NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case #:
Student’s Name:
Date of Birth:
Hearing Requested by:
Dates of Hearing:
Actual Record Close Date:
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
For the Student
For the District
INTRODUCTION
On or about I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of for the and school years.
BACKGROUND
is a year old student in the grade and attending . is classified as and that classification is not in dispute. The Parents assert that the (“the District”) has failed to provide with a free and appropriate public school education (“FAPE”) for the and school years. The District contends that was provided with FAPE and that the recommended program addressed unique needs.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
is currently a student enrolled in . started attending in of . As a young child attended at the at in a program. (t. 1436-37) After attended the which is in the District and was also a program. The school advised the Parents that would have to repeat . (t. 1441) The Parents chose instead to enroll in at (“ ”) The school, according to the Parent, has a philosophy that the kids can do whatever they want and don’t impede students the way regular schools do so if a student has a particular interest in a subject they are able to follow it. It was the Parents view that such a program would be good for . (t.
1443) The Parents believed that was doing well at in the first year but had some concerns because was not reading or writing. The teachers at advised the Parents that children pick things up at different times. The Parent stated that could write the characters but would not write words and characterized it as a refusal to write. (t. 1444-45) continued at for the grade and Parent stated that while reading improved there were still concerns about writing.
In the grade at made additional improvements in reading and math according to Parents but still was behind in writing. (t. 1446-48) The Parents were concerned about progress at and wanted to enroll in a public school in a structured class where will be “forced to study everything at the same pace” as the other students. While at no special education services were ever recommended by the school. In the view of the Parent a deficit of the program was that they had kids with different levels in the classroom, no regular testing and as long as there was some progress the school was happy. (t. 1450, 1579-80, 87)
was home schooled starting in the grade. The Parents plan was to home school for one year in order to bring up to speed and then enroll in public school. (t. 1451-52) The Parents primarily used the curriculum which is a video lecture based curriculum. (t. 1456) (Ex.
11) The Parents also supplemented the home schooling with other programs and activities. (t. 1457-61) While the Parents saw some progress they did not believe that was ready to be enrolled in public school by the grade. At some point during the grade they also decided to enroll in one to one tutoring for writing and spelling at the with a certified special education teacher, . The Parents decided to get help with writing because of difficulties and chose based on advertisement and the recommendation of other home schooling parents. (t. 1462-64,
1586) It was recommended by , at the end of the grade, that should be tested for . The Parents did not believe had a speech problem as speaks well but then later learned there is more to it then that. (t. 1465)
At the start of the grade was enrolled in ,a school. was unable to keep up with the demands of the school as the teachers wrote a lot of notes on the board which the students were expected to copy and was not able to do so. The Parents took out after approximately two weeks and returned to home schooling for the grade year. (t. 1466-67) (Ex. 11) It was during the grade year of home schooling that the Parents had tested and evaluated. A number of reports were generated: Two evaluation were done, one dated (Ex. 7), and another dated (Ex. 8), a Evaluation dated (Ex. 9) and an Evaluation dated . (Ex. 10) The Parent expressed surprise at the results of the first evaluation which indicated a number of issues and recommended therapy (“ ”) (t. 1468, 1588) The Evaluation found that had poor attention, met the criteria for a learning disability, a disorder, moderate to severe deficits in skills and the suggestion of mild
(“ ”). (Ex9) (t. 72-73) As a result of the testing and evaluations the Parents decided to enroll in where could receive special education and services in an integrated manner. (t. 1587-88)
In the Parents met with , CPS/CPSE chairperson for the District and , director of Pupil Personnel Services (“PPS”). They discussed educational history, private evaluations
(some of which were completed and some still in process) and in general. The Parents were asked if had received any special education services and the school personnel were advised that had not. (t. 16-19, 247) Prior to starting school at took a placement exam which revealed that was struggling with writing issues and some math issues. In spite of the fact that had completed the grade in home schooling it was mutually agreed that should begin in the grade, not only because of academic testing but also because had not been in a formal school setting for a number of years and it was felt that the grade would be a natural transition as the other graders would be starting at at the same time. It was also determined that would be placed in integrated co-teaching classes (“ICT”)[1] and building support class (“BSC”). (t.21-22,
248-49, 1482) An ICT class is general education class in which a special education teacher and a general education teacher teach collaboratively. BSC is a program that is taught by a special education teacher who works collaboratively with the general education teacher. The special education teacher acts as a case manager for the student, pre-teaching, scaffolding and offering supports. was placed in these classes prior to classification because had not had a formal school experience and they wanted to keep a close eye on and give as much support as soon as they could. In addition, they knew from the Parents that there were issues with attention, language and writing. (t. 25-26, 257-58)
started at in . On the first day met with , the BSP teacher. described on that day as eager, polite, happy and in need of assistance. had a hard time finding the classrooms, understanding the layout of the school, and a difficult time with the routines of a daily classroom such as sitting in class, raising hand to be called instead of calling out and talking to other students. (t.854-55) On the second day school staff reported to that was having a hard time navigating the school, going from class to class, getting to locker and holding on to belongings. was also noted yelling and running and skipping in the hallways.
The District attributed this to the fact that this was first formal school experience, and while was able to physically navigate the building did not know how to behave and was having a hard time knowing where to be.[2] (t. 23-24, 250) It was also noted that had significant hygiene issues in terms of a running nose, drooling and finding the bathroom, eating with hands, talking with mouth full and just not generally displaying age appropriate behavior. , in concert with the principal, immediately assigned a one to one aide to to help get from class to class and help learn school habits. (t. 27, 250, 859) noted that needed the support of a one to one aide to be able to manage throughout the day and to understand the directions that were given to . had a difficult time being a student and needed reminders to stay in seat, not call out, to stop at locker for materials among other things. needed a lot of help with management and structure but also with instruction such as repeating and understanding instructions, starting assignments and prompts throughout assignments. They started the school year working with on how to become a student in the belief that they had to get that settled before they could move on and work on academics. It was also noted that needed help socially, while friendly and wanting to be involved with other students was often inappropriate. would interrupt conversations or have conversations with other students that were immature and off topic.
would occasionally go to the cafeteria to help approach other students and sit with them. (t. 856-59)
A referral was made to the CSE and an initial eligibility meeting was held on . Prior to the CSE meeting the Parents had supplied the District with four evaluations (Ex. 7, 8, 9, &
10). The District, based on the evaluations submitted by the Parent, did their own and evaluations. In addition, the District did a Social History and a Classroom Observation. (Ex. 11 & 12) A question was raised regarding a second language in the home language survey filled out by the Parents when was registered which listed a language in the home. According to the District the State Education Department requests that a bilingual evaluation be done when there is an issue of a language in the home prior to determining a disability. testified that when a student is exposed to a native language it is important to rule out an issue of bilingual education and to make sure when asking questions in English on a formal evaluation that they get the most accurate picture of the student and do not classify a student as having a disability if there is another language involved. The Parents did not want to have a bilingual evaluation and submitted a new home language survey that stated English only.
(t. 28-34) The Parent testified that speaks only English and that they had made a mistake when filling out forms at registration and that the Parents speak but that does not and they speak that language in front of if they don’t want to know something. 3 (1475-76)
At the initial eligibility meeting the evaluations submitted by the Parents and those done by the District were reviewed. (Ex. 3) (t. 38-71) The Evaluation from concluded that presents with a mixed receptive and expressive language impairment and odd prosody and recommended 2 to 3 times per week. (Ex. 7) (t. 44-46, 560) Odd prosody is described as the way that someone’s speech sounds. (t. 1085) has a sing-song quality to speech, a variation in inflection. (t. 581) A second evaluation was done at (Ex. 8) and in conclusion noted that its findings were consistent with the findings in the prior evaluation (Ex. 7), also recommending ,[3]
times per week for 30 minutes. Neither evaluation specified if the should be individual or group. (t. 53, 565) The Evaluation by (Ex. 9) concluded that is functioning within intellectual skills but advised that this should be interpreted with caution since has uneven cognitive skills with better verbal then non verbal abilities and other cognitive weaknesses that would effect optimal functioning. While it was noted that has strengths these are outweighed by impulsivity, poor attention and concentration, learning disabilities, disorder and poor motor skills. recommends, among other things, 2 to 3 times per week, but makes no recommendation as to whether it should be individual or group therapy. (t. 54-57, 72-73) The Evaluation done at (Ex. 10) found that demonstrated fine motor, self care and writing skills age expectations which are affected by limitations in bilateral coordination, motor planning and postural and sensory processing skills. The evaluation recommended
(“ ”) twice a week for 12 weeks. (t. 58)
The Evaluation (Ex. 15) was done by , School at .
found, after administering the Woodcock Johnson III Test of Cognitive Abilities that is functioning in the range in overall cognitive ability with ability demonstrated in the areas of comprehension knowledge, visual spatial thinking, fluid reasoning, and short term memory. This was contrasted with long-term retrieval which was found to be and processing speed to place in the range of ability. found that interpretation of scores suggest that the more abstract, open-ended and independently guided a task, the greater the level of difficulty. testified that relative strengths are in comprehension knowledge and vocabulary development. (t. 388) also testified as to the teachers concerns about . They were most concerned about ability to show typical student skills within the classroom, being able to understand the routine of the classroom. did not make any recommendation in evaluation because those recommendations are made at the CSE meeting as a team. (t. 390-91) The Evaluation for the District (Ex. 13) was done by , for the District. The evaluation found that there is a scatter in understanding and use of language. found biggest weakness to be in the area of pragmatic language. did not make recommendations in evaluation as recommendations are made at the CSE. (t. 586)
After the review of the evaluations the CSE turned to the question of eligibility for classification. While there were a number of things to be considered the overarching theme from the reports and personnel who had been working with in the approximately since had started at was a classification of as it seemed to be the primary piece that was impacting functioning. There were also attention issues and fine motor issues, as well as speech and language issues where pragmatic language was viewed as the dominant issue. The Parents were in agreement with the classification. (t. 73-76, 397-98, 1494) The CSE also developed goals for and asked the Parents for their input in terms of goals and evaluations. The Parents voiced concerns about attentional issues, graphomotor and writing. Various modifications and accommodations were recommended and an individual aide was recommended as well as access to a computer (t. 76-87) (Ex. 3) The CSE recommended ICT classes for English/Language Arts (ELA), Math , and Science, small group (5:1) 2x weekly 30 minutes, small group (5:1)
and individual 1x weekly 30 minutes. The CSE also recommended
(“ ”). The District was concerned about ability to participate as had shown some trouble within the general physical education program. (t. 89-96,256-57,
399) BSP was not reflected on the IEP because it is a general education program which is open to all students. was not recommended for an ICT Social Studies class because liked it a lot and they felt that could be supported with any writing in BSP. (t. 90) [4]
(“ ”) was not recommended as there was nothing to indicate that could not safely navigate the school building. The criteria for therapy in an educational setting is to remove the barriers for access to the curriculum, so it is important that the student can move from class to class physically and is able to navigate stairs and be safe in the building. While had a one to one aide this was for attention issues not physical. Neither the evaluations of the Parent, or of the District recommended that receive , nor was it requested by the Parents at the meeting or anytime during the school year. (t. 98-100, 256, 291, 399)
uses a team approach to teaching with the teachers being organized in to teams. They have daily team time where all the teachers get together and speak about students and do pre-planning and coordinate their efforts. The special education teachers and BSP teachers and co-teachers are a part of that team so they are meeting every day with the general education teachers. The related service providers and counselors come in at least once a week. testified that the team approach allows for constant communication between the parties providing support for a student. The District also contracted with a behavioral consultant to come in twice a week and work with the self-contained programs as well as students across the district. (t. 264-65,
408) , BSP teacher consulted with the behaviorist when devising a behavior plan for .
The plan was to help become a student and contained what described as working-on- becoming-a-student kind of skills throughout the day such as organizational skills, getting from class to class and hygiene. As the school year went on there was improvement in behavior and
Rubric was effective in helping become a student. (t. 894-911) (Ex. 24)
During the school year significant modifications were made for . The amount of homework was modified and was being graded against , rather then against a typical grade student. (t. 272, 927) made considerable progress on goals during the school year, and while not achieving all goals progress was made. (Ex. 21) (t. 115, 916-23) also did well academically. (Ex. 22) also made progress as a student, by the spring was able to walk appropriately in the hallway, greet people, socialize and play on the playground. While it was challenging at the beginning of the school year to teach what the classroom expectations were by the end of the year was able to do so with less adult support. And while still requiring adult support became a functional student in the school. (t. 109, 286, 925-26) , teacher of provided to for the school year. (t. 678) At the beginning of the school year described as being unable to focus, attention being very difficult for .
did not understand personal space; would skip and jump in the hall, interrupt teachers in the middle of teaching. would not sit in seat and constantly have to be told to sit down. By the end of the school year improved a lot and was able to sit down and raise hand appropriately, participate in discussions and engage in turn taking with other students and teachers. (t. 680-81)
provided for for the school year. described school based as working on the social/emotional issues that impact school. The goal is to work on improving the students functioning within the classroom setting with their academics and the social atmosphere of the school. pushed services for in to the classroom so that could spend as much time as possible in what was a new environment for and allow that time with other students. While there were a number of things to work on one of the most basic was integrating as a student. pushed in to BSP class. testified that made progress on goals for the school year. (t. 400-03) had a lot of interaction with the Parents during the school year mostly via email, but believed that the Parents communicated more with . (t. 409) By the end of the grade was able to interact with other students on a much more appropriate level and had established a good working relationship with students especially those had multiple classes with. was able to sustain a conversation with other kids because was picking up on social cues. When entered described as overwhelmed but by the end of the school year was much more comfortable as a student academically and socially. (t. 419-20)
In of the District requested an informal meeting with the Parents to discuss some of the areas that they felt was struggling with, in particular writing and reading. The team had concerns about the amount of modification and work it took to do any writing assignment and was struggling with the level of work and increasing pace in ELA and social studies.
While had the ability to grasp concepts it was very difficult for to grasp abstract concepts.
In the area of living skills , and guidance counselor were all working with and while there was improvement was still struggling with personal hygiene. The grade curriculum makes a jump from the literal in the grade to more inferential, abstract thinking in the grade. (t. 117-19, 271, 930-32) The meeting was held and , and the principal and met with the Parents and suggested the possibility of a program with being in a self contained special class for ELA and social studies. It was the view of the District that would continue in ICT classes or general education for the remaining subjects so that was being kept in the mainstream for the maximum amount possible while being in a more restrictive setting for ELA and social studies. The program that was being suggested was the program (“ ”) (t. 120-21, 270-71, 415, 931) The District suggested that the Parents visit the program observe and meet the teacher and school psychologist that work with the program. The
Parents were not pleased with the recommendation and characterized it as an “experiment”.
testified that this type of program had been done before with other students. The Parents requested the ability to observe both a general education grade ELA and social studies class as well as . The District made arrangements but the Parents did not visit either class. (t. 121-129,285, 933, 1597-98)
The CSE convened for an annual review for the school year on . The CSE noted that there was progress made in all areas academically, but also that it was made with a tremendous amount of support with the ICT classes, BSP and individual related services. The
Parents reported that had made progress but their biggest concern was that speech and language skills were biggest weakness. The Parents also noted that had made a complete turn around in math and was enjoying math class. (Ex. 5) (t. 276-81) The Parents requested additional individual and there was discussion about adding one session per week. (t. 281-
82) The therapist noted that saw twice a week for therapy but also saw four times a week in the classroom. testified that had made improvement with the social piece of language, with the pragmatics, which characterized as a huge step for .
recommended that the continue for two group sessions and the addition of an individual session in order to work on the syntactic and writing piece. (t. 722) (Ex. 5)
The CSE recommended an 8:1:1 special class for ELA and social studies (DE), ICT for math and general education science as well as an individual aide. Goals and related services were agreed upon by all, including the Parents (Ex. 5) The Parents disagreed with recommendation of the class and the meeting was adjourned to give them the opportunity to visit the recommended program. The Parents agreed to reconvene after reviewing the programs and class profiles. (Ex. 5) (t. 127-28, 130, 281-83, 287)
The CSE reconvened on and the Parents had not visited the grade general education classes or program. (t. 129, 287) At the meeting the Parents reiterated their concerns about being in the program. They felt that would not benefit from being in a classroom with students that were more impaired then was. Despite concerns over the tremendous amount of support that would need outside of the program the CSE weighed the pros and cons and the Parents concerns and came to a consensus that would be placed in ICT classes for ELA, math and social studies, continue in BSP and provide the related services as had been discussed at the meeting. (t. 288-89) In addition to the added individual therapy, an consult was added as well as group session.
was also recommended and the Parents agreed. (t. 138-39, 290-91, 422)
started the grade at in of . Due to a scheduling mishap was placed in a general physical education class and not as mandated by IEP. Within a week the error was caught and was placed back in . The Parents expressed their dissatisfaction with the change because the students in the grade class were different from those in the prior year. The Parents felt that the students from the prior year were more social and had better language and the students in the grade class did not. The grade program contained students from the program that the Parents had objected to. (t. 140-42, 293-94)
On the CSE reconvened at the request of the Parents for a program review to discuss the placement of in as well as the recommended level of . (Ex. 6) (t.
145, 301, 1541) The Parents stated that was unhappy with the class, was becoming more resistant about attending school and they felt that the reason was the
.[5] The District felt that coordination delays and impaired perception raised safety concerns. In addition, difficulties in following directions and sequencing activities would also make a general education PE class unsafe. (Ex. 6) (t. 295-96, 1539-40) The Parents requested independent and evaluations be performed and the District agreed. The CSE recommended that remain in pending the and evaluations. The Parents also requested that another independent evaluation be performed and the District agreed.
(Ex. 6) (t. 145-47, 302)
An independent evaluation was done on at by . The evaluation was conducted in a controlled and quiet clinic with no other children present. Though the stated purpose of the evaluation was to determine if could participate in a mainstream PE class states that “It is not possible to determine how would perform with peers in a natural setting, especially in a busy gym with many students. It was also not possible to assess in walking around the building or using the playground.” (Ex. 16) In spite of the foregoing recommended that would be able to participate in a less restrictive PE class with the assistance of one to one aide. It was also recommended that receive once a week in individual sessions. ,a for the District testified that there is a difference between medically based and in an educational setting. In determining if is justified in an educational setting the question is how a person’s gross motor skills impact their educational day which would include everything functional in the school day such as arriving on the bus, backpack skills, access to lockers, lunchroom skills, ascending and descending stairs. (t. 772)
Although the recommendation for was made in the evaluation to address strength, coordination, balance, ball skills and motor planning there was no educational basis for that recommendation such as the inability to navigate a school building safely or safely navigate stairs or steps. (t. 152-53, 167-68)
The CSE did not reconvene to consider the evaluation until the Annual Review for the 2013-14 school year. The Parents were unwilling to reconvene based on the instant impartial hearing. (t. 149-50) The District attempted to find another class for but was unable to so. The District ultimately agreed to allow to attend a general education PE class in which worked on parallel activities with one to one aide whenever there were safety issues present. (t. 296-97)
The independent evaluation was done on by . (Ex. 18) had also done the private evaluation. (Ex. 7) A comparison of the scores between the two evaluations indicated across the board increases in all areas tested. (t. 156-59) , for the District testified that a comparison of the evaluations reveals that there has been significant progress between the first evaluation (Ex. 7) in and the fourth evaluation done in . (Ex. 18) (t. 625-29) In spite of the progress made recommended an increase in therapy to four times weekly with two individual sessions and two small group sessions which was viewed as atypical by . (t. 630) It was conceded by that spoke to the Parents about their concerns when they hired and the increase was what they wanted. (t. 1149)
During the school year progress was made by . (t. 307-08) report card dated shows all A’s and B’s for classes. (Ex. 23) (t. 162). The IEP progress report (Ex.
20) showed that was making progress on her goals, and while some indicate that is making inconsistent progress is making progress. (t. 162-65) , grade BSP teacher testified that had sent her the Rubric from the prior year and they made changes to it to conform with the different challenges in the grade and address different needs and behaviors. testified that made progress and needed fewer prompts and reminders. (t. 1003-06, 1054-55) made progress on IEP goals. (t. 1014-18). Further, that overall did great in the grade, came in with a smile on face, wanted to get the work done and wanted to participate. Though had struggles came in with a positive attitude. There was an improvement in functioning in the classroom. (t. 1039) testified that made a lot of progress in the school year on interactions with peers. has gotten better at being able to negotiate social conversations with peers. enjoys being with other children, and is making connections, better able to accept suggestions from others and engage in reciprocal conversation and share ideas. is also better able to discuss frustrations and anxiety.
Progress was reported by on all of Social/Emotional goals. (t. 438-45)
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v.
Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320).
As noted by the State Review Office in Application of a Student With A Disability, Appeal No.
11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010). In the case at hand the Parent is seeking increased , , a functional behavioral assessment (“FBA”), Behavioral Intervention Plan (“BIP”), parent training and compensatory services as well as reimbursement for services provided by the Parents.
I find that based on the testimony adduced at the hearing the District provided the student with FAPE for the and school years. The Parent argues that the District failed both procedurally and substantively to offer FAPE for the and school years in that it: failed to appropriately address social and emotional issues in the IEP’s; failed to properly evaluate prior to the development of the IEP’s; failed to offer parent training or counseling to parents .
The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-
037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School
Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act]
does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the “ ‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042.
the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583
(D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child’)…An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep.
Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially
“everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132.
The testimony elicited at the hearing covered the and school years. Prior to starting at had not had a formal school experience since and when entering lacked the basic skills to be a student that are generally learned in school. While the Parents minimized the importance of these student skills, the lack of such skills in conjunction with special education needs had a tremendous impact on ability to function, as was borne out by the credible testimony of the teachers and staff at . The Parent testified that in the philosophy was that students could do whatever they want and are not impeded the way regular schools do and the students are able to follow their interests in a subject. attended for years and at the end of that time the Parents were concerned about progress and wanted to place in a structured class where would be forced to study everything at the same pace as the other students. Home schooling was a means to bring up to speed academically and, notwithstanding any additional outside activities, was not a formal school setting in which there were the same rules and structures inherent in a formal school experience. At the beginning of the grade the Parents decided to place in a and was unable to keep up with the demands of the school and within two weeks went back to home schooling. It is undisputed that up to that point had not been evaluated for special education needs and had not received any special education services.
The first IEP meeting (initial eligibility meeting) was held . At the time of the meeting had been attending for approximately months, was in ICT classes and had been assigned a one to one aide since the second day of school. The Parents had submitted two private evaluations (Ex. 7 & 8) and a private evaluation (Ex. 9). The three evaluations recommended 2 or 3 times a week, not one noting whether the therapy should be group or individual.[6] The District also did a evaluation (Ex.15) as well as a evaluation (Ex. 13) in preparation for the IEP meeting. The evaluations were reviewed at the meeting, was classified as . Goals were discussed and agreed on and a program was put in place for . Over the course of the school year made progress on goals, albeit slow and sometimes inconsistent progress. However, the school personnel testified that there was a visible difference between the that entered in and at the end of the year. However, was still struggling and the District approached the Parents about a program for in which would be in the program for social studies and ELA, and remain in ICT or general education for the rest of classes. The Parents were opposed to what they characterized as an experiment. The CSE met on and to craft an IEP for the school year. The school personnel again broached the concept of the program at the and the Parents agreed to visit the program but were still opposed. In addition the Parents wanted added services which were added as well as additional . The
CSE met again on and the Parents had not visited the program but continued to be opposed to the class. The CSE acquiesced to the Parents and continued in ICT class for ELA and social studies. CSE met again in at the request of the Parent to discuss placement of in and changes in . The Parents requested Independent Educational Evaluations in and to which the District agreed.
The Parent argues that the District has failed to develop IEP’s for the and school year that did not appropriately address social and emotional issues or appropriately provide with services, did not properly evaluate prior to the development of the IEP’s and that they failed to offer parent training to the Parents.
testified that provided to in school years at issue and that the worked on the social/emotional issues that impact school and that the goal is to work on students functioning within the classroom setting with their academics and the social atmosphere of school. also addressed social issues as one of the primary issues that was dealt with was pragmatic language.
has had four evaluations between and . Those evaluations have been fairly consistent in regard to deficits and the amount of requires. I find that the IEP’s developed by the District have appropriately addressed deficits and have, at the request of the Parent increased the amount of . In addition, a comparison of the evaluation and the evaluation show significant progress by in this area.
The Parents assert that behaviors impeded upon learning and that it was incumbent on the District to do a FBA and if warranted a BIP. It is the position of the District that behaviors did not rise to the level of requiring a formal FBA or BIP. The testimony of the District witnesses was unanimous in the view that was making progress socially and in behavior, much of which stemmed from not having been in a formal school environment for many years and lacking the most basic student skills. The teachers and staff used reminders and prompts to assist in acquiring the necessary skills and a behavior plan with a point system was devised for in the grade. That plan was successful and carried over in to the grade, modified to reflect changes in need and behavior and testified that made progress needed fewer reminders and prompts. I find the testimony of the District witnesses credible in this regard, but assuming arguendo that an FBA was required the court has found that “…failure to conduct an FBA is a procedural violation, but that it does not rise to the level of a denial of FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it.”
R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) A review of the IEP’s at issue reveals that these issues are recognized and addressed as well as and a one to one aide being provided. [7]
The Parents argue that was not properly evaluated prior to the development of the
& IEP, specifically for . The District asserts that it has no indication that required educationally based either from direct observation of ability to access the school building or from any of the Parents private evaluations. When a question arose regarding ’s ability to participate in a general education PE class as opposed to the District agreed to an Individual Education Evaluation for . While that evaluation recommended it also recommended that was able to participate in a general education PE class. I do not find that the evaluation or the testimony of supported the need for educationally based . As to , appears to have been in that program for the bulk of the grade school year without incident. It was on both the and IEP’s that participate in based on concerns for safety in a busy general education PE class. A scheduling mishap put in a general education PE class, was removed and put in an class. The Parents complained and a requested CSE meeting was held and ultimately an agreement was reached to allow to participate in a general education PE class with modifications. While the due process complaint asserts that was placed in without calling a CSE meeting, both
IEP’s clearly call for and in fact the Parent testified that was contacted in during grade year and advised of the change and agreed to it.
The District did not provide any evidence with respect to parent training. However I find that the lack of parent training does not rise to the level of a denial of FAPE. “Though the failure to include parent counseling in the IEP may, some cases….result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient…” R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167 (2nd Cir. 2012)
Based on the foregoing I find that the District crafted procedurally and substantively sound IEP’s for the and school years, provided an appropriate program and services and had appropriate evaluations performed thereby providing with FAPE.
ORDER
Therefore, it is hereby ordered that the Parent’s Due Process Complaint is dismissed.
Dated:
___________________________________
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Pelham Union
Memorial School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education at http://www.sro.nysed.gov/part279home.html.
DOCUMENTATION ENTERED INTO THE RECORD ON
A. Parent
B. Parent
C. Parent
D. Parent
E. Parent
F. Parent
G. Parent
H. Parent
I. Parent
J. Parent
K. Parent
L. Parent
M. Parent
N. Parent
O.
Parent
P. Parent
Q. Parent
R. Parent
1. District
2. District
3. District
4. District
5. District
6. District
7. District
8. District
9. District
10. District
11. District
12. District
13. District
14. District
15. District
16. District
17. District
18. District
19. District
20. District
21. District
22. District
23. District
DOCUMENTATION ENTERED INTO THE RECORD ON
24. District
25. District
DOCUMENTATION ENTERED INTO THE RECORD ON
S. Parent
T. Parent
U. Parent
V. Parent
W. Parent
X. Parent
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page
II. Parents’ Closing Brief, , 32 pages III, Post Hearing Memorandum of Law Submitted on Behalf of
District, dated , 32 pages
Footnotes
[1] was placed in the ICT class as a general education student originally, though based on what the Parents had told the school and the private evaluations they anticipated that might need services and require ICT classes anyway. (t. 250)
[2] In the students go period to period in a period day changing classes every minutes. (t. 24)
[3] It should be noted that in the Evaluation (Ex. 7) provided by the Parents it states that “primary language is English, and the family also speaks at home, which understands and ‘speaks with English grammar’” Further, in the Evaluation (Ex.9) provided by the Parents it is noted that “…comes from a bilingual family…Although native language is , she is more proficient in English and reportedly can comprehend her native language well.”
[4] The Parent disputes that the goals were discussed at the initial eligibility meeting as well as any discussion about but states that the IEP when received accurately reflects recollection of the meeting. As to the Parent testified that was contacted about the change from regular physical education to and agreed. (t. 1495-98)
[5] The PE teacher present at the CSE review noted that it had been reported by the teacher that appears to be happy and comfortable in the class. (Ex. 6)
[6] The Parent references a letter in which writes that has reviewed evaluations submitted by the Parents and references the evaluations being done on the wrong days and concurs “with the recommendations of both and who recommended individual therapy 3 times per week for 30 minutes”. A review of the documents reveals that not one of the evaluators made that recommendation in their evaluations. (Ex. J)
[7] Extensive testimony was heard from an expert in therapy ( ”) While testified at length regarding therapy and how it could be applied to and what perceived as the failures of the District based this on a total of 3 hours spent with in home in of , did no testing, took no notes and prepared no written report. (t. 1295, 1355-56). Further did not review or compare any standardized testing to ascertain whether any improvement had been made. (t. 1389-93) I did not find testimony persuasive.