NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
On July 18, 2013, July 26, 2013, August 9, 2013, and August 15, 2013, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
Section 1415(f)(3), regarding the special education of the Student at the REDACTED School District (District) Office at REDACTED. REDACTED represented the District, and the Father appeared pro se. A list of documents received into evidence and the witnesses who testified is attached to this decision.
EVIDENTIARY MATTERS
The District offered over three hundred pages of documentary evidence in large binders with consecutive numbering. The District placed several different documents in some of its exhibits. I admitted the exhibits without taking the time to have the District divide exhibits and renumber each document individually. Later, I did divide some of the exhibits on the record. This
District’s numbering system actually made it easier for the pro se Father to participate in this impartial hearing. The District submitted a few later documents that were numbered individually.
District Exhibit 8 was admitted and withdrawn because I found it illegible. It was an excerpt from a communication book in which the speech therapist had written with marker on both sides of the page. The markers bled through some page making many pages difficult to copy clearly. The District admitted the two full communication notebooks instead of Exhibit 8.
(Ex. 31, 32)
The Parents submitted over thirty documents that were unnumbered. I spent considerable time with both parties organizing and marking the Parents’ evidence so that the pro se Father could effectively participate in this impartial hearing. (Tr. 488) The Father also offered a few documents with hand-written notes on them. (Ex. J at 5; Ex. H at 1) I had the Father testify that the handwriting was his, and I accepted the documents into evidence rather than spend more time redacting the handwriting. I did not consider any of the handwritten notes on the Parents’
evidence.
The Father moved to admit a few documents that were already in evidence, such as some of the email in Exhibit J. I permitted these duplications because admitting them would assist the pro se Father in presenting the Parents’ case as he had prepared it. I also made sure that the Father could fully participate in this impartial hearing during his testimony. (Tr. 937, 697)
The Father insisted on admitting evidence of REDACTED over the objections of the District. (Ex HH, Ex. II, Ex. JJ; Tr. 847-862) There were questions of relevance and confidentiality that I explained to the Father on the record. (Tr. 852-3, 864, 995) He insisted that he wanted these documents to be part of the record in this impartial hearing. I admitted these documents to permit the Father to present his full case. (Tr. 853, 1064)
Several times, I had to ask both parties to provide additional information to complete the record and permit me to render a final decision. I asked the parties whether there were any hearing tests conducted on the Student. I asked the District to provide information about the proposed class. I asked the Father to present information about the Student (Tr. 871-3 891)
They did so, and there were no objections.
ISSUES
There are two issues before me. The first issue is whether the District must fully fund an
“independent educational evaluation” (IEE) rather than partially fund it. The second issue is whether the District’s “Committee on Special Education” (CSE) offered a “free and appropriate public education” (FAPE) for the Student for the 2013 – 2014 school year when it developed an IEP that placed him in a self-contained special education class of fifteen students (15:1).
DISTRICT’S POSITION
The District claims that it paid for the IEE according to the District’s IEE policy, and that it should not be responsible to pay for the full private evaluation. The District contends that the Student is not making sufficient academic progress in the general education environment, and that he needs a self-contained special education 15:1 class. As there is no such class in his current elementary school, the District wants to place the Student in a 15:1 self-contained special education class in another elementary school within the District.
PARENTS POSITION
The parents believe that the District should pay for the entire IEE. They claim that the self-contained special education class recommended by the CSE is not appropriate because the Student does not need a self-contained special education class and because they do not want him to transfer to another elementary school within the District. The Parents want the Student to stay in the same elementary school as his older brother.
STATEMENT OF FACTS
The Student is a nine-year old student who is quiet, shy, sweet, and “very likable.” (Tr.
81, 884, Ex. 7 at 137-8) His teachers have said nothing but good things about him. (Tr. 81) The
Student likes to play baseball and hockey in local community sports leagues. (Tr. 873-4, 1032)
The Student has a close relationship with his older brother who is one and a half years older than him. (Tr. 875) They share friends, and they both attend birthday parties that only one has been invited to attend. (Tr. 875, 1033) The older brother answers questions and speaks for the
Student
at home. (Tr. 950-1) All documents and testimony establish that the Student is a cooperative child who puts forth his best efforts at school and during evaluations. (Ex. 17 at 253; Tr. 434)
The Student’s Parents are concerned and involved in his education. The Student’s Father has been diligently working with him on academics at home. (Tr. 101) The Student’s teachers send the Father study guides or the exact questions that the student will be asked on class tests so the Father can prepare the Student to take tests. (Tr. 255-6) REDACTED. The only language spoken in the family home is English so the Student is not bilingual. (Tr. 1037-8)
The Mother did not participate in this impartial hearing because REDACTED. I made no inference from her absence.
The District CSE found the Student IDEA eligible, and it classified his disability as REDACTED. This classification is not an issue in this impartial hearing. (Tr. 21, 344) The Student displays a consistent cognitive and academic pattern of strengths and weaknesses. All evidence and testimony establishes that his strengths are decoding, spelling, and math calculation. (Tr. 228-30, 258; Ex. C) His areas of weakness are verbal comprehension, reading comprehension, expressive language, writing, pragmatic speech, and memory. (Ex. C at 6; Tr.
412) The District conducts regular hearing screening tests on its students in particular grades, and the Student’s hearing is within the normal range. (Ex. 34; Tr. 629) The Student’s hearing will be screened again during the 2013 – 2014 school year when he is in third grade. (Tr. 631)
The Student attended a special education 10:1:2 preschool class at the ( ). (Tr. 78) The initial District CSE offered the Parents a 15:1 kindergarten class to “immerse” the Student in a speech and language program, but they refused it. (Tr. 79, 98, 953) The CSE agreed to place the Student in a general education kindergarten with related services during the 2009 – 2010 school year. (Id.) The Student did not adjust well to kindergarten. (Tr. 880) The Student had problems with transitioning from activity to activity in kindergarten, and there were times when he was upset, overwhelmed, frustrated, and tearful. (Tr.
77 - 81) He had tantrums in school. (Id.) The Student had a “Behavior Intervention Plan” that targeted three behaviors, including “increase frustration tolerance.” (Ex. 29 at 374) At the end of kindergarten, the District offered the Parents a summer reading program for the Student, but they rejected it. (Ex. 26)
The Student attended first grade during the 2010 – 2011 school year. A Subcommittee of the CSE convened on February 11, 2011 for a review requested by the Parents. (Ex. 25 at 362)
The CSE Subcommittee kept the Student in a general education first grade class with group once per week, group therapy three times per week, and a one-to-one teaching assistant for six hours per day in the classroom. (Ex. 25 at 357)
At the end of first grade, the CSE reconvened on June 16, 2011 to develop an IEP for the Student for the 2011 – 2012 school year when he would attend second grade. (Ex. 1 at 8) The building team wanted to place the Student in a 15:1 special education class, and explained to the Parents that the 15:1 class was in another elementary school building within the District. (Tr. 72,
953) When the Father did not agree to this placement, the CSE maintained the Student in general education and continued individual and group and group
The June 16, 2011 CSE discontinued the one-to-one teacher assistant, but it added a one-to-one aide. (Ex. 1 at 8)
The District conducted a multi-faceted re-evaluation of the Student during the spring of 2012. A District “ Evaluation” reports the Student’s scores on the Wechsler Intelligence Scale for Children – IV (WISC-IV) conducted on April 17, 2012:
Perceptual Reasoning Range
Verbal Comprehension Range
Processing Speed Range
Working Memory Range
Full Scale IQ Range
(Ex. 16 at 244; Ex. 1 at 35) Subtests revealed a pattern of strengths and weaknesses. The Student had average scores in all
Perceptual Reasoning subtests and Symbol Search, while his scores in Comprehension, Digit
Span, Letter-Number Sequencing, and Coding are all at least standard deviations the mean in the range. (Ex. 16 at 245) Although the Student had an average composite score on Perceptual Reasoning, his Processing Speed is in the average range, and his Working Memory and Verbal Comprehension scores are in the range. A later evaluation conducted by the states that the Student’s “cognitive abilities in the area of working memory and verbal comprehension as well as his speech/language profile likely indicate the root of his difficulty.” (Ex. C at 6) The Father realizes that the Student is a “very motor-skills-oriented child.” (Tr. 884-5)
During a March 13, 2012 “ Evaluation,” the Student sat with his head on the table, or stood leaning on his chair. He was “in constant motion,” and he needed reminders to sit down and attend to the stimuli presented in the assessment. (Ex. 21 at 267) The th Student was given the Clinical Evaluation of Language Fundamentals 4 edition (CELF-4), and his scores were all in the range, except Formulated Sentences and Word Classes -
Expressive, which were in the range, and Word Classes – Receptive, which was in the above average range. (Id.) The Student exhibited “significantly deficient skills with ” but he did make “slow progress” in therapy. (Ex. 21 at 270)
A District social worker conducted a “School Observation” of the Student on May 2, 2012.
(Ex. 22 at 273) She observed the Student during a fifteen-minute math lesson on multiplying by three. The Student sat toward the front of the classroom, but he began to look around the room and put his head down on his desk. His 1:1 aide gave him prompts. (Ex. 22 at 273) The teacher asked him to calculate what 6 times 2 equals and the Student responded “you have to equal it to
6.” (Id.) The teacher simplified the question for him. The class then completed a work sheet, but the Student only completed a third of it even with prompts from his one-to-one aide. (Id.)
A District “ Report” dated April 24, 2012 establishes that the Student can decode and encode words well, although his fluency is “choppy.” (Ex. 19 at 263) He experiences confusion about what he is reading, and he tends to give random “jumbled” answers about what he has read. (Ex. 19 at 263-4) He often responds with “I don’t know” or “I forgot.” (Id.)
On April 24, 2012, the District re-administered a Wechsler Individual Achievement Test III
(WIAT III) of academic levels, and compared the Student’s current scores with those he achieved on an earlier administration of the same instrument on November 23, 2010. (Ex. 17 at 251) This evaluation confirms the same pattern of strengths and weaknesses established by other assessments. His strengths include: Spelling, Problem Solving, Numerical Operations, Writing Samples, and Word Reading Accuracy. The Student displayed weaknesses in the deficient range in Listening Comprehension, Sentence Composition, Story Recall, and Receptive
Vocabulary. He scored in the range in Oral Expression, Reading Comprehension,
Picture Vocabulary, and Oral Comprehension. (Ex. 17) The Student displayed a similar pattern on subtests of the Woodcock-Johnson. (Ex. 17 at 252) Although the evaluator reported test scores, she did not provide a clear narrative analysis of these scores that could have been meaningful and useful for the parents. (Ex. 17 at 253 – 5)
The CSE reconvened on May 4, 2012 to review the new evaluations and to develop an IEP for the Student for the 2012 – 2013 school year. The May 4, 2012 IEP indicates that:
“CSE to reconvene in Nov. 2012 to review progress and discuss placement in special educational class. Building team recommends a higher level of special education service but parent is not in agreement with switching buildings. Parents was offered an opportunity to visit a special education class and refused.” (Ex. 1 at 20, Ex. H at 2)
Again, the CSE acquiesced to the Parents’ wishes despite a number of earlier discussions with the Parents explaining the Student’s need for a special education class at previous CSE meetings and other parent-teacher meetings. (Tr. 111, 114-5) The “How Disability Affects and Least Restrictive Environment Statement” was completed to indicate that the CSE placed the Student in the general education classroom with support. (Ex. A at 1) The May 4, 2012 IEP provided continuation of the general education classroom program with related services of individual and group therapy and group It provides a daily resource room and a one-to-one teaching assistant for six hours per day in the classroom. (Ex. 1 at 20, 29) There was no discussion of retaining the Student in second grade at the CSE meeting because retention is a building level decision rather than a CSE decision. (Tr. 396, 896)
A few weeks later at the very end of the school year, the Parents received a letter dated June 18, 2012 from the Assistant Superintendent for Curriculum and Instruction to notify them that the Student would repeat second grade. (Ex. M) It was a building level decision ultimately made by the Principal. (Tr. 115, 185, 257-8) The letter states:
“(The Student) has difficulty processing verbal and written directions, answering reading comprehension questions on both a literal and inferential level and organizing his writing.
(The Student) requires a great deal of individualized attention and he is unable to complete most academic tasks individually. Even with multiple reminders and 1:1 assistance (the Student) has difficulty completing everyday classroom routines.” (Ex. M)
The District expects students to be able to read independently to learn by the beginning of third grade, and the Student had not mastered that skill or the second grade curriculum. (Tr. 253, 257-
8) The Parents disagreed with retaining the Student, and they protested it. The Father believes that the Student had a “solid B average” in second grade. (Tr. 210) The District did retain the Student in second grade. (Tr. 875, 905-7) Then the District issued a corrected IEP that indicates that the Student would be in second grade during the 2012 – 2013 school year. (Ex. H at 3; Tr.
897)
The Student repeated second grade during the 2012 – 2013 school year. The Student went to school the first day of school believing that he would be in third grade, and then discovered that he was repeating second grade in the course of the day. (Tr. 1034) Even now, the Father does not believe that it would have been helpful to let the Student know in advance that he was repeating second grade. (Id.)
The Father devoted much of this impartial hearing to his disagreement with the Student’s retention in 2012 although he referred to it as “water under the bridge. He already did second grade over again.” (Ex. DD; Tr. 875, 902-8, 1052) The Father believes that the retention made the Student “lose a year of his life.” (Tr. 1115) But the Student “. . . adjusted after a week or two, and he went to school willingly, and he pretty much forgot about the fact that he was left back.”
(Tr. 875, 957) The Father wants to sue whoever is responsible for the decision to retain the Student in second grade. (Tr. 1016-8) He testified: “This is not only about moving my son. This is also about the District not following proper procedure, and that cost my son a year of his life.”
(Tr. 1065, 1067)
In the beginning of the 2012 – 2013 school year, the CSE reconvened on September 28, 2012 to address a clerical error on the May 4, 2012 IEP. (Tr. 424) The IEP was supposed to indicate two individual therapy sessions and two group therapy sessions, so the
CSE met to correct the IEP. (Tr. 426; Ex. 1 at 20 and 33)
During the 2012 – 2013 school year, the Student’s one-to-one teaching assistant was
Mrs. REDACTED who was with him from September 2012 through June 2013. (Tr. 436-7, 486-7,
490-2) She even worked with him in the resource room. (Tr. 450) There is a great deal of sample class work and class quizzes from the 2012 – 2013 school year in evidence in this impartial hearing. (Ex. 6, Ex X, Ex. Y, Ex. V, Ex AA, Ex. FF) The Student received a perfect score of 100%, or higher, on spelling tests. (Ex. V, Ex. X at 1, 3 - 11, 14 – 21, 24) The Student accurately completed math computation sheets. (Ex. X at 27-9; Ex. AA at 3-4) But he did not do as well on “ ( ). His test scores in ELA range from (Ex. V)
During the 2012 – 2013 school year, the Parents had additional meetings with District administrators, teachers, and service providers to discuss the Student’s progress and his difficulties. The Student’s therapist for three years met with the Father and several other staff members seven times over a period of years to review the Student’s progress in school. (Tr.
357-8, 455; Ex. 7-A) Each time, the staff explained the Student’s difficulties in school, and they suggested the 15:1 special education class for him. (Tr. 953, 999) The Father repeated that he would work with the Student at home, and that the Student gets 100% on his spelling tests. (Tr.
360) The Therapist explained to the Father that the Student can memorize and he already learned those spelling words the previous year. But the Student “had no knowledge of what those words meant, how to use them in a sentence, the meaning, the definition. He did not know what those words mean.” (Tr. 361) During the 2012 – 2013 school year, the Resource Room Teacher was the Student’s resource room teacher. (Tr. 445) The Resource Room Teacher discussed with the Father:
“. . . many times that the Student has good scores in spelling. He can rote-remember very well. However, he has an time comprehending in reading, he has an time in writing.” (Tr. 508)
She observed the Student working in a small group and in his general education class. She opined that the Student was more successful in a small group rather than in a large class where he struggles to keep pace with the class. (Tr. 449, 690) Even in the resource room, the Student would stare blankly at times and need directions repeated more than once. (Tr. 452) “If we were reading a book and I asked him a question, he would give me just words that didn’t pertain to the story . . . “ and he needed the teaching assistant to help him locate the information in the story.
(Tr. 452) He needed multi-step directions broken down, and he had difficulty following directions even then. (Tr. 453)
On November 30, 2012, the CSE reconvened at the Parents’ request. (Ex. 1 at 46)
Although the Student was making some progress and generally appeared more confident in his second year in second grade, the educational team at his school:
“. . . continued to share their concern about his current placement and feel he requires a more restrictive program. (The Father) advocated for him to remain in his current placement. The CSE recommended maintenance of his current program . . . and supports from a full time teacher assistant.” (Ex. 1 at 46; Tr. 115)
One week later, the District sent the Parents a blank “Consent Form for the Annual Evaluation” dated December 6, 2012. (Tr. 535-6) On December 10, 2012, the Student’s Mother checked boxes on the form granting consent for an annual CSE evaluation. (Ex. E; Ex. 11 at 219;
Ex. 16 at 239) She agreed to an “Educational Evaluation” described as an “assessment in basic academic subject areas (reading, mathematics, writing) to assess a student’s overall achievement and functional performance.” (Id.) She also agreed to a “Speech-Language Evaluation” that is described as an “assessment for the identification of articulation, language and communication disorders.” (Id.) The District conducted these two evaluations in early spring
2013.
On December 12, 2012, the Student was still “having with listening to a sentence and recalling 2 events from a sentence.” (Ex. 31 at 50-1) The Student worked on answering “wh” questions in therapy, and he responded with “ %” accuracy on January 10, 2013. (Ex. 31 at 68) On April 9, 2013, he was presented with five words and he had to name the category. He got a % on this task. (Ex. 31 at 97) On April 12, 2013, he listened to three details and then identified a picture with those three details. He got a % on his first time, and % the second time with prompting. (Ex. 31 at 98)
On April 22, 2013, his classroom teacher wrote that while the Student displays the ability to decode texts at a higher level, “his comprehension skills are still level. the Student benefits from frequent conversation about the text during reading However, it is still for the Student to accurately answer both literal and inferential comprehension questions. When asked to return to the text and locate information, the Student often When reading fictional stories, the Student has sequencing stories and identifying story elements, such s main ide, plot, and character identification. The Student demonstrates understanding “wh” questions. For example, when asked, ‘What kinds of activities did the rabbits do before they went to the circus:’ the Student responded with
“Snubby Nose shouted that he wanted to go to the circus.” (Ex. 7 at 137)
The Father believes that a Reading Practice TOPS report shows that the Student can read independently and answers questions about his reading. (Tr. 234, 259-60, 263; Ex. W) The
District’s position is that the books in the TOPS report are at a level still grade expectation, and the Student was repeating second grade. I find that reading the communications notebooks with the TOPS report together establishes that THE STUDENT did not read the four books in the TOPS report independently and correctly answer questions about them. For example, the Student only gave correct answers to five questions about “Life Cycles.” (Ex. W at 3) The January 24, 2013 TOPS report states that the Student read and answered five questions correctly about “The Snowy Day.” (Ex. W at 1) The Student had been working on answering questions about “The Snowy Day” in s therapy on January 23, 2013. The communication book entry that day states:
“A Snow Day story. Listen to story and recall events and details from story: beginning, middle, end. What will happen next? The Student had with this task.” (emphasis added) (Ex. 31 at 76)
The Student listened to the story, and then he was given three questions about the it. The second question asked for things that happened in the middle of the story, and the Student only responded with . (Ex. W at 77) I find that the Student did not read this book independently as a matter of fact. He listened to it. “The Snowy Day” is a book for three to eight year olds (Ex. CC at back cover)
A May 3, 2013 update that reported that the Student enjoys sessions, although he requires some prompting to stay on task and directions must be given to him one step at a time. (Ex. 15 at 238) He shuts down sometimes, but he was beginning to rely on group members for support. The sessions work on reading non-verbal cues and developing coping and social skills. (Id.)
The District conducted the “ Evaluation” by re-administering the 4 on March 12, 2013. This instrument involves a series of subtests that are combined to determine composite Core Language scores. (Tr. 386) The Student’s scores on the receptive language subtests substantially improved so that his composite Core Language score in
Receptive Language went from the percentile in 2012 to the percentile in 2013. (Ex. 14 at
231) But the Students scores on the expressive language subtests improve and some of them The Student scored the percentile on subtests in Formulated
Sentences and Word Classes Expressive, and his Expressive Vocabulary was on the percentile. (Id., Tr. 384-5) The Parents used a chart to assist their interpretation of these scores.
(Ex. Z; Tr. 387)
The District conducted the “Educational Evaluation” in March 2013. The Resource Room Teacher administered a WIAT-III and some subtests of the Woodcock Johnson Test of Achievement – Third Edition (WJ-III) that assess areas of the Student’s suspected disability. (Tr.
457) The Student exhibited the same pattern of strengths and weaknesses as seen in previous evaluations. On the WIAT-III, the Student’s strength was Alphabet Writing Fluency in the percentile, and he also did well in spelling and math computation. (Ex. 465) The Student’s weakness were evident in his score of the percentile in Listening Comprehension and the percentile in Oral Expression giving him an Oral Language Composite Score in the percentile.
(Ex. O at 9; Ex. 458-9)
“The Student was able to answer questions after listening to a recording with one and or two sentences. However, he was not able to respond correctly to records with three or more sentences.” (Ex. O at 11)
When corrected, the Student sometimes argued that he had given the correct answer. (Ex. O at
10) This “Educational Evaluation” also establishes that the Student still has difficulty with “wh”
questions:
“The Student often provided answers that were not relevant to the story he just read. He was unable to self-monitor his answers to determine if they made sense to the question that was asked. Informally, the Student has difficulty answering questions with, and differentiating ‘wh’ words (who, what where, when, etc.) Some of the Student’s responses included:
• In what type of land does the Baoba tree grow? Hollywood
• What does the story say makes the tree funny or unusual looking? In African land
• When does the tree get leaves? On trees
• What causes the Baobab tree to become hollow on the inside? Hollywood
• Richard wants to win the prize on Pet Day. What must happen for Rich to win?
Dog, cat, bird
• On Pet Day, Joe brought his three cats to school in a cage. What rule did Joe not follow? Leash” (Ex. 12 at 224; Tr. 461-5, 547)
Writing is another area of deficit for the Student with “structured assistance,” he can produce writing, but it is difficult for him. (Tr. 89) The Parents’ exhibit that reports the 2013
educational assessment includes a writing composition that is not included in the District’s document of the same testing. (Ex. O at 4, Ex. 12) The writing composition gives the following instruction: “Write about your favorite game. Include at least 3 reasons why you like it.” The
Student wrote:
“I like to go to my friend because I can play. I can play xbox and I can play out side.”
(Ex. O at 4)
Later, the Student refused to complete the writing assessment in the Learning Center evaluation so it could not be scored. (Ex. C at 2)
The March 2013 “Educational Evaluation” provides similar information to the “Classroom Teacher Report” completed by the Student’s general education teacher on April 22, 2013. (Ex. 7 at 137) She reported that the Student displays weaknesses with processing verbal directions, and oral expression, while math is an area of strength for him. (Ex. 7 at 138)
“Even with the 1:1 assistance of (the T.A.), the Student finds it very difficult to complete tasks independently. While he can sometimes start a task, he needs constant prompting to continue and finish the task. I do not believe this is an issue of the Student not trying or being unwilling to participate, but more of his difficulty with expressing and processing language.” (Id.)
The Parents did not agree with the March 2013 District “Educational Evaluation,” and they verbally requested an “independent educational evaluation” (IEE) at an informing conference outside of the CSE on April 10, 2013. (Tr. 215, 923) On April 22, 2013, the Father formally requested an IEE in an email addressed to Dr. Stephanie Allen, the former Coordinator of Student Services. (Ex. J at 2) On the same date about two hours later, the Father sent another email to Dr. Allen stating:
“I no longer want either of my sons in the special education program and this is my written notification to remove them forthwith.” (Ex. J at 7)
On April 24, 2013, Dr. Allen sent a formal letter to the Father noting that the Parents had made several conflicting requests so she requested clarification. (Ex. J at 8) On April 27, 2013, the Father sent a series of emails to Dr. Allen in response to her letter in which he repeated that he wanted the IEE, but he also wrote: “Ultimately, I want him removed from the program.” (Ex. J at 9, 10, 14) By the “program,” the Father meant the entire “the program of special education.” (Tr.
935) On May 9, 2013, Dr. Allen explained that she needed clarification because removing the Student from special education served as a revocation of consent. (Ex. J at 16) One day later on May 10, 2013, Dr. Allen sent the Father a copy of the District’s IEE policy and asked him to contact her with the name of the agency the Parents were using for the IEE. (Ex. J at 18; Tr. 941)
In this impartial hearing, the Father admitted that they did not understand that an IEE is a special education service so that his requests for an IEE and to remove the Student from special education were contradictory. (Tr. 1058-9) On May 16, 2013 at 11:15 am, the Father notified Dr.
Allen by email that the would conduct the IEE, but that wanted the District to contact them first. (Ex. J at 22) Four minutes later, Dr. Allen responded that she had already contacted to move forward with the IEE. The eventually conducted an IEE on June 18, 2013, and it issued a report on July 10, 2013. (Ex. C) The Parents accuse the District of deliberate delay in arranging the IEE. I find that there was no delay on the part of the District in arranging the IEE as a matter of fact. I find that the Father confused the matter by making contradictory requests that took a while to resolve.
The District has an IEE policy that was sent to the Father on May 10, 2013. (Ex. J at 18; Tr. 936) The Father requested the District’s list of qualified professionals in an email on May 15, 2013. (Ex. J at 19-20) The District caps its IEE payments at $ because that is what BOCES charges a school district to conduct a psychological evaluation. (Ex. 33 at 1) The Parents selected the Center, which charges $ to conduct an educational evaluation. The District paid $ of that total amount leaving the Parents to pay $ (Tr. 921-2)
At the end of the Student’s second year in second grade, the CSE reconvened on May 31, 2013 to develop an IEP for the 2013 – 2014 school year. The Therapist, his therapist, could not attend the May 31, 2013 CSE meeting, so REDACTED, another therapist in the school, attended the meeting. (Tr. 340) The Therapist provided an annual review document that the CSE considered at the meeting. (Ex. 230; Tr. 346-7) The Therapist reported that the Student exhibits significant language processing difficulties, including recalling information in a sequence, expressive language, and vocabulary. (Tr. 347-8)
These language delays negatively impact a student’s performance in other academic subjects because instruction is orally presented in all subjects and there are reading materials. (Tr. 433)
The May 31, 2013 CSE noted that the Student had made a substantial gain in receptive language, but that his expressive language was still . (Tr. 92) The Student’s instructional reading level was He began the 2012 – 2013 school year on an “E” instructional level in reading, while the expectation was a “J” instructional level so he was five reading levels behind other second graders. (Tr. 249) The Student made substantial progress in October and November to reach an instructional level of “H” while the expectation was a “K” level so he was closing the gap. But the rest of the school year, the Student’s instructional reading level plateaued so he ended the school year with an instructional reading level of “H” while the expectation was an instructional reading level of “M.” The Student ended the 2012 – 2013 school year with an instructional level levels grade expectation even though he was repeating second grade, was already familiar with the reading materials, and he had a one-to-one teaching assistant. (Ex.[4] at 89– 91; Tr. 95-7, 249-251)
The May 31, 2013 CSE considered the “ Evaluation,” the “Educational Evaluation,” and the Student’s “progress, given the array of services we gave him the year before, his progress was in the sense that he was either inconsistent or ” (Tr. 92,
99) In a general education class, children are “bombarded with oral language and directions” and the Student has “significant difficulty comprehending oral language. Even a sentence with details or a message that is read to the Student, and then you ask him a question, he cannot recall the information, the details or the message from even that one sentence.”” (Tr. 362) The Student has difficulty reading for information. (Ex. 523-4) Furthermore, a District general education third grade class can have up to twenty-eight children, and there were already concerns that the Student was becoming dependent on his one-to-one teaching assistant. (Tr. 100, 110)
The May 31, 2013 CSE developed an IEP for the Student for the 2013 – 2014 school year that provides placement in a 15:1 special education class with group and therapy two individual sessions per week and three group sessions per week.
(Ex. 1 at 60; Tr. 90, 376-7) The Parents did not agree to the placement in a self-contained special education class. The school Principal who attended this CSE meeting, literally “begged” the Father to permit the Student to attend the 15:1 class. (Tr. 261-2) “Revocation of consent and due process procedures were discussed” at the May 31, 2013 CSE meeting. (Ex. 1 at 60) The
“How Disability Affects and Least Restrictive Environment Statement” was completed to show that the CSE considered a more restrictive placement in a BOCES program, but found it overly
4 Placement in a BOCES mainstream facility would be in another school district, and therefore, more restrictive than the 15:1 class in the District. (Tr. 851, 921) But the Father admits that the school based team recommended a 15:1 class for the Student at every meeting in the past, and no one REDACTED. (Tr. 953, 999, 1000-1)
The students in the 15:1 class have learning disabilities, other health impairments, and speech impairments. (Tr. 756) The District’s 15:1 class looks like a general education classroom, except that it has fewer students. (Ex. 526-7) Although it is referred to as a 15:1 class, the District places a teaching assistant in each 15:1 class. (Tr. 711-2) The 15:1 class is for students in one grade rather than a mixed grade level class, and there is a 15:1 the class at the Proposed
Elementary School that is for third graders. (Tr. 707) The 15:1 class provides a “direct systematic approach to learning,” data collection, and follows the regular State curriculum at a slower pace.
(Ex. C; Tr. 477, 658, 710, 756)
Students in the 15:1 class have specials of art and music with a general education class, and they participate in State and district-wide assessments. They can also participate in extra-curricular activities at school. (Tr. 730, 708-9) The 15:1 class at Proposed Elementary School often mixes with a general education class, and some children are mainstreamed into the general education class for specific subjects. (Tr. 706-8) The Father misunderstood early testimony, and he believed that the 15:1 class mixes with an 8:1:1 class for cognitively impaired and autistic children instead of with a general education class. (Tr. 706, 745, 878-9, 886-7, 974-7)
The issued its independent report on July 10, 2013. (Ex. C) It reveals the same pattern of strengths and weaknesses as the District’s own evaluations. (Tr. 83-6) The “results from the current battery of assessments, as well as the Student’s past performance on similar standardized tests, indicated general average phonetic skills.” (Ex. C at 5) The IEE report identifies the Student’s strengths in phonetic skills, spelling, and math calculation. He was “tremendously successful completing single and double-digit addition and subtraction. He scored h in the percentile as compared to his grade level peers in the spring the school year.” He performed lower, in the percentile, on Concepts and Application that assesses measurement, money, and other skills. (Ex. C at 6)
• WIST: The Student displayed strengths on Word Identification and Spelling Test
(WIST) that assesses single word reading and spelling. He achieved grade level skills in Word Identification, but grade level in Spelling.
Combined, these scores gave him a Fundamental Literacy Ability Index of which is in the , at the grade level. (Ex. C at 3)
• GDRT-2: The Gray Diagnostic Reading Test – 2 (GDRT-2) measures isolated skill sets in letter-word recognition, vocabulary, and comprehension. (Ex. C at 3)
On the GDRT-2, the Student displayed grade level scores in all areas with strength in Meaningful Reading ( grade equivalent), but with a on Listening Vocabulary. The Student’s Listening Vocabulary standard score of gave him an age equivalent of a year old, and less than grade level equivalence. (Ex. C at 4)
• GORT-5: The GORT-5 is a “comprehensive reading evaluation” that reports all of the Student’s scores in the grade level, except Comprehension which is than grade level and in the percentile. (Ex. C at 3, 4) The Learning Center evaluation states that the Student’s Oral Reading Quotient is on the “ percentile ( ).”
found that the Student’s greatest area of weakness was comprehension:
“. . . reading comprehension would be an area of particular weakness for the Student. He had difficulty remembering the most basic details from the short passages from the beginning. He was getting increasingly frustrated and commended that he ‘couldn’t remember anything’ that he read.” (Ex. C at 6)
The Student was more successful on a test that permitted him to stop in short intervals and read or reread one sentence at a time. (Ex. C at 6)
5
The report recommended that the Student’s progress be paced according to his individual response to interventions. His instruction should be differentiated to give him multiple opportunities to learn in a way that meets his needs. (Ex. C. at 10) He should demonstrate mastery of all concepts before moving on to new material. also suggested that his school use an “80/20 rule for instruction,” so that 80% is review with 20% is
5 The CSE reconvened to consider the Learning Center Report in the course of this impartial hearing. There is no evidence of the outcome of that CSE meeting in his impartial hearing. (Tr. 1060) new material for him. (Ex. C at 7) A District general education third grade class does the opposite so that 80% of the class time is spend on new material while 20% of the class time is spent on review. (Tr. 100)
The Parents filed an undated New York State Education Department complaint that they also filed with the District as an impartial hearing complaint. (Ex. 24 at 281-3) It was received by the State Education Department on May 24, 2013. (Id.) The complaint makes four allegations:
1. In 2012, the District did not give prior notification that the Student would be retained in second grade;
2. The District failed to provide a timely IEE;
3. The District failed to provide prior written notice before discontinuing the Student’s 1:1 aide; and
4. The District failed to recommend a placement in the “least restrictive environment” (LRE)
The Parents describe the nature of the problem as placement, and the proposed resolution as leaving the Student in his current placement. The State Education Department responded that the State does not proceed with an investigation of allegations that are being addressed in an impartial hearing or its appeal. (Ex. 24 at 275) This impartial hearing commenced.
In his closing statement, the Father also asked this impartial hearing officer to discipline the Principal for retaining the Student in second grade in 2012. (Tr. 1116)
“H.O. : Thank you.
What is it that you want me to do about the retention more than a year ago? What do you want me to do now about that issue?
MR. [ ]: Now it's water under the bridge. He already did second grade over again. I want it on the record, because like I said, if I pursue a civil matter, it's on the record that he was retained in second grade. (Tr. 1052)
I find that the Principal acted within her authority to retain the Student in second grade as a matter of fact. Furthermore, this impartial hearing officer has no authority to address the discipline of a school principal or any other school district personnel.
CONCLUSIONS OF LAW
An impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a “free and appropriate public education” (FAPE)
20 U.S.C. § 1415(f)(3)(E)(i) A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" in an IEP. The IEP must be ‘reasonably calculated to provide meaningful benefit’ to the child.” Bd.
of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203, 102 S. Ct. 3034, 73 L.
Ed.2d 690 (1982); Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); D.N. v.
N.Y.C. Dep’t of Educ., 905 F. Supp. 2d 582, 584 (S.D.N.Y. 2012). The student's recommended program must also be provided in the “least restrictive environment” (LRE) 20 U.S.C. § 1412(a)(5)(A); 34 CFR Sections 300.114[(a)(2)(i) and 300.116(a)(2); 8 NYCRR 200.1(cc);
200.6(a)(1) The statute ensures an "appropriate" education, but "not one that provides everything that might be thought desirable by loving parents.” Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
INDEPENDENT EDUCATIONAL EVALUATION (IEE)
An “independent educational evaluation” (IEE) is a private parent-secured evaluation that serves as a second opinion for determining a student’s present levels of educational performance and individual needs. Federal law defines an IEE as "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. Section 300.503. The New York State Commissioner of Education regulations define an IEE as:
“Independent educational evaluation means an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.
Whenever an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation.”
New York Commissioner of Education, Section 200.1(z)
If parents disagree with a school district’s evaluation and request an IEE at public expense, the school district must agree to the IEE and pay for it unless the school district initiates an impartial hearing to defend its own evaluation without unreasonable delay. 34 C.F.R. Section 300.503 and 34 C.F.R. Section 300.507. In New York State:
(g) Independent educational evaluations. (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.
(i) If requested by the parent, the school district shall provide to parents, information about where an independent educational evaluation may be obtained, and the school district’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section.
(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.
(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.
(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation.
(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.
(v) If the school district files a due process complaint notice to request an impartial hearing and the final decision is that the school district’s evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has the right to an independent educational evaluation, but not at public expense.
(vi) If the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation:
(a) must be considered by the school district, if it meets the school district’s criteria, in any decisions made with respect to the provision of a free appropriate public education for the student; and
(b) may be presented by any as evidence at an impartial hearing for that student.
New York State Commissioner of Education regulation section 200.5(g)
In this case, the Father discussed an IEE at a building level conference on April 10, 2013.
He did not make an initial request for an IEE until April 22, 2013 when he put it in writing to the Dr.
The Parents allege that District employees deliberately delayed responding to the IEE request. I have already found that there was no delay on the part of the District in responding to the IEE request as a matter of fact. I found that the Father confused and delayed the matter by making contradictory requests that took a while to resolve.
The District provided the Parents with a list of three potential agencies to conduct the IEE.
However, the District maintains a policy that only fully funds IEE’s conducted by one agency:
BOCES. BOCES is a public agency that charges considerably less than the private agencies in the region. This means that the District’s financial cap on IEE’s eliminates all private evaluations.
This policy is contrary to law that permits parents to obtain an independent second opinion “at public expense.” Furthermore, although school districts may maintain a list of qualified professionals to conduct IEE’s, parents are not limited to it.
I find that the District’s policy to only fund what BOCES charges for an IEE is a violation of the IDEA.
PLACEMENT
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR Section 200.4[(d)(2)(i) and establishes annual goals related to those needs. 34 C.F.R.
§300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). The IEP must be "reasonably calculated to provide
'meaningful' benefit" to the child.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed.2d 690 (1982); Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); D.N. v. N.Y.C. Dep’t of Educ., 905 F. Supp. 2d 582, 584 (S.D.N.Y.
2012).
ALLEGED SUBSTANTIVE VIOLATIONS
The Parents claim that the recommended special education program is not substantively appropriate for the Student for the 2013 – 2014 school year because he does not need a special education class. (Tr. 1020) They allege that the Student gets good grades in his general education class. The Parents established, and the District readily admitted, that the Student receives excellent grades on spelling tests and that he can do math computation. These are his areas of strength. In other academic areas, there is ample evidence that the Student still struggles with the second grade curriculum even though he is familiar with it from the previous year and he has the support of a one-to-one teaching assistant. The Parents also rely on teacher comments on worksheets and classroom tests that have smiley faces and indicate “good job” or “great job” to mean that the Student was doing well academically in school. (Tr. 703) Those comments mean that the Student did a good job on work at his own level, and his teachers encouraged him with positive comments. They do not mean that the Student has mastered the curriculum.
The Father made vague suggestions that the District should have provided the Student with a resource room sooner. (Tr. 485, 885-6) In his closing statement, he alleged that:
“He wasn’t given the proper support, i.e. resource room reading instruction in kindergarten, first grade, or second grade and it was consistently neglected for three years.” (Tr. 1111)
The statute of limitations is two years, with some specific exceptions. Allegations that relate back to the Student’s kindergarten and first grade years are probably past the statute of limitations now. In addition, this allegation that the District did not provide an appropriate level of service in the past is not in the impartial hearing complaint:
“Subject matter of the impartial due process hearing. The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise.”
New York State Commissioner of Education Regulation Section 200.5(j)(ii)
For both these reasons, I not have authority to review this allegation. The Father also admitted that his allegation that the District retaliated against his family is also missing from his impartial hearing complaint. (Tr. 1045-9)
The Parents made an allegation that the Student’s one-to-one aide was discontinued and that he had no one-to-one support at some unspecified point in time. The Father made this inference because the Student was not completing all his class work. (Tr. 967-8, 973) The Parents did not specify when they suspected that the aide was terminated in their impartial hearing complaint or the handwritten amendment to the complaint. The CSE developed an IEP for the Student with a one-to-one aide on June 16, 2011 at the end of the Student’s first grade for second grade. The Student had a one-to-one aide during the 2011 – 2012 school year for his first year of second grade. For the Student’s second year in second grade, the CSE reconvened
6 on May 4, 2012. It terminated the one-to-one aide, but added a one-to-one teaching assistant. I find that the District did provide the Student with a one-to-one aide in the 2011 – 2012 school year and a one-to-one teacher assistant during the 2012 – 2013 school year as a matter of fact.
The Student had one-to-one support in school during those two school years. (Tr. 177) If the Student did not complete classwork, it may be that the classwork became too difficult for him even with one-to-one support, or that the Student was putting his head on his desk, or due to some other reason.
The Father confused the terms “aide” and “teacher assistant.” (Tr. 964, 1109) He believes that an aide is assigned to an individual student while a teaching assistant is assigned to an entire class regardless of what is written on the Student’s IEP. (Tr. 971) The New York State special education regulations, New York State Commissioner of Education Regulations Section
200.1(hh), define “supplementary school personnel” to mean a teacher aide or a teaching assistant as described in Section 80-5.6(a) through (d). The Commissioner of Education Regulations Section 80-5.[6] clearly distinguish the duties of a teacher aide from those of a teaching assistant.
“Teacher aide. A teacher aide is assigned to non-teaching duties, such as:
1. managing records, materials and equipment;
2. attending to the physical needs of children; and
3. supervising students and performing such other services as support teaching duties when such services are determined and supervised by teacher.
Teaching assistant: A teaching assistant is assigned to instructional duties such as:
1. working with individual pupils or groups of pupils on special instructional projects;
2. providing the teacher with information about pupils that will assist the teacher in the development of appropriate learning experiences;
3. assisting pupils in the use of available instructional resources, and assisting in the development of instructional materials;
4. utilizing their own special skills and abilities by assisting in instructional programs in such areas as: foreign languages, arts, crafts, music and similar subjects; and assisting in related instructional work as required.” (emphasis added) See also Appeal of Patricia M. Dell and Linda R. Tedesco, et al., from Action of the Board of Education of the South Huntington Union Free School District Relating to a Personnel Matter,
Decision No. 16,417 (September 26, 2012) During the 2011 – 2012 school year, the Student had a one-to-one aide to “redirect and prompt him during classroom instruction and to re-explain and simplify directions when needed.” (Ex. 1, IEP June 16, 2011 at 15) These are non-instructional functions. During 2012 – 2013 school year, the Student had a one-to-one teaching assistant who could provide direct instruction to him. (Ex. 1, IEP May 4, 2012 IEP at 29)
The Parents contested placement on the challenged May 31, 2013 IEP. They did not contest the appropriateness of the management needs or goals on it. “Special education” means “specially designed individualized or group instruction.” New York State Commissioner of Education Regulations Section 200.1(ww) A special education teacher specially designs instruction for each student, and addresses their IEP management needs and goals throughout the school day. TEACHER, who is a District teacher with dual certification and experience teaching both special education and general education, testified that the management needs on the Student’s May 31, 2013 IEP can be addressed in the District 15:1 class at the Proposed
Elementary School. (Ex. 1 at 67; Tr. 718-22) The IEP states that the Student’s management needs include “prompting to remain on task.” (Ex. 1 at 66) A special education teacher in a 15:1 class may use a “task chart,” picture cues, verbal reminders, or other prompts to address that need. (Tr. 718-20) The Student needs checks for understanding. (Ex. 1 at 67) In a 15:1 class, the teacher would have time to check the Student’s understanding by having him repeat back what she has said to him throughout the day. (Tr. 721-2)
TEACHER testified that the goals on the Student’s May 31, 2013 IEP can be addressed in a 15:1 class. A reading goal on the Student’s May 31, 2013 IEP is that the Student will read a passage, paraphrase it and orally state the main idea and answer three ‘who, what, where, when or why questions’ about the passage. (Ex. 1 at 67) A special education teacher might begin with a non-fiction passage at the Student’s reading level that has illustrations because it is more concrete than fiction. (Tr. 722-3) The special education teacher can individualize the Student’s writing instruction so that his IEP goal to write a paragraph with five sentences and organizing three sentences in a logical sequential order can start with a familiar topic of interest, like baseball.
The 15:1 teacher can begin by creating a paragraph with blanks for the student to fill in. (Ex. 1 at 68; Tr. 724) The Student’s math goal is to identify which operation to use and correctly solve word problems. (Ex. 1 at 68) This takes time. The general education math class “scripts” teachers so that they follow the curriculum using a set format in a certain time frame with a class of twenty-eight students. (Tr. 728-9) The Student’s math goal cannot be addressed in a fast-paced general education class. The Student’s goals are better addressed in a 15:1 special education class rather than a general education class. (Tr. 789, 758)
I find that the Student’s placement in a 15:1 special education class with related services is a substantively appropriate placement for the Student for the 2013 – 2014 school year.
ALLEGED PROCEDURAL VIOLATIONS
The Parents allege a number of procedural violations of the IDEA. Procedural violations do not always result in a finding that a child was deprived a FAPE. This principle is well established in statute, regulation, and case law. See 20 USC §1415(f)(3)(E); M.S. ex rel. S.S. v.
Board of Educ. of the City Sch. Dist. of the City of Yonkers, 33 IDELR 183 (2d Cir. 2000); Grim v.
Rhinebeck Central School District, 346 F.3d 377 (2d Cir. 2003); Evans v. Bd. Of Educ., 930 F.
Supp. 83, 93-4 (S.D.N.Y. 1996); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000),
Matrejek v. Brewster Central School District, 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007). Under the IDEA, a hearing officer may find that a child was denied a FAPE only if procedural flaws:
(i) impeded the child’s right to a FAPE;
(ii) significantly obstructed the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE; or
(iii) caused a deprivation of educational benefits.
20 U.S.C. § 1415(f)(3)(E)(ii); See M.M. ex rel. A.M. v. New York City Department of Education, 583 F. Supp. 2d 498, 505 (S.D.N.Y. 2008)
First, the Parents allege that the District did not provide prior written notice when the District retained the Student in second grade in June 2012. Again, the decision to retain a student is not a CSE special education decision, and therefore, it is not subject to the prior written notice requirements of the IDEA.
Second, the Parents allege that the District failed to provide prior written notice before terminating an individual aide for the Student. (Ex. G) The May 4, 2012 CSE terminated the one- to-one aide when it added a one-to-one teaching assistant. The District issued a prior written notice the same day. (Ex. 30 at 377-8) The CSE reconvened on September 28, 2012 to revise the IEP, and again the CSE provided the one-to-one teaching assistant for the Student. The
District issued a prior written notice dated September 28, 2012, and it states that the Student would receive a 1:1 teaching assistant. (Ex. 30 at 379-80) I find that the District did provide prior written notice when it terminated the Student’s one-to-one aide.
Third, the Parents believe that the District’s “Consent to Evaluate” form is insufficient because it does not include the name of each instrument the District plans to use with the student. (Ex. 10 at 219; Tr. 898-9) The Father wanted to prepare the Student to take the “Educational Evaluation.” (Tr. 901) If he had known the exact instruments the District would use in its educational evaluation, he “. . . would look up on the Internet, say, I could look up WIAT, see how exactly they were giving him the test, and I could prepare him for it.” (Tr. 1039) The Father prepares the Student for classroom tests with study guides and copies of the exact questions that he will be asked. The Father wanted to do the same thing for the “Educational Evaluation.” A District cannot commit in advance to every instrument it will use to assess all areas of a student’s suspect disability. Scores on one instrument may suggest the need for further assessment in one area that requires an additional instrument. The District cannot limit its evaluation to pre-determined instruments. Furthermore, the Father wants the District form to provide an option for parents to opt out of the evaluation and not have it impact the student’s education (Tr. 901) This is contrary to law. The New York State Commissioner of Education Regulations require that:
“If the parents of a student with a disability refuse to give consent for an initial evaluation or reevaluation . . . the school district may, but is not required to, continue to pursue those evaluations by using the due process procedures . . . . The school district does not violate its obligation to locate, identify, and evaluate a student in accordance with . . . if it declines to pursue the evaluation.” (emphasis added)
Commissioner of Education Regulation Section 200.5(b)(3)
So if parents do opt out of a reevaluation, a school district may bring the parents to a due process hearing or the school district may no longer be responsible to provide a “free and appropriate public education” (FAPE) to that child. This is not merely a District policy that the District can change at will. It is federal and state law. I find that the District’s Consent to Evaluate cites law correctly and that it is a legally appropriate form.
Finally, the Parents allege that because no individual aide and no reading teacher attended the February 11, 2011 CSE meeting and they did not sign the “IEP Access Log” on or after February 14, 2011, that the Student did not have a reading teacher. (Ex. B; Tr. 892-3)
There was a CSE Subcommittee meeting held on February 11, 2011. Following that meeting, the Student’s special education teacher signed the log as the reporting teacher, and his general education teacher also signed it. (Ex. B) The Student did not have a one-to-one aide during the 2010 – 2011 school year. Instead, he had a one-to-one teaching assistant, Ms.
who signed the IEP access log on April 11, 2011. (Id.) He received remedial reading instruction from REDACTED four times per week in a group of eight students. (Ex. 27 at 369) She was not a necessary member of the February 11, 2011 CSE, but she should have reviewed the IEP following the meeting. I cannot discern whether the February 11, 2011 CSE made any changes to the Student’s IEP goals or services because it is the first IEP in evidence in this impartial hearing. Failure to have the reading teacher review any possible revisions in the IEP is a procedural error that it did not impede the Student’s right to a FAPE, did not significantly obstruct the parents’ opportunity to participate in the decision-making process, and did not cause a deprivation of educational benefits. I find that this procedural violation does not rise to the level of a denial of a “free and appropriate public education” (FAPE), and it may be beyond the two-year statute of limitations.
I find that the procedural violations of the IDEA alleged by the Parents are unfounded, except for the failure of the Student’s reading teacher to sign the “IEP Access Log” in the spring of 2011. That procedural violation does not give rise to a denial of a FAPE.
“LEAST RESTRICTIVE ENVIRONMENT” (LRE)
School districts must educate children with disabilities in the “least restrictive environment,” (LRE) meaning that school districts should, to the maximum extent appropriate, educate children with disabilities with their typically developing peers.
Least restrictive environment
In general
To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. Section 1412(a)(5)(A)
The determination that a placement is the LRE is made on an individual case-by-case basis. The placement of an individual student in the LRE shall:
(1) provide the special education needed by the student;
(2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and
(3) be as close as possible to the student's home.
New York State Commissioner of Education Regulations Sections 200.1(cc) and
200.4(d)(4)(ii)(b); See also 34 C.F.R. §300.116.
See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); E.G. v. City
Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009), and P. v. Newington Bd.
of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008)
The Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE. The first determination is whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, then whether the school is mainstreaming the student to the maximum extent appropriate. Newington, 546 F.3d at 119-20.
A determination regarding the first prong is whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services, is made by considering a non-exhaustive list of factors, including, but not limited to:
"(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom;
(2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and
(3) the possible negative effects of the inclusion of the child on the education of the other students in the class.” Newington, 546 F.3d at 120
Applying the Newington test to this case, the District increased THE STUDENT’s special education services in the general education environment over a period of years. By the 2012 – 2013 school year, the District had increased his services to include a full-time one-to-one teaching assistant, therapy five times per week, group once a week, and a daily resource room. The Student left his class eleven times per week for related services.
“In lieu of our first recommendation, which was the 15:1. Then knowing (the Father), in that discussion, did not agree to it, we tried to think about what supports could address his needs academically and behaviorally. He needed more than the prompting and redirection and refocusing. We increased his services and we added the TA.” (p. 256-7)
On the first Newington factor, I find that the District made reasonable efforts to accommodate the Student in the regular classroom.
On the second Newington factor, which is a comparison of the benefits of each placement, the 15:1 special education class offers the Student a number of benefits that are not available in the general education class with a period of special education in the resource room.
First, the 15:1 class has a full-time special education teacher rather than a full-time general education teacher with a special education teacher in the resource room one period per day. The
District’s 15:1 class has a teaching assistant who is supervised by the special education teacher rather than a one-to-one teaching assistant for the Student who supports general education instruction. Second, the small class size and smaller teacher-student ratio mean that the Student’s progress can be closely monitored and paced according to his individual responses as recommended by the report. (Ex. C at 7) This cannot be done on a consistent basis in a large general education class even with a one-to-one teaching assistant. Third, the 15:1 special education class follows the general education curriculum but it is presented at a slower pace. This pace permits instruction to be presented to the Student with 80% review and
20% new material as recommended by the report. (Ex. C at 7) A general education class reverses those ratios, and the Student cannot keep up with the class. Lastly, the 15:1 class permits his teacher to work on the Student’s comprehension using “stop and jot,” question-answer-response, and other techniques throughout the day as recommended by the report. (Ex. C at 10). These benefits are not available in a faster paced large general education class that has one teacher with as many as twenty-eight students, even with a one-to-one teaching assistant assigned to the Student.
On the second Newington factor, I find that although there may be some social benefits to having the Student remain in the general education class, the educational benefits available to the Student in the 15:1 special education class far outweigh any social benefit he might derive in the general education class. On the third Newington factor, here are no negative effects of the Student’s inclusion on the education of the other students in the general education class.
The Newington analysis of LRE permits consideration of other factors. Another factor in this case is that there is ample evidence that the Student experiences frustration and struggles in the general education environment. (Tr. 415, 520-2; Ex. 22 at 273, Ex. 21 at 267) The Principal described teacher reports that the Student will:
“. . . shut down. He will put his dead on the table, he will be said, he will complain, he will try to avoid or escape tasks, but teachers never really felt it was defiance so much as it was just being totally overwhelmed or frustrated. . . ” (Tr. 81-2)
She believes that the Student needs a 15:1 special education class because he was making progress and he was:
“. . . exhibiting a great deal of distress to the point of being very upset in school, his motivation flagging, and (the Father’s) insistence that he could get him ready for third grade.” (Tr. 261)
“We didn’t share (the Father’s) view that it was base on effort, that we had to push him harder. We felt that he was giving his best effort in every sense of the word . . . and he could say, “I don’t know this. I don’t know how to do this. I never heard of this. I don’t know what you mean,” but that wasn’t his malingering it was him truly voicing he didn’t know what we wanted him to do.” (Tr. 101-2)
There are days when the Student struggles in therapy:
“The Student had a rough session today. He was very sad and reluctant to answer questions. He needed an amount of coaxing to complete assignment.” (Ex. 31 at 55)
THERAPIST, his therapist, also finds that the Student becomes very frustrated.
(Tr. 414-6) The Student has appeared “dazed” through much of a lesson. (Ex. 5 at 100)
The Student became so frustrated on the second day of testing at the that he did not complete the full evaluation.
“During the second session, the Student reached a frustration point that he found it very difficult to come back from. He again was verbal and shared that he was feeling stressed by the difficulty of the task, in particular reading, fluency, and comprehension. . . . Even with the redirection the Student was having a hard time getting restarted. He became increasingly sadder and although it was likely, that the Student was manipulating the situation a bit, his father was called to calm him some more . . . “ (Ex. C at 2; Tr. 83)
The Student refused to participate in the writing portion of the evaluation and gave “questionable” effort on the math assessment. (Ex. C at 2) The Student’s frustration has been consistent since kindergarten. (Tr. 83) On the first prong of the Newington test, I find that the District was clearly justified in removing the Student from the general education classroom and placing him in a 15:1 special class,
On the second prong of the Newington test, the question is whether the District has included the Student in school programs with nondisabled students to the maximum extent appropriate. The 15:1 class offers numerous opportunities to be with non-disabled peers during the school day. The 15:1 class has specials and lunch with a general education class, and it mixes with a general education class for some activities. Children in the 15:1 special education class participate in regular extra-curricular activities. Some students in the 15:1 class are regularly mainstreamed into general education classes.
I find that the District has included the Student in school programs with nondisabled peers to the maximum extent appropriate. I find that the 15:1 special education class provides the Student with the special education he needs and educates him with other students who do not have disabilities to the maximum extent appropriate.
For all of these reasons, I find that the appropriate special education program for the Student is a 15:1 special education class with related services of therapy and group for the 2013 – 2014 school year, and it is the “least restrictive environment” for him.
SCHOOL LOCATION
The Second Circuit Court of Appeals established that "'educational placement” in an IEP refers to the general educational program rather than the “bricks and mortar” of a specific school.
T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009), cert. denied, 130 S. Ct.
3277 (2010) The assignment to a particular school is an administrative decision provided it is made in conformance with the CSE's educational placement recommendation. Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch.79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980). The United States Department of Education Office of Special Education Programs (OSEP) also established that the assignment to a particular school is an administrative decision provided it is made in conformance with the CSE's educational placement recommendation. Letter to Veazey, OSEP, 2001; Application of a Child with a Disability, Appeal No. 07-049 A school district “. . . may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP." R.E. v. N.Y.C.
Dep’t of Educ., 694 F.3d 167, 191-2 (2d Cir. 2012), cert denied, – U.S. –, 2013 WL 1418840
(June 10, 2013)
In this case, the Parents want the Student to attend elementary school with his older brother at Current Elementary School. This is a major issue for the Student’s family. I note that in one more year, the older brother will probably begin middle school while the Student will still be in elementary school so that they will be apart in another year anyway. I find that the parental concern that the Student attend the same elementary school as his older brother does not outweigh the Student’s clear need for a 15:1 special education class, and that class is in another elementary school within the District.
The Parents claimed that the proposed 15:1 class is in a District elementary school farther from the family home than his current elementary school. The Parents’ own evidence establishes that the Current Elementary School, the Student’s current school, is .7 miles and a three minute drive from the family home, while Proposed Elementary School, the proposed location, is 2.1 miles and a six minute drive from the family home. (Ex. BB) Either way, the Student takes a school bus to school. (Tr. 1042) Furthermore, Current Elementary School and Proposed Elementary are in the same District “feeder pattern” so that students from both these elementary schools go to the same middle school and the same high school. (Tr. 75-6)
Location “as close as possible to the student’s home” is just one factor in determining the LRE for a particular student. In this case, the distance to the Proposed Elementary School is less than an extra mile and a half and an additional three-minute drive than the Student’s current school. The difference is minor. The argument that the proposed location is father from home than the current location does not outweigh the Student’s need for a 15:1 special education class.
I find that the Proposed Elementary School 15:1 is the appropriate class for the Student and it is as close to the student’s home as possible.
The Father made repeated threats to remove the Student from the special education program, and it appears that he has already done so for his older son. The New York State Commissioner of Education regulations permit such parental revocation of consent and relieve the District of its obligation to provide the child with a “free appropriate public education”:
“If, at any time subsequent to the initial provision of special education programs and services, the parent of a student revokes consent in writing for the continued provision of special education programs and services, the school district;
(i) shall not continue to provide any special education programs and services to the student, but must provide prior written notice in accordance with subdivision (a) of this section before ceasing the provision of special education programs and services; (ii) shall not use the due process procedures described in subdivisions (h) through (k) of this section to obtain agreement or a ruling that the services may be provided to the student; (iii) shall not be considered to be in violation of the requirement to make available a free appropriate public education to the student because of the failure to provide the student with further special education programs and services; (iv) is not required to convene a meeting of the committee on special education or develop an IEP for the student for further provision of special education programs and services; and
(v) is not required to amend the student’s education records to remove any references to the student’s receipt of special education programs and services because of the revocation of consent.”
New York Commissioner of Education regulation Section 200.5(b)(5)
Although it is the Parents’ right to discontinue special education for the Student, that would leave him without any support or services in a general education class in whichever elementary school District policy dictates. The Student struggles in a general education class even with intensive support and services. Discontinuing his special education would be cruel and it would be a disaster for the Student. It is my hope that the Parents will continue the Student in special education and let him attend the 15:1 class at the Proposed Elementary School with his family’s support.
ORDER
I order the District to reimburse the Parents $ . to fully fund the IEE.
I order the District to implement the May 31, 2013 IEP and place THE STUDENT in the proposed 15:1 special education class with related services at the Proposed Elementary School.
Dated: August 30, 2013
_________________________________
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the school district has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 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-day or 35-day period.” (8 NYCRR 279.2[b]) Failure to file the notice of intention to see review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
WITNESSES
DISTRICT
XXXXXX, “PRINCIPAL” of the Current Elementary School
XXXXXX, “ THERAPIST,” therapist at the Current Elementary School
XXXXXX, “RESOURCE ROOM TEACHER,” resource room teacher at the Current Elementary
School
XXXXXX, District school nurse (via speaker phone)
XXXXXX, “TEACHER”, teacher at the Proposed Elementary School
XXXXXX, District teacher in a third elementary school
PARENTS
The Father
EVIDENCE
DISTRICT EXHIBITS
1 Answer to Complaint with exhibits and IEP documents
• IEP dated 6/16/11 (p. 8-18)
• IEP dated 5/4/12 (p. 20 -31)
• IEP dated 9/28/12 (p. 33-44)
• IEP dated 11/30/12 (p. 46-59)
• IEP dated 5/31/13 (p. 60-71)
2 Key, goal tracker, and progress report for 2012-2013, and a Grade 2 report card (14 pages)
3 Teacher correspondence to the Father, dated March 2013 and April 2013 (2 pages)
4 Instructional text level (4 pages)
5 Class notes (pages 92-118)
6 Lesson/Class work April 2013 – May 2013 (pages 119-136)
7 Classroom teacher report, dated April 22, 2013 (pages 137-145)
7-A Parent Log (pages 146-151)
7-B Goal Document (pages 152-160)
8 REMOVED – not legible – full notebooks were admitted as documents 31 and 32 instead
9 Progress report from 2012-2013 (6 pages)
10 CSE report with partial Educational Evaluation (6 pages)
11 Consent form for an annual evaluation, dated December 10, 2012, and a notice of the CSE meeting (2 pages)
12 Educational evaluation, dated April 1, 2013 (7 pages)
13 Consent forms (2 pages)
14 Annual Review report, dated 4/1/2013 (6 pages, 230-233, 236-7) and Classroom Teacher Report dated April 22, 2013 (2 pages, 234-5)
15 Progress and recommendations, dated 5/3/2013 (1 page)
16 Consent form for an annual evaluation, dated December 10, 2012 and services report (pages 239-250)
17 Educational evaluation, dated 4/27/2012 (6 pages)
18 Classroom teacher reports, dated 4/23/2012 (6 pages, 2 copies of a 3 page report)
19 Remedial services report, dated April 24, 2012 (2 pages)
20 Physician's report dated February 2, 2012 (2 pages)
21 re-evaluation, dated March to April 2012 (5 pages)
22 notes and recommendation, dated 4/26/2012 (2 pages)
23 Consent form for re-evaluation, dated April 20, 2011 (1 page)
24 Multiple correspondences between the District and the parents (pages 275-286
24-A Correspondence between the parent and the school district (pages 287-355)
25 2010 to 2011 IEP, dated February 11, 2011 (9 pages)
26 Kindergarten summer reading program (1 page)
27 Remedial math report and reading CSE, dated December 10, 2010 (3 pages)
28 Teacher report, dated 4/12/2010 (2 pages)
29 Functional behavior assessment and behavior intervention plan (5 pages)
30 Prior written notice of proposed continuation for special education (8 pages)
31 notebook (106 pages)
32 notebook covering February 26, 2013 through March 1, 2013, (5 pages)
33 Eastern Suffolk BOCES Educational Services Division, Types of Evaluation/Service, undated, (2 pages)
34 Document entitled "Cumulative Health Record H-45" and School Hearing Screening
Guidelines, (34 pages)
PARENT'S EXHIBITS
A Least Restrictive Environment statement, dated 5/4/12 and 5/31/13, (2 pages)
B IEP Sign-In sheet, dated February 14, 2011, (1 page)
C Educational evaluation report, dated 7/10/13, (10 pages)
D NOT ADMITTED (Tr. 50-1, 63)
E Consent for an evaluation, dated 12/6/2012 (1 page)
F Letter from District, dated April 29, 2013 (1 page)
G Letter to counsel for the District, undated, about a revision in the Complaint (1 page)
H Student Summary pages from four IEP’s, multiple dates, (4 pages) I teacher notes (2 pages)
I-2 Handwritten note that IEP’s will be admitted (1 page)
J E-mails, (23 pages)
K Notification of testing, dated March 12 (1 page)
L Letter to the parents scheduling a meeting (1 page)
M Placement letter to the parents, dated June 18, 2012 (1 page)
N Notes on alleged IEE delay (2 pages)
O Test results on a Woodcock Johnson and a WIAT III (10 pages)
P Progress goals, dated 6/19/13 (2 pages)
Q NOT ADMITTED (Tr. 46-7, 63)
R NOT ADMITTED (Tr. 59, 63)
S Social Services complaint (4 pages)
T E-mails about a file review (2 pages)
U State complaint file June 5, 2013, (3 pages)
V The Student's grades second time he was in second grade (3 pages)
W TOPS report, dated January 24, 2013 (4 pages)
X Grades and tests for the second time in second grade (29 pages)
Y Sample class work, (25 pages)
Z IEE interpretation page explaining the scores, (1 page)
AA Series of tests (8 pages)
BB Maps and directions (8 pages)
CC "The Snowy Day" book Ezra Jack Keats, book
DD Parent’s Position Statement (1 page)
EE Excerpt of Renaissance Learning “A Parent’s Guide to AR Bookfinder” (2 pages)
FF ELA worksheets, undated, (3 pages)
GG Print out of Daily News article dated August 7, 2013 (8 pages)
HH CPS records (3 pages)
II Document entitled "Connections Child Protective Record Summary" (1 page) JJ CPS records (17 pages)
KK Position statement and chronology (1 page)
Footnotes
[1] Apparently the parties reached a verbal resolution on this issue in a resolution session, but it was not finalized in writing. Later in a pre-hearing conference call, the Father asked me to enforce it. (Tr. 439, 1108)
[2] The parties may agree to amend a clerical error on an IEP without another CSE meeting. See New York State Commissioner of Education Section 200.4(g)(1) (Tr. 426)
[3] This “Education Evaluation” is reported in several documents. The WIAT-III scores are reported at Ex. 10 at 215, Ex. 12 at 221, and Ex. O at 9. The WJ-III scores are reported at Ex. 12 at 222, Ex. O at 1, and they are not reported in Ex. 10. The testing was done in March 2013 although (the evaluator) signed the report on April 1, 2013.
[4] restrictive to place the Student in a BOCES program. (Ex. A at 2; Tr. 914) The May 31, 2013 IEP is the challenged IEP in this impartial hearing. The Father insisted on having REDACTED reports in evidence at this impartial hearing. REDACTED. The Father alleged that the District REDACTED to “keep (him) in line” and retaliate.
[6] A 1:1 teaching assistant is a higher level of special education service than a 1:1 aide as established in New York State Commissioner of Education Regulations Sections 80-5.6(a) through (d).