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FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER
Student's Name:
School District: Union Free School District
Hearing Requested By: Parent
Dates of Hearing: March 27, 2013
April 24, 2013
April 25, 2013
May 6, 2013
May 7, 2013
May 9, 2013
May 10, 2013
May 15, 2013
May 16, 2013
May 17, 2013
May 31, 2013
Hearing Officer: Dora M. Lassinger
NYS Identifier No.:
NAMES AND TITLES OF PERSONS WHO APPEARED March 27, 2013
Union Free, Esq. Attorney — District
Esq. Attorney — Parents
Esq. Attorney — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED April 24, 2013
Union Free, Esq. Attorney, Esq. Attorney — District
Directo r of Special Services
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED April 25, 2013
Union Free, Esq. Attorney, Esq. Attorney — District
Directo r of Special Services
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother. — Parents
Father — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 6, 2013
Union Free — District
Esq. Attorney, Esq. Attorney
Directo r of Special Services
Teacher Guidance Counselor Special Education Supervisor
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 7, 2013
Union Free, Esq. Attorney, Esq. Attorney Director of Special Services — District
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
Teacher — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 9, 2013
Union Free, Esq. Attorney, Esq. Attorney — District
Director of Special Services
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 10, 2013
Union Free, Esq. Attorney, Esq. Attorney — District
Directo r of Special Services
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 15, 2013
Union Free, Esq. Attorney, Esq. Attorney — District
Directo r of Special Services
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
Student Adviser — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 16, 2013
Union Free, Esq. Attorney, Esq. Attorney Director of Special Services — District
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 17, 2013
Union Free, Esq. Attorney, Esq. Attorney Director of Special Services — District
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
Executive Director — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED May 31, 2013
Union Free, Esq. Attorney, Esq. Attorney — District
Directo r of Special Services
Esq. Attorney — Parents
Esq. Attorney — Parents
Mother — Parents
Father — Parents
Assistan t Principal — Parents
On December 10, 2012, the parents of .requested an impartial hearing alleging that the student was denied a Free Appropriate Public Education (“FAPE”) during the 2010-2011, 2011- 2012 and 2012-2013 school years and seeking tuition reimbursement for their unilateral placement of the student at the School (a placement) for the 2012-2013 school year and compensatory education. As to the 2010 and 2011-2012 school years, it is alleged that the School District (hereinafter “the school district”) failed to fully evaluate the student or conduct a Committee on Special Education (“CSE”) review. As to the 2012-2013 school year, it is alleged the school district’s recommendation for a program was inappropriate, and that the student required a school. (IHO Ex. 4).
I was designated to hear this matter on December 11, 2012. The hearing commenced on March 27, 20131 and continued on April 24, 25, May 6, 7, 9, 10, 15, 16, 17, and 31. The compliance date was extended on five occasions, due to the extensive testimony and availability of witnesses, the complexity of the issues; and to enable the parties to submit closing briefs. The final compliance date is July 25, 2013. (IHO Ex. 1, 9, 18, 19, 20).
Evidence at Hearing
is a year old girl who was diagnosed with in January 2012 when she was years old.
(Tr. p. 775, 824). She was initially classified on, 2012 as . (S.D. Ex. 1). Her classification is not in dispute. (Tr. p. 179). The CSE recommended placement in a Special Class with related services of) (S.D. Ex. 3; Tr. p. 200); however the parents rejected the school district’s recommendation and placed . at the School, a school in in. (Tr. p. 775).
attended the school district’s public schools through her grade year. She did not receive any special education services or accommodations during that entire time period. .’s mother testified that during her elementary school years, . had and was . Toward the end of her grade
1 On the first date of hearing, the parents indicated that the compensatory relief they were seeking was , the services of a and academic support, as a supplement to the program . is currently attending, and as payment for the services she currently receives at her program. (Tr. pp. 7-9). They also stated that they were seeking to be reimbursed for special education services and provided to the student during the 2010-2011 and 2011-2012 school years. (Tr. pp. 12-14). In their closing brief, the parents did not offer any further details of the compensatory relief they were seeking. (IHO Ex. 22). year, the parents became concerned because . was not completing her homework assignments.
Her teacher recommended that the parents establish a relationship with the social worker and guidance counselor in the middle school, to “give her a heads up on .” (Tr. p. 777). The parents met with ’s guidance counselor, during .’s grade year, to discuss their concerns. (Tr. p. 77).
. got off to “a decent start” during the grade. (Tr. p. 779). During her grade year (2008- 2009), she was absent a total of days and tardy day. Her final grades were all “s for academic subjects, and “s for non-academic subjects. (S.D. Ex. 43). .’s mother was in communication with .’s Language Arts teacher with regard to her concerns for .’s performance, and he recommended that . attend extra help sessions. (Par. Ex. UU). She was also in communication with .’s math teacher when .’s grades were g, and was advised to bring her to extra help after school. (Tr. p.
783; Par. Ex. TT). She was also in touch with .’s French teacher, who reported that . had missed assignments, and recommended that . come in for extra help on a weekly basis. (Par. Ex. VV).
.’s mother testified that . started seeing in the spring of 2009 due to her . (Tr. p. 784).
Ms. was .’s guidance counselor throughout her school years. (Tr. p. 491). On , 2009, when . was in her grade year, .’s mother wrote to Ms., about her growing concerns with .’s school performance. (Par. Ex. LL, p. 1). On 2009, .s mother reported to Ms. that . had performed on a test performed by. She requested that the school perform testing of. (Id. at 4). [2]
Ms. responded the same day, stating that . would be discussed at a meeting of the Child Study Team (“CST”).[3] Ms. also requested a screening, which was performed by the school district on, 2009. (Id. at 4, 7). . scored in the h percentile for; and was found to not qualify for .
(Id. at 7). This was the only formal testing ever performed of ., prior to her 2012 evaluation. (Tr.
p. 798).
On, 2009, a parent-teacher conference was held, at the parents’ request, due to their continuing concerns about .’s. Ms. also participated in the meeting. (Tr. p. 788; Parent’s Ex. C).
.’s mother made a list of her concerns, including and performance. She also described concerns regarding; and her belief that . should be evaluated for and classified, and that a plan should be created to help her. (Par. Ex. D). She testified that she distributed this list to all of the teachers.
(Tr. p. 791). Notes of the conference also indicate that there was a handout and a discussion about further testing, to be discussed with . The parents also expressed concern about “”. (Par.
Ex. C).
For English Language Arts (“ELA”), it was noted that . had and that her grades were in the “” range. For social studies, her homework output was very good, and her grades were in the
“” range. For math, her homework production was very good and her quiz grades had improved.
In science, she was doing very well. was offered extra help in all academic subjects. The notes of the meeting refer to CST on Thursday (Par. Ex. C; Tr. p. 731).
Following the conference, .’s mother continued to be in email communication with ’s math teacher. He notified the parent when . failed to return grade slips and homework, and because. He recommended that she attend extra help sessions, and confirmed that she did attend, although not consistently. (Par. Ex. WW). .’s mother agreed that extra help was a good option, but she could not be assured that . would attend, because it was held after school. (Tr. p. 793).
She also had extensive email communication with .’s French teacher regarding .’s failure to . ’s
French teacher arranged for . to work with her during “lunch detention”, for every two missed homework assignments within a short time period. (Par. Ex. XX).
On, 2010, .’s mother wrote to.’s team leader, requesting another parent-teacher conference due to communications from three of .’s teachers about her lack of preparation and a in her grades. She wrote that .’s therapist was recommending a plan to help and monitor .’s work.
(Par. Ex. YY). Ms. responded and a meeting was held on, 2010, which included the parents, .’s teachers and. According to the notes of the meeting, . had shown improvement in math and social studies, but was often unprepared for ELA and not working up to her ability.[4] . also missed French homework. The team recommended that the parents e-mail Ms. for a weekly update and that they set up a reward system at home, by which . could earn independence through improved grades. An extra help schedule was also discussed. (Par. Ex. E). .’s mother went along with the plan to e-mail Ms. every week. (Tr. pp. 805-806). She testified that the extra help sessions were helpful, particularly when . went to review prior to a test. (Tr. pp. 807-808).
Ms. recalled being friendly and well-liked by peers and teachers. While her skills were very solid, she had trouble with long-term assignments and was inconsistent with homework.
(Tr. p. 720).
During her grade year, ’s final grades were all “in science) for academic subjects, and “s for non-academic subjects. She was absent a total of days, and tardy days. (S.D. Ex. 43).
received grades of in ELA during the second and third terms of her seventh grade year, and finished with a final grade of (Par. Ex. L).
On, 2010, .’s mother wrote to Ms. about her concerns that . might a class. She forwarded an email from recommending that . undergo a full evaluation by the CSE, and requested information about scheduling testing and a CSE evaluation over the summer. She wrote as follows: “We haven’t talked about this for a while, so if you could just remind me of the process, I would appreciate that.” Ms. wrote back that. was not in danger of failing. She wrote as follows:
“If you would like to be referred to the CSE and you want the process to begin ASAP, I would recommend that you write a letter to who is the Director of Special Services and ask that . be evaluated. The District has up to 90 days to complete the process from beginning to end.
A lot of students have been unfortunately been throwing in the towel this time of the year. . is not alone… ” (Par . Ex. AAA).
.’s mother testified that she was confused by Ms.’s email, and did not understand the CSE process. She did not contact Mrs. because she started to “second-guess” herself. (Tr. p. 811). At the beginning of . grade year, ’s mother spoke with about getting . off to a good start in the grade. She testified that was a big concern, and that had never written up the results of her testing. (Tr. p. 812). On 2010, addressed a letter “To Whom It May Concern”, referring to the earlier testing, and recommending a full evaluation through the CSE. She wrote that she had also referred . for a consultation. (Par. Ex. G). The letter was written for the parent to forward to the school with the results attached to it. .’s mother testified that she made copies of the letter and mailed it to. (Tr. p. 796). She did not have any record of a cover letter which she sent enclosing the letter. She does not recall ever calling Ms. or sending her an e-mail to ask whether she received the, 2010 letter. (Tr. p. 893).
During the same time period, .s teachers were in contact with .’s mother regarding ’s lack of preparation for class. (Tr. pp. 813-814).
grade social studies teacher, testified that she was the team leader for ., and was responsible to act as liaison between teachers and the administration with respect to ., and the contact person for the parents. (Tr. pp. 457-458). She testified that . was respectful, had good attendance and was a fine student, performing in the ’s. (Tr. p. 455-456).[5] Her behavior in class was fine and she appeared to have friends. (Tr. pp. 456-457). She testified that the parents never requested a team conference during grade year; and that ’s teachers never brought up . as a student of concern. (Tr. p. 459). She recalled that toward the middle of the year, was inconsistent with her homework in social studies and math; testified that it was “nothing of great significance” and that none of ’s teachers thought that . should be evaluated. (Tr. pp. 481, 469).
Progress reports for the 2010-2011 school year indicate that was missing assignments, and that she was offered extra help to prepare for tests, to catch up on her work; and to work on long-term assignments. (Par. Ex. H).
On, 2010 the parents wrote to Ms. and (.’s ELA teacher) about their continued concerns regarding .’s inability to consistently work up to grade level, and her difficulty with the demands and organizational skills needed for school. They wrote as follows: “We have talked about having . evaluated through the CSE, and we are going to request that process to begin now. , can you please let me know who to address the CSE evaluation request to?” (S.D. Ex. 49). On the same date, Ms. wrote back as follow:
“You can write a letter to who is the Director of Special Services. Her contact information is on-line. One thing to keep in mind is that in order to be classified, a student must show significant academic impact. .’s grades in the range –I guess a better question to ask would be, what benefits do you think being classified would provide? It’s always good to have a goal in mind before putting a student through a lot of testing. Just some stuff to think about ..” (SD. Ex. 49; Tr.
p. 1020).
.’s mother testified that she did not write a letter to Ms. requesting an evaluation because she thought Ms. was saying that she should know where she was going with the evaluation before she asked for it, and that she had no idea, and that they had asked many times for help. At that point, she felt that they were not going to help her and was frustrated. (Tr. pp. 815-816).
Ms. testified .’s grades were in the range. She testified that if she felt that required further building support, she could have requested a meeting with the child study team (CST); however this never occurred. (Tr. pp. 504-506).
.’s mother testified that, at home, . exhibited She testified that on one occasion during grade year, someone from the school district called her to notify her that friends reported that .
was’s mother believes, but was not certain, it was Mrs. who called her. (Tr. p. 900). The person who called ’s mother also spoke with ., but the school took no further action. (Tr. p. 817-818).
.’s mother does not recall the exact time frame, but believes it was in the springtime. After the was reported to her, .’s mother did not take . for, because the l and she did not believe . required. This was the only instance of that .’s mother was aware of in the grade. (Tr. pp. 900- 901, 1023-
1024).[6]
During her grade year, .’s final grades were as follows: ELA- ; Social Studies- ; Math – ;
Science – ; French -. She receives grades of “” and “” for non-academic subjects. She was absent a total of days, and tardy days. (S.D. 43).[7] ’s mother was aware that she had the right to request a team meeting in grade if she had any concerns about ; however she did not do so. (Tr.
p. 903).
. was never suspended from school while in attendance at the school district’s school.
(Tr. p. 885). Nor did she ever receive a detention for misbehaving in class. (Tr. p. 888). . did, however,. (Tr. pp. 1014; 1018). She was never diagnosed with during her school years. (Tr. p.
889). Nor were concerns ever raised about her during her school years. (Tr. p. 891).
.’ s mother felt that was still having significant issues with her ability to on her work.
(Tr. p. 818). In discussions with , the parents decided to place. at a private school which provided a small student-to teacher ratio. (Tr. pp. 819-820).
On 2011, .’s mother wrote to the school district notifying it that . was applying to for the semester, and authorizing the school district to release her transcript. (S.D. Ex. 47). On submitted a letter of recommendation to describing as. She wrote that while. has, she skills and gets in large classes. She wrote that. will do best in small classes in which she can be an active participant. (Par. Ex. EE). . was officially withdrawn the school district’s school on. (S.D. E.
48). There was no evidence presented that provided . with any special education services; and the parents have not requested reimbursement for her placement there.
2011-2012 School Year
. started off at with good grades (“s for all academic subjects). (Tr. p. 821; S.D. Ex. 11).
As the year progressed, however, .’s grades declined. (S.D. Ex. 11).
.’s mother testified that . on her, and she was from school for on school campus with the boyfriend. She also had difficulty for school. (Tr. pp. 821-822).
In early, when .’s performance started to slip, the parents brought her to see (T. p. 823).
Although had recommended that . see a at some earlier point in time, .’s mother testified that it took a very long time to find somebody. (Tr. p. 1070).[8] In 2012, diagnosed . with and prescribed. Tr. p. 824). The were filled on 2012 (Par. Ex. CCC).[9] .’s mother testified that from, she noticed that were not as severe; however she continued have some and her grades continued to. (Tr. pp. 825-826). also required at a after the. (Tr. p. 831). . was compliant with going for weekly; however it was difficult to wake her early enough so that she could get the done; and get to school on time. (Tr. p. 910). She was also compliant in taking her, as she understood that if she refused, she would be taken to the. (Tr. p. 915).
. experienced n in the mornings as a result of her n. (Tr. p. 1030). On some days, she would be able to get to school on time after ; and on other occasions, she was late. (Tr. p. 1031,
1039; S.D. Ex.66 at 244). On, 2012, after . had difficulty getting to school for a couple of days, explained to her that she would be if she failed to go to school, and . stated that she understood.
(Id. at 172). [10]
According to records, . was dates, and dates. She was days from. Only three of the absences (and one lateness) occurred before she commenced with. (SD Ex. 10). According to .’s mother, two of the absences occurred on days that . had to have. Of her late arrivals, occurred on days when she had. (Par. Ex. EEE; Tr. p. 832). Two of the absences occurred in, when the parents brought . to visit schools. (Tr. p. 909).
After several months of recommended that the parents place . at a school. The School was one of the schools he recommended. (Tr. pp. 833-834).
Testimony
, testified that he met with .’s parents on December 8, 2011, and with , the following week, for an initial evaluation. (Tr. pp. 1270-1271). The parents reported that had been on occasions, things. They also reported that she had a history of school and that her grades were
They reported that she was without permission. felt her signs and symptoms were consistent with a. As part of his initial consultation, he also noted that there was “”. (S.D. Ex. 66, p. 96).
His initial diagnosis was “as well as”. proposed twice per week; “as evidenced by their children”. (Id. p. 100). It was agreed that would twice per week to attempt to stabilize . (Tr. pp.
1273-1275).
Ultimately, diagnosed . with and. (Tr. p. 1279; S.D. Ex. 66, p. 155). On , 2012, was for her condition. (Id. at 114). After one week, both . and her parents noticed an improvement in ’s.
(Id. at 119-120). continued to work with until . matriculated to the School, where she came under the care of their. (Tr. p. 1278).
testified that while . did not like her, and wishes she didn’t have it, she understood it and was able to accept it. She participated in the recommended treatment, although she sometimes gave her parents and” with regard to her compliance. (Tr. pp. 1281-1282). He told . that as part of her contract, she had to agree to attend sessions and go to school. She was told that if she did not, she would have to be. (Tr. pp. 1299-1300, 1335). . was compliant with coming to sessions and participating in. (Tr. p. 1336).
He explained that affected her, as well as her. (Tr. p. 1282) It also affected her relationships, as her would affect her ability to be. (Tr. p. 1283).
testified that . spent and that she appeared. He also learned from the parents that . was attempting to. This was problematic because . was likely to, and the she was taking could be.
All of this was explained to . and her parents. (Tr. p. 1287).
Approximately one and one-half to two months after he began., it became apparent that was going to be necessary to her. This required a combination of and and then to effect, to. (Tr.
p. 1288). The goal was for to reach a, at which it exerts its most profound. Initially, this required weekly. (Tr. pp. 1290-1291). Despite the fact that . reached e never felt that she was symptom free. (Tr. p. 1290).
On one occasion , 2012), instructed the parents to bring for an evaluation because of her, as well as) after they cleaned her room. It was felt that remaining at the could be more damaging for her than not, due to the at the time. She was released after , as she had where it was felt that she could t and she was. (Tr. pp. 1294-1296, 1338). began on, 2012. (Tr. p. 1330). There were no subsequent. (Tr. p. 13134).. experienced on more than one occasion, and other). (Tr. pp.
1351-1354).
On, 2012, discussed with . and her parents that . was seeking to and the need “to be keeping a substantial eye” on her to prevent this from occurring. It was during this session that he began to discuss with the parents that an appropriate placement for. would be in a school. (Tr.
p. 1301; S.D. Ex. 66, p. 136). By that time,. had already reached a. (Tr. p. 1330).
In a meeting with . and her parents on, 2012, discussed that the plan is to get enrolled in the School as soon as possible. (S.D. Ex. 66, p. 173). He provided a letter to the parents with his recommendations (Par. Ex. I) and attended, 2012 CSE meeting. (Tr. pp. 1303-1304).
In his letter he wrote that “. has done this year, despite her placement in a small private school with small classes”. He attributed this to the school’s inability to understand “and the special issues that it creates regarding”. (Par. Ex. I, p. 2). He testified that . was unable to such as
“The”, (which she was assigned to read at) and put together a report for the book. (Tr. p. 1341;
Par. Ex. MM).
explained to the committee that “the most appropriate placement” for . would be in a school which could address her difficulty with, her and her need for a substantial amount of. (Tr.
pp. 1305-1306).
On, 2012, met with the parents and expressed his opinion that the CSE’s recommendation for a program was not appropriate, and that . would be best served by placement in a school. The parents agreed. (S.D. Ex. 66, p. 1070). On, 2012, the parents reported that they had completed the paperwork for .’s matriculation to the School. (Id. at 1077). Between 2012, and 2012, the date of’s last session with, the parents and . met with to discuss transitional plans for . to begin studies at the School. (Id. at 1077; 1079, 1081; 1087, 1090, 1093).
testified that as of the date of the, 2012 CSE review,. ’s were at a. She required on a monthly basis, and was still having. (Tr. p. 1374). He testified that decrease the of that occur with. Nevertheless, could still, and her especially in situations involving. (Tr. pp. 1396-1397).
did not agree with the CSE’s recommendation that a. He was also concerned that . would be “able to ” from a. (Tr. p. 1308). He testified that he was familiar with the School and felt that it would appropriately address .’s issues with. (Tr. pp. 1313-1314). He was concerned that if she were not placed she would, and become, which would be a disaster. He felt that by providing a placement they “could get over this developmental hump to the point where as a young adult she would make better decisions and her would be at the time’. (Tr. p. 1315).
Parent’s Referral for Evaluation
In 2012, the parents contacted, the director of guidance at the school district’s school for assistance for a placement for . for the following school year. (Tr. p. 836). On, 2012, Mr.
informed the parents that in order to have . evaluated, the parents would have to be registered and attending a school in the district. (Par. Ex J; Tr. p. 837). After further research, .’s father determined that the information the parents had received from Mr. was incorrect. (Tr. p. 839).
On 2012, the parents requested an “emergency” CSE evaluation of E. (Par. Ex. Q). On 2012, sent the parents a consent for the evaluation, which they returned the same day. (Par. Ex. Q; Tr.
p. 616).
Before submitting the written request for evaluation, the parents spoke with, the Special Education Supervisor for the school district. (Tr. pp. 610, 613; S.D. Ex. 65). .’s father stated that he had a registration packet from the registrar at the school district’s high school and that he would contact if he chooses to enroll his daughter and refer her to the committee. (Tr. p. 614).
On, 2012, the school district conducted a with the parents. The parents reported a family.
They described. They reported that she makes friends easily and is social and struggles with.
They described. They expressed concerns with her; as well as her attempts to. They reported that in 2012 and is all of her classes. They reported that her attendance has become since 2012, and on several occasions, has to go to school. (SD Ex. 7).
An was performed on, 2012 by. In performed in the range for and and in the range for. In
, she performed in the range for; but in the range for. She acknowledged that she found it difficult to without the use of a. In was a relative strength. Her sample was typical, at the percentile. Her, a timed measure, was in the range (S.D. Ex. 6; Tr. pp. 382-384). Based upon her conversation with testified that she appeared to have good relationships with teachers and peers at her school. (Tr. p. 386).
Ms. also performed an observation of . on, 2012 at. The assistant headmaster stated that had not demonstrated any of the concerns which were reported at home. (S.D. Ex. 8). She informed that .’s grades following her and that she had been consistently. (Tr. p. 378).[11] During a Biology class, spoke and volunteered. Her attention was to her classmates. (Tr. pp. 379-380,
396).
A was performed on, 2012, by. (Tr. p. 561; S.D. Ex. 5). ’s mother informed that . had been; and that she struggled. (Tr. p. 562). told Ms. that she felt her school performance after she began which made her. She also reported that she was for and and that she had fallen behind in her school work. (Tr. p. 567).[12] also had a letter from which stated that . is and will required ongoing. (Tr. p. 576; Par. Ex. P).
testing indicated that . is functioning in the range of intelligence overall, with working abilities. On further testing, the evaluator found that . possesses overall abilities; but has vulnerabilities in her ability to or . Based upon a self-report, a record review and an informal student review, Ms. found that .’s functioning is. On the. had scores which were in the areas of.
There was no indication, based upon her testing of . that she had. (SD. Ex. 5; Tr. pp. 572-573).[13]
CSE Review and Placement Recommendation
On, the CSE met for the first time to consider .’s eligibility. The participants included the parents, , the CSE Chairperson, a School Psychologist, , a Special Education teacher, a General Education teacher and. A parent member was declined. The CSE classified with and recommended placement in a Special Class, with related services of program. A weekly was also recommended as an additional support. (DOE Ex. 1 at 1, 11).
The Comments section of the Individualized Education program (“IEP”) developed on that date reflects report that . was that manifested in. He judged that were at and recommended a environment. The parental concerns were that.’s grades, that her attendance has become that .
frequently to go to school; that she, that she and had. The Committee agreed to invite , the Coordinator, to the next meeting. It was further noted that the Chair would contact program to inquire about services in the to address the issue of to go to school. (DOE Ex. 1, p.2).
The IEP includes the results of the CSE’s evaluation and contains thirteen goals, to be measured weekly through. The goals include. The IEP includes the of a as support for and a weekly for team and home, for thirty minutes in the classroom. The IEP also provides for; and provides a. The IEP recommended that receive a due to her history of as well as at home. (DOE Ex. 1; Tr. pp. 182-185).[14]
.s mother testified that brought his report (Par. Ex. I) to the meeting and summarized it for the Committee.[15] The Committee, however, discussed the requirement that. be placed in the least restrictive environment. (Tr. p. 846). Ms. testified that confirmed that . had reached and was somewhat; however he felt that she needed a placement in order to”. (Tr. pp. 252, 287, 335).
The parents were informed that the school district would send referrals to different schools, and they agreed to explore all available options with an open mind. They concluded, however, that the programs could not fully address .’s needs; and that every school would have problems with the would have to make. (Tr. p. 848). . was compliant with visiting the potential placements. (Tr.
p. 910). Her father informed the CSE that . liked ever program she saw, particularly the aspects of programs which offered more freedom. (Par. Ex. GG).
On, 2012, was accepted to the). The CSE was notified that the related services which are part of the program are. (S.D. Ex. 58). assigned to testified that the program is housed in a corridor of. There are approximately students in the program, which shares classes with approximately).[16] (Tr. pp. 660, 662-663, 685). While grade students are allowed to go off campus for lunch grade students are not. They may eat lunch in the school cafeteria, in a classroom or in’s office. The students receive physical education in the school facilities, but remain grouped in the staffing ratio. (Tr. pp. 678-680).
met twice with . for approximately one and one-half hours and toured the facility with the family. He described . as appropriate, and accepted her to the program. He testified that could implement the services on the, 2012 IEP. (Tr. pp. 670-671). He testified that the program serves students who have exhibited. (Tr. pp. 667). He testified that are typically his job; but indicated that the program would also have a role in assessing goals related to. (Tr. pp. 671-672). He testified that while there were too many goals for him to chart personally, ’s teachers could track the first five goals, as. (Tr. pp. 714, 716).[17] The program does not provide (Tr. p. 715).
He testified that he has an “policy” for the kids, as a “go-to person”. (Tr. p. 666). As part of the program, . could be transferred, if needed, to a more restrictive program called “” which serves students who have more needs. (Tr. pp. 669-693). In addition, if she required more than was part of the program, the additional service could be negotiated with the parent and the school district. (Tr. p. 701). Staff at are trained in. (Par. Ex. GG).
testified that at the program, needs are addressed by teachers and who work together as a team. He testified that the teachers are well-trained and experienced in working with students with challenges, and who understand that the student’s sometimes come before academics. The provide and work with the teachers to create a environment. A consulting comes every six weeks; and advises her if there is a student which would benefit from her consultation. If a student’s IEP provides for a more frequently, that can also be provided, at an additional expense to the school district. (Tr. pp. 695-698, 715). He testified that the program made a commitment, at the IEP meeting, to meet . and provide in the afternoon. (Tr. pp. 703-706). With respect to the program, he testified that it was successful in assisting a student with a by providing a who helped a student so that he, without incident. (Tr. pp. 707-708).
On, 2012, the parents wrote to , the Director of Special Services, outlining their specific objections to the, 2012 IEP, and to the schools that had been offered. With respect to the program, the program that was ultimately offered to . by the school district, the parents wrote that “the component does not include the that are required to address the impact of on her”.
They also expressed their concern with the “” policy of the program, which is located in a public school. The parents reiterated their position that . requires a program. They informed that . had been accepted at the School, that she is scheduled to attend beginning that they reserved their right to seek reimbursement for the placement; but that they would continue to cooperate with the CSE. (S.D. Ex. 36). In a subsequent letter dated, 2012, they informed that they had placed .
at the School and were seeking tuition reimbursement. (S.D. Ex. 37).
On, 2012, sent the school district a letter confirming that. was on the list of students scheduled to attend the program at effective September 5, 2013. (S.D. Ex .40). A separate letter from stated that had authorized services to commence on September 5, 2012,. The attached description of the service states that may assist with which “may support”. It states that services can utilize a combination of staff in a variety of disciplines. (S.D. Ex. 41).
On, 2012, the CSE reconvened to review the responses from the placements to which .
had been referred. . was rejected from four of the programs to which she had been referred and accepted at and at with related services of. According to the Comments section of the IEP, the Principal of the program, participated by telephone and described it.[18] The discussion is described as follows:
“Parents expressed concerns about an policy, about . during lunch, about a transitional plan that incorporates throughout all aspects of the day, including lunch is possible to ensure . is supported. The parents also reported that during the site visit, the reported that the program would have difficulty ensuring delivery of the goals as written on the IEP. expressed the opinion that the program would be able to meet the goals. .. The committee discussed the program offered through as a necessary complement to the special class program that will provide support to the in gaining skills and strategies necessary to address. An will be developed to address. ’s. . will be The will observe. in the classroom, develop a, and provide recommendations to the team and the parents. The will collaborate with the.”
The recommended program was modified by substituting a, and by adding to the IEP, on a daily basis to be provided at The IEP also added. It was further noted that “to address for school as well as. program support sic).” (DOE Ex. 3). The school district stipulated that a specific was not provided as part of the IEP. (Tr. p. 1083). A weekly remained one of the supports recommended by the CSE. (S.D. Ex. 3, p. 11).
testified that the program is a self-contained program located in a wing of School within County. (Tr. p. 189). She testified that there is a monitor at each end of the hallway to track the students coming and going. She testified that the school has on staff two , and that a from works with the program . The program services students with issues. Students can earn mainstreaming opportunities. (Tr. pp. 190-191).
also described She testified that staff from the program would go to in the morning to help. (Tr. p. 200). She testified that the program has been successful in the past for school district students who are. (Tr. p. 201).
She testified that the associated with and his team go and meet with the parents and child and develop a to address whatever the issues are that are . She testified that the team uses and works to motivate the student to (Tr. p. 312). If the staff from the program were not successful in developing a that resulted in a, they would notify the CSE. She testified that an outline of the services provided by was provided to the family. (Tr. pp. 313-314). When this was discussed at the 2012 CSE meeting, the parents stated that they wanted to talk directly to the. They also stated that they did not want people; and did not want to have people would comply.[19] testified that (as recommended in the IEP) would be provided at the recommended site. (Tr. p. 202).[20]
’s mother felt that the recommended program would not be able to monitor . if she student at the school. She noted that if part of. (Tr. pp. 983-984). She also did not feel that the program would be appropriate. She believed that . would become if a non-family member came.
(Tr. p. 850). She was concerned that the program would not ensure that .’s homework was completed. Finally, the services provided by could not be fully described to the parents prior to the beginning of the school year, “since it’s kind of done by trial and error”. (Tr. p. 984). She testified that although she was not aware of . ever having from the school district’s school or from. (Tr. p. 1005), she was concerned that . would including, or, which did happen at . (Tr. p.
1087).
At the, 2012 CSE meeting, the parents discussed their concerns that . would . Ms. told the Committee that in light of those concerns, the school would provide for . at all times, to ensure .’s safety. (Tr. p. 192; S.D. Ex. 3, p. 2). Ms. testified that the program would wait for . to become enrolled; and then would perform and to address the was exhibiting; and that the CSE would reconvene after 10 weeks to review the program. (Tr. p. 193). This was specifically provided in The IEP which stated as follows:
“Staffing for the first 10 weeks to ensure no \ of the day and include.
Reconvene CSE after first 10 weeks (or before upon parental request) to review program.” (S.D. Ex. 3, p. 3).
The parents gave the CSE permission to send a referral to the School Program another d school option. (S.D. Ex. 3 p. 2).
On, 2012, the parents paid a deposit of $ to the School. . began attending on 2012. (Tr. p.
1116). On, 2012, the parents signed an enrollment contract with the School, with a monthly tuition rate of. (Tr. pp. 855-856; Par. Ex. DD; Par. Ex. W).
Even though they had arranged for . to attend , the parents agreed to visit . In addition, they asked to meet with from the program. (Tr. p. 1113; S.D. Ex. 26). In an e-mail correspondence to Ms. dated, 2012, .’s father wrote the family had visited and that the visit was “fine.” He described the school as “a first and an academic program second – very different from the other school programs” that the parents saw. The parents remained concerned, however, about “on a regular and consistent basis and having a comprehensive, integrated approach for addressing needs”. They were still unable to get in touch with the program. (Par.
Ex U, p. 6). On September 5, 2013, wrote to .’s father that felt . was a good match for the school, and inquired whether the parents would be willing to come back to have a CSE meeting on Friday to discuss options. (Id. at 5). ’s father responded that the parents needed more information from the program to determine whether they could proceed with . He stated that .
will be starting at on. (Id. at 4).
As neither party was able to reach by September 4 (the day before the start of school (See S.D. Ex. 3, p. 1); on September 5, put the parents in touch with an outside contract firm, which provides services for the school district through staff who are ’s. She wrote that she had spoken with the firm and they felt they would be able to support .’s needs. (Par. Ex. U at 5). 21As the parents were making preparations for . to enter on , they stated they would be unable to contact until September 6. (Id. at 4).
On September 7, 2012, .’s father wrote to that on September 6, the parents reached the program and learned that it offers a ‘hand-crafted’ approach that would need to be defined”.
They also spoke with , and came away with similar impressions; but in this case it appeared that more would be done to evaluate, define a over time. He stated that the parents would be willing to meet to discuss these new options. (Id. at 3). Ms. responded that in order for the CSE to consider the option (which was a more restrictive option), the parents would have to complete the intake process there, which involved another meeting that did not include . (Id. at 2, 5). On
September 11, 2012, again wrote to the parents about the need for them to complete the intake process with , so that the CSE could consider this as an option. (Id. at 2).
On October 1, 2012, the parents responded with their “position regarding the IEP”. (Id. at 1). In a letter also dated October 1, 2012 , they stated that they would reject the CSE’s recommendation, even if the were replaced with the School because they were convinced that a “school is the appropriate option to meet .’s needs.” They stated that . requires a program that
21
records reflect that as of September 6, 2013, the “ case” was set up for . (Par. Ex. NN, p. 7). provides “a component that is integrated with the academic and c components on a basis”. (S.D.
Ex. 37).
E.’s Placement at the School
. applied for admission to the School on, 2012. (Par. Ex. GGG). She was accepted on
2012. On, 2012, the parents made a $ deposit to secure.’s spot. (Par. Ex. T). . began attending the School on, 2012.
On November 2, 2012, the School provided the parents with a for ., similar to an IEP.
(Tr. p. 860; Par. Ex. BB). care is part of the services she receives at the School. (Tr. p. 862). .’s mother feels that . has made progress academically, as demonstrated by her grades; and progress as well. (Tr. p. 864). is at the School. . attempted to shortly after she arrived at the school, in.
When she persisted, she. (Tr. p. 863).
According to .’s mother, there are no issues with at the School, because and is expected to be ready for school at 8:00 A.M., or. When . has attempted to, she is required to participate in an program, or a. (Tr. pp. 865-866). The once per month. (Tr. p. 868).
, a licensed employed at the School, testified that she provides . with twice each week and sees her once each week in. She works with. regarding her. (Tr. pp. 1145-1146; Par. Ex. RR).
While . was initially excited about coming to the school, when the school, she became . She because she “”. (Tr. p. 1147). She has now improved to the point where she is permitted, (Tr. p.
1148). Students at the highest level of accountability are permitted to for a set period of time. .
has not reached this level and must always be in. (Tr. p. 1163).
A on staff consults regarding . is and does not experience a or other at this point. (Tr. pp.
1151-1152). testified that . continues to improve academically. (Tr. pp. 1157-1158). In the first three quarters, . receives grades of “” for Spanish; “” and “” for Biology and History, “’s and “’s for Algebra and “”’s for English. (Par. Ex. QQ). . has responded positively to the school structure, which includes. (Tr. pp. 1164-1165). has not refused to. (Tr. p. 1166). If she refused to, staff would. In addition, she could receive (Tr. p. 1199).
While the other students generally like., they are affected by. She has progressed in her willingness to issues which came up with peers. (Tr. pp. 1159-1160). . has not presented with any issues with respect to, except on one of her first , where she. (Tr. p. 1163). As a consequence, her. (Tr. p. 1164). . is not seen as a at the school. Her is around her. (Tr. p. 1182).
When the parents first met with , they did not discuss concerns that . was a. (Tr. p. 1199). Ms.
testified that if . were not in as structured as environment (she would. She testified that . had already prior to coming to . (Tr. pp. 1190, 1192).
Ms. testified that she is the case manager/point person to oversee ’s life at . (Tr. p. 1207).
In consultation with .’s parents, the school created an individualized academic plan providing that if , she would be required to attend to complete it. This plan worked well and allowed . to be able to maintain her grades appropriately. (Tr. p. 1213). She testified that the parents are an integral part of. They participate in a. (Tr. pp. 1222-1223). Since coming to the school, has progressed in her. (Tr. p. 1122). . benefits from the structure of a school, as it relates to. (Tr. p.
1228).
, the Executive Director of the School, testified that the school has students, approximately students and students who participate in a transition program. (Tr. p 1424). ’s monthly tuition is $. This includes her. (Tr. pp. 1436-1437).
the assistant principal of the School, testified that he is certified in as a history teacher, a special educator teacher and a school administrator. (Tr. p. 1454). He oversees .’s academic program and the creation of her. All of .’s teachers are certified in in their content area or in special education. (Tr. p. 1458). The school serves students who are including students who are and who have. (Tr. p. 1459). is enrolled in her grade core curriculum classes. She is required to attend classes and do the homework and outside preparation in either her or during (Tr. p. 1460).
. performs well in class but. She has responded well to a plan where she attends an if she doesn’t complete her homework on a daily basis. Although she is not she is progressing in the curriculum and working toward the requirements for graduation. (Tr. pp. 1466-1467).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. The IDEA guarantees an appropriate education, “not one that provides everything that might be thought desirable by loving parents”.
Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay Shore, 873 F. 2d 563 (2d Cir. 1989).
Request for Compensatory Education
Within the Second Circuit, compensatory education, in the form of supplemental special education, has been awarded to students who remain eligible for special education, where there has been a denial of FAPE. Application of a Student with a Disability, Appeal No. 11-021 (citing
P. Newington Bd. Of Educ., 546 F. 3d 111 (2d Cir. 2008).
A request for an impartial due process hearing must be submitted within two years of the date the parent knew or should have known about the alleged action that forms the basis of the complaint. 8 NYCRR 200.5(j)(1)(i). The complaint was filed on December 10, 2012. While the parents may not request relief for the time period prior to December 10, 2010, the events which occurred prior to that date are relevant in determining the parent’s claim. See Scarsdale Union Free School District v. R.C. and K.C., 60 IDELR 195 (S.D.N.Y. 2013).
The parents are seeking compensatory relief in the form of , as a supplement to the program . is currently attending, and as payment for the services she currently receives at her program. (Tr. pp. 7-9). They are also seeking to be reimbursed for provided to the student during the 2010-2011 and 2011-2012 school years. (Tr. pp. 12-14).
2010-2011 School Year
The parents argue that the school district failed to honor the parents’ requests to evaluate
; that the CST never considered .’s case; that the school district failed in its child find obligation to evaluate as it should have suspected she had a disability; and that an appropriate evaluation would have revealed that . had a disability. (IHO Ex. 22).
With respect to the claims for relief for the 2010-2011 school year, the school district maintains that events which occurred prior to December 10, 2010 are barred by the applicable statute of limitations; that the parents never referred . for evaluation prior to May 2012; that the school district had no reason to suspect . had a disability prior to the May 2012 referral; and that even if she were evaluated during this time period, she would not have qualified as a student with a disability. (IHO Ex. 21).
A parent of a child or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability. 34 C.F. R. 300.301(b). A written referral, if received by any employee of the school, must be forwarded to the committee chairperson immediately upon its receipt. 8 NYCRR 200.4(a)(2)(ii). The initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation. 30 C.F. R. 300.301(c)
(1).
School districts have an independent obligation to identify, locate and evaluate children with disabilities to determine whether these children require special education and related services. 20 U.S.C. Sec. 1412(a)(3)(A). This “child find” obligation extends to children “who are suspected of being a child with a disability --- and in need of special education” who are parentally placed in private schools located within the school district. J.S. and A.G. v. Scarsdale
Union Free School District, 826 F. Supp. 2d 635 (S.D.N.Y. 2011); 34 C.F.R. 300.131(f). While placement in another school district does not relieve the district of residence of its obligation to evaluate a child and to provide the child a FAPE, E.T. and D.T. v. Board of Education of the
Pine Bush Central School District, 60 IDELR 31 (S.D.N.Y. 2012); the district where the private school is located is charged with engaging in child find activities to ensure ‘the equitable participation” of such children in the services the district provides. J.S. and A.G. v. Scarsdale
Union Free School District, supra, citing 20 U.S.C. Sec. 1412(a)(10)(A)(ii)(ll); 34 C.F.R. Sec.
300.131(b).[22]
In order to be eligible for classification as a student with an disability, the student must exhibit the
The parents initially requested an evaluation of . on, 2009, when they attended a parent conference which included ’s teacher and guidance counselor. The notes of the conference corroborate the testimony of. ’s mother that, at that meeting, she submitted a handout, which included a request that . be evaluated, classified, and that a plan be created to help her. The notes also reflect that following the meeting, was scheduled to be reviewed by the school’s CST; however this never occurred.
On, 2010, again communicated with, in writing, requesting information about the evaluation process. responded with specific information about how the process could be initiated by contacting the director of Special Services.
The events of the 2009-2010 school year do not give rise to a claim for compensatory education, as they occurred more than two years before the request for due process was filed. 8 NYCRR 200.5(j)(1)(i).
On 2010, the parents wrote to requesting that the process begin now. I find that this was a written request for an evaluation, within the meaning of the IDEA; particularly when viewed in light of the parent’s prior request; and the school district’s representation that. would be reviewed by the CST. See Scarsdale Union Free School District v. R.C. and K.C, supra. I also credit’s mother that she was discouraged by Ms. response, and therefore did not pursue the request further. [23]
While I find that the school district should have evaluated ., in response to .’s mother’s repeated requests, the record does not support the parent’s position that an evaluation during this time period would have resulted in a classification. . was not until a year later, when she underwent a thorough evaluation by. Even if an earlier evaluation had revealed that . was suffering from a during the 2010-2011 school year, her condition did not to the extent that she required special services and programs. See J.D. v. Pawlet, 224 F. 3d 60 (2d Cir. 2000);
Eschenasy v. New York City Department of Education, 604 F. Supp. 2d 639 (S.D.N.Y. 2009).
During the 2010-2011 school year, ’ .s final grades were as follows: ELA- ; Social Studies- ; Math – ; Science – ; French -. She receives grades of “” and “” for non-academic subjects. She was absent a total of days, and tardy days. Throughout her school years,.
consistently performed standards for ELA, Science and Math, except that in her grade year, she performed in math,
While ’s teachers reported during the second and third term of the 2010-2011 school year, this was not considered a significant problem. .’s grade social studies teacher, (and team leader), described her as a fine student who appeared to have friends. was also described as always respectful. ’s teachers were in communication with the parent with regard and . was offered extra help to prepare for tests, catch up on work, and to work on long-term assignments.
In summary, the record indicates that progressed satisfactorily during her grade year, and there is no basis for an award of compensatory education.
2011-2012 School Year
During this time period, . was grade student at a private school outside the school district.
. began to receive grades during the third quarter of the 2011-2012 school year. At this point, her parents had taken her for a evaluation, resulting in a. After she commenced, she was absent from school days and late to school on occasions.
Many of her arrivals to school occurred when she went for. She was also absent due to schools.
She struggled with learning of. All of these factors related to her her educational performance.
As . was parentally placed outside the school district during the 2011-2012 school year, however, I find that the district of location, not the school district, was charged with engaging in child find activities. See J.S. and A.G. v. Scarsdale Union Free School District, supra.
I find the school district was obligated to evaluate . when requested to do so by the parents on, 2012; and that the information provided to them, that . had to be registered and attending a school in the school district in order to be evaluated, was incorrect. Nevertheless, the delay (from 2012 to 2012) in the commencement of the evaluation process, did not cause a deprivation of educational benefits, as the parents were seeking placement for the following school year, and an IEP was in effect by the beginning of the school year. See 34 C.F.R. Sec.
300.342(a).
Therefore, I find that the parents are not entitled to compensatory education for the 2011- 2012 school year.
Request for Tuition Reimbursement, 2012-2013 School Year
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. (Florence School District Four et al.
V. Carter by Carter , to 510 US. (1993). The school district must recommend a school which is capable of satisfying the student’s IEP requirements. See T.Y., K.Y. on behalf of T.Y., v. New
York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). Speculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement.
R.E. v New York City Dep’t of Education, 694 F. 3d. 167, 195 (2d Cir. 2012); See F.L. and M.L. v. New York City Dep’t of Education, 60 IDELR 17 (S.D.N.Y. 2012).
Procedural Challenges
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II)
significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education (“FAPE), or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii). Other than the timeliness of the evaluation (discussed above), the only procedural challenge to ’.s IEP is the CSE’s failure to include a n the IEP. (IHO Ex. 22). The parents do not challenge the composition of the CSE, the description of ., or the IEP goals.
The Court of Appeals, 2d Circuit, has held that failure to conduct a does not render an IEP legally inadequate, where the IEP provided strategies to address the. A.C. and M.C. o/b/o
M.C. v. Board of Education of the Chappaqua Central School District, 553 F. 3d 165 (2d Cir
2009). More recently, in R.E. v. New York City Department of Education, 694 F. 3d 167 (2d Cir. 2012), the Court held that FAPE was not denied, where an were created, but did not meet state-imposed criteria, and where were identified and the IEP included “numerous specific strategies to address those”. (Id. at 193).
In the instant case, were addressed in her IEP goals, in the recommendation for an and in the recommendation for program support. The specific issues which were to be targeted by the were identified as. ’s goals included for the entire school day.
For the foregoing reasons, I find that the failure of the school district to include a in the IEP does not rise to the level of a denial of FAPE. R.E. v. New York City Department of Education, at 194.
Substantive Appropriateness of IEP
The parents challenge the appropriateness of the recommended program as being insufficient to meet .’s needs. Their main challenge to the program is their belief that requires a setting to s. (IHO Ex. 22, p. 21). They argue that the programs they visited lacked the component needed; that they were unable to meet with the program until the school year had begun, and that the services offered by the program would be intrusive. With respect to the specific site offer at, they argue that stated that he could not track all of the IEP goals, that the program offered too many opportunities in which . could interact with mainstream students and; and that the program did not offer or a sufficient amount of. (IHO Ex. 22, pp. 20-22).
The school district argues that . did not need a placement in order to make meaningful educational progress, and that the recommended program was consistent with the school district’s obligation to offer a program in the least restrictive environment. (IHO Ex. 21, p. 22).
I find that the CSE’s recommendation for . to attend a program with related services of and the other described in the, 2012 IEP provided . with a FAPE. I also find that was capable of implementing the IEP.
The IDEA’s preference is for disabled to be educated in the least restrictive environment capable of meeting their needs, and a placement is, by its nature, considerably more restrictive than a program Walczak v. Fla Union Free School District, supra. I find that it was reasonable for the CSE to conclude that .’s IEP goals, which are not disputed, could have been implemented in a program supplemented by a. As of the summer of the 2012 CSE review, . had reached
While she still had, they were less severe, and . was . had progressed in the school without special education, and a had not been a problem until the 2011-2012 school year, when her and visits to schools.
The record indicates that was prepared to implement the recommended program at the start of the school year. While the parents were unable to communicate with until September 6, 2013, . was in fact on its caseload. Furthermore, in light of the delay, the school district offered as another alternative which also indicated that it could provide . with the necessary testified that a placement was needed in order be provide a for . , to prevent her from.
While the parents had cause for concern about .’s conduct, there was no indication that these concerns impeded. ’s ability to progress in a program, to the extent that a placement was required. Mrs. B. v. Milford Bd. Of Educ., 103 F. 3d 1114 (2d Cir. 1997). With respect to the parents’ complaint that the recommended program did not include, there is no indication in ’s IEP goals (which were not disputed) that was believed to be one of the issues which her educational program was to address. ’s IEP did provide for
While the parents object to the level of provided at the recommended program, the record does not indicate that she requires more than the provided in .’s IEP. The which a school district must provide as a related service are limited to evaluative and diagnostic services; and do not include. 34 C.F.R. 300.34; 8 NYCRR 200.1(ee); 8 NYCRR 200.1(qq).
The record indicates that the school district met all of the parents’ concerns for .’s safety at school by including in the IEP. The recommended program was in a separate wing from the rest of the school, and . would not be permitted to go out during lunch. The IEP further provided that the program would be reviewed after 10 weeks. While during his meeting with the parents, expressed doubt about his ability to chart all of .’s IEP goals; at the, 2012 CSE review, the site supervisor of the recommended program, confirmed that was capable of implementing the IEP. Both and explained that some of the goals could be assigned to .’s teachers to track. In addition, the IEP provided for the support of a program to address s goals as they related to attendance.
The school district also met the concerns raised in the parents , 2012 letter, (in which they rejected the proposed site), by offering as another option. When the family was unable to meet with the program, the school district arranged for them to speak with , a provider of who contracted with the school district. See F.L. v. New York City Department of Education, supra.
It was explained to the parents that. To the extent that it was necessary for the to perform an and develop a this is consistent with the regulatory requirement that the
While .s father expressed that was “fine”;’ and that it was a program; and while he understood the approach described by , the parents’ cooperation ceased when they were asked by the school district to meet again with so that . (who was deemed a good fit for the school)
could be accepted to the program. Their lack of cooperation in participating in the second interview at prevented the school district from offering the school as another option and is another reason that tuition reimbursement should be denied. See Bettinger v. New York City Bd.
of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].
ORDER
For all of the foregoing reasons, it is hereby ordered as follows:
1. The parents’ request for compensatory education for the 2010-2011 and the 2011- 2012 school years is denied; and
2. The parents’ request for tuition reimbursement for their placement of. at the School for the 2012-2013 school year is denied.
Dated: July 23, 2013 ___________________________________
DOR A M. LASSINGER
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or Board 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.” (8 NYCRR 279.2[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 can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
Impartial Hearing Officer Exhibits
1. Pre-hearing conference summary, 1/30/13, 1p.
2. School District Witness List, 2/6/13, 1 p.
3. Interim Order, 2/13/13, 4 pp.
4. Cover Letter with Complaint and Attachments, 12/10/12, 129 pp.
5. School District Response, 12/20/12, 3 pp.
6. Letter from, 1/15/13, 7 p.
7. Letter from, 2/6/13, 4 pp.
8. E-mail correspondence, 3/13/13, 1 p.
9. Extension of compliance date, 3/27/13, 1 p.
10. Letter from Esq., 9/18/12, 6 pp.
11. Subpoena Duces Tecum for, Undated, 2 pp.
12. 7 Subpoena Duces Tecum for staff at244/24/12, 14 pp.
13. 4 Subpoena Duces Tecum for staff at, 4/24/12, 8 pp
14. 3 Subpoena Duces Tecum for staff at, 4/24/12, 6 pp.
15. 7 Subpoena Duces Tecum to schools, 4/24/12, 14 pp
16. Subpoena Duces Tecum, 4/24/12, 2 pp.
17. Subpoena Duces Tecum /25/12, 2 pp.
18. Extension of compliance date, 4/28/13, 1 p.
19. Extension of compliance date, 5/17/13, 1 p.
20. Extension of compliance date, 5/31/13, 1 p.
21. Post-hearing Brief, School District, 7/10/13, 33 pp.
22. Post-Hearing Brief, Parents, 7/10/13, 40 pp.
School District
1. IEP, , 13 pp.
24
Subpoena to which was withdrawn is undated.
2. Notice of Board of Education Review, , 1 p.
3. IEP, , 14 pp.
4. Notice of Board of Education Review, 1 p.
5. Psychological Report, 8 pp.
6. Educational Evaluation, , 3 pp.
7. Social History, , 5 pp.
8. Student Observation, , 2 pp.
9. Health Appraisal Form1 p.10.
10. Attendance Record, , 2 pp.
11. Report Card, , 3 pp.
12. Letter to 1 p.
13. Consent for Initial Evaluation, , 1 p.
14. Prior Written Notice, , 2 pp.
15. Meeting Notice, , 2 pp.
16. Invitation Response, , 1 p.
17. Consent for Referral Packets, , 1 p.
18. Prior Written Notice, , 2 pp.
19. CSE Meeting Notice, 2 pp.
20. Invitation Response, 1 p.
21. Prior Written Notice, , 2 pp.
22. E-mails from, 1 p.
23. E-mails from, 2 pp.
24. E-mails from (second set), 2 pp.
25. E-mails from, 3 pp.
26. E-mails from Father, , 3 pp.
27. E-mail from 2 pp.
28. E-mail from, 1 p.
29. E-mail to, 1 p.
30. E-mail to, 1 p.
31. E-mail from, 1p.
32. E-mail from, 1 p.
33. Letter from, 1 p.
34. Letter from parents, 6/20/12, 1 p.
35. Letter from mother, 1 p.
36. Letter from parents, , 3 pp.
37. Letter from parents, , 1 p.
38. Letter from parents, , 1 p.
39. Letter from, 1 p.
40. Letter from, 4 pp.
41. Related Services Authorization Form, 2012-2013, 3 pp.
42. Attendance Records, 2008-2011, 3 pp.
43. Report Cards, 2008-2011, 3 pp.
44. Testing, 2008-2011, 6 pp.
45. Testing, 2008-2011, 6 pp.
46. Testing, 2011, 2 pp.
47. Authorization for Release of Records, 2 pp.
48. Student Withdrawal Form, , 2 pp.
49. E-mails from, 2 pp.
50. E-mails from, 3 pp.
51. Segments of, Undated, 21 pp.
52. , undated, 6 pp.
53. School Observation, 2 pp.
54. E-mail correspondence, 4 pp.
55. E-mails re: referral packets, , 3 pp.
56. Correspondence to potential placements5 pp.
57. Rejection letters, , 3 pp.
58. Letter from, 3 pp.
59. Description, , Undated, 4 pp.
60. Document not received in evidence
61. Emails from, 11 pp.
62. notes, , 4 pp.
63. screening with attachments, , 7 pp.
64. Mrs. s notes, Undated and; 7 pp.
65. E-mail correspondence, , 1 p.
66. record, , 201 pp.
67. notes, , 35 pp.
Parent’s Exhibits
A. Parent Observations, undated, 3 pp.
B. Report, , 3 pp.
C. Conference Notes, , 4 pp.
D. Parent notes, , 1 p.
E. Conference notes, , 3 pp.
F. E-mail from, 1 p.
G. Letter, , 1 p.
H. grade progress reports, 2010-2011, 5 pp.
I. Report, 3pp.
J. E-mail from, 1 p.
K. grade report cards, 2008-2009, 6 pp.
L. grade report cards, 2009-2010, 7 pp.
M. E-mail from mother, , 3 pp.
N. correspondence with attachments, , 4 pp.
O. Notes, , 2 pp.
P. Letter from 1 p.
Q. E-mail exchange, , 2 pp.
R. E-mail from, 1 p.
S. transcript and report, , 4 pp.
T. Letter from, 1 p.
U. E-mail exchange, , 8 pp.
V. Progress Reports and Grades, , 4 pp.
W. Tuition Statement and Contract, , 6 pp.
X. Attendance Record, 2012-2013, 1 p.
Y. Schedule, 2012-2013, 1 p.
Z. Conference notes, , 2 pp.
AA. Website Information, undated 86 pp.
BB. Correspondence with, 23 pp.
CC. Correspondence with goals, 20 pp.
DD. Payment records, 2012-2013, 30 pp.
EE. Letter from, 1p.
FF. Parent Conference Form, , 1 p.
GG. CD of CSE meeting, 1 p.
HH. Procedural Safeguards, undated, 46 pp.
II. E-mail correspondence, 12/22/10, 10 pp.
JJ. E-mail correspondence, 12/08 to 6/09, 6 pp.
KK. E-mail correspondence, 11/09 to 6/10, 21 pp.
LL. Interim Report, 12/9/11, 12 pp.
MM. file, 8/14/12, 52 pp.
NN. E-Mail exchange, 8/8/12, 3 pp
OO. Handbook, undated , 107 pp.
PP. Grade Report, 3/22/13, 1 p.
QQ. update, 4/24/13, 2 pp.
RR. CV, undated, 2 pp.
SS. E-mail from O, 2/11/09, 1 p.
TT. E-mail from, 2/6/09, 2 pp.
UU. E-mail from, 3/2/09, 2 pp.
VV. E-mail to J., 1/27/10, 8 pp.
WW. E-mail correspondence, 2/4/10, 9 pp.
XX. E-mail from, 3/23/10, 2 pp.
YY. E-mail from 4/15/10, 13 pp.
ZZ.E-mail from, 6/17/10, 2 pp.
AAA. E-mail from n, 12/15/10, 1 p.
BBB. , various dates, 3 pp.
CCC. , 1/28/12, 1 p.
DDD. Records of, 2011-2012, 2 pp.
EEE. CV, undated, 1 p.
FFF. application, 4/19/12, 4 pp.
GGG. CV, Undated, 6 pp.
HHH. Progress Report, 4/8/13 to 5/7/13, 1 p.
III. E-mail correspondence with , 2012-2013, 48 pp.
Footnotes
[2] In an undated report, stated that on , she administered the Test, and found that .’s scores ranged from the th percentile (for ); and at the th percentile for accuracy. wrote that based upon her assessment, . did not qualify for school based intervention; however she recommended that . receive a full educational evaluation. (Parent’s Ex. B). ’s mother testified that she did not receive this written report from until six months after the testing was performed; however had informally shared the results with her. (Tr. p. 794). It was not available at 2010 meeting which . attended. (Tr. pp. 879-880). Ms. testified that she never received, 2009 report. (Tr. p. 496). did not testify at the hearing.
[3] Ms. testified that if the student’s team feels further building support is necessary, this can be discussed with the CST. (Tr. pp. 505-506). The CST could then make a referral to the CSE. (Tr. pp. 621-622). There is no indication in the record that . was ever discussed by the CST. (Tr. pp. 733-734).
[4] Ms..’s ELA teacher, noted that were inconsistent, that she was often and that as she has not attended help, she would invite . for “lunch date”. (Par. Ex. E) She testified that the lunch pass was a way of offering . extra help by establishing a personal connection, rather than as a negative concept. (Tr. p. 734). On, 2010, she wrote the parents to let them know that ’s has continued; and that . did not attend lunch reviews which were offered to her. (S.D. Ex. 61).
[5] During the 2010-2011 school year, . received grades of in Term 1, in Term 2 and in Term 3 in Social Studies. (S. D. Ex. 43, p. 3).
[6] Since being on 2012, . not. (Par. Ex. GGG).
[7] On New York State Testing performed during the grades, . consistently scored standards (at a level for English Language Arts. (S.D. Ex. 44). Therefore, there was no requirement for the school district to provide services for . as a student at risk. (Tr. p. 255). In math, she scored years, ; but scored standards (at a level ) in her grade, qualifying her for. (S.D. Ex. 45). During her grade year, she state standards for Science. (S.D. Ex. 46).
[8] Email correspondence in evidence indicates that had referred . for a as early as 2010. (Par. Ex. F).
[9] On , 2012 in response to behaviors, the parents called the who drive her to the. (Tr. p. 828; Par. Ex. DDD). After a she was released. (Tr. pp. 829-830, 1047).
[10] According to records, . arrived late to school on was absent on . No absences were reported after . (S.D. Ex .10).
[11] According to the records form obtained grades of “” in the first quarter, grades of in the second quarter; and in the third and fourth quarters. (S.D. Ex. 11).
[12] The parents reported to that ’s performance had started to, which was consistent with the Records. (Tr. pp. 581, 587).
[13] The parents do not dispute the results of the testing. (Tr. p. 1479).
[14] The parents do not challenge the IEP goals. Nor did they object to the goals when they were discussed at the 2012 IEP meeting. They do challenge the ability of the recommended program to implement the goals. (Tr. pp. 180, 975-979).
[15] In his report, recommended a school which can address, eliminate the issues so that she does not, and provide structure and support which will. (Par. Ex. I).
[16] The students in the program are expected to participate in mainstream classes, including honors and advanced placement programs. Students in the are not expected to mainstream immediately. (Tr. p. 667).
[17] At the , 2012 CSE review, the site supervisor at, stated that charting of goals related s would be part of the regular records kept by teachers. The team discussed how charting would also be part of the process of developing and implementing. stated that . would be assigned to a homeroom teacher who would be her , and that the core curriculum is geared toward a Regents Diploma. (Par. Ex. GG).
[18] The audio recording of the meeting is consistent with the account of the meeting described in the IEP. (Par. Ex. GG; S.D. Ex. 3).
[19] At the, 2013 CSE meeting, there was extensive discussion as to how would serve as “the link” between. The parents were told that initially the services might be daily, with the supports adjusted over time in accordance with .’s needs. There was a discussion of how. (Par. Ex. GG).
[20] also provided the parents contact information for the coordinator of services for the County; who recommended the “” program to the mother, as at least one avenue to support the. (Tr. p .318).
[22] J.S. and A.G. v. Scarsdale Union Free School District, supra, relied upon by the parents (See IHO Ex. 22, p. 16) is distinguishable from the instant case. In that case the parents requested an evaluation for special education during same month in which they removed the child from the school district to place her in a private school.
[23] The record is unclear as to whether the mother forwarded 2010 report (with the results of her own testing) and recommending a CSE evaluation, to By the mother’s own testimony, did not prepare the undated report until half a year after she performed the testing. Although the mother was in frequent e-mail communication with Ms. and .’s teachers, there is no written documentation referencing the, 2010 report.