychologist, and there was also an elementary school psychologist. In making recommendations he considered all of the parent’s requests and ideas from her educational advocate (T. 1327).
Special Ed Chairperson, the Central Chairperson of the District School was the next witness and she conceded that the district paid for Dr.’s evaluation (T. 1331). Her recollection was that the CSE team recommended a class in math, science and social studies; a daily room with a ratio of --------- : and, the “ 99 program (T. 1332). The children in the program were much more functioning than Student and therefore it was not recommended (T. 1333). The witness stated that she has never met Student; however, based on the reports at the CSE meeting, a determination was able to be made. She did not agree that it was appropriate for a teacher to have a Student not being able to from September through March (T.
1342) and had no knowledge that Student’s teacher; General Ed Teacher, was unable to -- won-nn------- with Student for that period of time (T. 1344).
The witness stated that she also serves as a Chairperson at Manifestation Meetings to determine if a Student’s disability caused and or contributed to Superintendent’s suspension (T. 1347). The witness is also in charge of the Articulation process, wherein the district including herself and Special Ed Director meet with the elementary special education personnel in the fall to discuss the Students that will be articulating into the high school district in order to ascertain their needs and determine the programs and services which may be required (T. 1348).
The witness stated that if Student was assigned an , that this would still be the least restrictive environment (T. 1356). Following the CSE meeting, a recommendation is made for a program, the parent is provided with a draft IEP, and when the IEP is finalized it goes to the school board and then to the parent (T 1356). She described the ---- program, wherein children learn functional academic skills, such as counting coins, vocational skills, methods to assist in attending to task, and negotiating in the community (T. 1363). In her opinion Student would not really benefit from this program or from being trained for pre office and employment skills. It is more crucial for a 7" grader who is being assessed by New York State Standards to focus on reading, writing, math, science, etc. (T. 1365). She stated that School Psychologist runs counseling groups, parent meetings, the class and works with other children that are on the Special Ed Chairperson stated there were no requests made by the elementary personnel school for her to observe the child; however, there could be an instance wherein it may be appropriate for her or Special Ed Director, to perform such observation. She also stated that children can be moved out of the class, or moved to into the general population setting and or a more restrictive setting. Furthermore, if the child was enrolled in her school, there would be an opportunity for her to be placed in the program, if necessary; this could be accomplished by a CSE reconvene meeting
Upon recall of Special Ed Director, she stated that when the parent arrived with Educational Advocate at the resolution conference on her own initiative she requested
School District Attorney #2 to participate (T. 1416). She is aware that if the parent chooses and informs the District that they are not going to have an attorney, that the attorney for the District should not be present (T. 1416). She stated that School District Attorney #2, identified herself as an attorney, and the parent and the advocate were asked if they wanted School District Attorney #2 to leave, and that she was never asked to do so (T. 1417). It was her understanding that it was appropriate for School District Attorney #2 to be present to assist in arriving at a resolution as “no one asked her to leave” and “they started to engage in a conversation”. Upon further questioning of the witness, she clarified by stating she has an understanding of the regulation that if a parent does not bring an attorney, “then our attorney is not allowed to be present” and reiterated that the only reason School District Attorney #2 stayed is that she was not asked to leave ae 1424).
Special Ed Director stated that School Psychologist was called to testify at the instant hearing because of her expertise in the field of and that she would have been in the building where the child was to be placed if she elected to attend (T. 1432). She agreed that the program was inappropriate for Student and was not recommended (T. 1436). The witness reiterated that at no time did she hear Special Ed Chairperson recommend a general education placement at the IEP meeting for Student (T. 1439). The witness was directed to Exhibit #20 D, wherein she stated that if a parent was in financial difficulty, she/he could call the district and would be referred to Long Island Advocacy, for legal representation. She is aware that there were certain people who have availed themselves of such services and were provided with same (T. 1445).
On June 27, 2011 the witness reached out to the parent and invited her to come in to discuss issues she might have concerning the IEP. She was aware that the Parent wanted to send her child to Private School, and attempted to see if there was a possibility that an agreement could be reached (T. 1447). She stated that a recommendation in the classes, plus --------- and was appropriate. With respect to Student being placed in a gym class, she stated that it would be appropriate as it was one of her strengths. (T. 1454). She was aware that an initial report card was sent to the Parent and erroneously stated that “Student was doing well and participates in her general education class” (T. 156).
Lastly, Exhibit #34 was shown to the witness, wherein she stated that the person depicted in the photograph was Attendance Officer and that the person in Exhibit #33 D was unknown to her.
The next witness to testify was District Clerk, who testified that she is the District Clerk and Secretary to the Superintendent. Her duties include reporting to the board, preparing agendas, weekly packages to the board, and to assist with budget votes and press releases. The witness was directed to Exhibit #33 D and stated that she has no knowledge of who is depicted in the photograph. She was aware that he school district has a registration packet, which is filled out by the parent with affidavits, wherein they have to establish residency and provide documentation from landlord, utility bills, etc. (T. 1479).
The next witness to testify was Teacher, who stated she is employed by the District as a teacher. She identified Exhibit #34 as photos of Attendance Officer and was directed to Exhibit #33. She stated that she was unable to identify the person depicted in the photograph. She acknowledged that the district has attendance personnel that investigate residency and was unaware if they outsource investigative services. She was uncertain of the hours that Attendance Officer worked, except that he comes in very early and is around most of the afternoon and also coaches.
Assistant Principal stated that he is an Assistant Principal at the District High School; he was shown a photo Exhibit #34 and stated that it was Attendance Officer. It was his understanding that Attendance Officer’s supervisor was , who is a Chairperson of Pupil Personnel Services. He did not supervise Attendance Officer directly; however as he is one of two assistant principals in the school, and in the vertical chain of command he supervised . He interacts with Attendance Officer in discussing attendance issues. In the course of his duties, he has never spoken to private investigators that the school hired, however he “has heard” that the district uses private investigators for people who are not living in this school district (T. 1505 line 8).
The witness stated that Parent came to his attention when he was visited by a police officer from the Police Department and was advised of a complaint being filed regarding Attendance Officer (T. 1507); he never received a complaint about Attendance Officer aside from this incident. The witness was directed to Exhibit #33, and agreed that it would not be protocol for Attendance Officer to be sitting in his car across the street from a parent’s apartment and or bus stop, watching and taking notes. The witness reiterated that he was questioned by the police about Attendance Officer’s duties, and provided them with information as to why he would make a home visit in the form of an investigation. (T. 1518).
The witness stated that he called Parent and had a conversation with her, wherein he was informed that Student was not attending school in the district. He conceded that he told Parent that her child was listed as being truant each day and that he wished to assist in making sure this problem did not continue and apologized. It was his impression there was a good ending to the phone call (T. 1521).
The next witness to testify was Special Ed Chairperson. She was directed to Parents Exhibit #33 D and stated that the photo was blurry and she was unable to identify who is depicted. She also denied having any information as to the district’s policy of hiring a private investigator to check residency requirements. The witness stated that at the transition meeting, the consensus of most members was that the program being offered would meet Student’s needs and that the placement was for a class. Special Ed Chairperson was again asked whether or not her recommendation was a ------- --------- education placement, wherein she stated “I don’t recall” (T. 1536).
The last witness called by the parent was Teacher, who described the placement facility as having more than ------ Students, and that the staff provides safety to all Students (T. 1556). There are two Assistant Principals, a Dean of Students, six security guards and teachers, all who have been properly trained in keeping safety in the school building. (T. 1556). Additionally, the witness stated there was a large department with case managers, a Director of Special Education on staff, and a school psychologist all equipped to handle the children (T. 1557). Teacher described the hallways during class time as extremely quiet, as there are hall monitors with security people. During the four minutes between each class, the halls are excited, lively and loud, typical of hallways at a public high school (T. 1559).The witness stated that in the past, if a Student had difficulty with loud noises and busy hallways the Student could leave five minutes early and or may have a_ behavior modification plan. Furthermore, after a couple of months, the witness stated that in many cases the child works their way through the anxiety (T. 1561).
The witness stated that her office was located down the hall from the area where the proposed classrooms would be. If an emergency were to occur, either or the Dean of Students would be able to handle such a situation. The witness testified that in the last school year, there may have been anywhere from 3-7 incidents, wherein a fight developed between two Students (T. 1566); however, to her knowledge, there were no sexual assaults in the last school year, however in the past, there may have been incidents of sexual touching. In the event of a physical or sexual incident, the witness stated that “school protocol” would mandate that a complete investigation, parent meetings and mediations would be implemented (T. 1569).
Teacher described the lunch room as a “very exciting” wherein there could be anywhere from 180-200 Students eating lunch and that the lunchroom is monitored by adults and supervised. Students are allowed to listen to their music, call home and use their cell phones (T. 1572). There are two security guards, two staff members and the lunch room personnel present in the cafeteria. Additionally, there are visits by the assistant principals, deans and herself (T. 1573). The witness knows Attendance Officer and stated that he is a teaching assistant for attendance, and takes care of all the “call ins” in the morning, including teacher “call ins” to arrange for classes that are going to need coverage. She believed his working hours are from 7:00am-1:00pm, however, he does not keep traditional hours. Furthermore, even though Attendance Officer’s official hours end at about 1:00 pm, he is generally at the school all day, and does some supervision after school (T. 1577). She has never heard of private investigators being used by the school district to find out information about Students and or their residences’ (T. 1579). The witness has known Attendance Officer for seven years and stated that he “always does a phenomenal job working for the school and working for me. He’s got a work ethic that’s unbelievable and he works well with adults and he works well with children”.
Educational Advocate was called as a rebuttal witness, wherein she reiterated that she was at the resolution meeting on September 1, 2011, and that Special Ed Director told her she was bringing in an attorney (T. 1587). She stated that when School District Attorney #2 came to the meeting, she told her she was not an attorney, she was an advocate and that it was not appropriate for her to be there. School District Attorney #2 stated, “She was staying to support her client, she was not going to leave”. Educational
Advocate stated that Special Ed Director only discussed one placement at the resolution meeting, and that no other options were discussed. She reiterated the initial placement was in a mainstream setting and when it was determined that same was not appropriate, a ---- class for ---- periods was offered (T. 1592).
Upon re cross examination, the witness stated the resolution conference lasted approximately an hour and a half and that she did not recall Special Ed Director, Special Ed Chairperson, or School District Attorney #2 make reference to the School for Language Communication Arts.
Parent was called as a rebuttal witness and stated that the man who presented himself at the impartial hearing and identified himself as Attendance Officer, was not the person that appeared at her home
Special Ed Director was called as a rebuttal witness and stated that she had an opportunity to review her testimony of April 16, 2012, and her testimony was in error, wherein she testified that at prior resolution conferences the schools attorney’s were present, as it was her intention to state that at CSE meetings school attorneys were often present.
The witness was directed to Exhibit #58, which she described as sample letters with redacted information of other resolutions conferences. That to the best of her recollection, School District Attorney #2 was never present at another resolution meeting, except for when an attorney was present representing the parents (T. 1611).
THE DEPARTMENT?’S POSITION
The Department maintained that the child was properly classified and that the IEP set forth appropriate goals and recommendations for the child; that a final notice of recommendation (FNR) was issued to the parent, wherein a placement was offered that was reasonably calculated to enable the child to obtain meaningful educational benefit.
THE DEPARTMENTS CASE
A “transition process” occurs between the District and the elementary school district to assist children and their parents as they age-out of the elementary district into the high school district. The process involves meetings between the special education departments of both districts, site visits, and in this case, an opportunity for the Student and her parent to visit the District’s High School which is Student’s “home” school “ (T. 216-219). There was a meeting of the District’s Committee on Special Education and the 3] Elementary District’s Committee on Special Education on April 28, 2011 to draft the IEP for the 2011-2012 school year.
The District’s Committee on Special Education maintained that they recommended, classes for core subjects ( ) for Mathematics, Social Studies and Science. Student was to be placed in an English “ ” class which is described as a scientifically-based reading program for Students with poor : a , and skills (T. 43, 45,209-210). Additionally, a daily room and a were recommended. The following services were recommended:
The CSE team determined that the Student’s needs could be met at the recommended program at the District High School (T. 129) and a written notice letter was sent to the parent on or about May 2, 2011 (District Exhibit “23”). The recommended IEP was reviewed and approved by the Board of Education at the May 24, 2011 meeting (District Exhibit “18”).
The District maintained that Parent was informed of her rights under New York State Education Law Section 3602 (c) (“dual enrollment”) to receive services from the district by letter dated May 12, 2011 (District Exhibit “22”). On or about May 31, 2011, Parent returned the consent/acknowledgement form for dual enrollment (District Exhibit “20”) indicating that she intended to place her child at the Private School. By letter dated June 7, 2011, (District Exhibit “19”), Parent again requested that the District place Student at the Private School for at least the 2011-2012 school year at the District’s expense.
On June 27, 2011, Special Ed Director wrote to the Parent, indicating that the District was unable to place Student at Private School (District Exhibit “18”’). Special Ed Director invited the Parent to discuss the recommended program and/or to reconvene the CSE. On July 21, 2011, Parent and her Educational Advocate, met with Special Ed Director and Special Ed Chairperson, wherein they stated that it would be cheaper for the District to write a check than to go to an impartial (T. 500-503).
At the impartial hearing, the District called Mrs. Special Ed Chairperson, District Chairperson of the Committee on Special Education; Special Ed Director, District Director of Special Education; Dr. , School Psychologist at District School; Chairperson of Special Education at District School; and , Special Education Teacher at District School. Additionally, the District called the following witnesses employed by or contracted with the elementary district; School Behavior Consultant; Student’s sixth grade teacher at the Elementary School, and, Pathologist.
Special Ed Chairperson described the transition process for Students such as Student who are coming under the jurisdiction of the District for the first time (T. 31-34). She described the recommended classes and noted that Students in these classes work with the same curriculum and prepare for the same assessments as -- education Students (T. 35, 41). The class utilizes additional support staff, and a variety of teaching modalities. The witness stated that Least Restrictive Environment (LRE) requires that Students be screened for before being considered for a wonnn----- setting (T. 37, 38). Special Ed Chairperson described the availability of > > mainstream electives and extracurricular activity opportunities including sports and club activities (T. 42-51). She stated that District School has a ------ ---- program, ( ) and other services including but not limited to the services of School Psychologist, Psychologist, a social skills club, and a special education homework center.
Special Ed Chairperson testified regarding the IEP (District Exhibit “1”), the composition of the Committee (District Exhibit “2”), and the discussions leading up to the development of the IEP (Board Summary, District Exhibit “3”). Special Ed
Chairperson stated that elementary school staff addressed Student’s education needs and reviewed her progress during the sixth grade. Various reports were received, reviewed and considered, including the following: General Education Teacher, Student’s regular education classroom teacher at Elementary School (T. 65-70) indicated that Student was able to initiate conversation with her peers and was comfortable in her class setting. A evaluation by Dr. was requested and paid for by the District when Student was in the fifth grade (see, District Exhibits “4” through “5”). The IEP team recommended in addition to the placement a ---- wonnon-e---- and a to help alleviate any . An was to be available for an additional hour during after school activities and homework center (T.
89-90); services were also recommended. A request for services as part of the summer (extended school year) program was not supported due to lack of a demonstrated (T. 93-98) (see also testimony of (T. 462).
The Department maintained that a prior written notice letter and the required procedural safeguards notice were sent to the Parent (T. 100, District Exhibit “23”’) as per testimony of Special Ed Director (T. 491). The team recommended a class (T.
105) and re-teaching of materials within the class and within the ------- room. Class notes and a were recommended under the category of ---- (T. 106). Additionally, the team Student recommended an Extended School Year (ESY) services.
The CSE was not in agreement with Parent’s requests for services during the summer and or the reading program. Special Ed Chairperson testified that since Student had not been exposed to during the regular school year, there could be no measurable regression of previously learned material. In the alternative, the CSE recommended ----(-) hours a week of a teacher working with Student on skills (T. 108). Special Ed Chairperson testified that there are no progress reports for ESY services due to the fact that there is no need for goals other than to limit (T. 126). Additionally, the consensus of the CSE team (other than Parent and her advocate) was the recommended program.
Special Ed Chairperson testified that School District Attorney #2 identified herself as an attorney at the resolution meeting and neither Educational Advocate nor Parent made any objection to the school attorney remaining at the meeting (T. 184) See also testimony of Special Ed Director to the same effect (T. 503).
Special Ed Chairperson, Chairperson of the Special Education Department at District School, testified (T. 204-238) as to the services and programs available within her building and stated that there were ---- (-) Students attending the Program who were not in the Program (T. 214). Special Ed Chairperson described the transition process (T. 216-218) and noted that during the first of two visits to the proposed placement she discussed with Parent that smaller classes would be better for Student’s comfort level. Special Ed Chairperson testified that the Elementary School prior year’s IEP was utilized as a draft by the CSE (T. 237-238). School Psychologist, at District School provides counseling, behavior consultation services, psychological testing services, and social skills training for Students (T. 254). School Psychologist testified that she reviewed the psychological testing performed by the elementary school psychologist (T. 268-269), the oonn-n------- (T. 270), and the fifth grade report of psychiatrist Dr. (T. 283-290). In her opinion the recommended program at Floral Park Memorial High School was appropriate for Student, was a “ school placement which would address her --academic, language, social, and emotional issues and needs” as_ per the recommendations by Dr. in his report (T. 290).
School Behavior Consultant is an independent behavioral consultant retained by the Elementary School District. She worked with Student for three (3) years providing parent training at home and served as a behavioral consultant services to Student’s classroom teacher and (T. 333). School Behavior Consultant stated that Student had friends in school and “blended in” (T. 341-342), and behaviors were exhibited at home, but not in school (T. 348). School Behavior Consultant also stated that Parent told her prior to the CSE meeting that she did not want her daughter to attend District High School (T. 348).
A certified and teacher (mathematics, 7-12), described the mathematics class (T. 358). General Education Teacher, Student’s sixth grade elementary general education teacher, confirmed that Student made progress during sixth grade and that she had a good year with her peers (T. 393-409). Speech language pathologist from the elementary district reviewed her testing (T. 430-447) and noted that Student demonstrated behaviors which interfered with her performance on the test (T. 447). She stated that Student’s hearing loss would not affect her ability to function in a typical classroom setting (T. 449). She supported the CSE’s recommendations in connection with the IEP to modify to times a week in a -- setting (T. 460) and agreed with the CSE’s decision that there was not significant ------- w-n-------- to justify and services for the summer (T. 462).
Special Education Director reiterated that she was invited by the Assistant to the Superintendent for Special Education of the elementary school district, to meet with Parent and her advocate on January 26, 2011 (T. 487). She stated that Private School is not a NYS approved school (T. 499, 500). Additionally, the consent for summer services was not signed by Parent until July 21, 2011 (T. 500-502); however, the school district made a “good faith” offer of summer services despite the fact that they were not required do so. She stated that she would have called for a waiver of the resolution meeting if a concern was expressed (T. 503-505).
Teacher was Student’s sixth grade room teacher and testified concerning the testing that she administered to Student (T. 673, 681). She described how she and the General Education Teacher presented materials to assist Student when taking tests. Room Teacher described her participation at the April 28, 2011, CSE meeting (T. 693) and stated that the recommended program would address Student’s unique needs and allow Student to benefit from instruction in the least restrictive environment (T. 697).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C section 1400-1487) is to ensure that Students with disabilities have available to them a FAPE (20 U.S.C. section 1400 [d][1][A]; A FAPE includes special education and related services designed to meet the Student’s unique needs, provide in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[ d]).
I will not repeat the details of evidence herein, however the basis for my findings of fact and decision are grounded in the testimony as it appears above. I have considered the testimony of all witnesses who testified at the hearing.
The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: (1) the services offered by the Department of Education were inadequate or appropriate; (2) the services selected by the parents were appropriate; and (3) equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 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 developed a proper IEP (id At. P. 370-371).
The burden of proof/persuasion that the District offered a FAPE in the least restrictive environment lies with the Department of Education.
Under the second criteria of legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Education of the Monroe- Woodbury CSE, Appeal NO. 93-94; Application of a Child with a Disability, Appeal NO. 95-57, in order to meet the burden the parent must show that the services were" proper under the act" (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is "perfect" (M.S. v. Bd of Educ.231F'-3d96, 105 [2crCir 2000 cert. Denied 532 U.S. 942 [20012]). The private school need not employ certified special education teachers, nor have its own IEP for Student (Application of a Child with a Disability Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d 21, 26-17 [lst Cr.
2002].
The final criterion for an award of tuition reimbursement is that the petitioner’s claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F.
Supp. 2d 402, 416 {S.D.N.Y. 2005] aff'd 2006 WL 2334140 (2d Cir 2006); Frank G. 459
F, 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Educ. 226 F. 3d 60, 68 [2d Cir.2000]; see Carter, 510 U.S. at 16 noting that 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 non compliance with state and federal regulations pending review the reasonableness of the parties' positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530,532 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984], affd, 471 U.S. 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412 (a)(10)(C)(iii)- Warren Gv Cumberland Co. School Dist, 190 F:-3d 80-86; See Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)Gv )()(cc) (ID (bb).
The parent maintains that (1) both procedurally and substantively, the Department failed to offer Student a FAPE that was "reasonably calculated" to meaningfully address her unique and individual needs (Prong I); (2) the program and services for Student at Private School are “reasonably calculated” for Student to make progress (Prong II); and (3) there are no compelling equitable considerations that would operate to preclude or even to diminish a reimbursement award (Prong III).
PRONG I
The Second Circuit has announced the standard for assessing FAPE, as follows: For a state to be eligible for federal funding under the IDEA, it must develop educational plans that are reasonably calculated to ensure that all children with disabilities receive a free appropriate public education ..... [F]or an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. A valid IEP should provide for the opportunity for more than trivial advancement, such that the door of public education is opened for a disabled child in a meaningful way. D.F. v. Ramapo Cent. School Dist., 430 F.3d 595,598 (2d Cir.
2005) (emphasis added; citations and quotation marks omitted). 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 an appropriate special education services (SRO 08-052; SRO 08-060 (citations omitted)). The goals must be “sufficiently specific and measurable” (SRO 07-108; p. 12) and the IEP must contain goals to address identified needs (SRO 05-049). The goals must be “sufficiently descried so as to allow the Student’s teacher or therapist to understand the CSE’s expectations with respect to each goal” (SRO 07-108; p 12).
Part 200.4(d)(2)(iii) of the New York State Special Education Regulations requires that an IEP contain: (iii) | Measurable annual goals (a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the Student’s needs. and abilities.
The measurable annual goals must relate to: (1) meeting the Student’s needs that result from the Student’s disability to enable the Student to be involved in and progress in the general education curriculum; and (2) meeting each of the Student’s other educational needs that result from the Student’s disability.
(b) Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee.
I agree with the parent that the goals that were created in Student’s IEP failed to provide for an appropriate educational plan. Significantly, the CSE had limited information regarding the extraordinary needs that Student required. Furthermore, goals must address identified needs, and Student’s IEP goals fail to address documented needs in the areas of and needs; hence, the 2011-2012 goals and objectives are not appropriate. More particularly, as per the IEP (Exhibit #1, page 1M), it is stated that the child “will not participate in a program and requires --------- a instruction in an environment with a Student to and minimal distractions in order to progress in achieving learning standards”. Although there is conflicting testimony as to whether the CSE team recommended a education as an original recommendation, it is undisputed that the proposed placement includes classes with up to Students in subjects and up to Student in subjects.
The IEP recommended summer services for , to start at the beginning of July, however services did not start until the last week of July. Furthermore, when the summer program was implemented it was not provided “at home” as recommended and Student clearly did not establish any “meaningful educational progress” during the summer, as exhibited by the testimony herein.
Dr.’s evaluation report (Exhibit #4) was requested and paid for by the elementary school Special Education Supervisor. In the report, Doctor recommended a “ ----- program which would emphasize not only Student’s academic and learning issues, but also address social and life-skill building interventions as part of her educational needs.” Dr. stated, “It would be best if this environment was not one in which there were other children with significant issues since Student’s tendency is to n other children’s .” Parent maintained that the CSE team for the most ignored this and recommended Student to a class where there were children with significant . (Exhibit #23 Class Profile).
Furthermore, Dr. communicated with the child’s consultant, wherein it was noted that Student’s academics have deteriorated and that she was having trouble keeping up with current demands and it was the opinion of the consultant that Student was not learning adequately. Significantly, Dr.----- apparently discussed Student’s case in great detail with Special Services Assistant Supervisor, the elementary CSE chairperson, and it was noted that the child is closed to having conversations with the staff and social worker. There was a consensus that Student required a “ setting” with wonennnnnn-= and support. Additionally, Dr.---- opined that the child should be in an environment where there are no children with issues.
Student’s personal physician reported (Exhibit #5) that Student has been his patient for 9 years and recommended a school environment that would decrease Student’s and . “I agree with the Parent’s position that a placement in a large suburban high school with an program setting was inappropriate.” In support of this position, Dr.----‘s report states, “If [Student] is placed in a educational setting, her level will increase and her medical conditions will be exacerbated.” Dr.----‘s record states that, “[Student] is in a crucial stage of development and the trials and tribulations of being a teenager can be particularly confusing for girls with . Academic environments that are large and noisy are too overwhelming for Student and she needs an academic environment that is structured and which doesn’t overwhelm her.”
There was significant testimony regarding the parent’s contention that on June 11, 2011, at approximately 6:00 a.m., a man banged on her front door and identified himself as Attendance Officer and that she saw this same man outside her apartment a few times during the summer and outside her apartment on a regular basis. The parent reported the incident to the police and was told this was a “residency protocol/investigation”. Parent wrote to the School District Superintendent, to tell him about the person hereinafter referred to as Attendance Officer (Exhibit # 29) and he wrote back (Exhibit #30) stating that he checked with Attendance Officer, who informed him that he only investigated the residence of Parent one time (pages 1101-1102 lines 20-25). The parent’s counsel maintained that this issue was most confusing and that private investigators were involved, however this was not established in the instant matter. Regardless of the veracity, or falsity, of these circumstances and the conflicting testimony relating thereto, this matter is irrelevant to the issue of whether Student is deprived of a FAPE.
As per 8 NYCRR section 200.5(j) (2), it is clear that at a “Resolution Meeting” the school district may not have an attorney present unless the parent is accompanied by an attorney. It is undisputed that On September 1, 2011, Parent appeared for a Resolution Conference as part of the Due Process Complaint Procedure. Attending the meeting were Special Ed Chairperson and Assistant Director of Special Education for the District. Parent her Educational Advocate submitted in writing the form that said she would not be accompanied by her attorney. Exhibit #10.
There was conflicting testimony regarding the district’s right to have an attorney present at the resolution meeting and whether or not the Parent consented to same; however it is uncontroverted that an attorney for the District was present at the meeting. Although this is a violation of the Parent’s “Due Process” rights, it does not rise to the level of my being required to establish that there was a violation of FAPE.
In Mrs. B. v. Milford Board of Ed. ., 103 F.3d 1114 (2d Cir. 1997), the Second Circuit examined and applied the FAPE standard for a Student whose educational progress in the district's schools was "halting at best" (Id. at 1117). In arguing that the district had failed to provide FAPE, the parents sought the district to pay for a private school placement. The Court ruled in favor of the parents and explained that the child’s history in the public school system before her placement at Devereux [the private school] was marked by very limited academic progress, and serious regression in the year prior to the placement. She failed to meet nearly all of the objectives set in her IEP and nearly all of her grades were unsatisfactory. It is an inescapable fact that over the course of three years, despite being of average to slightly below-average intelligence, M.M. did not advance more than one grade level in any subject.
Similarly, in the instant case, Student has made limited academic progress and the recommended placement does not establish that there would be a significant change as the child would continue in “large classes without appropriate role models as outlined in the recommendations of Dr.’s report”
Lastly, but of significance, is the fact that the District maintained “erroneous” records which indicate that Student received a report card and was considered truant, yet in fact she never attended the recommended placement. This raises a serious concern regarding the District’s credibility.
PRONG II
The parent maintains that Private School is an appropriate placement for Student as her needs are being met. Student’s has achieved more than “reasonable progress” at Private School which is the standard that is required to successfully meet the criteria of Prong 2 of Burlington v. Massachusetts.
Student’s teacher and Director of Special Education at the Private School testified that Student was in a class ratio, which is a program that utilizes (page 1191-1192). Daily routines are posted in order that the child is aware of what to expect. The testimony established that assignments are broken down into smaller steps and “we also practice a similar routine day in and day out and indirect prompting is part of the instruction. (Page 1192). Teacher stated that class size “does allow for [Student] and I to have a lot of interaction. Additionally, Private School follows State standards, however the curriculum is modified.
Teacher testified that (page 1200 lines 10-15), “We see a very consistent action and progress being made in every setting.” She is very much in tune with what is expected ... she’s able to follow that routine that’s in place.” “She can start assignments ----- out of ----- times independently; she requires those subtle redirections and prompting.”
When Student entered Private School in September 2011, the staff noticed that she in response to a question, and the child study team devised a plan for Student to and they accomplished same.
The Director of Special Education at Private School testified they provide a ------- ----- environment where they focus on instruction and have classroom instruction. Special Ed Director testified that Student needs time to and that she and feels . Director of Special Education described the Private School campus and established that Student is able to negotiate same. There are wonen--- children in the lunchroom with Student in contrast to approximately at the recommended placement. The number of Students in gym class is --------- opposed to ~------- at the recommended placement.
The weight of the evidence supports the parent’s position that Private School was an appropriate placement for Student and provides service to Students with including -------- . The classrooms are quiet and ------ , so that the teachers would make sure that Student was focused. The -------- class size helped in addressing Student’s attention and issues as exemplified by the witnesses. The class size is appropriate for the child. The program at Private School was and for Student. Instruction is " ", as Student worked on reading assignments and class work appropriate to her skill level.
The parent has established Student requires a education class in an appropriate setting, using a approach which provides the appropriate -------- ----- services in order to benefit from instruction and receive a FAPE in the LRE. Further, Private School is a day school which was described in great detail as possessing the core belief that relationships are the foundation for learning. Of most significance, is the testimony relating to Private School’s approach to deal with the variations in --------- and . The program that was implemented for Student makes it possible for her to be and to The record is replete with evidence to support the fact that Student received educational benefit while at Private School, including but not limited to progress reports.
PRONG III
On April 28, 2011, Parent attended a CSE Transition Meeting which was for special education parents whose children were being transitioned into District School. The parent also attended an informal meeting with the CSE of the Elementary School, together with Special Education Director and Special Education Chairperson, prior to the transition meeting. During this meeting she reviewed Student’s difficulties, and she was informed about the different programs, therapies, and schools in the District School.
Parent agreed to allow Teacher, and Teacher at Elementary School to accompany her on a tour of District School given by Special Education Chairperson and agreed to Student participating in the tour.
Parent attended an open house for parents from both elementary schools to meet all of the 7 Grade teachers and staff. At the end of this meeting she received a District High School registration packet.
The parent wrote Special Ed Director and Special Ed Chairperson directing them to reread pertinent reports that they overlooked when recommending Student’s placement at District High School. Parent also met with Special Ed Director and Special Ed Chairperson in July in an effort to reach a satisfactory resolution which would meet her child’s needs. She cooperated with summer teachers in coordinating dates, times, and places to hold sessions. Parent’s ultimate decision to send Student to Private School was made after the resolution meeting and after her daughter failed in the summer program.
The funding of private school tuition may be denied where parents have failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE (Forest Grove School Dist. v. T.A., 129 S.Ct. 2484, 2496 (2009). In this instance, Student’s mother fully cooperated with the District. Indeed, the record reveals overwhelming evidence of parental cooperation and involvement, and the District has failed to meet its’ burden on this issue. Also, the District did not challenge the reasonableness of the cost of tuition at Private School at any time during the hearing.
I find that: (1) the Districts recommendation for the 2011-2012 school year for Student was inappropriate (2) the Private School is appropriate; and (3) the equities weigh in favor of the parent. Thus, the parent is entitled to an award for tuition at the Private School for the 2011-2012 school year in the sum of $29,000.00, which shall be paid by the District within 30 days of the date of this order. I am not empowered to award attorney fees and reimbursement for Parent’s lost wages.
Dated: June 28, 2012
: OFFICER, ESQ.
Independent Hearing Officer