NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 22, 2012
January 7, 2013
January 9, 2013
Actual Record Close Date: January 9, 2013
Hearing Officer: Daniel M. Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012
Advocate — Student
Department of Education Representation — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2013
Advocate — Student
CSE Representative — DOE
School Psychologist (Via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2013
Advocate — Student
Parents
CSE Representative — DOE
INTRODUCTION
On September 10, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article89 of the Education Law of the State of New York.
Appended to the record are lists of persons in attendance and the documents received in evidence.
I note that the speaker in the transcript at page 192, line 6 is misidentified as Ms. , when it was in fact Mr .
I also not that at some points parties entered the room looking for parties present at the hearing. They were dispatched as quickly as possible so as to not affect the transcript. At one point a party entering the room was noted as “Man”, though this was not actually part of the substance of the hearing. (T 216 & 223)
On October 22, 2012, parties made a joint motion to extend the compliance date in order to obtain student evaluations. Compliance date was extended from November 20, 2012 through December 20, 2012. (T 17)
Parent made an additional motion to extend the compliance date on November 27, 2012, due to availability of witnesses. Request was granted and compliance date was extended through January 22, 2013.
BACKGROUND
This matter was instituted by the impartial hearing request dated September 5, 2012 alleging that the Department of Education (DOE) failed to provide a Free and Appropriate Public Education (FAPE), for the student, on procedural as well as substantive grounds. (Ex A)
Student is presently a female, attending a 12 month, general education class program, at ). (Ex A-2)
Hearing conducted October 22. 2012 was held to establish pendency services for the student, and to address parent request for . (Ex A-3)
On O ct ob er 2 2, 20 1 2, a pendency hearing was conducted . Order on Pendency was issued on 10/23/2012 ordering student pendency to include:
(a) 25 Weekly Hours of Special Education Itinerant Teacher (SEIT) services,
(b) 3 thirty minute sessions per week of therapy;
(c) 2 thirty minute session per week of therapy. (Ex I)
Order also directed the DOE to issue Assessment Authorizations to allow parent to obtain psycho-educational and neuropsychological evaluations. (Ex I)
At hearing of January 7, 2013, DOE provided copies of the Assessment Authorizations issued to comply with the Order of October 23, 2012. Each authorization was dated November 2, 2012, but did not contain the apartment number for the parent’s address. Parent representative did not believe the authorizations had been received by the parent, and therefore, the assessment had not been completed. (T 31)
PARENT POSITION
Parent maintains that the IEP and resulting placement are inappropriate. (T 4748, Ex A)
Parent, through her advocate, seeks an order for services to continue through the 2012-2013 school year, including: 25 Weekly Hours of Special Education Itinerant Teacher (SEIT) services, 3 thirty minute sessions per week of therapy; and 2 thirty minute session per week of . (Ex A)
Parent also seeks two individual 30 minute sessions per week of physical therapy. This session was not included in the IEP of August 10. 2011, which was utilized to set pendency services for the student, as the last agreed upon IEP. (Ex A-1, B-18) Parent advocate puts forth that the DOE did not take appropriate steps to evaluate the student and conduct a proper IEP meeting. Proper materials were not available at the IEP meeting and if additional materials were required, DOE could have conducted appropriate assessment of the student. (T 38)
Information at the IEP meeting was not current, a social history update, and student observation were conducted the day of the IEP meeting and parent did not have access to those reports at the IEP meeting. (T 39-41)
It is unclear whether or not parent rights were discussed or provided to the parent and there is no parent declination letter indicating the parent did not want a parent member present at the meeting. (T 40)
IEP created at the meeting is insufficient to provide a FAPE for the student. (T 43-44)
Parent responded to the FNR by letter dated 05/01/2012, rejecting the placement and raising her concerns with the recommendations, to which no response was received. (T 45-46, Ex C)
Parent advocate, in closing, reiterated what is sought by parent:
“…we're asking that the Hearing Officer find that SEIT services continue pending the student undergoing evaluation, pending the CSE being able to have an IEP meeting that is legally constituted and developing an IEP for the student that has reasonably been calculated to help her to progress and learn in the least restrictive environment with the necessary supports and services that she requires.” (T 220)
PARENT WITNESS
( ), student’s mother testified.
first realized issues in her at about , whereupon were implemented. (T 166167)
Under early intervention the student received 25 hours of ABA SEIT services, three thirty minute speech sessions and two thirty minute sessions. (T 167)
In the student’s previous placement she was in a class receiving 25 hours of SEIT services. Student progressed. (T 168)
Parent participated in the arch 2012 IEP meeting. (T 168)
At the time of the meeting the student had been in her placement for about a month. (T 169)
Parent received notice of the meeting a day or two prior to the meeting. (T 169)
Parent reports she met the at the school who asked her if he could observe her daughter. She agree and he left to conduct the observation. Then the social worker came to conduct the social history update. The meeting progressed thereafter. (T 169-170)
Parent does not recall receiving a booklet of her rights. (T 170)
Parent did not receive a report of the observation and was not shown any goals. (T 172)
( ) attended the meeting as the student’s SEIT teacher who had been working with the student a short time. (T 172)
( ) attended the meeting as the SEIT supervisor. (T 173)
DOE did not offer to have a parent member at the meeting and does not recall any explanation of the role off a parent member. did not explain the role of a parent member. (T 173)
does not understand the function of a parent member at an IEP meeting. (T 174)
disagreed with the recommendation of five hours weekly of SETSS services for her daughter. Disagreement was based upon the change from a class to a lass with students, and the reduction in SEIT hours. (T 174)
When voiced her disagreement the DOE response was; “They just said this is what she is getting.” (T 175)
The SEIT provider and SEIT supervisor both disagreed with the DOE recommendation. (T 174-175)
Regarding the reduction in SEIT to SETSS hours the DOE offered the explanation that children mature over time. (T 175)
There was some discussion of related services, though no attempt was made to reach the related service providers. (T 175-176)
was not given a medical form regarding her daughter. (T 176)
reports that a was conducted about two years ago and that she would have cooperated with any request to conduct another evaluation. (T 176)
states that she felt the team had a good grasp of her daughter’s needs, however, they would not consider the additional hours of SETSS services. (T 177)
was advised at the meeting, by the DOE representative, to see a neurologist for her daughter. followed up with her pediatrician. (T 178)
reports that she was advised of the placement in the middle of the IEP meeting. (T 178)
contacted and was advised that the upcoming class had 25 students. did not agree with placing her child in such a large class. (T 179)
identified her letter May 1, 2012 which raised concerns regarding the proposed placement. DOE has not responded to said letter. (T 179-181, Ex C)
reports her daughter was diagnosed with at about the . (T 181)
Student has been a general education class for the 2012-2013 school year, with a total of 17 or 18 female students. (T 183)
views a class of 25 students as too large for her student and as a big difference form 17 or 18 students, insofar as time the teacher could spend working on behaviors of all the students. (T 185-186)
does feel her daughter can progress in the current placement with the current level of support. (T 213)
has never seen a general education public school classroom. (T 189)
decided in May or June of 2012 to place her child in the school. (T 200)
did not know if her daughter needed . recalls was discussed at the meeting and recommended due to the reduction in SETSS, “…as a pacifier kind of thing.” (T 203)
described her daughter’s development:
“There are times that she is okay socially that she can--she is okay. She can socialize with her friends, and there are times that she and what to do with doesn't know how to .” (T 204)
does not feel her daughter could make educational gains without the SETSS support sought herein. (T 204)
described her understanding of the SEIT services her daughter currently receives via various providers:
“She basically supervises my daughter. When she has she'll take her outside of the classroom before it and she might do some exercises with her out her classroom, run downstairs with her, run back upstairs with her. If in the classroom with the teachers teaching, she'll intervene. She'll help her along socially. She - - recess time, during play time, free play, center time. She'll--I don't know what the word is-- if she needs to.” (T 205-206)
Sometimes the providers work with the student outside of the classroom. (T 208)
was not aware of the amount of service that was direct or indirect for her daughter. (T 209-210)
testified that at the time of the March 27, 2012 IEP meeting her daughter could count to about 20. (T 214)
DEPARTMENT OF EDUCATION POSITION
DOE seeks dismissal of parent’s due process complaint ( ), and intends to show the IEP in question, created March 27, 2012, was able to provide a free and appropriate education for the student. (T 32, Ex 1)
DOE posits that proper parties attended the IEP meeting of March 27, 2012, parent did not object to the lack of a parent member, a Final Notice of Recommendation (FNR) was sent to the parent recommending , student’s school provided some documents for the IEP meeting, parent was not clear on where the student would attend for the 2012-2013 school year, and the offered placement was able to provide a FAPE. (T 33-35) Offered placement included special education teacher support services (SETSS), and ( ), therapy ( ), and . (T 35) The DOE offered IEP recommended:
5 periods weekly of SETSS services, for a period, as a direct group service in a SETSS classroom;
3 thirty minute sessions per week of therapy;
2 thirty minute session per week of therapy, and 1 thirty minute session individual and one thirty minute session group of counseling. (Ex 1-7, 8). Prent rejected the school sight unseen, affecting parent equities. (T 35)
DEPARTMENT OF EDUCATION WITNESS RONALD STEWART
) reviewed his education and professional qualifications, and testified as an employee of the DOE, and a school psychologist, and an attendee of the March 27, 2012, IEP meeting for the student. (T 62-63, Ex 1-14)
Regarding the IEP meeting testified that he requested updated reports and evaluations for the student prior to the meeting. was provided with a report, and report and a SEIT (special education itinerant teacher) report. (T 68-69)
Meeting took place at the student school of attendance at the time of the meeting, the . (T 67-68)
SEIT report was ten months old, an updated report was requested, and to his knowledge not received. (T 69)
conducted the classroom observation the morning of the IEP meeting. (T 71)
Information regarding the observation was provided to the parent at the IEP meeting. “Well I basically indicated that I sat in and I was able to observe her interactions with the teachers, the other children, and so on and basically what I saw and I also spoke to her teachers briefly and indicated some of their remarks.” (T 73)
states that the parent signed a waiver of her right to a parent member. (T 76)
states that the team tried to ascertain where the parent would place the student for the 2012-2013 school year. (T 76-77)
continued that the team had been recommending PS 99 at the time of the meeting, March 27, 2012. (T 78-79)
Team recommended special education teacher support services (SETSS) and related services of speech, . (T 80)
describes SETSS as; “…a pullout program, where there's group service. There's no more than eight students in a group and the SETSS teacher meets individually with the students -- with the small group.” (T 80-81)
stated that the team felt the recommended program met the educational needs of the student and that the student could gain educational benefit from the program. (T 84)
clarified whom he considered the team who agreed with the recommendation. Parent; “gave us no indication that she agreed or disagreed at the time.” (T 86)
“…SEIT teacher felt she needed the extra support of SETSS. She didn't feel that a special classroom was necessarily the best environment, but she had recommended more
SETSS than we were offering.” (T 86)
addressed the reduction in SETSS services; “Well that was based upon the fact that integration into a general education classroom would help her and be the most helpful to her as long as she continued to have some SETSS services. It's a weaning off of the excessive SETSS.” (T 92)
At the time of the meeting believed the student was receiving 23 hours of direct SETSS services and 2 hours of indirect SETSS services weekly. (T 93)
recommendations were based upon provider reports. (T 93-94)
was asked about the recommended services: “…where did they get the idea to put those services in place from?” (T 94)
responded; “Well in interviewing the teachers and watching the child and her interactions and looking at past documents, I was able to ascertain that…(the student)…is a very shy and withdrawn child. And I wanted to give her , individual counseling, to give her that support she needs in transitioning to a new school and I wanted to add the group counseling, so that we could work on her integration and social skills a little bit.” (T 94-95)
The student observation was the first time had met the student. (T 100)
was not aware of when the parent was notified of the IEP meeting. (T 100)
did not recall any medical form used at the IEP meeting. (T 101)
was aware, at the time of the meeting, that the student was receiving ( )
therapy. (T 101)
The social history update was completed within an hour of the meeting. (T 103)
testified that he does not always have a evaluation at a turning five IEP meeting. (T 112)
was aware of the student’s IQ from the prior IEP. (T 113)
did not actually see a evaluation for this student. (T 113)
recalls the student’s IQ to be in the borderline range. (T 113)
The classification fits the student due to issues with processing. (T 115)
Student observation was made in a class of six students. (T 116)
When asked about the recommendation to a larger class setting, RS testified:
Well with a question like that is . . . The answer is we just make the best clinical judgment we can based upon our observations of other students over the years.” Student “…was having some for instance. And just about a year ago in our kindergarten class, there was one child that did not speak at all, who was very shy, didn't socialize, and had very poor academic skills. So based upon my years of experience you just don't know how a child is going to blossom.” (T 116)
was asked again about the reduction in SETSS services:
“We try to reduce the services the child gets as they grow and mature and become adjusted to a learning environment and that was what the decision was based upon.” (T 117)
was asked about the student teachers recommendation for more SETSS services:
“Yeah, they basically were indicating that she needed a lot more SETSS and I didn't feel that based upon the fact that there was progress with this child and that she was getting it so to speak, or grasping some academic concepts, that she could progress with that amount of SETSS and the right support in the right classroom.” (T 118)
continued: “Well, basically, as I explained earlier, I felt that she needed more one-to-one in a smaller group and that's why I offered the SETSS program.” (T 121)
continued that the SETSS service would be in a ratio of eight students to one teacher.
“Our SETSS classes generally have less than six students; there would be more like three students, and I thought that would be more fitting for her given the fact that she is highly distracted and the fact that she has some social issues.” (T 122-123)
state that the goals included in the IEP are appropriate, and were reviewed with the parent. (T 133)
did not recall reviewing any specific goals with the parent or if they were available at the time of the IEP meeting, or if they were written at the IEP meeting. (T 134-135)
created the goals, though he does not recall when they were written. (T 135)
recommended the parent take the student to a neurologist, based upon diagnosis. “I thought perhaps the .” (T 137)
The speech therapist recommended 12 month services for , which was denied at the IEP meeting. “…the 12-month service has to be followed up with a doctor's note and indicates more of a need -- more of a severity.” (T 149)
report contained a recommendation for increased therapy services, which was considered and denied at the meeting. “…we wanted to lessen her time out of the classroom.” (T 151)
Regarding the summer service recommendation, continued that additional documentation was required. (T 154)
Parent was asked to provide additional documentation. (T 154)
felt that there was enough information at the meeting to make a recommendation. (T 154)
was asked: “…you wouldn't consider having a reconvene of this IEP meeting for the student based upon this new information you got the day of the meeting?” (T 154-155)
responded: “At the day of the meeting, no. We didn't get any new information on the day of the meeting.” (T 155)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and
(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a 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" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).
A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; 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).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
APPROPRIATENESS OF DOE MARCH 27, 2012 IEP
IEP Team Composition
Although not required by the IDEA (20 U.S.C. § 1414[d][1][B]; see 34 C.F.R. § 300.321), in some circumstances New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student's IEP (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]; see Bd. of Educ. v. R.R., 2006 WL 1441375, at *5 [S.D.N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL 1618765, at *5 [S.D.N.Y. July 11, 2005]; Application of a Student with a Disability, Appeal No. 11-042. Parents have the right to decline, in writing, the participation of the additional parent member at any meeting of the CSE (see 8 NYCRR 200.5[c][2][v]). I note that absence of an additional parent member does not constitute a violation of the IDEA. (see J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 647 [S.D.N.Y. 2011] [noting that the absence of ]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 293-94 [S.D.N.Y. 2009], aff'd 2010 WL 565659 [2d Cir. Feb. 18, 2010].
Though such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting, parent made no such request. Instead, DOE representative asked the parent to waive attendance of the parent such member, which is improper as request must come from the parent. No such waiver was provided by the DOE, though referred to in testimony. [8 NYCRR 200.3[a][1][viii]
Parent provides additional information regarding the parent member, testifying that the DOE did not offer to have a parent member at the meeting she did not recall any explanation of the role off a parent member. (T 76 & 173)
I find that the circumstances regarding the parent member’s lack of participation did impede the student's right to a FAPE, and significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits to the student (W.S. v. Nyack Union Free Sch. Dist., 2011 WL 1332188, at *8-*9 [S.D.N.Y. Mar. 30, 2011]; see 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman, 550 U.S. at 525-26; A.H., 2010 WL 3242234, at *2; E.H., 2008 WL 3930028, at *7; Matrejek, 471 F. Supp. 2d at 419).
IEP team also lacked a general education and special education teacher of the student. As the student was recommended to a general education environment, the Regulations of the Commissioner require not less than one regular education teacher of the student be in attendance. [8 NYCRR 200.3[a][1][ii]
Additionally, not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student, must be in attendance. [8 NYCRR 200.3[a][1][iii]
In the instant case, a special education service provider was in attendance, who had only provided services to the student for a limited time. attended the meeting as the student’s SEIT teacher who had been working with the student a short time. (T 172)
Though the meeting took place in the school, no explanation was given as to why additional student teachers or providers were not included in the meeting. Pre-determination
Testimony lends itself to consideration of this issue. Consideration of possible recommendations for a student, prior to an IEP meeting, is not prohibited as long as the IEP team understands that changes may occur at the CSE meeting (see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]. Courts have rejected predetermination claims where the parents have actively and meaningfully participated in the development of the IEP or where there was credible evidence that the school district maintained the requisite open mind during the CSE meeting (J.G. v. Kiryas Joel Union Free School District, 2011 WL 1346845, at *30-31 [S.D.N.Y. Mar. 31, 2011] [rejecting the parents' assertion that the offer of a "cookiecutter" placement rose to the level of impermissible predetermination]).
In the instant case it appears that no consideration was given to the parent and school participants at the meeting.
testified that updated reports and evaluations were requested but not provided by the school. No information is provided to substantiate any such request. (T 68-69) continually referred to the team as making recommendations for the student. RS stated that the team had been recommending at the time of the meeting, March 27, 2012 and that the team recommended special education teacher support services (SETSS) and related services of , . (T 78-80)
However, in actuality appeared to be referring only to himself. Somehow the parent was not part of the recommendation. Parent; “gave us no indication that she agreed or disagreed at the time.” (T 86)
The school personnel also did not agree with the recommendation “…SEIT teacher felt she needed the extra support of SETSS…she had recommended more SETSS than we were offering.” (T 86)
DOE social worker did not testify or appear to have contributed to the meeting beyond her report, which was not available at the meeting, as the parent interview was conducted immediately prior to the meeting. (T 103).
provided frank testimony which served to point towards pre-determination and lack of consideration of alternate programs for the student. His testimony generalized the student and failed to consider the student’s unique educational needs. Testimony indicates a general motivation towards reducing services based general student maturation. “We try to reduce the services the child gets as they grow and mature and become adjusted to a learning environment and that was what the decision was based upon.” (T 117)
seemed to indicate that his mind was made up prior to the meeting regarding the student’s placement recommendation. referred several times to seeming to pressure the parent to make a decision at the meeting as to where the student would attend school for the 2012-2013 school year, even before the meeting ended, or the FNR was issued.
states that the team tried to ascertain where the parent would place the student for the 2012-2013 school year. (T 76-77)
When was asked: “…you wouldn't consider having a reconvene of this IEP meeting for the student based upon this new information you got the day of the meeting?” , responded: “At the day of the meeting, no. We didn't get any new information on the day of the meeting.” (T 154-155)
If the team, essentially , did not receive any new information the day of the meeting then why was a classroom observation and social history conducted? If no new information was received the day of the meeting, then where did the team, again , gain the information to determine the student’s recommendation and draft the student’s IEP? It seemed to the IHO that the only logical conclusion is that the team, again had already determined what the recommendation was going to be and that any other information was not necessary. Parent Participation
The IDEA entitles parents to participate in the substantive formulation of their child's educational program, and requires the CSE to consider any "concerns" parents have for "enhancing the education of their child" when it formulates the IEP (20 U.S.C. § 1414[d][3][A][ii]; Winkelman, 550 U.S. at 516-17, 530). A school district has an affirmative obligation to take steps to ensure that one or both parents of a student are present at each CSE meeting or are afforded the opportunity to participate,. (34 C.F.R. § 300.322 [a], [c]; Cerra, 427 F.3d at 192-93; J.G. v. Briarcliff Manor Union Free Sch. Dist., 682 F. Supp. 2d 387, 395 [S.D.N.Y. Jan. 29, 2010]).
Federal and State regulations envision that parent(s) will receive notice and an opportunity to participate in a CSE meeting for their child (34 C.F.R. § 300.322[a]; 8 NYCRR 200.5[d]),
Uncontested testimony by the parent indicates that parent received notice of the IEP meeting one or two days prior to the meeting. Commissioner’s regulations call for five days notice in writing prior to the meeting being conducted. [8 NYCRR 200.5[c]] (T 169)
Additionally, the IEP entered into evidence does not indicate any notice was given to the parent. (Ex 1-14)
Parent was not provided with any information prior to or at the meeting, including notification of parent rights. Parent does not recall receiving a booklet of her rights. (T 170) Parent did not receive a report of the observation and was not shown any goals. (T 172) DOE did not offer to have a parent member at the meeting and does not recall any explanation of the role off a parent member. did not explain the role of a parent member. (T 173) does not understand the function of a parent member at an IEP meeting. (T 174)
Additionally, did not recall reviewing any specific goals with the parent or if they were available at the time of the IEP meeting, or if they were written at the IEP meeting. (T 134-135)
It appears that the IEP meeting in question took place without the parent having proper notice of the meeting, without the parent having reports developed as a result of the social history and observation conducted the morning of the IEP meeting, and without discussion or development of goals. It is impossible for the parent to participate in the meeting in a meaningful manner without at least some of the information which was denied to her. Adequacy of Evaluative Information at the 03/27/2012 IEP Meeting
The parents maintain that the district did not have proper updated evaluations of the student prior to the IEP meeting, and suggests the IEP was inappropriate, as was any purported recommendation resulting from such a meeting.
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). A district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or 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]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 C.F.R. § 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 C.F.R. § 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018). A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 C.F.R. § 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree (34 C.F.R. § 300.303[b][1]; 8 NYCRR 200.4[b][4]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).
DOE Due Process Response indicates an initial evaluation classifying the student as Learning Disabled, based upon what is marked as other: medical examination. (Ex D1, 2)
testified that he requested updated reports but they were not received, confirmed the classroom observation was conducted the morning of the IEP meeting, and services were based upon current reports, and that the counseling services were recommended; “…to give her that support she needs in transitioning to a new school and I wanted to add the group , so that we could work on her integration and social skills a little bit.” (T 69, 71, 93-95) Additionally RS did not recall any medical form used at the meeting and he did not see any psycho-educational report for the student. (T 101 & 113)
When asked about the recommendation to a larger class setting, provided testimony which was not specific to the student in question, but instead, seemed to be his own general consideration applied to all students. again referred to a general we, which actually applied to himself; … we just make the best clinical judgment we can based upon our observations of other students over the years.” Student “…was having some speech issues for instance. And just about a year ago in our kindergarten class, there was one child that did not speak at all, who was very shy, didn't socialize, and had very poor academic skills. So based upon my years of experience you just don't know how a child is going to blossom.” (T 116)
applies his general characterization of other students to the student in question without any current data or evaluations, which would be required to create an appropriate IEP. It is not logical that would act to make a recommendation based upon what little data was present at the meeting, and yet state that he requested update information and referred the parent to see a neurologist. (T 137)
Non explanation based upon data or evaluation was presented to explain the classification being updated from preschool student with a disability to . (Ex B & Ex 1) IEP and Recommendation
Ultimately the IEP recommended, in part, a ten month general education placement; 5 periods weekly of SETSS services, for a period, as a direct group service in a SETSS classroom; 3 thirty minute sessions per week of therapy; 2 thirty minute session per week of , and 1 thirty minute session individual and one thirty minute session group of (Ex 1-7, 8) Regarding present levels of performance the IEP contains general references to some skills, but no actual level of performance, except to say the student “…has learned to utilize reasoning skills on a basic level.” (Ex 1-1) IEP states the student has made significant progress and that her impaired auditory and processing skills greatly impact her learning. (Ex -1) Information reflected in the IEP comes, to a large extent, from the SEIT report of May 27, 2011. As this report is ten months old, it cannot be relied upon as current, again pointing to the need for updated evaluations of the student. (Ex 4, Ex 1-1)
The DOE could not provide any testimony to reflect how or when the goals were created.
Math goal of the March 27, 2012 IEP calls for the student, in part, to count from 1 to ten with 80% accuracy. The same goal as contained in the 08/10/2011 IEP. (Ex 1-5 & Ex B-9)
Other educational goals contained in the IEP are vague and immeasurable. (Ex 15)
testified that the student needed; “…more one-to-one in a smaller group and that's why I offered the SETSS program.” (T 121) continued that the SETSS service would be in a ratio of eight students to one teacher. “Our SETSS classes generally have less than six students; there would be more like three students, and I thought that would be more fitting for her given the fact that she is highly distracted and the fact that she has some social issues.” (T 122-123)
How the recommended program provides more one-on-one time than the class observed which contained 25 hours of SEIT services, is not explained. “Well, basically, as I explained earlier, I felt that she needed more one-to-one in a smaller group and that's why I offered the SETSS program.” (T 121) Additionally, the SETSS services indicated on the IEP do not specify any group size. (Ex 1-7)
No evaluation or report is offered to justify the addition of counseling services contained in the IEP. offered conflicting testimony regarding the development of the IEP goals. First it was stated that that the goals included in the IEP are appropriate, and were reviewed with the parent. (T 133) Then did not recall reviewing any specific goals with the parent or if they were available at the time of the IEP meeting, or if they were written at the IEP meeting. (T 134-135) RS created the counseling goals, though he does not recall when they were written. (T 135)
I find that the IEP does not include a statement of the student's present levels of academic achievement and functional performance as required. (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]). The IEP team did not consider, or have available, the results of the initial evaluation or most recent evaluation of the student, as well as the 'academic, developmental, and functional needs of the student. The IEP also did not establish annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), nor did it provide for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059.
For the above reasons, I find that the IEP of 03/27/2012 did not offer the student a FAPE, as the DOE did not comply with the procedural requirements set forth in the IDEA, nor was the IEP developed by its CSE reasonably calculated to enable the student to receive educational benefits. Twelve month related services The recommended 12 month services for ., which was denied at the IEP meeting. “…the 12-month service has to be followed up with a doctor's note and indicates more of a need -- more of a severity.” (T 149)
report contained a recommendation for increased therapy services, which was considered and denied at the meeting. “…we wanted to lessen her time out of the classroom.” (T 151)
Regarding the summer service recommendation, continued that additional documentation was required. (T 154)
Documents and testimony did not serve to clarify or justify the need for twelve month related services or for the two individual 30 minute sessions per week of physical therapy. (Ex A-1) Equities
I find equities favor the parent. The parent cooperated with any DOE request and attended an IEP meeting for which she was provided improper notice. Additionally, the IEP meeting was actually an IEP meeting, classroom observation and social history update conducted simultaneously.
Parent wrote the CSE to set forth her concerns with the IEP and proposed placement, and requested another meeting. No response was received or offered by the DOE. Appropriate 2012-2013 Education
Having failed to create a valid and appropriate IEP on March 27, 2012 for the 2012-2013 school year the student is left with the only existing and valid IEP, that of August 10, 2011. Those SEIT (now SETSS) and related services must continue until another properly composed and conducted IEP meeting takes place.
I note the student is presently functioning in a general education classroom, with supports, and parent is seeking services to continue to allow the current placement to continue and provide educational benefit to the student.
ORDER
I find the DOE did not provide an appropriate IEP or offer the student an appropriate placement for the 2012-2013 school year and order the following:
1. The IEP of March/27, 2012 is found to be inappropriate and;
2. The IEP of August 10, 2011 is the last appropriate IEP existing for the student;
3. DOE will continue to provide funding for 25 weekly hours of SETSS, formerly SEIT, services for the student for the 2012-2013 school year. These 25 hours shall be indirect and/or direct for a 25 hour per week total;
4. DOE will continue to provide for 3 thirty minute sessions per week of and ;
5. DOE will continue to provide for 2 thirty minute session per week of .;
6. This order is subject to appeal and review by the State Review Officer. Dated: January 25, 2013
________________________________
DANIEL M. AJELLO, ESQ.
Impartial Hearing Officer DMA:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due Process Request, 9/5/12, 4 pp. B IEP, 8/10/12, 18 pp. C Letter to CSE, 5/1/12, 2 pp. D DOE Due Process Response, 9/12/12, 2 pp.
DEPARTMENT OF EDUCATION
1 IEP, 3/27/12, 14 pp. 2 Social History Update, 3/27/12, 1 p. 3 Classroom Observation, 4/25/12, 1 p. 4 SEIT Report, 5/27/11, 1 p. 5 Report, 1/14/12, 2 pp. 6 Therapy Report, 2/2/12, 1 p. 7 Evaluation Authorizations, 11/2/12, 4 pp.
IMPARTIAL HEARING OFFICER
I Pendency Order, 10/23/12, 10 pp.