NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
XXX SCHOOL DISTRICT
IN THE MATTER OF THE IMPARTIAL :
HEARING OF :
: XXX : FINDINGS OF FACT : AND
Complainant, : FINAL ORDER :
-against- : :
XXX SCHOOL DISTRICT :
: Respondent.
Summary of the Parties’ Arguments
This hearing was requested by the parents of a XXX youngster entering XXX pursuant to a proposed IEP that would have placed her in a XXX program for students with significant XXX. Her parents object to that IEP and program, and assert a range of procedural violations, in a detailed Complaint seeking this impartial hearing. Exhibit A. That Complaint includes a list of some 50 “deficits and violations.”
These alleged deficits and violations can be clustered into categories (numbers in parentheses refer to the item number on pages 2-6 of Exhibit A):
Program allegations: The Complaint asserts that the district failed to offer an appropriate program because it did not offer XXX (4) and (17); an appropriately XXX setting (2); an XXX (1) and (3); a specific plan in the IEP for XXX (24); XXX (29); or adequate methods to address the child’s XXX needs. Further, it alleges that the recommended program would produce regression and work against independence (43), lacks support for XXX (23); does not provide
Page [1] adequate XXX (10); and that it improperly grouped children by age rather than ability or classification (42).
Placement allegations: The classroom was not appropriate to the child’s needs (46) and (2); the placement was not able to deliver needed related services (40) and (41); and, again, that the children were grouped inappropriately (42).
IEP deficits: Defects or lack with respect to goals and objectives (16), (20), and (19); a lack of baseline assessment reports (9); and the district failed to provide objective ‘methods of measurement’ with respect to goals and objectives (18).
Related Services: The district failed to offer XXX services (6); XXX (10); the district failed to be ready to provide mandated related services (40) and (41); and generally failed to offer adequate related services (21).
Methodology: The district failed to specify methodology (31) and (30); the district failed to seek to assess a best methodology for the child (30); and the district’s core methodology was inappropriate and inadequate for the child (32).
Procedural defects: The district failed to consider matters brought to its attention by the parents such as XXX acquired by the parents (5) and private evaluations (13); the IEP contains factual inaccuracies about the parents’ expressed views (7); the record reflects improper documentation and characterization of progress (11) and (12); the district engaged in predetermination of the substantive outcome, IEP, and program recommended (14), (15), and (45); the district failed to include the parents meaningfully in the CSE review (25); the district failed to provide a copy of the EP at the end of the meeting and failed to provide meeting minutes (27) and (28); the CSE was not properly constituted because it lacked a parent member
Page [2] (33), (34), (35), and (36); and the district refused to allow a parent expert to observe the proposed placement (37).
In addition the Complaint alleges a number of miscellaneous deficits such as a lack of supports for school staff (22) and (39). And it listed among the deficits several global failures to meet asserted standards such as the failure to provide a program ‘reasonably calculated’ under Rowley [Rowley v. Hendrick Hudson School District, 458 US 176 (1982)] (8), (30), and (9).
It asserts a pendency claim (50), and, finally, alleges rhetorically that the district ‘gave up’ on the child, blaming an inability to learn, rather than shortcomings in or a lack of creativity in planning the district’s proposed program, for failure to do so (47) and (48) (these last, of course, while serious allegations, do not sound in any specific violation of law or regulation).
The parents’ Closing Memorandum seems to add concerns about the restrictiveness of the program not alluded to in the Complaint (and therefore not strictly within the scope of the hearing). At [3].
The district failed to supply an Answer to the Complaint. It argues, however, that the program it offered fully meets the relevant legal standard articulated in Rowley, and that even if it did not fully do so the parents’ unilateral placement fails to be sufficiently appropriate to the child’s needs to warrant reimbursement under Burlington [Burlington v. Massachusetts, 471 US 359 (1985)].
Relief Sought and Relief Granted
Cases under the IDEIA easily cleave into two heaps, largely defined by the remedy sought: services cases (in which the parent is asking the district to do or not do something, to modify the services it is giving or proposes to give to their child) versus reimbursement cases (cases in which the parents, whether or not they would have been satisfied if the district had
Page 3 modified the services offered to their child, have engaged in self-help and placed their child unilaterally in a private school or program for which they seek reimbursement).
This case is a reimbursement case, but perhaps would more properly have been brought as a services case, for reasons discussed below, and ultimately I treat it in that manner.
Those fifty allegations, and the testimony and written evidence as it unfolded in this case, raise significant and legitimate questions about the CSE review, to some degree the IEP, the program, and, in a broader policy setting, the capacity of a XXX sized school district such as this one to be able to maintain a quality program for low-incidence disabilities and needs while tailoring it closely to the individual characteristics of each child the program might serve.
In particular, they raise questions about how to record programmatic delivery of vital related services (here specifically XXX) on an individual child’s IEP (and how to address the child’s individual needs in a program that is in many ways defined programmatically) and they raise the broader systemic question alluded to above: how can the district balance quality of program with individuality of needs in seeking to serve a low-incidence population that justifies no more than 1-2 classes district-wide.
While declining to order reimbursement because I Find, as the district has alleged, that the placement it offered falls well within the relevant standard on which the parties agree – that it was ‘reasonably calculated’ to provide educational benefit to the child, I do conclude that the district should reconvene its review of this child’s IEP, program, and placement to explore fine- tuning the IEP, perhaps modifying or augmenting the child’s related services, and exploring in greater depth ways to address the parents’ concerns about XXX and XXX tasks.
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The reason why both of these conclusions are compelled requires inquiry into and analysis of, first, the binding legal authority that defines the standard of review and the availability of reimbursement, and, second, of the largely uncontroverted facts.1 The Standard.
This case lies at the intersection of the two dominant decisions of the US Supreme Court, which have shaped in large measure the litigation over entitlements and remedies in special education for the past 30 years: Rowley and Burlington. These cases are often jumbled together and misread as though they were addressing different aspects of identical issues, but they are strongly distinct: Rowley addresses the nature of the entitlement created by the IDEIA; Burlington explores the availability of a particular oft-sought remedy (reimbursement for a unilateral parental placement) triggered only after the child’s entitlement has been denied by the school district. Burlington answers the question whether such a remedy may be granted and defines the circumstances when it can be appropriate to grant it. It requires a finding pursuant to Rowley that the child’s entitlement has been denied, to be sure, but not all Rowley deprivations provide a foundation for a Burlington remedy, and reimbursement is merely one arrow in the decision-maker’s arsenal if and when it comes time to craft a remedy for a Rowley violation.
All too frequently, and to some degree here, reimbursement is mistakenly seen as an entitlement in and of itself, an entitlement that follows directly and automatically as a consequence of prevailing in the application of the Burlington ‘three-prong test.’ If you can show all three elements that the Court identified in Burlington (failure by the district to offer a free appropriate public education; unilateral placement by the parents in an appropriate non-public placement, and a balancing of the equities that favors reimbursement), then you are entitled automatically to reimbursement for the costs of the unilateral placement. In fact, these three elements are not the prongs of a test so much as they are a description of the phases of litigating a special education dispute: first, there must be a determination of whether there has been a harm; then, if so, a determination of whether the harm entails a remedy; then, if it does, what the remedy should be; and, finally, whether any supervening equitable considerations require modification of that remedy. 2 Burlington defines the manner in which these stages of litigation can, in particular cases, properly lead to reimbursement of the cost of parental self-help (or an order to a district prospectively to make a private placement unilaterally identified by a parent) but it does not function as an entitlement to private school placement whenever a district errs nor does it even serve as a kind of sentencing mandate requiring a decision maker to address a particular harm in a particular manner. Rather, it simply addresses the question whether the decision-maker’s equitable powers permit him or her to award reimbursement when and if it seems appropriate to do so.
Special education litigation is not different from the wide range of dispute resolution generally. Almost all litigation contexts have two distinct and separable phases: an initial fact-finding phase in which the court hears and resolves issues of fact and in which accountability or liability is determined; and then, and only if the fact-finding determines that the respondent is indeed liable, a remedial phase in which the decision-maker crafts a remedy. Equity – the context in which special education cases are litigated -- is a distinctive setting because remedies are generally very open-ended and the decision-maker is accorded broad discretion to develop almost any remedy that responds directly to the harm that has been demonstrated.
Burlington, and Carter as well [Carter v. Florence County School District, 510 US 7 (1993)], in essence discuss in depth how these fundamental principles of Equity jurisdiction are applied in the special education context. Both decisions are specifically devoted to addressing questions raised about alleged limits to the scope of the decision-maker’s remedial authority.
Thus, the Burlington Court defined the question at issue as being: “whether the potential relief available under § 1415(e)(2) includes reimbursement to parents for private school tuition and related expenses, and whether § 1415(e)(3) bars such reimbursement to parents who reject a proposed IEP and place a child in a private school without the consent of local school authorities.” At 367. Or, somewhat more discursively:
The Act also provides for judicial review in state or federal court to "[a]ny party aggrieved by the findings and decision" made after the due process hearing. The Act confers on the reviewing court the following authority:
"[T]he court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 USC 1415(e)(2).
The first question on which we granted certiorari requires us to decide whether this grant of authority includes the power to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act. At 369.
The grant of authority referenced by the Court is explicitly remedial authority (it authorizes Federal courts to grant relief), and the Burlington, and Carter cases focus on the
Page 7 second, remedial phase of the proceeding. In short, they conclude that 1415(e)(2) draws on the general equitable powers of the Federal courts and accords the decision-maker the wide-ranging capacity to sculpt an individualized remedy that those powers entail. But before there can be a remedy there must be a harm. And that harm, not the remedy, is the subject matter of the litigation and the focus of the initial fact-finding phase, whether it me in special education cases, or criminal trials, or civil litigation, or child protective proceedings in Family Court.
It is hugely important to distinguish between these two remedial Supreme Court decisions (Burlington and Carter), on the one hand, and the definition, exploration, and determination of the underlying entitlement, violation, and determination of liability, on the other. The questions of whether there is an entitlement, and when such an entitlement has been denied or violated, form the heart of the case the Court had before it in Rowley.
Failing to distinguish between entitlement and remedy, as has become almost commonplace in reimbursement cases, leads to asserted characterizations of the law that both under-protect families’ rights under the IDEIA and impose too strong and too strict a definition of the district’s responsibilities.
Such a failure under-protects family rights because when reimbursement is viewed as an entitlement, districts wrongly conclude and argue that a determination that reimbursement is not merited means that they have no other or further obligation to the child. Denial of a reimbursement claim does not function as a Get-Out-Of-Jail-Free card.
But lumping entitlement and remedy together imposes too strict a definition of district responsibility because when reimbursement is viewed as an entitlement it permits parents to feel and to argue that a right to be reimbursed flows directly from a showing that a child has been denied a free appropriate public education (FAPE) in the least restrictive environment (LRE).
Page 8
In truth, there are entitlements in the special education law, but they are entitlements to FAPE and to being afforded the procedural rights detailed with precision and specificity in the federal law (and the State law implementing it), not entitlements to reimbursement. And Rowley explicates each of these. The question of reimbursement comes after the determination of whether the FAPE and LRE entitlements have been violated, and constitutes only one part of the consideration of a more complex and potentially wide-ranging determination of remedy. The Rowley Standard.
Rowley starts by analyzing what it means for a district (or, by extension, a parent in a unilateral placement) to provide FAPE. The Court concluded: “if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a ‘free appropriate public education’ as defined by the Act.” At 189.3 The Court goes on to reiterate that this requirement is met “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. At 203. [Note that the words call for ‘support services,’ which should not be confused with the statutory term of art ‘related services’; support services are simply special education instructional interventions, and may be delivered through the child’s program or through related service providers, or both.] This standard is generally summarized by the conclusion that the federal law amounts to a floor, not a ceiling, and that that floor does not require that the district’s placement be optimal, that it permit the child to achieve his or her full potential, or that it maximize the possible learning of the child. Rather, the program offered will afford FAPE if it is reasonably calculated, at the time of the CSE review, to afford the child meaningful educational benefit.
For the district to prevail, it is not enough that the child does in fact learn – some parents, like those here, provide additional supports to their children, and the child may be benefiting instead from those supports and not from the school’s program. The benefit must derive from the proffered program itself. Nor does a failure to learn mean that the district has failed to offer FAPE – learning is a two-way street and requires the active participation of the learner, who has the capacity to thwart the most marvelous of programs. What matters is that a reasonable person with specific knowledge of the particular child would, knowing what the district was able to know at the time of its review, conclude that the offered placement could provide meaningful academic benefit to the child.
It’s not all that high of a standard to meet. One would think that any school district acting in good faith and cognizant of its obligations to all of those in its care, could routinely meet this standard the vast majority of the time. And parents, who want the world for their children, and especially parents of disabled children (who rightly feel that their child is already fighting an uphill battle through no fault of the child’s), properly strive to achieve a higher standard than this one that the Rowley court has articulated. But that court carefully and explicitly framed a standard and construed Congressional intent to track the expectations that all parents might legitimately have of public education: it need not be ideal, it need not always work for every child, but it must meaningfully provide each child with an opportunity to learn or the school district has failed in its obligation.
The Court next turns its attention to a second, parallel, entitlement: “It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with
Page 10 procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g., §§ 1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard.” At 205-6. The Court further held: “We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” At 206. In sum, families are entitled to an IEP that both (a) is developed in procedural accordance with the requirements of federal law and (b) defines and offers a placement that, substantively, is, as the parents here repeatedly insist, ‘reasonably calculated’ to afford educational benefit to the child.
Burlington takes the next step. The entitlement having been defined in 1982 in Rowley, Burlington picks up on that definition and explores the contours and, to some degree, the extent, of the remedy available when the entitlement has been breached. As a matter of remedy, when a district fails to offer a child a program or placement that is reasonably calculated to afford educational benefit, Burlington stands for the conclusion that a court may ultimately rule that a parent who engaged in self-help – who, that is, unilaterally removed their child from public school and placed him or her in a school or program that the parent deemed appropriate – could be reimbursed for having done so.
There are two stages to obtaining a Burlington award, and the second stage is in turn divided by the Court in two: First the court asks whether there was a harm, has an entitlement been violated. If not, the case is over; no harm, no foul. But if there has been a harm, -- if the district has failed to offer FAPE -- the decision-maker, according to Burlington, may go on to ask
Page 11 what the remedy should be and, in particular, whether that remedy is reimbursement for the cost of a unilateral parental placement.
In this way, what is often described as the ‘three-prong’ test actually boils down, first, to the traditional division between a fact-finding (has an entitlement been denied?) and a dispositional or remedial phase (if so, what is to be done?). ‘Prong’ One asks whether an entitlement had been breached. ‘Prongs’ Two and Three explore whether reimbursement is an appropriate full or partial remedy.
The fact-finding phase – Prong One – runs the facts of the case through the Rowley two-part test: was FAPE denied? Were procedures followed? If the answer to either of these is ‘no’ then an entitlement was violated and a harm has been done. The focus shifts to a dispositional phase for the decision-maker to determine an appropriate remedy, and, in instances where reimbursement is sought, to assessing whether reimbursement should form a component of the remedy ordered.
Where a parent seeks reimbursement, however, the two Rowley tests do not carry equal weight in the remedial phase. A denial of FAPE carries with it, under Burlington, an expectation that reimbursement may follow. But although Rowley seems to suggest that substantive and procedural propriety were of equal import to Congress, Congress itself subsequently intervened and limited the degree to which procedural violations may constitute a denial of FAPE:
(ii) Procedural issues
In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies--
(I) impeded the child's right to a free appropriate public education;
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(II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or
(III) caused a deprivation of educational benefits. 20 U.S.C.§ 1415
Thus, under Rowley, a violation of the IDEIA leads to an entitlement to a remedy. But reimbursement is not an available remedy for any and all procedural violations. Burlington focuses on situations in which the placement offered by the district is substantively inappropriate, quoting the language of the original Senate report in support of the legislation:
If a parent contends that he or she has been forced, at that parent's own expense, to seek private schooling for the child because an appropriate program does not exist within the local educational agency responsible for the child's education and the local educational agency disagrees, that disagreement and the question of who remains financially responsible is a matter to which the due process procedures established under [the predecessor to 1415] appl[y]." S. Rep. No. 94-168, p. 32 (1975) (emphasis added). See 34 CFR 300.403(b) (1984) Burlington at 371.
Thus, a denial of FAPE – the Burlington trigger in the fact-finding phase – may only be found when there has been a substantive failure to provide a ‘reasonably calculated’ placement for the child or when a procedural defect rises to the level of one of these three Congressionally-defined outcomes. That does not mean that no consequences follow in instances of lesser procedural violations, or that a decision-maker could not craft a remedy to address that sort of procedural defect. Indeed, under Rowley, he or she must do so because procedural violations are deemed as important as substantive ones. But the harm does not rise to being a denial of FAPE and, accordingly, the Burlington reimbursement remedy is not available.
Page 13
The Facts in This Case.
The district argues that it has offered this child a program and a placement that were reasonably calculated to provide educational benefit. I Find that they have indeed done so. Accordingly, the parents’ petition for reimbursement for their unilateral placement is denied.
Nevertheless, the parents raise significant concerns about the district’s procedural propriety as it sought to define an appropriate placement for this child. I Find those concerns to be sufficient to merit remand and re-review of this child’s IEP so that prospectively the placements offered by the district are not merely reasonably calculated to afford meaningful academic benefit but also fully comply with the scope of the district’s procedural obligation under the IDEIA.
The child has been in district special education programs ever since she was old enough to transition from preschool special education. She was initially placed in a district program for severely XXX youngsters with severe XXX. Transcript at 28-9. Her parents subsequently sought a less restrictive setting and the district accommodated that request for more than a year, only to find that the child was not successful in the less restrictive setting and to return her to a more restrictive recommendation. Transcript at page 29-30. Witnesses testified to the fact that she made incremental progress at a rate consistent with or superior to her tested capacity (her IQ was measured to be XXX by both the district's and the parents’ testers). Transcript at pages 52- 62. As she was moving to transition to XXX, the district recommended that she continue in a program very similar to the one she had been in in XXX, with a XXX ratio (in practice, this program typically enrolled fewer students and had more adults working within it, but the nominal class ratio under review must be that on the IEP: XXX Exhibit 12).
Page 14
Assuming the proposed ratio to be XXX, the child’s teacher for the XXX years leading up to the XXX academic year, who was familiar with the XXX program recommended for the child, believed that the recommended program would be appropriate. Transcript at 283. The private XXX report relied on by both the parents and the district concluded that the child had made significant progress in the existing district placement. Exhibit 21.
In short, when assessed against the Rowley standard, the child had been making consistent progress along a range of XXX measures in a district placement that had been reasonably calculated to afford benefit to her. The district’s recommendation that she transition into a program at XXX that was, by design, comparable in structure and supports to the one in which she had made progress in XXX school was therefore ‘reasonably calculated’ to provide educational benefit.
The Parents’ Specific Objections
I turn now to the various ‘violations and deficits’ enumerated in the parents’ Complaint (Exhibit A) and organized into clusters above. Again, the numbers inn parentheses in the sub-headings and body refer to the enumeration in the parents’ Complaint (Exhibit A).
Program allegations:
Failure to offer an appropriate program because the district did not offer any XXX (4) and (17).
This allegation fails both because there simply is nothing in the record to suggest that the child required XXX of any amount in order to be able to achieve meaningful academic benefit and because the program offered by the district was in fact flexible enough to include the availability of XXX when, in the professional judgment of the child’s teacher and related service providers, doing so would be called for by the child’s needs.
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To be sure, it is credible that to some degree this child, like any child, would derive greater benefit from a program that included a measure of XXX (Exhibit 21). But even the evidence submitted by the parents themselves (for example Exhibit K) stands as much for the premise that the child benefited from such activities as XXX as it does for the premise that she might additionally benefit from XXX.
To make a showing that the district program failed because it did not include sufficient XXX, the parents would have had to provide clinical evidence in the form of witnesses or expert reports that supported the conclusion that no meaningful long-term progress could be made in the absence of greater xxx than offered by the district. No such evidence was provided and, indeed, the independent clinical xxx evaluation acknowledged that significant progress had been made and the parents chose not to call any xxx as a witness to testify to the contrary. The only witness from any discipline called in support of this claim by the district – a xxx who had observed the child – noted only that she recommended a mode of instruction that could take place “xxx”. Transcript at 1079.
Lack of an appropriately XXX classroom setting (2)
The proposed class has a XXX (it may well have been more adult-rich if there were fewer children enrolled or if additional supporting adults are assigned, as testimony suggests transpired, but, again, my findings are based on the recommended maximum ratio). At that XXX, and with two classrooms plus related services offices allocated, both the XXX and the actual number of people in any one room at any one time seems well within the range of ‘small classroom setting,’ absent any detailed evidence about the child’s needs for a significantly more restrictive teaching environment. Transcript at 716 and following. Moreover, that physical space was used to
Page 16 support an actual instructional program that involved breaking the class up into smaller, homogeneous groups for the purpose of direct instruction in each subject area. Id.
Once again, there do surely exist children for whom a smaller and more intensive classroom setting than XXX might be essential to their capacity to benefit from instruction, but there would need to be detailed clinical evidence about the specific psychological needs of the child to demonstrate that this particular child was such an individual, and, to be credible, that evidence would have to account for why she had been making progress notwithstanding that degree of need for small class instruction in a classroom setting that involved a 12:1 ratio in a single room. Here, the parents’ evidence and argument was directed instead to showing that she may well have benefited further had the class ratio been smaller – an argument that speaks to optimal programming, not to whether the proposed program was sufficient.
Need for XXX (1) and (3).
This was little more than an assertion in the Complaint, not followed up in the hearing or supported in the evidence. To the contrary, the child’s teacher for the past several years expressly testified that she transitioned nicely back into the school setting after the summers, without XXX. Transcript at 236.
Lack of a XXX for the move into the XXX program(24).
The Complaint argues that the district should have provided XXX In fact, however, the testimony of both the XXX school teacher and the XXX teacher reflect coordination, planning, and a thoughtful effort to assure continuity between the programs. Such coordination is desirable, to be sure, but as a matter of law the parents cite nothing in the statute or caselaw that would require a formal XXX for the articulation into a XXX within the district. Absent a
Page 17 requirement in the law or a demonstration of the ways in which this particular child was impacted by the lack of a plan, there is no Rowley impact here. Lack of XXX (29).
Again, in the absence of clinical testimony or support for the premise that the child required such service in order to benefit from instruction, nothing in the law mandates provision of XXX. To be sure, the parents have been providing services outside the school day for some time, and it is legitimate to ask whether the child would have been able to succeed in the school’s program without that external support. But nothing in the XXX or XXX reports supports such a stark conclusion nor was there testimony to that effect. Indeed, the parents note repeatedly that there was little coordination between the school and the outside providers, leading necessarily to the conclusion that the outside services would not seem to have much, if any, connection to success within the school’s rather disparate program.
Lack of interventions or adequate methods to address the child’s social/emotional needs.
The district was, it asserts, aware of the child’s ‘XXX at the time of its review. Transcript at 66. It was also aware that the child was, in the view of her teacher, making XX in the course of the XX and XXX school years. Sufficient clinical basis exists, therefore, to support the allegation that the district and the parents should have engaged this issue more fully at the CSE and should have given serious consideration to adding XXX, or otherwise intervening, as a component of the recommended program. No evidence suggests, however, that these XXX issues were sufficiently new or different to render the program that had been successful in the past unsuccessful prospectively absent such intervention in XXX. I Find that this legitimate concern about the process of review did not constitute, alone or in conjunction with the program and review as a whole, a denial of FAPE.
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The recommended program would produce XXX and work against XXX (43).
In fact, the recommended program was very similar to the existing XXX program, and there was no evidence presented that would lead to a conclusion that there had been any significant XXX. As already noted, district witnesses characterized the child as having, to the contrary, little difficulty re-XXX and XXX. Transcript, e.g., at 236. Moreover, the program the parents seek to put forward as exemplary – heavily reliant on XXX – would appear to undermine XXX far more than the actual proposed program.
The recommended program lacks support for XXX (23).
It is simply unclear what in the record would support this characterization of the proposed program. Although alleged in the Complaint, this argument is not pursued in the final memo and I can find not predicate for it in the evidence or testimony.
The recommended program does not provide adequate parent counseling and training (10).
It is similarly unclear what in the record would support this characterization of the proposed program. Again, although alleged in the Complaint, this argument is not pursued in the final memo and I can find not predicate for it in the evidence or testimony.
The recommended program improperly grouped children by XXX rather than XXX or XXX (42).
Although the Complaint alleges this as well to be the case, the district’s witness testified that the proposed class was indeed largely cohesive in terms of XXX and XXX and that, even within the relatively narrow range of XXX manifested by all children in the class, the child here would be roughly in the middle of the cohort and her actual instruction would be carried out in small XXX groups. Transcript at 733-45.
Placement allegations:
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The classroom was not appropriate to the child’s needs (46) and (2)
and, again, the children were grouped inappropriately (42).
The program was described in detailed testimony by the proposed teacher about the specific placement. Id. Both the teacher who had worked with the child for the preceding four years, and the teacher of the proposed program testified, contrary to this allegation, that they felt the proposed setting would be appropriate. Transcript at 283 and at 751.
The placement was not able to deliver needed XXX (40) and (41).
While alleged in the Complaint, this argument does not recur in the closing memorandum and is not supported at any point in the record.
IEP deficits:
Defects with respect to XXX (16), (20), and (19).
Once again, though alleged in the complaint, this concern did not play out in the record before me. The parents’ closing document refers to it only once, noting that the special education expert witness they had presented deemed the IEP’s XXX to have been inadequate at page 1088 of the transcript, but I find no such conclusion in the record there. Even if that witness had said something along those lines, while this sort of concern is surely something that a CSE might take into account, seek to specify, and address in a careful review, a claim for reimbursement would need to demonstrate not merely that there were defects in the XXX but that those defects had an impact on the actual program delivered and on the child’s ability to benefit from that program. I find nothing of that sort in the record here.
A lack of baseline XXX (9).
Again, this is a significant concern to raise in a CSE review, and in a hearing seeking to fine tune the work of the Committee or the content of an IEP, were this concern to be demonstrated there would be cause to remand and direct the CSE to develop the means to gather
Page 20 such XXX reports. But here, where the parent has removed the child from the school, there would have to be a demonstration of a nexus between the alleged absence and actual performance, or testimony that challenges the district’s capacity accurately to assess the child in the absence of such XXX, in order for the claim to be successful. Not only do I find no such nexus in the record, it appears that XXX based on XXX were relied upon by the Committee and no evidence suggests that these did not sufficiently accurately assess the child’s current level of performance.
The district failed to provide objective ‘methods of measurement’ with respect to goals and objectives (18).
The same conclusion is true here: there is no demonstrated nexus in the record to show that, in the absence of such objective methods of measurement, the child’s access to FAPE or ability to learn were in fact impeded.
Issues Concerning Related Services:
The district failed to offer XXX (6); XXX (10); the district failed to be ready to provide mandated related services (40) and (41); and generally failed to offer adequate related services (21).
The parents raise serious and significant concerns with respect to related services, and I Find that these require further action by the district. Nowhere, however, do the parents make a showing that these issues rise to the level of preventing the child from benefiting from the proposed program in meaningful ways. Accordingly, they do not constitute a denial of FAPE and therefore do not provide the predicate legally to support a remedy of reimbursement.
I am, however, specifically concerned that the district’s witnesses acknowledged awareness at the CSE review that the child was XXX (Transcript at page 66), noted, inter alia, that she was experiencing some of the changes of a child moving towards XXX, and acknowledged having been informed by the parent of an issue with a XXX. Despite this
Page 21 knowledge, the district did not describe in any significant manner how the program offered might have been individually tailored to respond to these mild to moderate concerns or why XXX was not more seriously considered as an option related service.
Further, and in a more deeply troubling sense, the parents demonstrate that the XXX delineated on the child’s IEP were in fact programmatic services built into the XXX-oriented XXX and XXX programs that were recommended for the child. The district discussed having considered annually whether the child required more than the programmatic intervention, and in fact there was some period of time when she received individual XXX services. See, for example, Transcript at 458-60. But although there is evidence that the CSE took seriously the parents’ request for more XXX service, there is a troubling quality to listing XXX of speech as a related service in the IEP when that service is being delivered to all children in the class and in significant part as a component of the direct classroom instruction. Perhaps some portion of the XXX service that provided that sort of instruction should simply have been removed from the IEP as a related service, or perhaps the Committee should have considered more narrow and direct means of addressing the child’s specific XXX needs. In either event I Find that, although this does not amount to a denial of FAPE, the district should have given further consideration to both XXX services and Order that the matter be remanded to the CSE so that they may do so prospectively. I do not, however, find that the failure to do so materially interfered with the child’s ability to benefit from the program provided or with her ability to learn, and therefore conclude that this has no bearing on the parents’ petition for reimbursement.
Concerns with respect to Academic Methodology:
The district failed to specify methodology (31) and (30); the district failed to seek to assess a best methodology for the child (30); and the district’s core methodology was inappropriate and inadequate for the child (32).
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I note here again, that issues of this sort require an affirmative showing that they have prevented the child from being able to benefit from the offered program or that they have interfered with the child’s ability to learn, before they can rise to a denial of FAPE and a foundation for reimbursement. No such showing has here been made. Beyond that, however, plainly there is no entitlement under Rowley for a ‘best’ methodology; the parents correctly note that the standard overall is ‘reasonably calculated’ not ‘best,’ and this distinction extends to methodology as well. To make an argument about methodology, if it can be made at all, the parents must have shown that the child simply cannot or does not benefit from an offered methodology and that the district’s professional staff lacks the capacity to try alternatives. Neither was demonstrated here.
Procedural defects:
The district failed to consider matters brought to its attention by the parents such as the additional private home-based services acquired by the parents (5) and private evaluations (13).
Pursuant to applicable law, as detailed above, for procedural violations to rise to the level of a denial of FAPE there must be a showing that the specific violations significantly impeded the parents’ opportunity to participate meaningfully in the CSE review, or that they impeded the child’s ability to learn or otherwise rendered the offered program substantively ineffective. 20 USC 1415. No such showing has been made here.
The fact that the CSE did not agree, in the final analysis, with the parents’ concerns is not a demonstration that the parents were not participants in the dialogue. Here, the testimony reflects that those participating at the review were aware of the private home-based services and the private evaluations, and indeed considered the latter with care. See, e.g. Transcript at 61-67; 202-208; 222-226. It is less clear that the Committee adequately sought to coordinate the home-
Page 23 based services with its school-based program, or worked cooperatively in a manner to make optimal use of the added resource. Accordingly, there is no basis for reimbursement as a result of this alleged procedural defect.
While the failure to do so plainly does not rise on the record here to a denial of FAPE, it falls short of the collaborative enterprise envisioned by the law and the Court in both Rowley and Burlington, and on remand should form an area of consideration by the CSE.
The IEP contains factual inaccuracies about the parents’ expressed views (7).
This allegation was not pursued in the hearing itself, and based on a review of the entire record I can find no basis for concluding either that any discrepancy was intentional or that, if any existed, it had a negative impact on the child’s ability to benefit from the program offered.
The record reflects improper documentation and characterization of progress (11) and (12).
I find nothing in the record to support this allegation, and indeed, Find that the record largely reflects the progress testified to and described in the independent XXX report.
The district engaged in XXX of the substantive outcome, IEP, and program recommended (14), (15), and (45).
I am troubled by the fact that the hearing record ratifies the conclusion that the district did not have meaningful intra-district options to consider in addressing the needs of individual youngsters with needs roughly comparable to those of this child other than the recommended program. As suggested above, this is an inevitable consequence of seeking to develop a resource-rich program for XXX disabilities in a XXX district. As children inevitably differ in their needs, one from the next, the district has incentive nevertheless to nudge them all towards the one program it has available. This is not simply a matter of saving resources, it is essential if
Page 24 there are to be a sufficient number of children enrolled to justify the existence of the XXX program.
While, on the one hand, this problem does not here rise to the level of a denial of FAPE, and on the other hand it is in some ways impossible fully to avoid such an undertow in a district such as this one, the district has an obligation to address the potential problem by individuating programs and programming in a manner that calls on it arguably to consider at greater length than it did whether there are additional modifications or additions to the program that would benefit this particular child. I say, ‘arguably’ because the evidence here is that the district did in fact consider such options. And yet, the failure to undertake even minor and obvious modifications such as offering XXX when XXX concerns began to emerge suggest that good intentions are not necessarily sufficient. Again, although I find no denial of FAPE as a consequence of this lack – the child was manifestly reasonably calculated to benefit from instruction in the program offered -- on remand, the CSE should review whether there are any modifications that may be made to its recommended program more fully to address the child’s particular individual needs.
The district failed to include the parents meaningfully in the CSE review (25).
This is simply too conclusory to address with specificity and is not otherwise or in more detail supported in the record or further delineated in the closing statement.
The district failed to XXX and failed to provide XXX (27) and (28); the CSE was not properly constituted because XXX (33), (34), (35), and (36); and the district refused to allow XXX (37).
These concerns, while not trivial, verge on being de minimis and surely do not rise to a denial of FAPE, either alone or in combination with the other procedural concerns expressed. They should be taken into account when reconvening the CSE pursuant to this Order.
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Miscellaneous deficits
I am unaware of any basis for an entitlement by the family to, for example, some minimum level of XXX. The parents’ other remaining numbered concerns are simply global restatements of the Rowley standard, and function exclusively as rhetorical reinforcement rather than additional substantive or procedural concerns. Conclusion.
Accordingly, I Find that the district has offered a program reasonably calculated to provide meaningful educational benefit to the child and, therefore, that there is no need to consider the appropriateness of the unilateral placement for which the parent seeks reimbursement.
I do note that had I concluded to the contrary, the district’s argument that the patents’ unilateral placement is not, as a matter of law, an appropriate one is far from a trivial one. While I have no doubt that the parents’ satisfaction with that placement is well-founded, that is not the same as it being appropriate under the IDEIA, and the specific school they have chosen, and the ad hoc XXX methodology of that school do not yet appear to be targeted to a population whose needs are similar to this child’s. I say this in particular because, as noted in the record, the school’s own self-description is that it addresses the needs of XXX students of XXX intelligence. Transcript at 805-6, 873. A demonstration of appropriateness notwithstanding such a self-characterization would involve some rather heavy lifting on the parents’ part. Such inquiry, however, is uncalled-for here in the absence of a denial of FAPE.
I do, however, Find that the CSE review did not fully comply with the letter and spirit of the collaborative effort to tailor this otherwise appropriate program individually to the child’s particular needs, but rather in some ways functioned to channel this child into the only such
Page 26 program available to youngsters with comparable needs in the district. I Order the CSE to reconvene and re-review the family’s concerns with respect to modifications of the program that might more fully address the child’s specific need for XXX services, the XXX needs, and the possibility of more explicit support for XXX and XXX among the methodologies available to the teachers and aides working with the child, in a manner consistent with this decision.
XXX XXX
XXX, Impartial Hearing Officer
PLEASE TAKE NOTICE:
Within 30 days of the receipt of this decision, the parent and/or the school district has a right to obtain a review by the Commissioner of Education under Section 4404 of the Education Law and Public Law 94-142 by filing a notice of appeal to the Commissioner. Failure to file such a petition in a timely manner will result in a waiver of the right to appeal this decision
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Footnotes
[1] While the parties draw starkly different conclusions from these facts, and have no less conflicting opinions about the merits of the district’s offered program, the facts themselves are largely undisputed and, indeed, the district’s evaluation and the parents’ private XXX evaluation describe the child in strikingly consistent terms. Page 5
[2] One of the most famous of all US Supreme Court decisions, Marbury v. Madison (5 US 137 [1803]), stands as perhaps the clearest exemplifications of the analytic models that flows from this distinction: Mr. Justice Marshall asked first whether there was a harm, second whether the plaintiffs were entitled to a remedy, third what the nature of the remedy they were entitled to was, and, finally, whether the Court had the power to provide the remedy they sought. [The first three questions are framed at p. 154; the fourth not until p. 173.] Page 6
[3] The ‘checklist’ referred to is precisely the list of requirements in 1415(e)(2) that the Court subsequently ruled in Carter were not applicable to parental placements. Accordingly, for a parental placement to be appropriate, there need only be an affirmative showing that “personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction.” Page 9