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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 3, 2013
May 16, 2013
May 29, 2013
Actual Record Closed Date: June10, 2013
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2013
Attorney — Student
Parents
Attorney — DOE
Supervisor of Psychology — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2013
Attorney — Student
Parents
Dean, (Via Telephone) — Student
Focus Teacher, — Student
School (Via Telephone) — Student
Attorney — DOE
AP- — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 29, 2013
Attorney — Student
Father — Student
Winston Prep. Sch. Teacher (Via Telephone) — Student
Department of Education Attorney — DOE
By Complaint dated November 15, 2012, this matter came before me as Impartial Hearing Officer (IHO) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The Due Process Complaint alleges a variety of violations relating to the Committee on Special Education (CSE) meeting dated August 23, 2012. The Complaint alleges that the CSE team was improperly constituted; that the team failed to defer to matter to the District’s Central-based support team; that the ICT recommendation was inappropriate for the Student; that the parent did not receive a copy of the IEP at the meeting; that the Individualized Education Program (IEP) failed to accurately describe the Student; that the IEP failed to provide for appropriate management needs and goals; that the IEP did not address the Student’s ; and that the designated school setting for the Student was inappropriate.
The matter did not resolve during resolution. A prehearing conference was conducted on January 15, 2013, during which there was no appearance from the parents and an appearance from a District representative. Upon the application of the parent on the 28th of January, 2013, the decision date in this matter was ordered to be reset to February 27, 2013. The parties were provided written notice. The reason was witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 1)
A hearing date was scheduled for February 4, 2013. District counsel filed a Notice of Appearance on January 24, 2013 and moved to adjourn the February 4, 2013 hearing date. This adjournment was granted.
Another prehearing conference was conducted on February 4, 2013, during which the parties discussed dates and issues in the Complaint. Hearing dates were set for March 20, 2013, March 27, 2013 and and March 28, 2013.
Upon the application of the parent on the 27th of February, 2013, the decision date in this matter was ordered to be reset to March 27, 2013. The parties were provided written notice. The reason was witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 1)
A third prehearing conference was held on March 1, 2013 during which the parties argued about an issue pertaining to attorney-client privilege. The IHO rendered a decision on this issue through email on March 23, 2013. (IHO Exh. 2)
The District moved to adjourn the hearing dates in March. These adjournment requests were granted.
Upon the application of the parent on the 26th of March, 2013, the decision date in this matter was ordered to be reset to April 25, 2013. The parties were provided written notice. The reason was witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 1)
Upon the application of the parent on the 25th of April, 2013, the decision date in this matter was ordered to be reset to May 25, 2013. The parties were provided written notice. The reason was due process considerations. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 1)
The matter proceeded to hearing on May 3, May 16, and May 29. This IHO received a hard copy of the final transcript on June 8, 2013. Upon the application of the parent on the 28th of May, 2013, the decision date in this matter was ordered to be reset to June 27, 2013. The parties were provided written notice. The reason was due process considerations and to allow the IHO to review the transcript to render a decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 1)
FINDINGS OF FACT
The Student is a who is eligible for services as a Student with (Exh. 1)
The Student has . (Exh. 1) He needs interventions to help him with organization, such as reminders to get , note taking. (Exh. 3) He needs reduced content, individual prompts and reminders, coaching to build skills around task initiation, follow through and organization. (Exh. 3) He has a hard time planning. (175) Shifting tasks is really hard for him. (175)
He has been diagnosed with . (Exh. 1) The Student has issues. (175-176) Redirection and refocusing were necessary for the Student in literature and writing. (Exh.
C) The Student’s . (Exh. C) The Student benefits from small group instruction and individual instruction to address these difficulties. (Exhs. 3, C, 177-178)
The Student has been in the past, which . (Exh. 1) He has a history of . (Exh. 1) The Student , and fares better in a class where the students are similar to him. (Exh. 7)
He has also some inferential reasoning issues, and he writes disorganized essays. (176)
The Student previously attended school in . (Exh. 3) He attended a general education class with some special education support. (234) A teacher would “float” between classes to provide extra help. (234, 307-308) One of his class periods included work with a teacher and other students with special needs. (310) There were from 15-17 students in the class. (235) He did poorly that year. (236) The Student would fall asleep in class and have inconsistent performance. (Exh. 3) He would not take out necessary materials unless reminded, and he needed a teacher to closely supervise him to make sure he finished his work. (Exh. 3) His energy level was low and he would often report being hungry. (Exh. 3)
Testing conducted by indicated that the Student . (Exh. 5) He indicated in activities. (Exh. 5)
The Student attended in 2011-2012. (Exh. C) The school report indicated that the are better observed during day to day interactions as opposed to standardized testing. (Exh. C) The thrust of the curriculum in the school was to make the Student a student. (Exh. C) The report indicated that the Student needs help with pre-planning writing. (Exh. C) The Student had success in a setting.
The report suggested goals in the following areas: oral reading for improved comprehension; analyzing complex language structures; interpreting underlying themes, and author’s tone; taking systematic notes; generating questions while reading, which he can ask in class; improving grammar and syntax; pre-planning organization before producing assignments; generating a clear thesis statement with supporting arguments, examples, quotes and explanations; using a thesaurus for word accuracy; composing on a computer to develop proofreading skills; breaking down assignments into manageable tasks; developing interactions with teachers and peers; using notes to create note cards and self-made study guides; checking each completed assignment for quality; organizing his binders periodically. (Exh. C)
The Student’s general moodiness dissipated considerably during the last half of the year. (Exh. C) The Student began to internalize strategies during the year. (Exh. C)
The District created a on August 6, 2012. (Exh. 4) The Student did not show the affect or social engagement usually seen in students of his age. (Exh. 4) His eye contact was limited, and he did not show any visible reaction to praise. (Exh. 4)
The Student’s cognitive scores indicated a on the WISC-IV. (Exh. 4)
On the WIAT-III, the Student’s scores were above the except for reading comprehension, where the Student scored a level equivalent, and numerical operations, where the Student was in the . (Exh. 4)
The parent contacted the CSE in June, 2012 to request special education services.
(288) This was about the same time that school ended (289) The school is open during the summer. (291)
A CSE met on August 23, 2012 regarding the Student. At the meeting were , special education teacher; teacher; the parent; the Student; a school psychologist; , a social worker. (Exh. 1)
The team reviewed a psychological evaluation, a social history. (19-20) The team discussed the Student’s cognitive and academic levels. (21-22) The team used the psychological evaluation to make their determination about program. (35) The parent discussed how the proposed ICT class was similar to the program . (244) The parent discussed how the class size at benefitted the Student. (249) The parent discussed how the Student did best in a classroom with others with a similar profile. (251) The parent indicated that the Student needed some individualized attention. (252) The team discussed how he was bullied previously. (40) The Student indicated that he wanted to be in an environment with more students, that he was in a small class. (41) His demeanor was sad during the meeting. (57) The team discussed the . (42) Goals were written based on the deficiencies found in the report. (43) An organizational goal was created because of the parent’s concern. (43) The IEP was read at the meeting. (43) He was classified as eligible because of other health impairment. (78)
The author of the , was very, very concerned about the Student. (57-58) She recommended counseling for the Student. (58)
The team discussed the Student’s placement and the fact that the Student did not do well in that setting. (87)
The team discussed class size. (88) No one on the team could say for sure how large the class would be, but it was indicated that the class could be as large as 35 students. (88) The parent was concerned about the large class size for the Student. (8990)
The recommendation was for integrated co-teaching. (46; Exh. 1) This is a general education classroom with 40 percent special education students. (46) LRE considerations played a role in this connection. (46-48) The Student would be in general education classes for art, gym, lunch. (50) This is because, typically, students can function in these areas without support. (50) is provided twice a week for 45 minutes. (Exh. 1)
The team recommended management needs of special education support in reading comprehension and math, and counseling to address coping strategies, selfesteem, self-reliance. (Exh. 1)
The goals in the IEP relate to identifying and managing feelings of frustration, developing reading skills and increasing the ability to understand and respond to literature, increasing the ability to make predictions or draw inferences, increasing organizational skills, increasing calculation skills. (Exh. 1) Measurement of the goals is through teacher/provider observations at 85% or 90% accuracy. (Exh. 1) There was no discussion of the particular goals. (256)
The teacher “would have an idea” about the Student’s functioning levels based on the IEP. (95)
The team did not have any updated testing in regard to the . (100) The team did not have the IEP at the meeting. (106) The team did not have any reports at the meeting. (107)
The parent signed an enrollment contract for on May 18, 2012. (Exh. B) They did not know where the process would lead and felt that they had to secure a seat for him.
(280) It was the parent’s understanding that they could get out of the contract if they found a public placement. (281)
The Student received a final notice of recommendation for on August 27, 2012. (Exh. 8) The school contains students with an age range from fourth grade to ninth grade in math. (119) The program tries to make students responsible for completing their own work. (127) The school would have to give the Student an assessment because the levels in the IEP go back to January, 2012. (131)
The school had a poor performance record in terms of graduating children and its “report card” showed . (268) The parent visited the school and found that the class was large and that there was difficulty in meeting the students’ needs. (275-278)
is a school for children with . (172) The typical Student to learn and has great potential. (172) Typical class size is about 12. (172) Students are similar to the Student in terms of learning issues. (180) Pacing is very slow in the group. (180) In reading, they will go paragraph by paragraph, highlighting certain information, taking margin notes, turning them into outlines or study guides. (185-186) Students are exposed to new words and asked to use these words in sentences. (186) There is work on getting him to focus on smaller chunks of information, and teachers break down information into really small parts. (187-188) There is a lot of review and repetition. (187-188) There is individualized attention paid to the Student in regard to strategies for time management, writing, homework and related issues. (323-324) Graphic organizers are used. (190) In math, students are grouped by ability level. (192) They do work on multi-step equations, applying formulas, basic math computation. (193) Work is modified for the Student. (194)
The Student has made progress in reading; he does a better job recalling details, understanding figurative language. (188) The Student has a better idea of the structure of his writing, and his ability to organize written expression has improved. (190, 328) In math, the Student has made progress working on formulas independently. (196) He has made progress in managing his time, . (204) He is more consistent with his assignments. (327) There has been significant progress in reading comprehension. (Exh.
D) There was progress in terms of “topic maintenance” in writing. (Exh. D) The Student’s grades have been in the B range for the 2012-2013 school year. (Exh. G)
The school also provides a period of instruction to address remedial issues. (202-204)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
The District should show that it offered parents a free and appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The CSE has a duty to reevaluate a Student at least once every three years except where the District and the parents agree that the reevaluation is inappropriate. 8 NYCRR Sect. 200.4(b)(4). In such a reevaluation, the District has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect. 200.4(b)(6)(vii). The evaluation should be sufficiently comprehensive to identify all of the student’s special education needs.[8] NYCRR Sect. 204.(b)(6)(x) No single measure or assessment should be used as the sole criterion for determining an appropriate educational program for the Student. (8 NYCRR Sect. 200.4(b)(6)(v). secure a progress report from the Student’s current school when writing the IEP. Further, the District did not review the Student’s IEP from , which provided much meaningful detail about the Student.
As a result, the IEP omits relevant information about the Student. The IEP does not indicate that the Student has . There is no mention that the Student needs extended time, reminders to get out materials, help with filing papers, requires checklists needs outlines for note-taking, needs reduced content, small group instruction, individual prompts and reminders coaching to build skills around task initiation, refocusing and redirection, There is an organizational goal in the IEP, but this goal only references the Student’s need to use a planner.
In fact, the management needs section of the IEP does not provide much in the way of interventions for the Student. The IEP indicates that the management needs section is designed to provide “the nature (type) and degree (extent) to which environmental and human or material resources are needed to address the Student’s numerous special needs. Instead, the management needs are very general: the Student is to receive “adaptive coping strategies” and “consistent support.” There is nothing in the management needs section to address the Student’s .
Moreover, the goals in this IEP are vague and general and do not correlate to the Student’s needs. The progress report for 2011-2012 suggested very specific goals for the Student in such areas as oral reading, analyzing complex language structures, interpreting underlying themes, taking systematic notes, generating questions while reading, improving grammar and syntax, pre-planning organization before producing assignments, using a thesaurus for word accuracy, breaking down assignments into manageable tasks, using notes to make self-made study guides. None of these goals were incorporated into the IEP, which was written without the participation of anyone who had met the Student save the parent. It is noted that the parent credibly testified that these goals were not discussed during the CSE meeting. The Circuit recently underscored the importance of having appropriate goals and objectives in a Student’s IEP. M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012)(where goals not measurable and too advanced for Student, FAPE denial resulted)
Moreover, the team did not consider that the Student requires a small class size. The witnesses from the school all indicated that the Student required small class size because of his significant . Instead, the CSE recommended a program that could have a class size up to 35 children in the class. Caselaw indicates that class size can be a relevant factor in determining an appropriate program for a Student. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006); M.H. v. Monroe-Woodbury Cent. Sch. Dist., 45 IDELR 277 (S.D.N.Y. 2006); see also Sudbury v. Mass. Dep’t of Elementary and Secondary Educ., 762 F. Supp.2d 254 (D. Mass 2010); Gellert v. District of Columbia, 435 F. Supp.2d 18 (D.D.C. 2006)
Given the above, I find that the District did not meet its burden of showing that it developed an IEP that met the Student’s unique needs. The parent prevails on the first criterion.
On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The record indicates that the Student’s special education needs mandate small group instruction, small class size, executive functioning interventions, interventions to address his attentional issues.
The record indicates that the has provided the Student with small group instruction, small class size. A instructor is assigned to the Student to assist him with . Students are similar to the Student in terms of learning issues, which makes the Student feel less stigmatized. There is work on getting him to focus on smaller chunks of information, and teachers break down information into small parts. There is a lot of review and repetition. Graphic organizers are used. Work is modified for the Student.
Moreover, the record establishes that the Student has made progress in reading. He does a better job recalling details, understanding figurative language, and his comprehension hs improved. The Student has a better idea of the structure of his writing, “topic maintenance,” and his ability to organize written expression has improved. In math, the Student has made progress working on formulas independently. He has made progress in managing his time, staying focused, self-monitoring. He is more consistent with his assignments. The Student’s grades have been in the B range for the 2012-2013 school year. Importantly, the Student’s “general moodiness” dissipated considerably” during the last half of 2011-2012. After a difficult period in a program similar to an ICT program, the Student is now in the correct program and is making reasonable progress. While there has been some variability in terms of the progress, overall there have been no reports of depression as had been the case earlier.
The District contends that there is no documentation of the Student’s progress, but the parents have submitted progress reports and a report card to evidence progress. E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417 (S.D.N.Y. 2010)(progress reports can be used to establish progress on the second criterion), aff’d 59 IDELR 63 (2d Cir. 2012); A.D. v. New York City Dep’t of Educ., 690 F. Supp.2d 193 (S.D.N.Y. 2010)(testimony can be sufficient to establish progress on second criterion.). The parent prevails on the second criterion.
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.
The District argues that the parent was not serious about sending his child to private school because he signed a contract in May, 2012. However, the record establishes that the parent needed to secure a spot for the Student through this contract and was open minded about the school placement because he visited the school in good faith. See, e,g, M.F. on behalf of C.F. v. New York City Dep’t of Educ., 113 LRP 24114 (S.D.N.Y. 2013).
The District also contends that the parent withheld information from the District at the CSE meeting. The record does not establish that the District ever asked the parent to bring documentation from the school at the meeting. Morever, it is the District’s responsibility to assess the Student during the CSE process, not the parent’s responsibility.
The District also argues that the parent did not notify the District of the Student’s need for special education services until the 2011-2012 school year was over. I agree with the District that this lack of notification hampered the District’s ability to conduct an observation of the Student. However, the District did have an opportunity to review teacher reports for the Student and secure attendance at the CSE review. The school was open during the summer.
Given the inability of the District to conduct an observation, I accordingly reduce the parent’s award by 10 percent in this matter. The parent prevails on the third criterion, and is awarded 90 percent of tuition for for 2012-2013. Dated: June 24, 2013
_____________________________
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML;mv
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 Complaint, 11/15/12, 6 pages B student enrollment contract, 5/18/12, 2 pages C progress report, 7 pages D progress report, winter 2013, 8 pages E School Description, one page F School Report Card 2011/2012, one page G School Report Card 2012/2013, one page
DEPARTMENT OF EDUCATION
1 IEP, 8/23/12, 11 pages 2 CSE meeting minutes, 8/23/12, 2 pages 3 IEP, 11/15/10, 11 pages 5 5 4 evaluation, 8/6/12, 6 pages 5 psychological evaluation, 1/20/11, 5 pages 6 psychological evaluation, 10/31/08, 8 pages 7 Social history, 8/16/12, 5 pages 8 Final notice of recommendation, 8/27/12, 1 page
IHO
I Timeline Notices, 5 pp. II E-mail of IHO, 3/23/13. 1 pp
Footnotes
[8] NYCRR 200.3(a)(ii)(iii) and (viii) indicate that a review must include both a regular education and special education teacher “of the student” and an additional parent member. The review here did not include either a special education teacher “of the student,” a regular education teacher “of the student.” Moreover, the District did not