NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CORRECTED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 8, 2012
March 15, 2012
May 9, 2012
May 30, 2012
Actual Record Close Date: August 22, 2012
Hearing Officer: Martin J. Kehoe, III, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2012
Attorney — Student
Father — Student
Mother — Student
For the Board of Education: — Student
Attorney — Student
School (via telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2012
Attorney — Student
Father — Student
Mother — Student
Director, School — Student
Teacher — Student
For the Board of Education — Student
Attorney — Student
School (via telephone) — Student
Teacher (via telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2012
Attorney — Student
Father — Student
Mother — Student
Educational Consultant — Student
For the Board of Education: — Student
Attorney — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2012
Attorney — Student
Parents
Parents
For the Board of Education: — Student
Attorney — Student
Teacher — Student
— Student
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The Department of Education of the City of New York will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case. The primary issue is whether or not the District offered the Student a Free Appropriate Public Education (FAPE). The scope of the impartial hearing is limited to the issues raised in the due process complaint. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), SRO decision 11-035, see also SRO decisions 10-105, 11-010.
The Parents’ Position
The Parents’ position is that the District did not offer the Student a free and appropriate public education (FAPE) for the 2011-2012 school year on procedural and substantive grounds. The Parents assert that the program and placement are inappropriate and that the Committee on Special Education (CSE) made the decision without properly evaluating the Student and considering his individual educational needs.
The Parents requested a P-1 Nickerson Letter to fund the Student’s tuition at the private school where they enrolled him, or as an alternative, that the CSE would reconvene and refer the Student’s case to the CBST for a recommendation that the case be settled by reimbursement of tuition at the private school. (Ex. B)
The District’s Position
The District’s position is that they offered the Student a FAPE for the 20112012 school year, that the placement was appropriate, and the IEP meeting was conducted correctly.
The District also argues that progress at the private school has been limited; that the private placement is not the least restrictive environment and that the private school does not offer adaptive physical education. Finally, they assert that the equities do not favor the Parents.
Student History
During this hearing the Student turned years old. He is a boy who has been classified with ; the classification is not in dispute. According to the evaluation, dated 10/7/2010 (Ex. 4), the Student has and . The Student is attending a private school and is in an class, with three aides. (Tr. p. 245)
The Social History Report (Ex. 8) dated January 1, 2011, reported that the Student was a with normal development but, experienced by in , . He received home based early intervention by given a diagnosis of ( ) ; the Parents were concerned that may have been so at age , the Student received and supplements and he . At age he was placed in an integrated class with related services. In during , he was in an integrated class of students, 1 teacher and one assistant; but his Parents said that his academic and social needs were not met. From grade, he was in a self-contained class with students, teacher, and assistants, and was able to be in mainstream classes for special subjects, social studies, and reading. Significantly, the Student was placed in a class in September 2010, a month after the family to , but they were told by the school and counselor (after two days) that it was not suitable, (Ex. 8) so the Parents had the Student re-evaluated, and enrolled him in the private school, in October 2010. The Parents said in the Social History interview that he was , except for ― ‖— . (Ex. 8)
The Student’s mid-year progress report, dated February, 2011, (Ex. 3) indicates that the Student had a grade equivalent of for and the level of based on the System. (Ex. 3) In writing, the teacher noted that he could come up with . In math, the teacher wrote, ―. . . when first provided with individual guided practice, [the Student] is then able to complete the given ‖. (Ex.3) In Social Studies, the teacher wrote the student seems interested in the However, she added, ―He is .‖ (Ex. 3) In Science, the teacher wrote, ―[The Student] sometimes has and review of for [The Student] to and .‖ (Ex. 3) In the psycho-educative evaluation, dated 10/17/2010-10/14/2010, (Ex. 4), the wrote that the Student (who was at the time), ―. . . presents with a history of .‖ The evaluator found him to be . (Ex. 4) The wrote: ―[The Student’s] was . However, his were characterized by underlying . ―[The Student’s] skills were impacted by his .‖ (Ex. 4)
The noted that the Student’s ― and to work up to his potential,‖ and some scores may be ―an underestimation of his innate .‖ (Ex. 4) In the Wechsler Intelligence Scale for Children – 4th Edition (WISC-IV) his full-scale IQ is in the percentile)(Composite Score of ), his index is in the , his , his working , and his is in the range. The evaluator commented, ―the clinically and statistically significant variability in performance suggests that [the Student] FSIQ is not a valid reflection of his ,‖ so he calculated the General Ability Comprehension and Perceptual Reasoning and recorded a score of percentile ( ). He was evaluated with the Continuous Performance Test – II (CPT-
II) and his ―performance was more representative of a clinical ( ) sample than as nonclinical (non-sample). On the Wechsler Individual Achievement Test – Third Edition (WIAT-III), he was at the percentile on reading sight-words, percentile for phonemic of unfamiliar words, percentile for reading comprehension, percentile in math, percentile in Spelling, percentile in ability ―to employ knowledge of grammar, punctuation and spelling to generate rule-based sentences,‖ and percentile in written expression. (Ex. 4)
He was given the Behavior Assessment System of Children – 2nd Edition (BASC2), a questionnaire for the Student and his parents. The private wrote: ―It is important to note that [the Student’s] are likely impacted by his history of ,‖… His positive and reciprocity were clearly consistent with a child who is not on the .‖ (Ex. 4) In Adaptive Behavior Assessment System – Second Edition (ABAS-II), completed by the Parent, the Student’s was in the range.
The private recommended: ―It is essential that [the Student] be placed in a small, specialized education program, which is appropriate for children with solid cognitive potential.‖ (Ex. 4, p.10)
In the evaluation, dated 2/9/11, the wrote in the observation – ―[The Student] demonstrated within normal limits.‖ (Ex. 5) In the Clinical Evaluation of Language Fundamentals – (CELF- ), he received an age equivalent of (he was at the time) on and sentences and equivalent of on recalling sentences. (Ex. 5)
The Pathologist wrote: ―Although his scores on the CELF- Core Language Battery were at age level, except for recalling sentences, [the Student’s] are significantly . He about , and makes irrelevant comments. It is almost as if another person is not necessary in the conversational situation.‖ The recommended and for the Student’s . (Ex. 5)
In the Physical Therapy School Function evaluation, dated 2/18/11, the Diagnosis: ― , , [Ex. 6], , with , especially in his , and and endurance.‖ was recommended and including . (Ex. 6)
For the evaluation, dated 3/28/2011 (Ex. 13) the Student was evaluated with the Clinical Observation and the Test of . The evaluator wrote that the Student has , which are necessary for him to ; he also has problems with . The recommended for the Student and a evaluation. (Ex. 13)
The Student’s mid-year progress report, (Ex. E) dated February 16, 2012, (after the CSE meeting), shows that the Student continued to show , although he still had areas of . According to the Fountas and Pinnell Benchmark Assessment system, the Student had an level of grade and an instructional level of grade. (Ex. E) In the teacher’s comments, she noted that the Student’s ― and are on grade level.‖ She added that he has some and needs assistance in ― .‖ (Ex. E) ―In writing, [the Student] often needs to write . . . He sometimes requires teacher assistance to initiate assignments and complete them to the .‖ (Ex. E) In math, he is in the curriculum, when . The teacher wrote, ―He a new skill that he is with. After this initial he .‖ (Ex. E) For social studies and science, the teacher wrote: ―[The Student] , but has made in this area from the beginning of the year. He often requires assistance to initiate and complete projects and activities to the best of his ability.‖ (Ex. E)
In comments about his , the teacher wrote that he usually classroom and in class; however, he has other . ―He sometimes has during classroom instruction. His causes him to have . He often has remaining in his and remaining on task . . . [The Student] has demonstrating , , and establishing . He , but when he , he tends to approach way. He also has a so he will sometimes say things.‖ (Ex. E)
The wrote in her progress report summary, dated 2/10/12, the Student is ― .‖ (Ex. E)
In the report from the , she wrote: ―[The Student] is currently working on his skills by providing during with others, using , and , and on a .‖(Ex. E) The teacher wrote: ―[The Student] is continuing to show improvement in his and is working well in activities with his classmates.‖ (Ex. E) The Student received ratings of ( ) and ( ) for all areas in his technology class. (Ex. E)
Background of the Case
The CSE held a meeting on March 4, 2011 to create an IEP (Ex. 1) for the Student. The CSE recommended a collaborative team teaching program (CTT) with related services of . On March 28, 2011, the Student was given an evaluation, which recommended that the Student receive ( ). The CSE held a second meeting on April 27, 2011, (Ex. 2) to add as a related service.
On July 22, 2011, the District sent a Final Notice of Recommendation (FNP) (Ex.
12) to the Parents which the Parents did not receive until July 28, 2011. (Ex. B) The Parents arranged to visit the school on August 1, 2011 and after the visit decided it would not be an appropriate placement.
On August 4, 2011, the Parents wrote to a member of the CSE, rejecting the Student’s placement. After visiting the school, they said it would not meet the Student’s needs because of the large number of the students in the school and classroom, the Inquiry-Based Learning method of teaching, and the method of reading instruction (Ex. C). The Parents requested a meeting with the person who made the placement recommendation to learn how it would address the Student’s needs and to provide alternative placements and also asked for a description of the school and classes in the alternative placement. On August 24, 2011, the Parents’ attorney sent a letter to the CSE Chair notifying him of their intent to enroll the student in a private school and seek funding, unless the District offered an appropriate program and corrected the errors in the IEP (Ex. A). They also requested transportation for the Student. In the letter, they stated their objection to the placement because of the size of the school and class and the methodology. (Ex. A) They rejected the IEP as invalid because of the composition of the CSE Team, the inadequacy of the goals and management needs, and because the District did not properly evaluate the student. The Parents’ attorney sent the complaint notice seeking an impartial hearing on September 28, 2011 (Ex. B).
During the first day of the hearing (3/8/12), the School for the District testified. She has ample experience and has worked as a general education teacher in the past. (Tr. p. 21) At the CSE meeting on March 4, 2011, the Committee on Special Education (CSE) reviewed the Student’s and report, teacher’s report, the psycho-educational evaluation, social history report, and a work sample. (Tr. pp.25-37 & Ex.s 3-7 & 9-11)
She testified that even though ―his and , he evidences some with . (Tr. p. 43) Based on her review of the Behavior Assessment System for Children, (BASC) the Student ―. . . viewed himself as a and who and with . The Parent also worked with the evaluator and what the evaluator gleaned from the Parent's \ discussion or Parent's interview that the Student demonstrates an interest in fostering . And he related appropriately with his peers, and he .‖ (Tr. p. 46)
She also testified that the goals and objectives were discussed at the meeting, (Tr. p. 56)) and that the Parents and their educational consultant, (the Student’s grandmother) while objecting to the program recommendation, did not object to them or to the academic management needs. (Tr. pp. 59-64, 72-75) She disclosed the philosophy that the CSE sought to move him away from supports and ultimately phase them out completely.(Tr. p. 57)
She defended the CTT recommendation as follows: ―My opinion of [the Student] is that he has a lot of potential. He has . Across the board, his academic skills were . However, he, according to the Parent, you know, and the teacher, he needed an extra body in the room. Well he needed a smaller class. So we considered a smaller class ratio. Still, you know, with the CTT, he'll have access to the general ed curriculum. 60% of the students are--do not have IEPs. And we thought that he would benefit from students who do not have IEPs who model appropriate behavior that he would benefit from that and of course he wanted to consider the least restrictive environment as per IDEA. And that's in line with his current or what was his current functioning. He was a functioning on a . Some of the areas he functioned well within the according to the Psycho-educational. So we thought to address the concern that he needed a structured environment, we thought CTT would be the best program for him since there's two teachers in the classroom along with the students.‖ (Tr. pp. 73-74)
She said that the CSE considered the private school to be too restrictive for the Student. (Tr. p. 78) During cross-examination she conceded that the only psychoeducational evaluation was Exhibit 4 that recommended a small structured class setting (Tr. p. 99) She also admitted that the general education teacher at the meeting was not then working in that capacity (Tr. p.106). She did not recall that Adaptive Physical \ Education was an issue raised before the CSE. (Tr. pp. 111-112) Nor did she recall that management needs were raised at the CSE meeting. (Tr. pp.113-114) In conclusion she revealed the emotionally charged setting of the first CSE meeting (Tr. pp. 152- 156) (There were no indications of such on the IEP) During cross-examination the school refreshed her recollection of the classroom observation and corrected her earlier testimony that there may have been as many as fifteen students in the class she observed; with the assistance of her recorded notes she testified that there were six students in the Student’s classroom that she observed. (Tr. p. 169) The school acknowledged that she had never observed the Student in a setting other than with four adults present. (Tr. p. 172)
Next the District called the Special Education Teacher of the public school classroom that was recommended for the Student. She testified that the ICT (Integrated Co-Teaching) class is the same as the previously named CCT class that was recommended for the Student. Only the name has changed. She indicated that her classroom has classified students and a total roster of . (Tr. p. 181) There is a general education teacher and a volunteer ―peacemaker‖ who assists in the classroom. (Tr. p.
185) At the conclusion of her direct examination she offered an opinion that her classroom would be a ―fit‖ for the Student. (Tr. pp.208-209, but see, p. 225) The first witness for the Parents was the Director of the Private Elementary School where the Student was unilaterally placed by the Parents. She described the School, the teachers and the Student in that setting. She testified that she was familiar with the progress reports related to the Student and that he is making progress at the private school. Tr. pp. 237 & 245-247)
The teacher from the Private School testified next. She described her duties (Tr. p. 258 and described the students in her classroom. (Tr. p. 260) She testified that she modifies the curriculum and groups the students to help ―push them along‖. She provides and the as needed to assist individual students. (Tr. pp. 261-262)
The Parent testified about the Student’s early history through early intervention and the classes he attended in public schools. She compared his experience in a CTT program: ― ‖, but in the self contained class he was moved to, ― .‖ (Tr. pp. 334, 347)
The Parent testified that she allowed the Student to be evaluated before the CSE meeting. (the evaluations conducted were an observation, a reading evaluation, and a evaluation) (Tr. pp. 369-372) The Parents also provided the CSE with the psychoeducational evaluation they had obtained by the Private . (Tr. pp. 371)
The Parent testified that she did not feel as though the members of the CSE took her concerns seriously and the School who was taking notes, seemed to stop when she spoke. (Tr. pp. 378-379) ―And we really felt like—at least I did like I really presented him well…And they went around with this completely , inappropriate CTT. And they went around the table, do you agree? Yes. And I was stunned.‖ (Tr. pp. 379) The Parent and the educational consultant/grandmother both objected to the placement. Earlier, they spoke about how the Student needed a small class size, as did the participants from the Student’s school. (Tr. pp. 382; 385) Her testimony about the pointed questions regarding the credentials of the ―regular education‖ member of the CSE was noteworthy. Apparently that member had not taught in a classroom for nearly 20 years. The questions about her credentials were avoided during the CSE meeting (Tr. pp. 379-381)
The Parent agreed with the recommended related services. (Tr. pp. 396-398) The Student has not been receiving for the 2011-2012 school year. (Tr. pp. 412-413) Although the Parent testified about his , and didn’t disagree with the recommendation, she didn’t seem to think that was essential. (It is not provided by the Private School and when her provider quit, she didn’t find another one). (Tr. pp. 411-414)
The only type of physical education in the private school is . (Tr. p. 253) The Educational Consultant/grandmother testified at the hearing about the issue of the General Education teacher on the CSE team not having taught in several years. (Tr. p. 443)
The Educational Consultant/grandmother said she thought inquiry based learning would not be suitable for the Student because he needs structure. (Tr. p. 454) There is inconsistent testimony as to what the Regular Education Teacher of the Proposed Placement said when the Student’s father and grandmother visited the school. The family asserts she said it would not be an appropriate placement and that once enrolled, it would be difficult to change the placement. (Tr. pp. 450-451)
The District called a single rebuttal witness. She is the Regular Education Teacher at the Proposed Placement in District and she escorted the father and grandmother around the campus in the summer of 2011.
LEGAL BACKGROUND
The purpose of IDEA is to provide students with a ―basic floor of opportunity‖ of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)
The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
- (A) have been provided at public expense, under public supervision and direction, and without charge,
- (B) meet the standards of the state educational agency,
- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title.[20] U.S.C. § 601(9).[1]
A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b)(6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b)(6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002) In New York State ―The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ‖ NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where ―The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.‖ Schaffer, 546 U.S. at 537 However, when ―. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.‖ NY Educ. Law § 4404 (1)(c) With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. (20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)
ANALYSIS
Prong I
The primary issue in this litigation is whether the District provided the Student with a FAPE for the 2011-2012 school year. The Parents have raised both procedural and substantive violations.
Below I identify the significant sub-issues and segregate them according to their nature as either procedural or substantive while recognizing that there are often features from either category in any given issue. Procedural Issues:
1. That the Committee on Special Education (CSE) review team was improperly composed;
2. The Parents feel that they did not get to participate in the development of the IEP because the goals were created before the meeting without their input;
3. That the IEP uses an incorrect name for the Student in some places;
The dominant substantive issue is:
1. That the proposed placement and program did not meet the Student’s needs, were not appropriate, did not provide a suitable peer group or offer a benefit to the
Student;
Procedural Violations
Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.
1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with ―extensive procedural rights and safeguards‖ in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)
The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.
For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held ―…the importance Congress attached to these procedural safeguards cannot be gainsaid.‖ 458 U.S. 176
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007
Was the CSE improperly composed?
The Regulations of the Commissioner of Education indicate that a CSE review team must include ―not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment.‖ 8 NYCRR 200.3 (a)(1)(ii). Further, State Review Officers have found that although a board of education cannot always be expected to know the exact individual who will be the student’s general education teacher prior to the meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which may be appropriate for the student. (Application of a Child with a Disability, Appeal NO. 04-088)
In this case, I cannot say that the CSE was improperly composed such that there was a denial of FAPE. The Regular Education teacher was in attendance, she was signed in to the meeting, she had years of teaching experience. She was probably not the ideal ―regular education teacher‖ because she had been outside of the classroom for years and was not teaching in the proposed CTT classroom the next year. But, the reality is that the Parents were very well informed about the workings of the CTT class, they were accompanied by an educational consultant and an attorney, and they were very familiar with the concepts that were discussed. Accordingly, I do not find that the attendance of the non-practicing ―regular education teacher‖ resulted in a procedural violation.
The Parents did not participate in the development of the IEP.
This is not a valid concern as the Parents did participate in the development of the IEP. They did not agree with the result and it is clear that they did not enjoy the process but I do note that there is testimony that the Mother agreed with all of the recommended related services. (Tr. p. 396-398) The meeting was scheduled for one hour but it actually endured for three hours. Again the Parents were accompanied by an educational consultant and an attorney. Under these circumstances I do not find a procedural violation of FAPE.
The IEP uses an incorrect name for the Student in some places.
This was not a serious issue that affected the Student’s opportunity to receive a FAPE.
However, I have to point out the entire process from the collection of the data, the conduct of CSE meeting, the lack of District responsiveness following the Parental rejection of the Final Notice of Recommendation, right through the presentation of the case demonstrated a lack of concern on the part of the District. I empathize with the Parents who had to read the wrong name for their child on the IEP. (Ex. 1-9, 1-10)
To illustrate I point attention to the following: Even though the District is supposed to have qualified members of the team, I find that the School was unable to explain the significance of the range that existed between the Student’s , and skills on the Student’s evaluation. (Tr.p. 41) As to her memory of the meeting, the School testified that there were students in the class during her observation of the Student at the Private School, (Tr. p. 95) when there were only or , and if it weren’t for the cross by Parents’ counsel,(and the inclusion of the recorded observation) the record would reflect the wrong class size; (Tr. p. 169) she failed to make sure the CSE meeting members recorded their attendance; and she kept incomplete meeting notes. She also put the wrong date on her observation of the Student. (Tr. pp. 28, 47, 105, 170) The School is clearly either over-worked or under-concerned. Because of the number of errors, I find it difficult to credit the entirety of her testimony.
Turning to the General Education Teacher from the Proposed Placement, she was called as a rebuttal witness to discredit the testimony of the Educational Consultant/grandmother who observed the proposed placement during the summer of 2011. I thought she would have been asked a few questions concerning the testimony in which she told the grandmother and the father - it would not be an appropriate placement and that once enrolled, it would be the placement. (Tr. pp. 450-451, 479) Rather than , she testified with ; (Tr. p. 476) about the status of the classroom that she showed the Parents; (―I took them into what would be our classroom …‖; (Tr. p. 476)) ― … I tried to explain to them the best I could how our class would work. Of course, I've never done an IPP.‖(sic) (Tr. p. 477)) and finally about the critical discussion of the appropriateness of the program offered by the district: When asked by District counsel: ―[when the] family visited with you back in the summer of 2011, did you at any time tell them that your classroom would not be appropriate to meet [the Student’s] needs?‖ She answered:‖No, never as a flat out statement, no.‖ (Tr. p. 490) The wording of the response hardly resolves this issue in favor of the District. In contrast, I credit the testimony of the Educational Consultant/grandmother whose recall was vivid. I am, once again, left with the impression that the sheer volume of the cases causes something to be lost in the memory of the District witness.
Substantive Claims
Of the substantive claims of the Parents, I only address the argument that the CTT recommendation is inappropriate. I find that it is not appropriate. The substantive inquiry is whether the IEP is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. "[F]or an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not ." D.F. ex rel. N.F. v. Ramapo Central School Dist., 430 F.3d 595, 598 (2d Cir. 2005).
The CSE team is responsible for the annual development of the student’s IEP. 20 U.S.C. §1414(d)(4)(A)(i). Among other things, the team must consider: the concerns of the parents; the results of evaluations; and the academic, developmental, and functional needs of the child. 20 U.S.C. §1414(d)(3). Parents are afforded the role of participants at CSE meetings, not merely attendees. 8 NYCRR §200.4(c)(3); 34 C.F.R. §300.345(a). In enacting the IDEA, Congress intended to ensure that parents of children with disabilities have meaningful opportunities to participate in the educational planning process. 20 U.S.C. §1400(c)(5)(B).
In the instant matter, the IEP team did not have sufficient documentation or information before it to support their decision to recommend a CTT program for the Student. To the contrary, the individuals at the meeting who had worked with or evaluated the Student, fixedly disagreed with the recommendation. (Tr. pp. 74; 77; 106) Further, the only psycho-educational evaluation before the team expressly states: ―It is critical that [the Student] be placed in a specialized educational setting for intelligent children with such that he is able to receive for his areas of .‖ (Ex. 4, p.7) It goes on to recommend placement in a ―. . . environment . . .‖ (Ex 4, p.
10) The District produced no testing to dispute these findings and recommendations.
In reviewing the record I find a large disparity between the proposed IEP, on the one hand, and the exhibits and testimony, on the other. A review of the present levels of educational performance (PLEPS) on the IEP would seemingly support the recommended placement. The PLEPS highlight the Student’s academic strengths and list many of the Student’s abilities. For example, the document records the fact of his ―. . . grade level equivalence in reading comprehension . . . ‖; (Ex. 2, p.3) In math, ―he is able to and .‖; (Ex 2, p. 4) and, in writing it is remarked that ―he can generate his ‖. (Ex 2, P.4)
However, a detailed review of the progress report indicates that the Students and needs were understated in the IEP. In reading he will need adult assistance to choose grade level his skills as recorded on the progress report. (Ex. 3, p. 2) In math, the progress report adds significantly that ― ‖ (Ex. 3, p. 6) And in writing, the progress report also warns,‖. . . . the Student ―. . . needs to . . .‖ (Ex 3 p. 4)
A further example of inconsistency between the IEP and the record is found in comparing the Performance section of the PLEPS with the results of the psychoeducational assessment. In the PLEPS the Student is portrayed as demonstrating ―. . . the ability to initiate conversation, maintain age appropriate and engaged throughout the [psycho-ed] evaluation.‖ (Ex 2, p.6) But in the actual evaluation, I see a different child: ―The Student’s ability to and remain dependent upon task demands…‖; (Ex. 4, P. 3) ―When confronted with related tasks of , the Student and produced and .‖ (Ex. 4, P. 3) ―On occasion the student also demonstrated his own set of rules as opposed to those presented by the examiner.‖ (Ex. 4, p.3) A full review of the record indicates the need for a much smaller educational environment than the recommended CTT model.
Finally and most compelling in this analysis is the disparity between the IEP and the testimony of the Student’s current Classroom Teacher from the Private School and the Student’s Mother. Following are several excerpts from their testimonies:
The Student’s current Classroom Teacher from the Private School specifically described the Student and how he functions in her classroom: (Tr. pp. 266- 273) She testified that ―… he requires very . .‖ (Tr. p. 268) The teacher spoke of the Student’s : ―He definitely has some with . He has some , :
―He has a lot of just demonstrating and . He has establishing with them. He seems to . He has his . He has a their perspective, . Often when he of if he gets what he wants, he by and .‖ (Tr. p. 271)
When asked how she deals with the Student’s , the teacher said: ―We have a high teacher to student ratio, so there is always—there is usually, the opportunity for someone to help [The Student] out and help him get through this difficult time…Usually, if we give him a few reminders, he can come back onto track.‖ (Tr. p.
271) She testified that the high student to teacher ratio is currently required for the Student so that his needs can be met: ―He really does require a environment, individualized instruction and curriculum; and I think since he has a , I think that with the smaller number of students, it's more comfortable for him than if it's with a larger group. I do notice that when we are with another class or if we are in assembly, once you start to the to become ; he goes back into that .‖ (Tr. p. 274)
When asked why a CTT class would not be appropriate, the teacher said, ―I believe that that setting would be for him. I think he needs more individualized attention. I think he needs more assistance with his skills.‖ (Tr. p. 286)
In the Parent’s testimony, she said the Student has a main interest in and age. (Tr. p. 335) Much of his conversation is ― ‖— from . (Tr. 337-339). The Parent said the Student has . (Tr. 339) He also demonstrates ; she said, ―And when he I mean, it’s such a .‖ (Tr. p. 340) She added, ―He’s also been with …And there are .‖ (Tr. p. 341) is a . (Tr. p. 341) She said, ―He has when he gets .‖ (Tr. p. 344) He has ; the Parent said, ―[The Student] needs .‖ (Tr. p. 344) He typically ―. . . lots of .‖ (Tr. p. 343) The Parent said the Student’s include: . (Tr. 344-345)
It seems clear that the baseline information in the IEP was derived from the midyear progress report from the private school; however, upon close inspection, the IEP seems crafted to eliminate the deficits that were described in the progress report. Moreover, I have heard argument that indicates the CSE ignored the input of the Mother at the CSE meeting. In reaching the conclusion that the CSE failed to offer the Student a FAPE I specifically find that the testimony of the mother was well-meaning, informed relative to the issues at hand and highly credible.
Prong II
I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are ―subject to fewer constraints than that applied to the school authorities.‖ Schreiber v. E. Ramapo Cent. Sch. Dist., 700
F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
― . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.‖ Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.
2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d
Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
Here, the Private School in which the Student was unilaterally placed by the Parents is appropriate. This conclusion is supported by the testimony of the Parent, grandmother, educators from the private school, and exhibits, which consistently demonstrate the Student has made progress at the school.
The Teacher from the Private School said the Student has shown improvement academically. ―His . In the beginning of the school year he was , and now , . The length of his …I definitely think there has his , in his ability to .‖ (Tr. 289) ―Now, he is , showing us skills.‖ (Tr. 289-290) The Student has in his skills. The teacher said he cries if he is , and is able to discuss what he did . (Tr. 290)
She also testified that she believed that the Student is appropriately placed, (Tr. pp. 281-287) and that he is the Private School. (Tr. pp. 287-291) When asked why the Student’s current class is an appropriate placement, the teacher responded: ―I am seeing a lot of growth from him. I’m to , , which tells me that he is in the . He school.‖ (Tr. p. 282)
When asked if the Student has shown academic progress, the Parent said: ―He has . He has . He us.‖ (Tr. 366) She gave as an example, how the Student’s was selected for an . (Tr. 367-368)
She appreciates that the Private School has not only addressed the Student’s . (Tr. 368)
Although the Student does not have a plan, the Teacher from the Private School said there is a school and class which addresses the Student’s issues. (Tr. 303304)
In consideration of the forgoing, I find that the Parents satisfied their burden under the Prong II analysis.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. . . . Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105112 [2d Cir. 2007] quoting Frank
G. v. Bd. of Educ., 459 F.3d 356, 364-365 [2d Cir. 2006]
Accordingly, I move to the Prong III analysis.
Prong III
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."[20] U.S.C. § 612[a][10][C][iii][I] 2; see 34 C.F.R. §
300.148[d] This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
It is also true that to prevail on a claim for tuition reimbursement, ―equitable considerations [must] support the parents’ claims.‖ M.C. v. Voluntown, 226 F.3d 60 @ 68(2nd Cir. 2000); Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Such equitable considerations include ―the reasonableness of the parties’ positions.‖ Burlington, 736 F.2d at 801-802. Indeed, the IDEA states that tuition reimbursement may be ―reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents.‖ 20 U.S.C. § 1412(a)(10)(c)(iii)(III). In this case I find equitable considerations support the Parents’ claims.
It is, therefore, ORDERED
That the District reimburse the Parents for one hundred percent of the tuition at the Private school upon the presentation of properly receipted invoices for the payment of such tuition.
Dated: August 28, 2012
Corrected Date: September 12, 2012 (Correction Made To Body of the Decision)
________________________________
MARTIN J. KEHOE, III, ESQ.
Impartial Hearing Officer
(I) shall not be reduced or denied for failure to provide such notice if-- . . . ; or (cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and
(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--. . . (bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.
MJK:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Notice, 8/24/11, 2 pp. B Request for Impartial Hearing, 9/28/11, 7 pp. C Parent Letter to CSE, 8/4/11, 2 pp. D Child School Tuition Agreement, 9/2011, 1 p. E Child School Mid-Year Progress Report, 2/16/12, 16 pp. F Classroom Observation, 1/25/10, 1 p. G Resume, 6/2011, 1 p.
DEPARTMENT OF EDUCATION
1 IEP, 3/4/11, 18 pp. 2 IEP, 4/27/11, 20 pp. 3 Mid-Year Progress Report, 2/2011, 13 PP. 4 Pyscho-Educational Evaluation, 10/7/10, 13 pp. 5 Evaluation, 2/9/11, 7 pp. 6 , 2/18/11, 9 pp. 7 , 2/18/11, 6 pp. 8 Social History Report, 1/5/11, 4 pp. 9 Math Work Sample, Undated, 7 pp. 10 English Language Arts Work Sample, Undated, 5 pp. 11 IEP from , 5/14/10, 4 pp. 12 Final Notice of Recommendation, 7/22/11, 1 p. 13 Evaluation, 3/28/11, 5 PP.
Footnotes
[20] U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education, (CSE) whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005))
[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
[20] U.S.C. § 612[a][10][C] states in pertinent part: (iii) Limitation on reimbursement.--The cost of reimbursement . . . may be reduced or denied-- `` (I)if-- ``(aa) at the most recent IEP meeting. . . ; or ``(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency . . . (iv) Exception.--Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement—