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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: March 28, 2012
May 9, 2012
May 17, 2012
May 21, 2012
June 12, 2012
Actual Record Closed Date: July 26, 2012
Hearing Officer: Judith Schneider, Esq.
CORRECTED
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2012
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2012
Attorney — Student
Parents
Attorney — DOE
School (via telephone) — DOE
Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2012
Attorney — Student
Parents
Attorney — DOE
Site Coordinator (via telephone) — DOE
School (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2012
Attorney — Student
Parents
Director (via telephone) — Student
Head Teacher (via telephone) — Student
Attorney — DOE
School (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2012
Attorney — Student
Parents
Head Teacher (via telephone) — Student
Attorney — DOE
On March 28, 2012, May 9, 2012, May 17, 2012, May 21, 2012 and June 12, 2012, I conducted an Impartial Hearing at the New York City
(“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of . (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated January 26, 2012. (Ex. A) I was appointed Impartial Hearing Officer on February 27. 2012, after the recusal of a prior impartial hearing officer, and I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on March 1-2, 2012, the initial hearing was scheduled for March 28, 2012, the first mutually available date for the parties and the hearing officer. (Ex. I)[1]
At the time of my appointment, the compliance date in this matter was April 1, 2012. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and documentation regarding the decisions was given to the parties. (T. 5-7, 46, 75, 190-191, 269, 446, 707, 957-958)
The current compliance date is August 31, 2012. The record closed on July 26, 2012, upon my receipt of all post-closing memoranda. (Ex. VII)
Background
In September 2011, the beginning of the 2011-12 school year (10 month program) the student was . (Ex. 1) She was treated at the age of months, which treatment included having been placed in a , thereafter received Early Intervention services and received services and attended a State approved NPS pursuant to CPSE recommendation. (T. 857-862, 924—925) The CSE classified the student as (“ ”)
and initially recommended a State approved NPS but eventually changed the program to a special class in a community school. (T. 873-875, 943-945, Exs, 9, J) Since , the parent has unilaterally placed the student at , a private school not approved by the State of New York as an institution with which the DOE may contract for the delivery of special education services. (T. 857-862) For the 2011-2012 school year, the student was unilaterally re-enrolled in class at .
A May 9, 2011 CSE review resulted in issuance of an IEP for the 2011-2012 which changed the student‟s disability classification from to and changed the program recommendation to a special class in a specialized school (12 month program). The CSE recommended various related services ( )). Exs. 1, 4)
By letter dated June 8, 2011, the DOE recommended a placement at a public school in (“the public school”). (Ex. 4) By communication dated June 16, 2011, the parent informed the CSE that she did not agree with placement and that the class and school were not appropriate. (Ex. H)
By letter to the CSE dated August 13, 2012, the parent specified various objections and concerns with regard the proposed placement. She also asserted that there had been procedural errors in the development of the IEP, including with regard to the appropriateness of evaluations, that the IEP was not substantively appropriate and that a meaningful opportunity to participate had been denied her. The parent claimed that several prior requests to obtain the raw data and testing protocols from the student‟s most recent evaluation had been denied by the DOE, and that that material was relevant to the appropriateness of the student‟s disability classification and should be provided. The CSE was informed that the parent had reserved a seat and would seek DOE funding in the event that the DOE did not provide an appropriate placement. (Ex. E)
By letter dated August 18, 2011, the parent‟s counsel informed the CSE that the parent had concluded that the DOE had failed to provide a FAPE for the 2011-2012 school year, that the student would attend for the 2011-2012 school year and that reimbursement and/or payment for the placement would be sought from the DOE. (Ex. D)
By letter dated January 26, 2012, the parent requested the instant impartial hearing. Positions of the Parties
The parent asserts that the May 9, 2011 IEP is procedurally and substantively defective, that the parent was denied a meaningful opportunity to participate in the development of that IEP and that the placement offered by the DOE following the issuance of that IEP was not appropriate. Accordingly, she claims, a free appropriate public education (“FAPE”) was not provided. Further, it is asserted that the unilateral placement provided by the parent is appropriate, that there are no equitable considerations warranting denial or limitation of funding by the DOE and that reimbursement by the DOE for tuition at for the 2011-2012 school year should be ordered. (Ex. III)
The DOE asserts that the CSE that the May 9, 2011 IEP is substantively appropriate, that procedural defects, if any, do not, under applicable law, support a conclusion that that IEP is defective, that the parent had a meaningful opportunity to participate in its development and that the placement recommended was appropriate. It asserts that a FAPE was provided. Further, the DOE claims that the program is not appropriate and that regardless of findings with regard to the foregoing, the equitable considerations in this mater favor the DOE and warrant denial of reimbursement. (Ex. IV )
Witnesses Presented
The DOE presented the following witnesses: Dr. the school who participated in the CSE review; , the teacher of the recommended class during the Summer 2011 term; , the site coordinator at the recommended school.
The parent presented the testimony of the following witnesses: , the Head of School; , the head teacher of the student‟s class during the 2011-2012 school year; the student‟s mother (“the parent”).
Findings of Fact and Conclusions of Law
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parents bear the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]
With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that each testified truthfully in accordance with his/her recollections and as to the opinions he/she held. Prong 1:
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
The sole witness presented by the DOE with regard to the development of the IEP was Dr. . Dr. is certified as a school and school and has some years 29 years experience as a DOE school . (T. 113-117 ) testified as follows:
The review had initially convened on May 5, 2011, but had been rescheduled because the student‟s head teacher at that time was not available. (T. 118 Ex. 3) The CSE reconvened on May 9, 2011 and a full review was held on that date. (T. 118, Ex. 3) Participants included Dr. , as school , a DOE special education teacher with over “many, many” years of experience as special education teacher who was well-versed in the continuum of services and also served as District Representative, the social worker who conducted an observation of the student on December 1, 2010 (Ex 8), a parent member, the student‟s then current special education classroom head teacher and the student‟s mother. (T. 129-135, 510-511, Exs. 1-3, 2) The student‟s teacher provided information. (Ex. 2) The team also considered the February 17, 2011 Psycho-educational Evaluation (“psycho-educational”) (Ex. 5), an Progress Report (Ex. 6), the December 2010 classroom observation (Ex. 8) and related service reports ( ) (Ex. 7). (T. 121, 150-159 , Ex. 2) At the meeting, every goal was reviewed with the parent and the student‟s teacher. (T. 124-125, 155-156, Ex. 2) Dr. ‟s primary role was to review and discuss the February 17, 2011 psycho-educational evaluation (or “the psychoeducational”) (Ex. 5) (T. 121) The teacher was present during that discussion. (T. 161) The reports and evaluations were discussed (T. 156-159, 163-164, Ex. 2) as were the student‟s management needs and related services. (T. 124-125, 169-170) All present had an opportunity to provide input and state their opinions (Ex. 2). could not recall all the details of the meeting and was relying in part on his review of documents in the record. (T. 488, 494) He stated that the CSE was aware of parent and teacher did not agree with the CSE about the student and considered that but he acknowledged that the minutes specified that the teacher had left the room before classification itself was discussed. (T. 144, 460-462, Ex. 2)
Related service recommendations were continued from the prior IEP and the goals were those specified on the and reports provided to the CSE by . (T. 179-183, Ex. 7) Dr. stated that does not permit its providers to participate in CSE reviews and that the CSE is not permitted to change related service recommendation without input from persons appropriately certified in those services but that there was no objection or question concerning related services recommendations or goals. (T. 180) Based upon information obtained from the reports considered and teacher input the student‟s classification was changed to . (T. 135-136) With regard to program, the team considered the continuum of services and alternative programs and concluded that the curriculum in a special class in a community school would be above the student‟s functioning levels, that the student was not capable of satisfying promotional criteria in a community school and that alternative assessment procedures were required and that a 12 month program was necessary to prevent excessive regression. (T. 136-142, 15, 507). Dr. opined that the classification and program recommended were appropriate.
The parent claims that the IEP was procedurally and substantively inappropriate and that she was denied a meaningful opportunity to participate in its development. She claims, among other things, that the psycho-educational does not accurately reflect the student‟s (T. 856, 889). She also testified that she believed that Dr. had discounted the teacher‟s input, emphasizing the psycho-educational at the review. (T. 945, 948-949) She asserts that the recommendations made were not grounded on sufficient reliable material. (Ex. III)
The CSE “[i]n particular must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical and developmental factors (20 U.S.C. §1414[b][2][C]; 34 C.F.R. §300.304[b][3]; 8 NYCRR 200.4[b][6][x])” SRO No. 10-033. It is undisputable, however, that technically sound instruments improperly administered do not yield reliable results.
With regard to the evaluative material utilized here, Dr. testified that the CSE relied upon information received from the reports and “in particular the psychoeducational” in arriving at its conclusion. (T. 135-136) He stated that the IQ scores reported in the psycho-educational (FSIQ of 50) were internally consistent and met the criteria for the classification of and were also consistent with academic functioning levels (ranging from grade equivalent levels reported therein. Moreover, he stated, the progress report, teacher information and class observation were consistent with the psycho-educational report. (T. 136-142, Ex. D) discounted the significance of differences between teacher estimates of academic functioning (Ex. 1-5) and the psycho-educational report (Exs 1-7, 1-8, 5) , noting that differences in tester and test and in the use of supports by the teacher which would not be used during the evaluation could explain that. (T. 138, 166-168 ) Further, he stated that based upon the information provided, the student would not be properly placed in a community school because she would not be able to satisfy promotional criteria and advance. (T.150-152)
The evidence shows that the psycho-educational was prepared by Dr. , an outside vendor, pursuant to contract with the DOE. (T. 279, 461) That contract is not in evidence and there was no testimony or representation concerning its terms. (T. 279) noted that the report stated that Dr. was a Ph.D and a licensed and he has seen a number of reports prepared by her but has never met her and he asserted no personal knowledge concerning her credentials, capacities, conscientiousness or reliability. (T. 461, 478) His reliance upon the accuracy of the report was based upon the credentials claimed. (T. 533-534)
The evidence also shows that the parent sought information concerning the test results from Dr. on the date of the test but was denied (T. 917), the parent objected to the accuracy of the psycho-educational during the review (T. 871-872, 915-916, 950), the parent renewed that claim as early as mid-July 2011 and requested the underlying material concerning the evaluation but was denied (T. 918-919, Ex. E), and that the parent reiterated her claim and request by letter dated August 13, 2011 to which she received no reply. (T. 843, Ex. E) In the impartial hearing complaint, the claim was restated. (Ex. A) By subpoena to the DOE issued in April 2012, and without objection from the DOE, the DOE was ordered to produce the requested test material. (T. 53, 56, Exs. W, X) The DOE counsel, however, thereafter informed the parent that, based upon information provided to him by Dr. , the material had been destroyed by her at some earlier point and that it had never been in the possession of the DOE. (T. 81-89) The precise date of destruction was not specified but DOE counsel stated that he was informed that it was two-three months after the evaluation and due to her need for filing space. (T. 276-285) Further, although the DOE‟s counsel had initially stated that Dr. was going to testify for the DOE and the commencement of the testimonial portion of the hearing had been scheduled = to accommodate (T. 7) and although her testimony had been scheduled since March 28 (Ex. VI), on May 15, two days before her scheduled May
17 appearance, parent‟s counsel and the hearing officer were informed that the DOE counsel did not intend to present her. (T. 275-276, Ex. V)
With regard to the need for the material requested by the parent in connection with a determination as to the reliability of the results, Dr. stated that he did not customarily provide protocols and raw data with psycho-educationals he conducted and he opined that that information could not verify whether tests were done correctly. (T. 542, 565) He had no knowledge concerning how the instruments used in this evaluation were administered. However, he was knowledgeable and experienced concerning those instruments and testified that the evaluation should have taken a minimum of and a quarter hours if conducted properly. (T. 472-477) Further, he stated that the Vineland, which provided information as to adaptive skills which he testified was critical to a classification of . (T. 136, 142, 178) should not generally be administered by simply providing the form to the parent although he was unsure as to whether it could be. (T. 470-471) The parent, however, credibly testified that the evaluation took one to one and a quarter hours (which included the student leaving the testing area for about 10 minutes) and that for the Vineland she merely filled out a form. (T. 890-892) I note that that parent‟s testimony was not contested by the DOE by either testimonial or documentary evidence and that Dr testimony concerning testing requirements was not qualified or disputed. The issue in this matter is not the reliability of the instruments if administered properly. Rather, it is whether that was the case. I conclude that based upon the foregoing, there is no basis here for concluding that they were.
Further, Dr. testified that his assumption that the psycho-educational conducted by Dr. was reliable was based upon her credentials and his conclusion that she would know and follow the standardized procedure, professional practices, in administering the tests. (T. 534-535, 538-539, 543-544) However, he also testified that a person with her credentials would also be expected to know that proper professional practice requires that testing protocols and data be retained for, without question, a minimum of two years which is far in excess of Dr. ‟s apparent two-three month retention period in this matter. (T. 564-566) This, I find, further supports a conclusion that Dr. did not comply with all required professional practices in this matter and undermines the reliability of her results.
It is impossible in the circumstances here to determine what inadequacies there were in conducting the evaluation and to give them appropriate weight. Therefore, based upon the foregoing, I give no weight to and do not consider the psycho-educational relied upon by the CSE in developing the IEP. Further, although I note that testified that he thought that the information provided by and staff and the class observation would have been sufficient to support the program recommendation, I give that testimony little weight in this matter where I conclude that relied principally upon the psycho educational at the CSE review and he was being asked after the fact to ignore, in effect forget about, what he still believed to be reliable. However, even if that is actually considered opinion, I conclude that the evaluative information left after the elimination of the psycho-educational was insufficient under applicable law to support a change in classification or a change to a more restrictive program.
The DOE has the burden to establish that the change was supported by appropriate evaluative material. See 8 NYCRR 200.4[b][4][5][6] The evaluative material remaining is anecdotal and does not provide information concerning cognitive levels and adaptive skills that testified was necessary for the classification change.
(T. 136, 178, Exs. 6, 8) Moreover, although that material might have supported a conclusion that a class in a community school was not appropriate, it did not provide information enabling a CSE determination as to which of other possible programs, whether with or without additional supports, would be. The CSE was required to recommend a program reasonably calculated to enable the student to make meaningful gains in the least restrictive environment, whether in a DOE facility or otherwise, and there was insufficient evaluative material to enable that to be done.
Accordingly, I conclude that the May 9, 2011 IEP was procedurally and substantively defective and that the DOE has failed to establish that it provided a FAPE for the 2011-2012 school year.
Based upon the foregoing, I conclude that the DOE has failed to establish that it provided a program reasonably calculated to enable the student to make meaningful educational gains and that therefore it did not provide a FAPE. In view of that finding, I do not address the parent‟s remaining claims concerning the IEP development and the recommended placement. Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is „reasonably calculated to enable the child to receive educational benefits.‟ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
In this matter, , the student‟s 2011-2012 classroom teacher was the principal witness concerning the program the student received. , the Head of School, the only other staff member testifying, described the school generally and also testified about funding issues. The parent testified with regard to the progress observed during the 2011-2012 school year.
It is undisputed that the student has with and and in academic functioning levels (with math and reading levels at the time of the review estimated by her teacher to be at grade although the student was then almost and chronologically would have been ). She requires and the of into . (T. 651, 652, 655-659, 856, Exs. 1, 6, 7, 8) She has, however, .
(T. 643-647, 653-654, 856 Ex. 1)
is a special education school serving students with who need a structured to learn. It primarily serves students who have challenges in the areas of language development, , . (T. 575-578, Ex. M) The school provides a 10 month program but also has a summer program available at the option of the parents which focuses on learned during the academic year but in a and “ ” environment. (Ex. M-9) This student did not participate in the summer program but rather attended a day camp with typically developing students and engaged in a camp activities independently.
During the 2011-2012 school year, had through . (T. 577-578) Its curriculum is based on the New York State Standards for Learning and is language based with curriculum modified to accommodate the learning styles and developmental levels of its students. (T. 585, Ex. M) The school utilizes a and - approach. T 575-577, 650-622, Exs. M, N) It provides (T. 575-585, 583-584) and social workers and and are involved in the class program and provide, among other things, and in some circumstances therapy services. (T. 575-578, 593) Professional development is provided to teachers and teacher‟s assistants. (T. 580-581, (618-619) There are team meetings a month. (T. 579)
The student, who is chronologically appropriate for the grade, was placed in a grade class, the highest grade level available at during the 2011-2012 school year. (T. 577, 725) She was in a class of ( boys and girls), all of whom had . (T. 621, 629, 735) Various classes and socialization opportunities were provided to enable the female students to mix with other girls. (T. 621) The student was in year olds, with the remaining students as young as . (T. 729, 731) The student‟s academic functioning levels in math and reading in September were, the teacher was told by others, at about grade respectively with about other students at approximately the same reading level and math (T. 741-742) functionally groups students from various classes for math and ELA and this student was in groups of students and was not aware of the ages of the other students. (T. 747, 772) was not this student‟s teacher for either math or ELA but, with an assistant teacher, taught the class for other subjects. (T. 751) , differentiated instruction, individualized attention, accommodations and other supports were provided. (T. 629-641, Ex. N) A social skills class was provided a week for minutes. (Ex. N) The student also received one session per week. (T. 778) A , was provided during the school day when necessary.
(T. 631)
It was asserted that progress was made with regard to sensory regulation, attention, social skills, language processing and academics, among other things. (T. 655681, 682-684, 902-904, Ex. N)
The DOE asserts the was not an appropriate placement because, among other things, the student had a 10 month program, mandated related services were not provided, progress was not established and the program was not designed to meet this student‟s needs. (Ex. IV).
In the circumstances here, the 10 month program does not support a conclusion that the program was not appropriate. I note that testified that summer school is, in effect, optional at the recommended public placement. (T. 330) Therefore, there is no significant difference between the recommended program and the parent‟s placement as it relates to a 12 month program. SRO 07-038. Further, the CSE‟s change to a 12 month program recommendation was made in substantial reliance upon a psycho-educational evaluation which I have concluded was unreliable.
Further, I conclude that the met the student‟s management needs as specified in the IEP and provided appropriately differentiated instruction and functionally appropriate grouping. (T. 789-790) Similar or substantially the same goals in this special education for children with similar needs does not demonstrate that the program was not suitable for this student. (T. 737)
With regard, to relate services however, I note that the evidence shows significant delays in and . (Exs. 1, 7, P, Q) sessions recommended by the CSE totaled for (135), (90) and (135) (Ex. 1) provided on a total of minutes of . (T. 776-
777) Although no providers participated in the CSE review, which I find to have been a consequence of policy, there were no objections to the related services recommended from teacher or parent and no reports submitted to the CSE indicating that any reduction was warranted. (T. 179-182) And although the parent was informed at the review that new information would be considered if submitted later, there is no indication that that was done. ( T. 501)
In this proceeding, there was neither testimonial nor documentary evidence from a provider to support what was the almost total elimination of related services from the student‟s program. Nor, I conclude, does the evidence show that the student‟s needs were addressed adequately although not in a traditional therapy format by classroom activities and the language focus of the program. I note that a private placement is not inappropriate merely because it does not provide all the services the CSE recommended. M.H. v. NYC Dep’t of Educ., __ F.3d__. (10-2181-cv, 10-2418-cv) (2d. Cir. June 29, 2012) Further, services provided by a parent when a school has not done so may also be considered appropriate. See, SRO No 12-036. However, I conclude that significant related services of were necessary to enhance this student‟s learning ability and that the parent has failed to demonstrate that the student was appropriately provided with sufficient related services support. Gagliardo, 489 F.3d at 113.
With regard to the issue of the student‟s progress in , I note that it is well established that a finding of progress is not required for a determination that a private placement is adequate. Frank G, 459 F.3d at 364) However, progress is a relevant factor that may be considered Gagliardo, 489 F.3d at 115. See also, SRO 12-036. The parent asserts significant progress was made. In this matter, however, the reports of progress were essentially anecdotal. Although testified that there was some use of a baseline, there was no indication of precisely what was tested with that, what the results were and whether the student had progressed. (T. 790-799)
Accordingly, I find that the parent has failed to meet her burden to establish that the unilateral program selected by the parent for the 2011-2012 school year is reasonably calculated to enable the student to make reasonable educational gains and therefore has not established a basis for reimbursement. Prong 3 In view of the foregoing findings, I do not address Prong 3 claims.
ORDER
The CSE shall issue an authorization for an independent psycho-educational evaluation and shall provide updated evaluations for . Upon the receipt of those evaluations, the CSE shall reconvene to consider them. The parent‟s request for reimbursement is denied. Corrected Decision Dated: August 13, 2012
Original Decision Rendered: August 9, 2012
____________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer JS
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 ON MARCH 28, 2012
PARENT
A Impartial Hearing Request and proof of transmission, dated 1/26/12, 12 pages B E-mail to , dated 2/3/12, 2 pages C Not admitted D Letter to with proof of transmission, dated 8/18/12, 3 pages E Letter to with proof of transmission, dated 8/13/12, 3 pages F E-mail to case manager with attachment, dated 2/22/12, 4 pages G Not admitted H DOE placement offer with parental response, dated 6/8/11 & 6/16/11, 1 page I Special Education service delivery report, dated 5/20/11, 1 page J IEP, dated 1/29/10, 16 pages K Affidavit with attached enrollment agreement, dated 1/12/12, 3 pages L Weekly Schedule, dated 2011-2012, 1 page M School Informational Brochure, Undated, 12 pages N 2011-2012 Fall Report, 9 pages O Spring Report, May 2011, 11 pages P progress report, dated May 2011, 6 pages Q progress report, dated May 2011, 4 pages
R OMITTED
S Fall Report dated November 2010, 8 pages
T OMITTED
U OMITTED
V Attendance report, dated 1/13/12, 1 page W E-mail, 4/27/12, 2 pages X E-mail, 4/26/12, 5 pages
DEPARTMENT OF EDUCATION
1 IEP dated 5/5/11 and 5/9/11, 23 pages 2 IEP Meeting Minutes, dated 5/9/11, 2 pages 3 IEP Meeting Minutes, dated 5/5/11, 2 pages 4 Final Notice of Recommendation, dated 6/8/11, 1 page 5 Psycho-educational Evaluation, dated 2/17/11, 4 pages 6 School Progress Report, dated February 2011, 11 pages 7 School Related Services Report ( ), dated October 2010, 4 pages 8 Classroom Observation, dated 12/1/10, 2 pages 9 Psycho-educational Evaluation, dated 12/3/08, 7 pages
10 OMITTED
11 Due Process Response, dated 1/31/12, 4 pages
IMPARTIAL HEARING OFFICER
I Memo regarding pre-hearing conference, dated 3/2/12, 1 page II Compliance date extension decisions III Parent Closing Memorandum IV DOE Closing Memorandum V E-mail regarding Dr. testifying on 5/17, 5/15/12, 2 pages VI Case Follow Up sheet scheduling 5/17/12 hearing, dated 3/28/12, 1 page VII E-mail notification of record close date, 1 page
Footnotes
[1] Subsequent hearings were scheduled for May based upon the DOE counsel‟s representation that Dr. , the who conducted the psycho-educational evaluation considered by the CSE (Ex. 5), would testify as a DOE witness and she was not available until May 17, 2012. (T. 7) As discussed herein, however, the DOE decided not to present her testimony. (T. 275-276, Ex. V )