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THE UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
x In the Matter of the Application of XX a Child with a Disability, by his Parent, XX., for a Due Process DECISION AND ORDER Impartial Hearing (IHRS No. XXXXX),
Petitioner,
-againstXXXXXXXXX CENTRAL SCHOOL DISTRICT,
Respondent. x
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer Case No. XXXXXXXX
APPEARANCES
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL12, 2013
For — Parents
XXXXXX (XXXXXXXXX), Attorney
XXX Mother
For — District
XXXXXXXXXXXX (XXXXXXXXXXXXXXXXXXXXX) Attorney
XXXXXXXXX, Director of Pupil Personnel Services, CSE Chairperson XXXXXXXX, Coordinator of Special Education, XXXXXXXXX BOCES XXXXXXXXXX, School Guidance Counselor, XXXXXXXX (XXXXXXX BOCES)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2013
For — Parents
XXXXXXXX (XXXXXXXXXXXXXXXXX), Attorney
XXXXX, Mother XXXXXXXX, XXXXXXX Assistant Director and Special Education Director
(via telephone)
For District
XXXXXXXXXXX (XXXXXXXXXXXXXXXXXXXXXX) Attorney
XXXXXXXXXX, Director of Pupil Personnel Services, CSE Chairperson Case No. XXXXXXXX
On April 12, 2013 and May 16, 2013, I conducted an Impartial Hearing at the XXXXXXXXXXXXXXXXXXXXXX, a facility of the XXXXXXXXXXX Central School District (“the district”), pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”). The hearing was commenced at the request of the parent of XXX (“the student”) who sought, among other things, district funding for a unilateral placement at XXXXXXX (“XXXXXXXXXXX”), a non-public school which had not been approved by the New York State Education Department as a school with which a district may contract for the provision of special education services. (Ex. A)
A. Positions of the Parties
The parent alleges that the district failed to provide the student with a free, appropriate public education for the 2012-2013 school year because its CSE did not develop an IEP for that school year and did not offer an appropriate placement. The parent asserts that XXXXXXXXX was appropriate and that equitable considerations warrant payment for that placement by the district. Further, the parent seeks direct payment to XXXXXXXX for tuition and related expenses. 1 (T. 36-41, Exs. A, VI)
The district acknowledges that that an IEP was not created but claims that the parent frustrated its development. Further, it claims that the parent did not genuinely consider possible appropriate placements. The district also asserts that XXXXXX was not appropriate. However, it argues that even were I to find to the contrary, equitable considerations would bar district payment here, where, the district alleges, the parent failed to cooperate with the CSE, acted in bad faith and/or has not established that she is legally obligated to pay the tuition. (T. 34-36, Ex. VI )
Case No. XXXXXXXX
B. Procedural History [2]
The proceeding was initiated at the request of the parent by correspondence dated August 31, 2012, alleged by the district to have been received on September 27, 2012.
(T. 3, 293, Ex. III). I find credible the testimony of XXXXXXXXX with regard to the district’s procedures and the date of receipt and further note that on October 22, 2012 parent’s counsel acknowledged that the resolution phase was at that time ongoing and noted no objection or disagreement, which is consistent with the district’s claim.( Ex. VIII)
I was appointed Impartial Hearing Officer on October 1, 2012. I was available to conduct a hearing within 14 days. A telephone conference with the parties was held on November 1, 2012, hearing dates of December 3, 4, and 5, 2012 were scheduled. Those dates were thereafter adjourned at the request of the district and with the consent of the parent and January 8, 15, and 22, 2013 were scheduled. Those and subsequent hearing dates were thereafter adjourned at the request of one or both parties, with no objections.
(T. 3-6. Ex. IX) 3
At the April 12, 2013 hearing, the first hearing day, the parent asserted that the student was entitled to district funding for XXXXXX as a pendency entitlement and requested issuance of an order providing it.[4] On May 28, 2013, I denied that request, finding that XXXXXXXXX, which had been funded by the district during the XXXXXXX school year pursuant to a Stipulation of Settlement, was not the student’s pendency placement. (T. 5-13, 25-32, Exs. IV, C)
The parties moved to extend the initial compliance date in light of, among other things, medical and other emergencies, district weather closings, anticipated testimony, the scheduling of witnesses and submission of evidence and to enable the submission and consideration of closing memoranda. In considering the requests I weighed the 1 In her hearing request, the parent also requested tutoring. That claim, however, was not raised in the hearing and has not been asserted in the parent’s closing memorandum. Moreover, the basis for that request has not been articulated and evidence presented is inadequate to support it. I conclude that that request has been abandoned.
3 A detailed history of adjournments is included in my May 28, 2013 decision regarding pendency. (Ex. IV) Case No. XXXXXXXX cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were provided to the parties. (T. 6-7, 33, 238-239, Ex. V)
The current compliance date is August 12, 2013. The record closed on July 18, 2013, upon my receipt of all post-closing memoranda.
C. Cases Presented
Lists of persons who appeared at the hearing and documents submitted are included within this decision.
The district presented the testimony of three witnesses: XXXXXXXXX (“XXXXXXXX”), coordinator of special education at XXXXXXXX BOCES (referred to herein as “XXXXXXXXX”) (T. 44); XXXXXXX (“XXXXXXX”), school guidance counselor at the XXXXXXXXXXXXXXX which is associated with XXXXXXX BOCES (referred to herein as “XXXXXX ”) (T. 92-93); XXXXXXXX (“XXXXXX”), the district’s director of pupil personnel services and the district’s chairperson for the July 18, 2012 CSE review. (T. 147, 149).
The parent presented the testimony of two witnesses: the student’s mother (“the parent”); XXXXXXXX (“XXXXXX”), XXXXXXX assistant director and special education director (T. 355).
D. Findings of Fact and Conclusions of Law
1) Factual Findings Concerning the Background and the CSE Review
The following findings are based upon credible and uncontested documentary and testimonial evidence:
At the commencement of the 2012-2013 school year in July 2012, the student was about XXXXXXX years old, entering XXX grade and classified as XXXXXXXXXX (“XXX ”). (Ex. 1) XXXX classification is not in dispute in this proceeding. Case No. XXXXXXXX
The student’s diagnoses in various evaluations since at least XXXXXXX have included at various times XXXXXXX, XXXXXXXXXXX, XXXXXXXX,
XXXXXXXXXXX, XXXXXX, XXXXXXXXX and/or XXXXXXXX (“XXXX”) and
XXXXXXXXXXXXXX have been noted. (Exs. 3, 6, 7, 8, 10, D, H)
XXXX had received XXXXXXX which included XXXXXXXXX (“XX”),
XXXXXXXXXX (“XX”) and XXXXXXX (“XX”). (Exs. 5, 36, 37, 40, 41, 43)
The student was subsequently classified as XXXXXXXXX by the district’s XXXXX and entitlements pursuant to XXXXX IEPS included XXX, XXXX and XXX. (Exs.17, 25)
In XXXX, the student was classified as XXXXX. (Ex. 35) XXX CSE programs included XXXXXXXXXXXXX and XXXX and XXXX XXXXXXXXXXXXXX. (Exs. 2, 7, 10) XX, XXX and XXXX were provided initially but XXXXXX only was specified for XX by the XXXXXXXXX school year and XXX was removed by the XXXXX school year with XXXXX only provided. (Exs. 10, 24, 35)
The student completed the XXX grade (XXXXXX) at the district’s XXXXX school although some days were missed at the end. (T. 312)
A XXXX XXXXXXXXXXX report states that the student asserted XXXX had XXXXXX XXXXXX because of XXXXXX XXXXX students. (Ex. 7) Another XXXXXXXXX report noted that in the spring of 2010, the student was XXXXXXX with XXXXXXXX. (Ex. 9 Although that report does not specifically state that that occurred in or in connection with school, being XXXXXXXXXXXXX and XXXXX in school or on the bus has also been reported. (Exs. H, D)
The CSE had developed an IEP for the XXXXXX school year, the student’s XXXX grade, which had recommended a XXXXXXXX in all subject areas and XX XXXX in every XXXX cycle (XXX). (Ex. 2) However, the student was experiencing XXXXX, among other things, as a consequence of XXXXXXXXXX and a XXXXXXXXXXX at the end of the school year and the parent had been advised not to XXXXXXXXXXXXX . (T. 312-313, Ex. 3) She sought and the district provided, after receipt of XXXXXXX, XXXXXXXXX (“XX”) during the XXXXXXXXX school year.
(T. 299-30, Exs. 2, 3,4) The student did not XXXXXX XXXXXXX XXXXXX at any Case No. XXXXXXXX time during the XXXXXX school year but received XXXX of XXX per day for part of that year. (T. 298, 300, Ex. 49-62) There is no school based evaluative material with regard to that school year in the record for that school year. No related services were provided by the district during the XXXXXX school year although XXXXX goals were on the IEP. (T. 314, Ex. 2)
In XXXXX, the parent visited the BOCES facility at XXXXXX and XXXXXX.
(T. 326, Exs. 48, 49)
The CSE convened on XXXXXXXX, to develop a program for the XXXXXX school year. (Ex. 1) A XXXXXX evaluation had not been conducted by district staff because the parent refused to consent to it. (T. 188-189) Although an independent evaluation funded by the district had commenced, it had not yet been completed. (T.189, 283-284, Exs. 1, H) The IEP that resulted from the review recommended XXXXX XXXXXXX and XX for XXXX XX minute sessions in a XXX week cycle (XXX). (Ex.
1) During the review, however the parent had requested and the CSE had denied a placement at XXXXXX. (T. 302, Ex. 1) The CSE was informed that the parent intended to request an impartial hearing. (Ex. 1)
The independent psychological evaluation was completed in October XXXXXX. (Ex. H) The evaluator reported with regard to cognitive abilities, as determined with the XXXXXX, XXXXXXX range on all composite scores with the exception of the XXXXXX composite score where XXXX was XXXXXXXX, but that XXXX achievement varied widely within all the composites and that XXXX showed generally
XXXXX in XXXXXXX, XXXXXXXXXXXX, XXXXXXXXXXXX as well as
XXXXX processing speed. Results, however, on the XXXXXXX were considerably higher than on the corresponding XXXXX XXXXXXX. Grade levels of achievement scores were not reported but it was noted that XXXXXXX is a particular area of XXXXX in view of XXXXXXXX and that XXX had XXXXX with XXXXXX and XXXXXX. The evaluator concluded that XXXX needed a lot of XXXX in a XXXXXX to handle XXXXXX issues and without XXXXXXXXXXX. (Ex. H)
An impartial hearing request had been filed after the CSE review. (Ex. C) The case was settled in XXXXX by Stipulation of Settlement (“Stipulation”) covering all Case No. XXXXXXXX claims through the XXXXXX school year. (Ex. C) XXXXXXX acknowledged that XXXX was not provided during the period prior to the Stipulation. (T. 314)
The student commenced attendance at XXXXX on December 17, XXXXXX and continued until the end of the XXXXXX school year on XXXXXXXXX. (Exs. R, X).
The CSE commenced scheduling the development of IEPs for the XXXXXXXX school year in about January-February XXXXXX. (T. 151) It is XXXXXXX’s usual practice to contact out of district placements in around February, to confirm a mutually available date and to schedule a review. (T. 153) Only after the district has confirmed the attendance of mandated CSE members are invitations sent to parents. (T. 154)
XXXXXX first attempted to contact XXXXXX to schedule the student’s annual review for XXXXXXX at the end of February or beginning or March. (T. 159-160) Several telephone messages were left for XXXXX staff by XXXXXX or her secretary through about April. (T. 160) No records of the messages were kept by the district. (T.
260) XXXXXXX staff responded perhaps twice, leaving telephone messages and XXXXX acknowledged that there had been “telephone tag”. (T. 261) No record of XXXXXX responses was kept by the district. (T. 261) No written requests attempting scheduling were made by the district. (T. 264-265) Eventually, in June XXXXX, XXXXXX staff and XXXXXX discussed dates and agreed upon July 18, XXXXXXX for the annual review. (T.161)
XXXXXX, pursuant to district policy, thereafter informed the parent of the agreed upon date. (T. 162, 168) She could not recall contacting the parent previously for any purpose with regard to a XXXXXXXX review. (T. 263- 263)
No evaluations had been conducted by the district prior to the review. (T. 278) The parent was not requested to provide information concerning the student’s academic or emotional situation.. (T. 287) No written requests seeking evaluative material from XXXXXX were made prior to the review. (T. 264-265) However, subsequent to scheduling, XXXXXX orally requested XXXXX to provide all evaluations and reports concerning the student during XXX enrollment there. (T. 169-172, 295)
The CSE convened, as scheduled, on July 18, XXXXXX, with the parent and XXXXXXX, XXXX director, participating. (T. 269) The review lasted some 25 minutes. Case No. XXXXXXXX
(T. 319) There was no discussion of goals. (T. 319) Although report cards and attendance records were produced, the CSE received no other written information about the student’s performance or achievements at XXXXXX. (T. 165, 169, 170-171, Exs. 63 through 70) The information provided by the report cards was solely the subjects taken and the letter grades received and XXXXX was informed that that was all that XXXXX had to offer on the student’s progress. (T. 170, 172-174) The written material did not enable a conclusion of progress to be made. (T. 174, 178-181) Further, the XXXXXX director did not verbally provide substantial information concerning the student’s levels, abilities or progress or any specific goals. (T. 171, 177-183, 288) He spoke principally about social/emotional needs and progress. (T. 290) Further, he did not provide information about the student’s needs but XXXXX could not recall if he was requested to do so. (T. 182, 290)
A draft IEP, although customary, was not created at that time because there was inadequate information to do so. (T. 167) Nevertheless, the CSE believed that there was no appropriate in-district placement for this student. (T. 286) It recommended XXXXX and XXXXXXX and within a week XXXXX sent referral packets to those schools. (T. 190, 253, 27, 273) Both are BOCES facilities which specialize in XXXXXXXX students on the XXXXXXX and/or XXXXXXXX. (T. 190-191) The CSE had no knowledge as to whether there were seats available at either or whether the student would be accepted but it is the CSE’s practice to reconvene after potential placements are contacted to consider the results and develop a final IEP. (T. 167-168) Although the district is a component of XXXXXXXX BOCES, its facility was not proposed because it was too far away. (T. 192-193)
The parent visited both placements subsequent to the July 18 review but the student visited neither and XXXX did not participate in any intake interviews. (T. 197,
269) The parent had, however, not been told that she was required to bring the student.
(T. 346) Both schools thereafter informed the district that the student would be accepted.
(T. 126, 269) By letter dated August 23, XXXX, however, the parent informed the CSE that she had concluded that both schools were not appropriate and that the student would Case No. XXXXXXXX be re-enrolled at XXXXXXX. (T. 200, Ex. G) The CSE did not reconvene because an impartial hearing request was anticipated. (T. 201)
A contract with XXXXXX requiring payment by the parents of $35,000 for tuition was executed by the parent on September 1, XXXXXX. (Ex. 72) No payments have been made although the contract specifies that they are required. (T. 332-333)
2) Analysis
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at
806, n.7 (N.D. N.Y. 1998)
Prong 1
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors Case No. XXXXXXXX render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
In the instant matter, it appears that the district has conceded that it failed to provide a FAPE and is relying on a claim, to be considered herein with regard to Prong 3, that its failure is attributable to lack of cooperation by the parent. ( Ex. VII)
However, even absent specific concession, the evidence shows that a FAPE has not been provided. In the instant matter, it is undisputed that the CSE neither created an IEP nor actually recommended a specific placement for this student for XXXXXX school year, either prior to the filing of the impartial hearing request or during the resolution period. See (specific placement on IEP required ) See Case No. XXXXXXXX
R.E.>>>>>>>>>>>>>>>>>>>..(the resolution period provides an opportunity for the CSE to remedy defects alleged).
Accordingly, I find the district has failed to establish that it provided a program reasonably calculated to enable this student to make meaningful educational gains and therefore has not provided a FAPE. In view of this finding, I do not address other parent claims regarding the provision of a FAPE.
Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
The evidence shows that XXXXX focuses primarily on XXXXXX or XXXXXXXXX students who are XXXXX and XXXXXX when they commence attendance. The primary goal of the school is to set up a safe school environment where students are ready and open for instruction. (T. 356) Although a day school certified for kindergarten through 12th grade, it primarily services students grades 6 through 12. (T. Case No. XXXXXXXX
356) A Bridge program to XXXXXXX Community College enables proficient students who qualify to take courses to get ready to go to college and four XXXXX students currently participate in that. (T. 356-357) The school is Regents accredited and students take Regents’ examinations when ready. (T. 358, 395, 407) The New York State common core curriculum is followed. (T. 406)
The school had 8 students from 13 to 19 years old. (T. 396) Students attended classes together unless they have completed them and are participating in the Bridge program. XXXXXX provides 180 days of instruction during the school year which includes time devoted to instructional field trips which are tied in to academic subject areas and also provide social skills and activities of daily living training (T. 366-368, 397, 416-417, 453, 464, 501-504)
XXXXXX is XXXXX’s educational director, its only special education teacher and is certified for grades K-8. (T. 391-392) She had limited instructional responsibilities with this student teaching only “language pragmatics” and vocabulary building in connection with English instruction and participating in art instruction. She also provides certain assistance in connection with math but the record is unclear as to precisely what it is and whether any is to this student. (T. 398-400, 478-482). XXXXXXXX (“XXXXX”) has a “general studies” teaching certification for through 8th grade and a Masters degree in special education and was the student’s primary instructor for 5 of his 6 classes, teaching science, math, English, art and social studies. (T. 391-394, 398, 477-483, 485). The additional XXXX staff were: a retired teacher with a math certification through high school who provides one to one instruction to another student. (T. 479-482); a language teacher who is a state certified foreign language instructor with dual doctorates who also teaches music (T. 485); a state certified SL pathologist was available for individual and group sessions as well as the development of student plans with regard to these needs (T. 360-362); a certified occupational therapist who also helped with art projects. (T. 411412, 485, 496); Dr. XXXXXX, a psychologist, provided various services. (T. 371, Exs. Y, ZZ, BB)
Assessment of this student at the time of XXX admission were primarily informal and from them XXX concluded that XXXX was an XXXX learner with XXXX Case No. XXXXXXXX
XXXXX XXXX area including XXXXX who did not like to learn with more than one XXXX at a time. (T. 358-359) In the absence of an IEP from the district, the student’s educational program was developed by observation of the student’s needs. (T.
365) Needs arising from XXXX XXXX learning style were addressed at XXXX by among other things, an English class in which Regents required books were read aloud by the instructor and discussed in class. (T. 359) XXXXXXXX deficits were addressed by, among other ways, the XXXXXXXXXX who helped to formulate a plan for this student, provided direct service to a group of up to XXXX, including this student, and monitored and recorded progress and XXXXX XXXXX instruction (involving XXXXXX and XXXXXX) was provided. (T.360-362, 488-489) XXXXX was observed to be an area of weakness with particular difficulty setting up XXXXXXXX. (T. 375) XXXXX taught math at the level the student was capable of, a program developed by Science Research Associates worked on XXXXX math skills textbooks and a kit were used and when the student passed the test at the end of a section, he moved on. (T. 375-377, 424) Modifications for this student also included XXXX XXXXX problems and discussing what they are seeking. (T. 423) XXXX initially testified that the student was at about a XXXX grade level but subsequently explained that XXXX could work on XXXXX grade level material with assistance. (T. 378,493-494)
XXXXX stated that the student was able to keep up with the other students and did not require individualized program modifications in any course except XXXXXXX.
(T. 423) The modifications in all other XXXXXXX courses were the same for all the students. (T. 422-423). In XXXXX, discussed above, limited XXXXX was required and the books, the same for all students, were XXXXXX by the teacher and XXXXX by the class. (T.359, 421, 486-487) XXXXXXXXXX was modified by lessons being XXXXXX by the students and with movies and field trips. (T. 421-422, 486-487) XXXXXXX used the test provided in the instructional material but this student was permitted to do the course in a XXXXXX sequence and labs work is included. (T. 422) General physical education needs are addressed by various sports activities including bowling, yoga, hiking and cooperative play. (T. 385, 412-413) Case No. XXXXXXXX
This student did not exhibit behaviors at XXXXXX that impeded education. (T.
381) XXXXXXXXX, however, was provided to the student, and based upon observations and the provider addressed XXXXXXXXX . (T. 371, Exs. Y, ZZ, BB) XXXXX also received XXXXXXX after school which was provided by the parent. (T. 349-341) XXXXXXX also testified that although the student’s XXXXXX was XXXXXX, it was XXXXXXX and that that was worked on in a group session by the XXXX. (T. 372-373)
The student’s functioning levels in XXXXXX were, as discussed above, significantly XXXXXX although progress was claimed as discussed below. She characterized XXX current grade functioning levels in other areas as being at beginning XXXXXX grade in Regents XXXX in terms of reading and understanding the XXXXXX, and doing XXXXX grade level XXXX, XXXX and XXXX work. (T .383) Concerning XXXXXXXX issues, she testified that the student had progressed consistently and was XXXXX XXXXXXX and although XXXXX did not generally XXXXXXXXX, XXXX was beginning to. (T. 371, 491-492) With regard to XXXXXX she stated that XXXXXX tries and she thinks it will come together for XXX. (T. 374-
375) The parent testified that the student is now a “different child” XXXXX and XXXXXX, being eager to go to school, having very improved XXXXXXXX XXXXX and enjoying learning. (T. 317-318)
I find both witnesses testified truthfully in that they honestly stated their opinions and conclusions. Further, I find credible the testimony concerning the program provided by XXXXXXX.
However, for the reasons discussed below I conclude that the parent has failed to meet her burden to establish that the program she unilaterally selected was reasonably calculated to enable the student to receive meaningful educational benefits.
Initially, I note the absence generally of any formal assessments utilized by XXXXX to develop or implement a program for this student when XXXXX arrived in December XXXX or thereafter.
The evidence shows that the school’s assessment of this student at the time of XXXX admission were primarily informal and that XXXX conducted no formal assessments then to determine XXXX levels and abilities. (T. 358-359, 401) The Case No. XXXXXXXX student’s most recent XXXXX evaluation was not received until only recently. (T. 498, Ex. H)
By the end of the XXXXXX school year, the only “formal” assessments undertaken were the XXXXX grade State assessments in English Language Arts (“ELA”) and Math which were administered at XXXXX in the Spring XXXX when the student was completing the XXXX grade and submitted for grading to the district. (T. 379, 401-402, Ex. CC) There is nothing in the record indicating that the results were known to XXXXX when the XXXXXX school year commenced. Moreover, the results were cursory and could and did provide no information concerning the student’s individual strengths and weaknesses but could only indicate a ranking with regard to all students in New York State at the XXXXXX grade whether disabled or not. (T. 438-439, Exs. I, J, K, CC) Indeed, even a more detailed report would have been unreliable since the student’s actual grade was above the other students tested. (T. 379) Moreover, any improvement determinable by comparing the 2011-2012 school year results with the 2009-2010 results are irrelevant to a determination as to the appropriateness of XXXXX when the enrollment decision was made since it is impossible to determine whether those improvements were attributable to XXXX or other factors during the XXXXXX school year. It is noteworthy that there is no evidence, objective or subjective, in the record indicating in what school year any claimed progress occurred and therefore to what extent it might support the enrollment decision.
No objective assessments of the student’s levels and abilities in September XXXX were conducted by the school. (T. 405) XXXXX agreed that that information was necessary to objectively evaluate whether progress was made in the program it provided and to what extent the program met the student’s needs. (T. 424) Even had the State assessments of this student had been conducted in April 2013, as XXXXX had expected, the limited nature of the information those assessments provide would, I conclude, give inadequate guidance with regard to the specific program this student needed. Moreover, XXXXX learned in February that that information would not be available. (T.430-431) Although XXXX testified that she had been considering administration of certain standardized tests within a few months to identify growth and areas of strength and Case No. XXXXXXXX weakness, I am not persuaded that that is the case and it is, in any event, irrelevant here when the program was developed and implemented without it. The hearing record contains no baseline level against which assessments and/or claims of progress in any area can be gauged.
Moreover, specific evidence of progress presented is insufficient. That XXX and XXXXX represent substantial areas of deficit for this student is acknowledged by XXXXXXX and demonstrated in various evaluations. (T. 375, 421, Exs. H, 10) Although there were tests at the end of various XXXXX book chapters that were utilized to determine progress, there is no indication of how much the student advanced in XXXXXX and whether it was significant although XXXXXX was acknowledged to be an area of weakness. With regard to XXXXX the claim of progress was acknowledged to be subjective and was supported by no details concerning it. (T. 402-403) The only specific information provided was that the student was an active participant and kept up in the class. (T. 402-403) No information about the academic functioning levels of the other students, who appear to have ranged in age from 13-19, was provided to give insight into this student’s current abilities. There was no objective measure of the skills addressed in XXXXXXX, which XXXXX testified was part of XXXX XXXXX program, was obtained at the beginning of the school year and details with regard to progress have not been presented. (T. 488) Further, although the student was tested and quizzed, numeric grades are not provided. (T. 420) Report card grades were based solely on effort and class participation and do not contain a description of performance. (T. 420, 451, Exs. Q, R) Independent ongoing records of academic accomplishment are not maintained but rather reference to the workbooks the students use is made when necessary. (T. 472) No progress reports have been submitted for this student and the claim that that information would have been entered in IEP Direct if XXXXXXXXX had had access to it, does not warrant nothing being prepared when it did not. (T. 440) With regard to the claim that something would have been prepared at the end of the 2012-2013 school year, I note that the record does not include any prior year progress reports, which had they been submitted, would have provided support for that claim. Further, the evidence shows also that there were no specific measureable goals created by in Case No. XXXXXXXX the absence of IEP goals to consult, to facilitate ongoing or subsequent evaluation of the effectiveness of the instruction and support provided to the student. (T. 442-444)
Although a showing of progress is not required to determine that a program was appropriate, I note that there have been minimal details, regarding the instructional strategies utilized to address specific deficits in XXXXX and XXXXX. Although reading aloud may facilitate the student’s understanding of content, specific techniques directed to improving the student’s ability to read independently, are required.
In the absence of testimonial detail and documentary support, I conclude that the evidence with regard to the appropriateness of the program is principally anecdotal and the evidence that it has been specifically tailored to meet the unique needs of this student inconclusive. The foregoing, is I conclude, sufficient to support my determination that the parent has not met her burden to demonstrate the appropriateness of the program she unilaterally selected. Accordingly, I do not address the district’s other claims.
Prong 3
Although not necessary in view of the foregoing, I address the issue of equitable considerations in this matter in view of disputed factual claims. The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the district and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14.
Case No. XXXXXXXX
The district claims that the parent and XXXXX frustrated the CSE process. (Ex.
VII) With regard the parent, XXXXX acknowledged, and the credible testimony of the parent supports, that the parent did not interfere with the process of conducting evaluations, obtaining relevant information or holding the review on any date scheduled by the district. (T. 269, 273, 279-280, 318) .Further, the district has provided no authority to support its claim that a unilateral placement’s actions to impede the review, if such occurred, should be attributable to the parent in considering the equities. I note that there is no claim that the parent was asked to secure XXXXX participation, informed of any alleged non-participation and/or informed that the district wanted to schedule the review for a date prior to July 18.
Moreover, with regard to XXXX, the evidence does not support a conclusion that it impeded the review where XXXX did respond and there was “telephone tag.” In the instant matter, I note that the district maintained no records of its contacts and made no requests in writing which suggest that district staff did not consider this an urgent issue at the time and/or did not communicate that to XXXXX. With regard to information, or the lack thereof, provided to the CSE by XXXX for the review, there is nothing in the record to suggest that withholding occurred. That information was not provided does not require a conclusion that it existed and was withheld. If sufficient evaluative material was not available at the time of the review, nothing precluded the CSE from attempting to secure it prior to the necessary reconvene and there is no indication that it did.
The district also asserts parental lack of cooperation with regard to the placement process. It is noteworthy that no placement was in fact made. If the CSE had an acceptance and believed that that placement was appropriate, it was required to reconvene to put that placement on an IEP. It did not do so. The fact that it was confident that the parent would reject it does not relieve it of that responsibility. See Application of a Child with a Disability, Appeal No. 06-025. Further, it is not disputed that the parent visited both schools proposed for her consideration. First, I credit the parent’s testimony that she was not informed that she was required to have the student accompany her and note that that claim has neither been rebutted nor even contested. Moreover, I note that the parent brought the student to neither school and both nevertheless accepted him. I conclude in Case No. XXXXXXXX the circumstances here that the parent has “not acted with the requisite degree of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” N.R. ex rel. T. R., 2009 WL 874061, at *7 (quoting Jennifer D. ex rel. Travis
D. v. New York City Dept. of Educ., 55 F. Supp. 2d 420, 437 (S.D. N.Y. 2008). A parent’s preference for a private school is not dispositive. Appeal No. 05-087.
Prospective Payment
In view of the foregoing findings and there being no factual matters in dispute for with regard to this issue for which credibility findings are required, I do not address this claim.
ORDER
This matter is DISMISSED.
Dated: August 5, 2013
_____________________________
JUDITH SCHNEIDER. ESQ.
Impartial Hearing Officer Case No. XXXXXXXX
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
Case No. XXXXXXXX
EXHIBITS
DISTRICT
1 District XXXXX IEP, 8/5/XXX, 14 pp. 2 District XXXXXX IEP, 1/4/XX, 9 pp. 3 XXXXXXXXX diagnosis, 12/9/10, 1 p. 4 Request for XXXXXXXX services, 12/8/10, 1 p. 5 XXXXXXXXXX Assessment, 10/2/08, 2 pp. 6 XXXXXXXXXXX Assessment, 11/20/08, 2 pp. 7 XXXXXXXXXXXX Assessment, 5/26/10, 2 pp. 8 XXXXXXXXXXX Assessment, 8/26/10, 2 pp. 9 XXXXXXXXXXXX Assessment, 10/19/10, 2 pp. 10 XXXXXXXX Assessment, 4/23/09, 6 pp. 11 District Triennial Evaluation, 1/31/08, 3 pp. 12 XXXXXXXXXXX Evaluation, 3/5/10, 2 pp. 13 XXXXXXXXXXX Evaluation, 3/5/09, 2 pp. 14 XXXXXXXXXXX Evaluation, 3/17/08, 3 pp. 15 XXXXXXXXXXXXX Evaluation, 3/15/06, 2 pp. 16 XXXXXXXXXXX Evaluation, 4/18/05, 2 pp. 17 Quarterly XXXXXXX Therapy, 3/1/03, 6 pp. 18 Quarterly XXXXXXXX Therapy, 6/30/03, 13 pp. 19 Quarterly XXXXXXXXX Therapy report, 8/31/03, 5 pp. 20 VVVVVVVV Report, 2/25/08, 1 p. 21 XXXXXXXX Report, 4/30/07, 1 p. 22 XXXXXXX Report, 4/5/06, 1 p. 23 XXXXXXXX Report, 10/29/04, 1 p. 24 XXXXXXXX Therapy Annual Review, 3/26/09, 1 p. 25 XXXXXXXXX Therapy Annual Review, 3/14/08, 2 pp. 26 XXXXXXXXX Therapy Annual Review, 2/28/06, 2 pp. Case No. XXXXXXXX
27 XXXXXXXXX Therapy Annual Review, 5/21/05, 2 pp. 28 XXXXXXXXXX Therapy Goals & Progress, 11/03, 01/04, 03/04, 06/04, 1 p. 29 XXXXXXXX Therapy Triennial Review, 4/30/07, 2 pp. 30 XXXXXXX Therapy Annual Review, 6/6/07, 2 pp. 31 XXXXXXXX Therapy Annual Review, 4/11/06, 1 p. 32 XXXXXXXX Therapy Annual Review, 5/18/05, 2 pp. 33 XXXXXXX Therapy Annual Review, 9/22/03, 3 pp. 34 XXXXXX XXXXXXXXX Progress Summary Report, 4/22/03, 3 pp. 35 Triennial XXXXXXXXX Evaluation, 1/21/04, 5 pp. 36 Inspire Social History, 12/13/01, 2 pp. 37 Inspire XXXXXXX Evaluation, 12/13/01, 4 pp. 38 Inspire Student Evaluation Summary Report, 2/2/02, 2 pp. 39 Inspire Classroom Observation, 3/20/02, 2 pp. 40 Inspire Occupational Therapy Evaluation, 8/21/01, 3 pp. 41 Inspire Speech-Language Evaluation, 9/27/01, 3 p. 42 Inspire Educational Evaluation, 12/31/01, 3 pp. 43 Preschool Progress Notes 11/15/02, 1 pp. 44 Progress Report for IEP Goals and Objectives, 7/7/11, 8 pp. 45 Student Report, 6/24/10, 1 p. 46 Parent Statement, 8/5/11, 2 pp. 47 Questionnaire to BOCES XXXXXXXX, 5/12/11, 2 pp. 48 Questionnaire to XXXX School, 5/12/11, 2 pp. 49 XXXXXXXX Attendance Form, 10/5/10, 1 p. 50 XXXXXXXXX Attendance Form, 10/22/10, 1 p. 51 XXXXXXX Attendance Form, 10/29/10, 1 p. 52 XXXXXXXXX Attendance Form, 11/5/10, 1 p. 53 XXXXXXXXXX Attendance Form, 11/12/10, 1 p. 54 XXXXXXXXXXX Attendance Form, 11/19/10, 1 p. 55 XXXXXXXXXX Attendance Form, 11/24/10, 1 p. 56 XXXXXXXXXXX Attendance Form, 12/3/10, 1 p.
Case No. XXXXXXXX
57 XXXXXXXXX Attendance Form, 12/15/10, 1 p. 58 XXXXXXXXXX Attendance Form, 3/4/11, 1 p. 59 XXXXXXXXXXX Attendance Form, 3/11/11, 1 p. 60 XXXXXXXXXXX Attendance Form, 3/18/11, 1 p. 61 XXXXXXXXXX Attendance Form, 3/25/11, 1 p. 62 XXXXXXXXXX Attendance Form, 5/2/11, 1 p. 63 XXXXX XXXXX XXXXXX Report Card, 11/22/XX, 1/31/XX & 4/27/XX, 1 p. 64 XXXXX XX XXXXXX Report Card, 11/22/XX, 1/31/XX, 4/27/XX & 6/15/XX, 3 pp. 65 XXXXXX Attendance Records, unsigned, 4/30/XX, 5/31/XX & 6/15/XX, 3 pp. 66 XXXXX Attendance Records, unsigned 1/31/XX, 2/29/XX, 3/30/XX & 4/30/XX, 4 pp. 67 XXXXXX XXXXXX School Informational Field Trips letter from XXX, field trips dated September 20XX through April 20XX, 2 pp. 68 XXXXXX XXXXX School Informational Field Trips letter from XXX, field trips dated
September 20XX through June 20XX, 2 pp. 69 XXXXXX, Third Quarter Report Card letter from XXXXX, 2 pp. 70 XXXXX Fourth Quarter Report Card letter from XXXX, 2 pp. 71 XXXXXXXXX website, various documentation, 6 pp. 72 XXXXXX Educational Contract re Tuition, 9/1/XX & 9/8/XX, 1 pg.
PARENT
A Parent’s Due Process Complaint, 8/31/12, 2 pp. B School District’s Answer, 10/9/12, 4 pp. C Stipulation of Settlement for XXXXXXX school year, 12/11/XX, 1 p. D Letter from XXXXXXXXXXX, 5/29/12, 1 p. E Letter from Parents to XXXXXX High School, 8/7/12, 2 p. F Letter from Parents to BOCES, 8/14/12, 1 p. G Letter from Parents to XXXXXXXX, 8/23/12, 1 p. H Psychological Evaluation, 10/20/11, 8 pp. I NYSTP Report, English Language Arts, XXXXXX, 2 pp.
Case No. XXXXXXXX
J NYSTP Report, English Language Arts, XXXXXXX, 2 pp. K NYSTP Report, Math, XXXXXXX, 2 pp. L XXXXX Newsletter, 11/20/12, 2 pp. M XXXXXXX Field Trips, 9/14/XX to 11/20/XX, 1 p. N Student’s Attendance Record, 9/XX, 1 p. O Student’s Attendance Record, 10/XX, 1 p. P Student’s Attendance Record, 11/XX, 1 p. Q Student’s Report Card for 1st Quarter of XXXXX School Year, 1 p. R Report Card School Year XXXXXX, 1 p. S Student’s Attendance Record, 1/XX, 1 p. T Student’s Attendance record, 2/XX, 1 p. U Student’s Attendance Record, 3/XX, 1 p. V Student’s Attendance Record, 4/XX, 1 p. W Student’s Attendance Record, 5/XX, 1 pg. X Student’s Attendance Record, 6/XX, 1 p. Y XXXXX Newsletter, January-April 20XX, 2 pp. Z XXXXXXX, April-June 20XX, 2 pp. AA XXXXXX Field Trips, School Year XXXXXX, 2 pp. BB XXXXXXX Second Semester Report, XXXXXX, 2 pp. CC Student’s State Assessment History for 5th to 7th Grades, 4/8/13, 2 pp.
IMPARTIAL HEARING OFFICER
I Parent’s Memorandum re Pendency II District’s Memorandum re Pendency III Dated Stamped Impartial Hearing Request transmitted to Hearing Officer IV Hearing Officer’s Decision regarding Pendency V Compliance date extension decisions VI Parent’s Closing Memorandum VII District’s Closing Memorandum
Case No. XXXXXXXX
VIII E-mail from parent counsel re resolution, 10/22/12 IX E-mails concerning scheduling/adjournments, various dates X Subpoenas
Footnotes
[2] The specifications in this section are included herein as Findings of Fact.
[4] Additional communication with counsel concerning pendency issues is discussed in my May 28, 2013 decision regarding pendency. (Ex. IV)