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
IHRS Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested by: Parents
Actual Record Close Date: October 15, 2014
Hearing Officer: Jean M. Lucasey, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED January 7, 2013
Attorney — Student
Attorney — Student
Attorney — District
Attorney — District
Director of Special Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED March 13, 2013
Attorney — Student
Attorney — Student
Mother — Student
Attorney — District
Attorney — District
Ph.D, Director of Special Services — District
Special Education Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED March 14, 2013
Attorney — Student
Attorney — Student
Mother — Student
Attorney — District
Ph.D, Director of Special Services — District
Special Education Teacher — District
Special Education Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED May 1, 2013
Attorney — Student
Attorney — Student
Mother — Student
Attorney — District
Ph.D, Director of Special Services — District
Reading Specialist — District
Special Education Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED May 13, 2013
Attorney — Student
Attorney — Student
Attorney — Student
Mother — Student
Attorney — District
Ph.D, Director of Special Services — District
Special Education Teacher — District
School Psychologist — District
NAMES AND TITLES OF PERSONS WHO APPEARED May 14, 2013
Attorney — Student
Attorney — Student
Mother — Student
Attorney — District
Ph.D, Director of Special Services — District
Assistant Director of Special Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED May 23, 2013
Attorney — Student
Attorney — Student
Mother — Student
Ph.D, Psychologist — Student
Attorney — District
Ph.D, Director of Special Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED May 24, 2013
Attorney — Student
Attorney — Student
Mother — Student
Attorney — District
Ph.D, Director of Special Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED May 30, 2013
Attorney — Student
Attorney — Student
Mother — Student
Director of Middle School at the Gow School — Student
Teacher — Student
Attorney — District
Ph.D, Director of Special Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED June 4, 2013
Attorney — Student
Attorney — Student
Mother — Student
Teacher — Student
Attorney — District
Ph.D, Director of Special Services — District
IHRS Case No. xxxxx — District
FINDINGS OF FACT AND DECISION
Procedural History
A hearing on this matter was requested on October 5, 2012, by Helene and Theodore B., as parents of Brandon B. (“BB”), pursuant to the Individuals with Disabilities Education Improvement Act § 1415 (f) and 8NYCRR §200.5(i) for failure of the Byram Hills Central School District to provide a FAPE to the student for the 2010-20111 school year and for failure to offer a FAPE to him for the 2011-2012 and 2012-2013 school years. Parents seek reimbursement for compensatory services for 2010-2011 and reimbursement of tuition for the unilateral placement of BB for the 2011-2012 and 2012-2013 school years.
The proceedings encompassed ten days of hearing, from January 7, 2013, through June 4, 2013. As Commissioner John B. King found that the original IHO had failed to render a decision, he Ordered that her IHO certificate be revoked as a consequence, effective April 15, 2014. (IHO Ex. 3.) A second IHO was appointed on or before April 28, 2014, (IHO Ex. 2), but counsel for the District requested that the second IHO recuse herself after learning of a potential conflict of interest, (see IHO Exs. 7, 8), and counsel for Parents opposed District request for recusal, (IHO Exs. 9, 10). Consequently, the second IHO recused herself on May 2, 2014.
On May 5, 2014, a third IHO was appointed, (IHO Ex. 12-10), and he granted Parents’ request to add documents to the record pursuant to 8 NYCRR §200.5(j)(v), specifying that he would not be admitting the documents into evidence or considering same in connection to the 1 Although Parent’s Closing Brief omits argument on behalf of their due process claim that the District failed to provide a FAPE to BB for the 2010-2011 school year, they explicitly sought a remedy for their claim related to that school year in their opening statement on the first day of hearing. (Tr. 31: 16-20.) Further, Parents presented ample support for their claim at hearing in the form of documentary and testimonial evidence. What’s more, the District defended against the 2010-2011 school year portion of Parents’ claim at hearing and in its written closing statement, submitted on August 13, 2013, demonstrating full awareness that Parents were asserting a FAPE claim for the 20102011 school year. Accordingly, I consider the omission in Parents’ Closing Brief to be an oversight and not as an abandonment of their claim for the 2010-2011 school year, and I have fully considered their 2010-2011 school year claim below, along with their claims for the 2011-2012 and 2012-2013 school years. Decision in this case. (IHO Ex. 12-11.) The third IHO issued his Order regarding the additional documents on July 24, 2014, (See IHO Ex. 12), and subsequently recused himself. Thereafter, I was appointed as hearing officer in this matter on August 15, 2014. On August 20, 2014, I held a telephone conference with the parties, in which they agreed that the third IHO’s decision regarding the additional documents would be the law of the case. (IHO Ex. 13 at 28:13 through
29:21.) The parties moved to extend the compliance dates, and the extensions were duly granted after consideration of relevant factors pursuant to 8 NYCRR 200.5(j)(5). (See IHO Exs. 14, 15.)
After receipt and full review of the extensive record, I closed the record on October 15, 2014.
Findings of Fact
BB is a 17-year-old boy classified by the District as a student with a learning disability.
(Exs. 4 at 1, IHO Ex. 1, Confidential Hearing Demand, Addendum, p4 of 32.) He was first classified as learning disabled by the District when he was in kindergarten, (Tr. 1147), and he attended the District’s public schools from kindergarten through seventh grade, (Tr. 1142). It is undisputed that as BB progressed through the District’s schools, he demonstrated deficiencies in executive functioning and he needed help with his organizational skills. (Tr. 1155-1157.) Parent testified that when he was in 4th grade, BB was diagnosed with dyslexia. (Tr.1147.) I note, however, that no formal diagnosis of dyslexia appears in the record.
The District administered a Confidential Educational Evaluation Report to BB in or around March 2009. (Ex. N.) The report indicates that BB’s reading fluency score on the Woodcock-Johnson III was at the 9th percentile, BB’s letter-word identification score was at the 3rd percentile, word attack score was at the 18th percentile, and passage comprehension was at the
26th percentile. (Ex. N1.) On the Gates MacGinitie Silent Reading test, BB achieved a score at the 25th percentile on the vocabulary subtest, (Exs. N1-N2), but scored only at the 3rd percentile on the comprehension subtest, (Ex. N2). Comparison with an earlier administration of the WJ-III shows that BB’s 2009 test scores decreased in both reading and math fluency. According to the Woodcock-Johnson III ACH Test, BB’s scores fell from the 48th percentile in math fluency in March 2008 to the 7th percentile in February 2009. (Ex. J at 4.) BB’s scores also fell from the 16th percentile for reading fluency in March 2008 to the 9th percentile in February 2009. (Id.)
Parent reported that at the time of the March 2009 annual review, in response to BB’s test results, she asked the District for an Orton-Gillingham reading program for BB, but none was implemented. (Tr. 1161-62.)
The 2009-2010 IEP indicated that BB’s lack of confidence while reading aloud affected his performance, and that his reading comprehension subtest scores were well below average.
(Ex. J3.) Parent testified that BB made some limited progress because he received tutoring from an Orton-Gillingham reading specialist and private academic tutoring at home three times a week from Eagle Hill. (Ex. V; Tr. 667, 1164-65.)
When the CSE convened on May 12, 2010, to develop an IEP and program for BB for the 2010-2011 school year, members of the IEP team considered a range of assessment information, including education records, report cards, teacher reports and updated assessments.
(Ex. 4.) The meeting was attended by Judith Hirschhorn, the chairperson; two special-education teachers; a general education teacher; Gina Cunningham, School Psychologist; and Mrs. B, among others. (Ex. 2.) Among other reports, the Committee reviewed the Gates-McGinitie reading test administered to BB on March 9, 2010; the Stanford Diagnostic Math test administered on March 11, 2010; the Diagnostic Achievement Battery administered on March 5,
2010; the Test of Written Language administered on March 3, 2009; the Woodcock–Johnson III
ACH test administered on February 25, 2009; and the BASC II administered on December 16,
2008. (Ex. 4 at 5-6.) Based on the test results and the annual progress reports, the CSE concluded that BB was a child with a learning disability who could benefit from multisensory and supportive educational techniques. (Ex. 4 at 1-2.) The team recommended that BB cc ccontinue to receive special-class instruction in all of his major subjects along with weekly counseling and daily resource room. (Ex. 4 at 1.) At hearing, Gregory Stowell, Ph.D, who became director of special education in the summer of 2010, (Tr. 56-57), explained that the special classes were small learning environments that followed the mainstream curriculum and were tailored to meet individual student needs, (Tr. 58). Dr. Stowell further explained that resource room is a support program specifically designed to address deficiencies in a student’s organizational and study skills. (Tr. 57.)
When BB was in grade in 2010-2011, the first school year at issue here, all of his core classroom subjects were taught in self-contained classrooms with a maximum of fifteen students, a teacher and a teaching aide. (Ex. 4; Tr. 61.) BB’s grade social studies class included five students, with a teacher and a teaching aide, (Tr. 415-16); his ELA class had seven students, a teacher and a teaching aide, (Tr. 646); and his resource room had just four additional students, (Tr. 408).
Throughout grade at the District’s middle school, BB continued to experience significant delays in decoding and reading comprehension, but he was not provided with additional services or with a specialized reading program. (Ex. 4.) It is undisputed that the District neither conducted a functional behavior analysis of BB nor prepared a behavior h intervention program for him for the grade year. BB completed the year with grades of C, D, F, and F in his core classes. (Ex. 17; Tr. 330-31.) A New York State Testing Program assessment for the 2010-2011 school year revealed that BB was in the Level 1 Below Standard Range for English Language Arts at that time, which, according to the New York State Education Department, means that he was not demonstrating an understanding of the English language arts knowledge and skills expected for 7th grade.[2] (Ex. G1.)
All of the supports and services listed on the 2010-2011 IEP were implemented by each of his teachers in each of his classrooms in a manner consistent with helping students with language based learning disabilities like BB’s. It is undisputed that each of BB’s teachers at the District’s middle school was trained in the use of multisensory techniques designed to help students like BB to access information despite his language-based disabilities. His middle school classes that year were taught by seasoned special educators who had the training and credentials to address BB’s reading and attention deficits. For example, Kim Sapone, BB’s math and science teacher for the 2010-2011 school year, had been teaching middle school special education in the District for 21 years. (Tr. 269-70.) Ms. Sapone has a master’s degree in special education, (Tr.
268), and is trained in such multisensory teaching techniques as the Wilson reading method, which is designed to address the needs of children, such as BB, with reading and learning disabilities. (Tr. 268.) Further, Kim Costello, who was BB’s resource room and social studies teacher, also has a master’s in special education, (Tr. 405), and has taught special education in the District since 1999, (Tr. 409). Ms. Costello tttestified that she participated in an Orton- Gillingham workshop on Preventing Academic Failure and that she has also been trained in the use of multisensory techniques. (Tr. 406.) Cynthia Giumarra, BB’s language arts teacher, has a bachelor’s in elementary and special education, certification in the Wilson reading program, and a master’s degree in consultant teacher reading. (Tr. 644.) Gina Cunningham, the school psychologist who served as BB’s counselor for the 2010-2011 school year, has a bachelor’s degree in elementary and special education and a master’s degree and advanced graduate certificate in school psychology. (Tr. 736-37.)
Their testimony demonstrates that all of BB’s teachers in the 2010-2011 school year were aware of BB’s educational needs and used a variety of special strategies to address them. The
2010-2011 IEP as written listed special supports that were to be available to BB in each of his classrooms. (Ex. 4 at 2.) These supports included preferential seating, information in small sequential units, refocusing and redirection, a positive reinforcement plan, a strategy to teach abstract concepts concretely, checking for understanding, support for organization of materials and work, and setting clear time limits for assignments and prioritizing. (Id.) It is undisputed that each of BB’s teachers in the 2010-2011 school year applied these special supports in their classrooms when they worked with BB.
Despite their combined experience and genuine efforts to help BB succeed, his teachers could not figure out what was preventing BB from succeeding academically. Ms. Costello, BB’s resource room teacher, completed testing of BB around February or March of 2010, the spring of
BB’s 6th grade year, which showed BB’s comprehension had declined compared with the previous year’s test results. (Tr. 476-77.) Ms. Sapone, BB’s math teacher, testified that BB’s teachers were very concerned about his basic skills. (Tr. 305.) She saw BB struggling with math, and despite working with him one-on-one, having the teacher’s aide work with him one-on-one and redirecting him, he wasn’t grasping the concepts and skills that were being taught. (Tr. 305-
06). Ms. Sapone testified that BB “struggled with math because he was uninterested in really being there … .” (Tr. 305-06.) The teachers believed their efforts were being exhausted and things were just not changing. (Tr. 319.) Concerned about what to do because BB was failing even when she excluded his homework grades and modified his assignments, Ms. Sapone emailed the guidance counselor and Ms. Cunningham on March 16, 2011, suggesting that she meet with them to discuss how to proceed with BB. (Ex. H.)
The March 23, 2011, CSE Meeting
A CSE meeting convened for annual review of BB’s program on March 23, 2011. (Exs.
12 at 2, 13 at 1.) Dr. Stowell chaired the meeting, and Mrs. B attended, along with Ms.
Cunningham, Ms. Costello, Ms. Whitbeck (guidance counselor) and a general education teacher.
(Exs. 11 and 13 at 1.) From the meeting, two IEPs resulted, (Tr. 263): One that added daily multisensory reading to BB’s 2010-2011 services and IEP (Ex. 12 at 2); and another that set forth BB’s education program for the 2011-2012 school year, (Ex. 13). At the meeting Parent expressed concern about her son’s reading difficulties. (Tr. 86-87.) In response to her concerns, the District added daily multisensory reading support to BB’s program for the remainder of the 2010-2011 school year. (Ex. 12 at 3; Tr. 73-74, 81, 222.) Lisa Cerbone, the BOCES reading specialist assigned to BB, began her one-to-one reading services with BB on April 11, 2011. (Tr.
532.) She testified that based on the testing that she completed with BB and on her observation of his abilities, BB was reading around the 3rd grade level toward the end of his h-
grade year.
(Tr. 620-21.)
The IEP that the CSE formulated for BB for the 2011-2012 school year offered special class 15:1:1 in math, ELA, science and social studies; a reading specialist in a group of five for 45 minutes per day, counseling once a week for 30 minutes 1:1; and provided for a formal behavior intervention plan. (Ex. 13 at 12.) Dr. Stowell testified that the CSE recommended that an FBA be performed at the beginning of the 2011-2012 school year so that a BIP could be formulated for BB. (Ex. 13 at 1, 8; Tr. 236-38.) Parent, testified, however, that a BIP was not discussed at the meeting. (Tr. 1287.) Despite the seeming conflict between the testimony of Dr. Stowell and Parent, I FIND Dr. Stowell’s account of the meeting to be credible on this point as he gave a detailed explanation of why the functional behavior analysis was to be performed at the beginning of the 2011-2012 school year, and he explained that not every point of discussion at the CSE meeting was written into the comments section on the second page of the IEP. (Tr.
236-38.) In contrast, in a leading line of questioning, the record does not establish whether Parent had an independent recollection of whether an FBA or BIP was discussed at the meeting. (Tr.
1285-87.) As Dr. Stowell clearly recalled in his testimony that the BIP was discussed at the March 23, 2011, CSE meeting, I credit his testimony here.
The recommendation was for a 10-month school year, and the program was to be delivered in the District’s school. It is undisputed that at the time of the meeting, the committee believed that an out-of-district placement was not necessary. (Tr. 252-54.) Nothing in the hearing record suggests that Parent offered any documents prior to or during the March 2011 meeting that recommended any placement other than a District school for BB.
In March 2011, Parent gave English and math assessments from the private school to
BB’s teachers to fill out for consideration by the private school as Parent was considering unilaterally placing him there. (Exs. A, B.) Ms. Giumarra and Ms. Sapone filled out the forms, dated March23, 2011, and March 21, 2011, respectively. Despite the fact that Ms. Sapone, who attended the March 2011 IEP meeting, had recently filled out the math assessment form and despite the fact that Mrs. B was considering placing BB at the private school for the 2011-2012 school year, no one mentioned the private school specifically at the March 2011 meeting, so Dr.
Stowell was unaware at the time that the teachers had filled out the assessments for the private school. (Tr. 136-37.) Dr. Stowell testified that he did not recall seeing any documents from the private school before the end of the 2010-2011 school year. (Tr. 138.) He further testified that it was not until he received Parents’ letter on August 22, 2011, that he learned BB would be attending the private school for the 2011-2012 school year and that no information about
Parents’ plans to remove BB came to him directly before he received the letter. (Ex. 23; Tr. 112, 244, 250.)
The Additional Reading Services
BOCES reading specialist Lisa Cerbone is trained in the use of multisensory reading techniques and working with children with dyslexia. (Tr. 530-31.) She has undergraduate and graduate degrees in speech and language and elementary education, (Tr. 527), and she was trained in Preventing Academic Failure (PAF), (Tr. 526), an Orton-Gillingham method of reading intervention. (Tr. 878-79.) She has additional training in the Wilson reading program, and the LindaMood-Bell multisensory approach. (Tr. 526.) When she worked with BB, she had been a reading specialist with Southern Westchester BOCES for 12 years. (Tr. 528.) In her sessions with BB, Ms. Cerbone used a variety of techniques to try to engage BB and to improve his reading skills. (Tr. 530-32, 600.) These techniques included the CLOZE method of comprehension assessment, spiraling with his other classes to increase his understanding, and the Wilson method (another Orton-Gillingham based program). (Tr. 559-61.) Ms. Cerbone introduced high-interest reading passages into BB’s reading sessions and allowed him great autonomy in the selection of daily exercises. (Tr. 540-42.) Ms. Cerbone attended the June , 2012, CSE meeting but not at the reconvened meeting on August , 2012. (Tr. 577-78.) Her professional opinion, after working with BB was that BB was able to read when motivated to do so and when offered reading materials he enjoyed. (Ex. 21at 1, 4; Tr. 640.) The reading and spelling portion of the 2012-2013 IEP developed at the August 2012 meeting was based on Ms. Cerbone’s report of June 2011. (Ex. 40 at 7; Tr. 578-79.)
The Private Evaluation
Mrs. B took her son to licensed psychologist Randall Thomas, Ph.D, for a comprehensive psychological examination in July 2011, months after the CSE meeting that resulted in the 2011-2012 IEP. (Ex. 25.) At hearing, Dr. Thomas explained that BB’s chronic academic failure year after year had taken a serious toll on BB, and he testified that BB needed an intensive comprehensive program to get him on a positive track as quickly as possible. (Tr.
1033-344). Dr. Thomas admitted that the majority of the information that he gathered for preparation of his report and recommendations for BB came from BB’s mother. (Tr. 1090.) As
Parents had already signed the contract for admission for BB at the private school by June , 2011, by the time Dr. Thomas tested and evaluated BB, the student was already enrolled at the private school and Parents had already paid a non-refundable $5,300.00 deposit toward the cost of his tuition. (Exs. 25 at 2; Tr. 1318.) Dr. Thomas testified that when he met BB in July 2011, he did not know that BB was already enrolled at the private school. (Tr. 1135.) Despite the fact that he did not observe BB in his classroom at the District and that he did not speak to any of
BB’s teachers or staff there, (Tr. 1087), he testified that the District’s program was inappropriate.
(Tr. 1089-90.) Considering that Dr. Thomas, who testified that he once had a license as a school psychologist, did not know that his credential had likely expired after non-renewal, (Tr. 1081-
82), and who had not worked in a public school as a school psychologist since 1987, (Ex. L2), nothing in the record suggests that he has the foundation of knowledge necessary to judge the appropriateness of an educational program sight unseen. I note that, although Parents argue that Dr. Thomas should be afforded deference as a “professional educator” and an expert witness, (see Parent’s Closing Brief at 11-12, especially fn 3), Parents did not request that Dr. Thomas be qualified as an expert witness at hearing. As Dr. Thomas cannot fairly be considered an educator as he has neither a teaching license nor any significant career experience as an instructor,
Parent’s argument that his recommendations and conclusion be afforded deference 3 under the standard articulated in Arlington Central School District v. D.K. and K.K., obo C.K., 2002 U.S.
Dist. Lexis 21849 (S.D.N.Y. 2002) and County School Board of Henrico County, Virginia v.
Z.P., 399 F.3d 298 (4th Cir. 2005) must fail. On the other hand, Dr. Thomas’s testing of BB appears to be comprehensive, accurate, and in agreement with the bulk of the other assessments that placed BB’s decoding abilities several years below grade level. In his report, he recommended three years of remediation for BB in an intensive, structured, and routine program heavily oriented on language development utilizing scientifically based strategies in a highly supervised residential setting. (Ex. 25 at 13.) While Dr. Thomas’s report cites to Shaywitz when it recommends “a program of sufficient intensity and duration to ensure fluency,” (Ex. 25 at 16), to remediate the kind of reading deficit displayed by BB, nothing in Dr. Thomas’s report beyond his conclusory statements supports the need for such remediation to occur in a residential setting in general.
The June 2012 Meeting
On June , 2012, the District’s CSE convened to create an IEP for BB for the 2012- 2013 school year. (Ex. 27.) Present at that meeting were Karen Kushnir, chairperson; Ms.
Cunningham; Matt Allen, general education teacher; Joy Reynolds, special education teacher; Ms. Cerbone, the reading specialist who had worked with BB toward the end of the 2010-2011 school year; Mrs. B; Peter Hoffman, Parents’ counsel; and Sara Richmond, District’s counsel.
(Id.) Among the documents reviewed at the meeting was the report by Dr. Randall Thomas,
Ph.D, a private psychologist engaged by Parents on the advice of their legal counsel. (Tr. 1300-
3 The Arlington and Henrico County cases emphasize the importance of the Court’s giving due deference to the pedagogical opinions and expertise of professional educators, who prove to be mostly school administrators, not private evaluators hired by Parents. 1301.) Parents had sent Dr. Thomas’s report to the District in the fall of 2011. (Ex. 25 at 1.) As
Parents’ had already removed BB from the District’s schools in favor of their unilateral private placement at the time the District originally received the report, the annual review for the 2012- 2013 school year was the first time the CSE considered Dr. Thomas’s recommendations in formulating an educational program for BB. (Tr. 113, 912.)
The CSE agreed with the recommendation in Dr. Thomas’s report that BB needed a structured environment, but it rejected his conclusion that BB’s needs justified placement in a residential program. (Tr. 946-47, 984.) Dr. Thomas testified that he had not visited the private school, had not spoken with faculty or staff there, and that he had no direct knowledge of the private school’s program or its curriculum. (Tr. 1105- 06.) He admitted on cross-examination that his opinion about the suitability of the residential placement at the private school was based on discussions with Mrs. B and on promotional materials about the school provided by Parents’ attorney. (Tr. 1104.) Similarly, at the time that Dr. Thomas concluded that the District program was inappropriate for BB, he had never discussed the District’s program with anyone at the District, had never visited the program and had no direct knowledge of the District program. (Tr.
1087-90.) Upon cross-examination, Dr. Thomas claimed that when he met with Parent before his initial assessment of BB that Mrs. B did not mention that she had already enrolled BB in a residential program. (Tr. 1086.) On cross-examination, Dr. Thomas admitted that the majority of the information he gathered for his report on BB came directly from BB’s mother. (Tr. 1090.)
The CSE agreed with Dr. Thomas’s conclusion that BB needed an individualized reading program to make progress, (Tr. 949, 1034), and the team included an individualized reading program in the IEP for BB for the 2012-2013 school year. (Ex. 40 at 1; Tr. 928, 931.)
The District’s recommended program also afforded BB opportunities to socialize in the mainstream. For example, the IEP included art, lunch and physical education with the mainstream population, (Ex. 40 at 18); he could participate in lunch time extra-curriculars like basketball, something he had done in the past. (Tr. 747, 807.) The CSE considered in its review that BB benefited generally from social interaction and that he enjoyed socializing with peers, who often sought him out. (Tr. 859, 634-635.) Because Parents did not sign consent for the private school to provide BB’s progress reports or evaluation materials and did not give permission for the CSE to talk with a representative from the private school about BB in a timely fashion, the CSE could not complete its education planning at the June th meeting. (Ex. 40 at 2; see also Exs. 55 and NN, Recordings of the June , 2012, IEP meeting.) Without the necessary private school materials and input from any staff at the private school regarding BB’s performance there for the 2011-2012 school year, Parents’ counsel recommended that the committee adjourn and reconvene when staff at the private school was available and asserted that an IEP should not be formulated until the committee had the private school information. (See Exs. 55 and NN, especially the beginning of Part 3 of the 6/7/12 recording on NN.) The CSE, led by Ms. Kushnir, agreed, and adjourned in order to receive and review information from the private school and then reconvene to recommend a program. (Tr. 886-891.)[4]
Although Mrs. B testified that the CSE meeting on August , 2012, was the first time that the District met to review Dr. Thomas’s report, the evidence proves otherwise. Both parties tape- recorded the two CSE meetings that convened to formulate BB’s 2012-2013 IEP. The parties met on June , 2012, when Dr. Thomas’s report was discussed by the team and summarized by District school psychologist Gina Cunningham at the outset of the meeting. (Exs. 55, NN.) The CSE reconvened on August , 2012, with the additional presence for a limited time of Jeffrey
Sweet, Director of the middle school at the private placement, and with the reports from the private school on BB’s performance. (Ex. 40; Tr. 892.) The CSE reviewed the reports, and Mr.
Sweet discussed BB’s 2011-2012 performance at the private school. (Tr. 895-895, 901.) Based on information provided by Mr. Sweet and presented in educational records, the CS concluded that BB continued to exhibit the same reading difficulties and executive functioning issues that he had exhibited as a student in the District’s classes. (Tr. 911.) The IEP prepared by the CSE for the 2012-2013 school year recommended a program to address BB’s continuing needs in reading and included special classes for math and language arts, consultant teacher services in science and social studies, resource room to address his executive functioning struggles, daily multisensory reading support, counseling and the addition of a Flexible Support program newly available at the District’s high school. (Ex.40; Tr. 904-11.)
Dr. Stowell and Ms. Kushnir explained in their separate testimonies that the Flexible
Support Program (“FSP”) was designed to address the needs of students who have long- or short-term difficulties meeting the social and academic demands of school. (Tr. 116-118, 908-910.)
The FSP is staffed by a full-time psychologist, a full-time special education teacher and a full-time special-education aide along with a dedicated school guidance counselor. (Tr. 123, 908.)
The purpose of the program is to enable students who are experiencing social-emotional or behavioral difficulty in a particular class at a particular time to seek immediate intervention in order to help regulate their response to the environment and to re-engage in their academics. (Tr. 117, 908-909, 983-984.) FSP staff respond to emotional or organizational needs so that students can re-enter the classroom where they were having difficulty. (Tr. 909.)
The IEP also recommended an FBA and a BIP for the 2012-2013 school year. (Ex. 40 at
10.) The completed IEP, (Ex. 40), along with the Prior Written Notice, was sent to Parents on August 31, 2012, after the reconvened meeting, (SD 41). Before they received a written copy of either document, however, and indeed before the reconvened CSE occurred on August , 2012, Parents wrote to the CSE on August 9, 2012, rejecting the District’s plan for BB. (Ex. 39.) Once they actually received the written IEP for the 2012-2013 school year, Parents again rejected the IEP via letter dated September 4, 2012. (Ex. 42.) In the same letter, Parents also advised the District that BB would be attending the private school again for the 2012-2013 school year and that Parents would seek reimbursement of the cost of his tuition for the 2011-2012 and 2012- 2013 school years. (Ex. 42.)
Arguments of the Parties
In their complaint, Parents argue that the District failed to provide FAPE for the 2010- 2011 school year through substantive violations and that they are thus entitled to reimbursement for compensatory services. Parents further claim that the District failed to offer a FAPE to BB for the 2011-2012 and 2012-2013 school years, and they seek tuition reimbursement for BB’s unilateral placement at the private boarding school. For the 2012-20013 school year, they claim that the District retaliated against them, in violation of Section 504 of the ADA, by filing what was later determined to be an unfounded CPS report. In their argument in support of the equities, they assert that Parents cooperated with the District at all times until the District filed a CPS[5]
complaint against them and that thereafter, they were less cooperative.
In contrast, the District maintains that it provided a FAPE to BB at all times in the 2010- 2011 school year and that it offered him a FAPE for the 2011-2012 and 2012-2013 school years.
CONCLUSIONS OF LAW
Congress’ stated purposes in enacting the IDEA were to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) designed to meet their unique needs, to prepare them for independent living and to protect the rights of such students and their parents. 20 U.S.C. § 1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Ed. v. Rowley, 458 U.S. 176, 179-181 (1982). The U.S. Supreme Court held in Rowley that FAPE required by the IDEA means an education that is “tailored to the unique needs of the handicapped child by means of an individualized education plan.” Board of Ed. V. Rowley, 458 U.S. 176, 181-182 (1982).The student’s IEP must be “reasonably calculated to enable [him] to receive educational benefits.” Rowley, at 207. A school district, to satisfy the “reasonably calculated” test, must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . .
affords the student with an opportunity greater than mere trivial advancement.’” Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 132. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1998) (citations omitted).
motion via a Memorandum of Law, which Parents replied to on May 24, 2013. Via her Decision Part I, issued on June 3, 2013, the original IHO in this matter denied Parents’ motion to admit evidence and elicit testimony regarding the CPS report, explaining that the CPS facts had no bearing on whether the District had offered an appropriate placement for BB. (Ex. 12 at 8-9.) As the first IHO denied permission to admit evidence or testimony regarding the CPS report, no evidence and no testimony from the hearing exists to elucidate the facts behind the unfounded CPS report. Thus, were I to disagree with, or in essence overturn, the Decision of the original IHO to exclude that information, I would need to re-open the record in order to consider properly whether Parents’ CPS arguments have merit. As noted above, I was the fourth IHO in this case, appointed on August 15, 2014. At this late point in the long history of this case, re-opening the record to hear testimony regarding the CPS claim would only serve to delay further a Decision that should have been rendered more than a year ago. For that reason, I choose not to disturb the original IHO’s Decision to exclude testimony and evidence regarding the CPS report, and I do not consider Parents’ arguments regarding same. School districts are not required to “maximize” the potential of students with disabilities. Rowley at 189, 199.
This is a tuition-reimbursement case, so I analyze the issues under the standard announced in Burlington Sch. Comm. v. Dept. of Educ., et. al., 736 F.2d 773 (1st Cir., 1984)
aff’d at 471 U.S. 359 (1985). The Court in Burlington found that three factors determine whether a parental request for tuition reimbursement for a unilateral private school placement is appropriate. (1) If the services offered by the board of education are inadequate or inappropriate, and (2) the services selected by the parent are appropriate, and (3) equitable considerations support the parents’ claim for reimbursement, then reimbursement should be granted. In New York, the local educational agency has the burden of proving “Prong I,” that it offered an appropriate educational program that amounted to a FAPE. See N.Y. Educ. Law §4404(1)(c).
“At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in [34 CFR 300.320 ].” 34 CFR 300.323 (a). “The IDEA requires that the DOE have an IEP ‘in effect’ at the beginning of the school year.” S.F. and Y.D. v. New York City Dept. of Educ., 57 IDELR 287 at p.11
(S.D.N.Y. Nov. 9, 2011) quoting 20 U.S.C. § 1415(d)(2)(A). Here, Parents make no claim that the District failed to have an IEP in effect by the beginning of any of the three school years at issue.
“An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs and provides for the use of appropriate special education services.” Application of a Student with a Disability, Appeal No. 08-015 (internal citations omitted). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including where appropriate, social and emotional status. 20 U.S.C. §1414(b)(3)(B); 34 C.F.R.
§300.304(c)(4);8 NYCRR §200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related-services needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. § 300.304(c)(6);8 NYCRR §200.4(b)(6)(ix). SRO Appeal No. 08-015.
As set forth in the IDEA, the Part B regulations state that a district must provide a residential placement to a student with a disability at no cost to the parents if such a placement is necessary to provide the student with special education and related services. 34 CFR 300.104.
Thus, a district's duty to offer a residential placement turns on whether the student requires a residential placement to receive FAPE. If a student cannot obtain an educational benefit in a less restrictive setting, then a residential placement is appropriate. See, e.g., Department of Educ., State of Hawaii, 51 IDELR 262 (SEA HI 2008) (finding that a teenager who had limited communication skills and functioned on the level of a grade schooler needed a residential placement to receive FAPE). L.H. v. Monroe-Woodbury Cent. Sch. Dist., 51 IDELR 91 (2d Cir.
2008, unpublished) (because a student with an emotional disturbance was making progress in a therapeutic day program, her parents could not establish a need for a residential placement);
Conway Sch. Dist., 46 IDELR 208 (SEA AR 2006) (finding that a fifth-grader with 20/40 corrected vision did not need a placement in a residential facility for blind students to receive an educational benefit).
Compensatory education is an appropriate remedy when a student does not receive a FAPE. P. v. Newington, 546 F.3d 111 (2d Cir. 2008)(compensatory education awarded to make up for deficiencies in IEP). “Compensatory education” is prospective equitable relief, requiring a school district to fund education beyond the expiration of a child’s eligibility as a remedy for any earlier deprivations in the child’s education. See Burr v. Sobol, 888 F.2d 258 (2nd Cir. 1989).
While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. SRO 06-074; see also Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 F.App’x 411 (2nd Cir. 2010) (“To implement the SRO’s award, the value of the prospective compensatory education must be set aside by the school district and placed in ESCROW for use in paying up-front for the compensatory education expenses”).
A. The District Failed to Provide a FAPE to BB for the 2010-2011 School Year
In support of their claim for the 2010-2011 school year, Parents argue that the District engaged in spoliation of records, but they do not explain how spoliation, if true, could actually have worked to deprive BB of a FAPE. Teachers explained that they did not keep the tally charts they employed as part of the classroom-wide positive behavior plan they instituted to try to motivate BB to participate and discourage his off-task behaviors. (Tr. 344-45.) The record supports Parents’ claim that no FBA was performed in order to create a formal BIP for the 2010- 2011 school year. The record further supports Parents’ claim that the informal positive reinforcement plan was ineffective. The plan was so informal, in fact, that it did not exist in written form beyond the tally sheets, which the teachers saw no need to keep, testifying that they did not save them at the end of the year. (Tr. 681-84.) As there was no formal plan, the tally sheets would have served as no more than physical confirmation that they were tracking BB’s behaviors, albeit with little seeming effect on reducing those behaviors. The teachers testified credibly about their efforts through the informal positive behavior plan to shape BB’s behavior, and despite their agreement that the informal system was not working, they testified that they did not think to seek parental consent to perform an FBA because they had been unsuccessful in their informal efforts and had thus run out of ideas on how to successfully motivate BB. (Tr. 388-89,
751-52.) The very fact that they had, in their view, tried everything to reduce BB’s interfering behaviors (e.g. work avoidance, failure to complete and turn in homework, etc.) and been unsuccessful was the signal that they should have requested an FBA. That fact that they did not was a missed opportunity to formulate an effective BIP for BB that could have identified the triggers for his avoidant behaviors and unlocked the key to motivating him effectively in the classroom. Parents’ attorney argued that teacher practices at the time, which did not include maintenance of charts or notes regarding the Positive Behavioral Plan after the end of the school year, was equivalent to spoliation of evidence. The hearing record, however, contains no evidence of intentional destruction of documents in anticipation of litigation in this case. The witnesses made it clear that the tally charts were not kept in the ordinary course of business.
Accordingly, I agree with District’s argument that the doctrine of spoliation has no relevance in this matter. See Application of a Student with a Disability, Nos. 11-059 and 11-061(July 20,
2011) (State Review Officer refused to apply Doctrine of Spoliation when records were destroyed as a matter of practice in a school district.); see also, Application of a Student with a Disability, Nos. 11-092 and 11-094 (October 25, 2011)(SRO did not reach decision on spoliation argument but stated that application of spoliation in a due process hearing was doubtful at best).
While I reject Parents’ spoliation argument, I note that the record supports Parents’ argument that the District’s failure to provide stand-alone multi-sensory reading services to BB to remedy his substantial reading deficits prevented him from making meaningful progress.
Considering BB’s poor grades for the year, considering his decreased reading scores, and considering Parent’s repeated request for targeted multi-sensory reading support for BB, the District’s eleventh-hour efforts to add appropriate multi-sensory reading to BB’s 2010-2011 services proved to be too little, too late when coupled with its complete failure to administer, or to even consider, an FBA with the aim of creating a formal, effective behavior plan to reduce
BB’s interfering behaviors. In light of the foregoing, I FIND that the District failed to provide a FAPE to BB for the 2010-2011 school year.
B. Parents Are Entitled to Reimbursement for Compensatory Services in Light of District’s Failure to Provide a FAPE for the 2010-2011 School Year
Per Newington, 546 F.3d 111, above, compensatory services are appropriate where a student does not receive a FAPE. I have found, above, that the District failed to provide a FAPE to BB for the 2010-2011 school year. To compensate BB for the lost opportunity to make academic progress, I make an Order below for the District to reimburse Parents for the cost of compensatory tutoring services they procured for BB during the 2010-2011 school year, and for the cost of BB’s summer at Eagle Hill (as per Ex. V at 3, BB’s tuition at Eagle Hill was
$1,000.00 ). As the record does not contain proof of Parents’ payment for tutoring services for
BB during the 2010-2011 school year, I make further Order below for Parents to provide to the District proof of payment for tutoring services for BB during the 2010-2011 school year and proof of BB’s attendance at same.
C. The District Offered a FAPE to BB for 2011-2012 and 2012-2013 School Years
1. 2011-2012
For the 2011-2012 school year, the District offered full-time special classes for BB, with counseling and daily multisensory reading support. With a full year of specialized, multi-sensory reading support, a service long sought by Parent for BB, the team believed BB could make reading progress. Further, the District recognized the need for a formal behavior plan for BB for h his -grade year, and planned to administer an FBA at the beginning of the school year in order to formulate a BIP to address his interfering behaviors. The IEP recognized the fact that BB needed a formal behavior plan going forward to increase his positive behaviors such as completing classwork and homework, coming to class prepared and being respectful to other students. (Ex. 13 at 8.) As no formal BIP had been prepared for BB in the past despite his apparent need for a plan to decrease his interfering behaviors, the IEP’s inclusion of a BIP for the 2011-2012 school year was reasonably calculated to address his behavioral needs. It is undisputed that no one besides Parent suggested that BB needed a residential setting in order to receive a FAPE, and no documentary evidence in the record at the time of the March , 2011, CSE meeting suggested that BB could not receive a FAPE in the District’s school.
In light of the foregoing, I FIND that the 2011-2012 IEP was reasonably calculated to provide meaningful education benefit to BB. Accordingly, I FURTHER FIND that the District offered a FAPE to BB for the 2011-2012 school year. Under the Burlington-Carter analysis, when District offers a FAPE, reimbursement is not available, so I do not analyze whether the private school was appropriate.
2. 2012-2013
BB attended the private boarding school for the 2011-2012 school year. During the first CSE meeting convened to formulate an IEP for BB for the 2012-2013 school year, held on June , 2012, however, it is undisputed that Parent failed to produce any records regarding
BB’s progress at the private school despite the District’s repeated requests. Without the private school reports and without availability of anyone from the private school to participate in the meeting, chairperson Kushnir adjourned the meeting after suggestion to do so by Parents’ counsel, as the committee was unable to make a recommendation for 2012-2013 without any information about how BB had performed during 2011-2012 at the private school. Ms. Kushnir stressed the importance of reconvening the CSE before September 1, 2012, so that the IEP could be formulated in time for the beginning of the 2012-2013 school year as required. (Exs. 55, NN.)
The CPS report was filed toward the end of June 2012, after the adjourned June x meeting and nearly two months before the CSE re-convened to recommend a program on August
, 2012. Despite the hints in the record that the family was greatly upset by the filing of the CPS
report, Parents attended the August 2012 meeting, and director of the middle school at the private placement, Jeffrey Sweet, participated via telephone. Despite Mr. Sweet’s being on vacation at the time, he participated in the meeting for about 40 minutes and took part in the CSE
thorough discussion of the goals. With Mr. Sweet’s participation, the CSE added reading goals and changed the measurement criteria on several goals. (Compare Ex. 13 at 10 to Ex. 40 at 11-12.)
Despite the tension at the meeting, Parents had a full opportunity to participate in the formulation of the 2012-2013 IEP. The testing results of Dr. Thomas were included in the finalized IEP, and assistive technology in the form of a laptop and appropriate software was added to the IEP after input from the boarding school. (Ex. 40 at 15.) Daily multi-sensory reading was again offered. At hearing, Dr. Thomas agreed that multi-sensory reading instruction in a group of as many as five students would be appropriate for BB. (Tr. 1051, 1103-04.) The IEP again provided for a formal BIP for BB.
No one disagreed with the goals formulated at the meeting. Listening to the tapes of the meeting reveals that Parents were offered a full opportunity to participate in the meeting. (Exs.
55, NN.) Mrs. B objected to the recommended 15:1:1 placement in the District school, the general education teacher stated that he believed the District could integrate BB back into the classroom and that the recommended program was good, and Ms. Kushnir stated that BB did not need a residential placement. No one at the meeting besides Parents and Mr. Sweet, a representative from the private boarding school, suggested that residential placement was appropriate for BB. Parent stated her disagreement with the recommendation at the meeting.
Dr. Thomas’s report was fully considered at the June meeting, and the school psychologist explained the testing results from the private evaluation. The test results were included in the IEP. (Ex. 40 at 3-4, 6-7.) Expanding on the program it offered for 2011-2012, which I have already determined amounted to a FAPE, the District added the flexible support program for BB’s social-emotional needs, an alternative to the traditional resource room setting with the added availability of counselors ready to assist and guide the students whenever they requested it. (Ex. 40 at 15.)
In light of the foregoing, I FIND that the services and program recommended by the District for BB for the 2012-2013 school year comprises a program reasonably calculated to provide meaningful educational benefit to BB. Parents claim that BB required a residential program in order to receive a FAPE is unsupported by the record. Per Rowley, the District is not required to maximize BB’s potential or to provide every service sought by his loving family, as recognized in Walczak. Thus, I FURTHER FIND that the August , 2012, IEP offered a FAPE to
BB for the 2012-2013 school year. Under the Burlington-Carter analysis, when District offers a FAPE, tuition reimbursement is not available, so I do not analyze whether the private school was appropriate, and do not perform a balancing of the equities.
ORDERS
I HEREBY GRANT Parents’ request for reimbursement of the cost of compensatory services they procured for BB during the 2010-2011 school year (and the addition of summer tuition at Eagle Hill); As the record does not contain proof of Parents’ payment for tutoring services for BB during the 2010-2011 school year, I HEREBY ORDER that Parents shall provide to the District proof of payment for tutoring services for BB during the 2010-2011 school year and proof of BB’s attendance at same; I FURTHER ORDER, that within 30 days of receipt of proof of payment and attendance, the District SHALL REIMBURSE Parents for the full cost of tutoring services for BB for the 2010-2011 school year;
I FURTHER ORDER the District to REIMBURSE Parents for the cost of the summer tuition at Eagle Hill, which amounts to $1,000.00, per Parents’ proof of payment (See Ex. V at
3); the District SHALL REIMBURSE Parents for said $1,000.00 summer Eagle Hill tuition for
BB within 30 days of the date of this Decision;
As I have FOUND, above, that the District offered a FAPE to the student for the 2011- 2012 and 2012-2013 school years, I HEREBY DENY Parents’ request for tuition reimbursement for the 2011-2012 and 2012-2013 school years at the private boarding school.
It is So Ordered
Dated October 15, 2014
________________________
Jean M. Lucasey, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
Evidence Presented at Hearing
IHRS Case No. xxxxx
SCHOOL DISTRICT EXHIBITS DATE
1 District Letter re: Annual Review (2pp) 01/28/10
2 2009-2010 Annual Review Attendance Sheet (1p) 05/12/10
3 Committee Recommendation Letter (1p) 06/03/10
4 2010-2011 IEP (13pp) 05/12/10
5 Annual Review Report (2pp) 05/12/10
6 2009-2010 Summary (1 p) 05/12/10
7 Teacher Progress Report (1p) undated
8 Parent Meeting Notes (1 p) 09/23/10
9 District Letter re: Annual Review (2pp) 02/15/11
10 Parent Meeting Notes (1p) 03/18/11
11 2010-2011 Annual Review Attendance Sheet (1p) 03/23/11
12 Committee Recommendation Letter and Amended 2010-2011 IEP (14pp) 03/25/11, 03/23/11
13 2011-2012 IEP (16pp) 03/23/11
14 Annual Review Report (2pp) 03/02/11
15 2010-2011 Summary (2pp) 03/23/11
h
16 BB Grade Attendance record (4pp) 03/14/11
SCHOOL DISTRICT EXHIBITS DATE
17 BB 2010-2011 report cards (2pp) 01/28/11, 06/21/11
18 Correspondence re: procurement of Multisensory Reading Specialist (5pp) various
19 BOCES request form for Reading Specialist (2pp) 04/8/11
20 Stowell letter re: make-up reading sessions (2pp) 06/7/11
21 Lisa Cerbone reading summary (6pp) 6/16/11
22 Stowell letter forwarding Cerbone summary to parents (7pp) 06/24/11
23 Parent letter rejecting 2011-2012 IEP (1 p) 08/17/11
24 Lisa Cerbone notes and testing reports on BB (38pp) various
25 E-mail forwarding attached Randall Thomas
Report (17pp) 09/12/11
26 District Letter re: parentally placed nonpublic school students and attached request for services (3pp) 04/26/12, 05/07/12
27 CSE meeting notice (2pp) 05/04/12
28 District request for information from nonpublic school placement (2pp) 05/14/12
29 District e-mail re: waiver of parent member and request for information from nonpublic school placement (3pp) 05/30/12
30 Parent member waiver form (1p) 05/31/12
31 1st parent completed District request for information form (1p) 05/31/12
32 District Correspondence in response to parent form (4pp) 05/31/12, 06/01/12
33 2nd parent completed District request for information form (1 p) 06/05/12
34 E-mail re: Gow School participation at CSE (1p) 06/05/12
SCHOOL DISTRICT EXHIBITS DATE
35 Memo to file re: Gow School participation at CSE (1p) 06/05/12
36 District e-mails re: consent form and availability of BB for
Meeting before CSE (3pp) 06/20/12, 06/22/12
37 3rd parent completed District request for information form and fax to Gow School re: same (3pp) 07/02/12, 07/10/12
38 District letter re: reconvened CSE meeting (4pp) 07/23/12
39 Parent letter rejecting 2012-2013 IEP (1p) 08/9/12
40 2012-2013 IEP (18pp) 08/15/12
41 2012-2013 Prior Written Notice (2pp) 08/31/12
42 2nd Parent letter rejecting 2012-20113 IEP (1p) 09/04/12
43 Documents received from Gow School (43pp) various
44 Chart (1p) undated
45 E-mail K. Kushnir to H. Brois (1 p) 07/13/12
46 Phone log (4pp) various
47 Additional session notes from L. Cerbone (10 pp) various
48 Home base letters (7pp) various
49 The Gow School Academic Reports and Advisory Reports
(27 pp) various
50 E-mail from Health Office to H. Brois (1 p) 02/02/13 *
51 E-mail From Health Office to H. Brois (1p) 01/23/13 *
52 E-mail from PK Sanieski to T. and H. Brois (1p) 11/16/12
53 E-mail from Health Office to H. Brois (2pp) 11/14/12 *
SCHOOL DISTRICT EXHIBITS DATE
54 BB Teacher’s Degrees (2 pp) undated
55 Recording of CSE Meetings (on 1 flash drive) 6/7/12, 8/15/12
*Not entered into evidence but reportedly provided to Parents’ attorney.
PARENT EXHIBIT LIST
Exh. A Gow School English Assessment, Cynthia Giumarra, 3/23/2011 (2 pp)
Exh. B Gow School Math Assessment, Kim Sapone, 3/21/2011 (2 pp)
Exh. C NYSED Parent Report, 2010-2011 Math, 8/22/2011 (2 pp)
Exh. D BHCSD Student Performance Report, 1/31/2011-04/08/2011 (3 pp)
Exh. E E-mail btw Stowell and Whitbeck re: Lisa Cerbone work, 6/03/2011 (1 p)
Exh. F E-mail between Mrs. B and Cynthia Giumarra, 5/20/2011 (4 pp)
Exh. G Parent Report 2010-2011 English Language Arts, 8/22/2011 (2 pp)
Exh. H E-mail from Sapone to Whitbeck and Cunningham, 3/16/2011 (1 p)
Exh. I E-mail from Sapone to Mrs. B, Cunningham, Whitbeck, 10/04/2010 (1 p)
Exh. J IEP 2009-2010, 3/17/2009 (10 pp)
Exh. K ID Only: IEP 2009-2010, 6/10/2009 (12 pp)
Exh. L CV of Randall Thomas, Ph.D, undated (2 pp)
Exh. M Letter from Mother to Rhonda Pfeiffer, 5/07/2007 (1 p)
Exh. N BHSD Educational Evaluation Report, 3/17/2009 (5 pp)
Exh. O Series of E-mails btw Mother and Roberta Greller, 9/2009 (9 pp)
Exh. P E-mail btw Mother and Greller re progress note, 9/18/2009 (1 p)
Exh. Q E-mail btw Mother and Greller about homework, 10/15/2009 (1 p)
Exh. R E-mail btw Mother and Greller about homework, 10/19/2009 (1 p)
Exh. S E-mail btw Mother and Greller about homework, 10/21/2009 (1 p)
Exh. T E-mail btw Mother and Greller about homework, 11/02/2009 (1 p)
Exh. U E-mail btw Mother and Greller about homework, 11/19/2009 (1 p)
Exh. V Eagle Hill Application for Admission, 1/11/10 (3 pp)
Exh. W E-mail between Mother and Sapone, 11/19/2010 (1 p)
Exh. X E-mail between Mother and Sapone, 11/19/2010 (1 p)
Exh. Y E-mail between Mother and Sapone, 6/03/2011 (1 p)
Exh. Z E-mail between Mother and Lauren Harmata, 6/08/2011 (2 pp)
Exh. AA E-mail between Mother and Harmata, 11/11/2010 (1 p)
Exh. BB The Gow School Application, 5/3/11 (6 pp)
Exh. CC The Gow School Acceptance Letter, 6/14/2011 (1 p)
Exh. DD The Gow School 2011-2012 Enrollment Reservation Contract, 6/30/11 (2 pp)
Exh. EE The Gow School Informational Packet, undated (31 pp)
Exh. FF The Gow School New Student Profile 2011-2012, undated, (1 p)
Exh. GG The Gow School 2013 Marking Period 4 Grades, 5/29/13 (1 p)
Exh. HH BHSC Evaluation Report, 2/18/13 (4 pp)
Exh. II Gow Reconstructive Language PowerPoint, undated (14 pp)
Exh. JJ Email from Gow History Teacher, 9/5/11 (2 pp)
Exh. KK Email from Gow English Teacher, 9/9/11 (1 p)
Exh. LL Student Testing Record, 5/31/12 (3 pp)
Exh. MM Email with Advisory Report, 5/30/13 (4 pp)
Exh. NN Recordings of CSE Meetings, 6/7/2012 and 8/15/12 (1 Compact Disc)
Submitted by Impartial Hearing Officer
No. Date Description Pages
A 1/3/13 Letter to IHO from District’s Counsel 3
B 1/6/13 Email from Parent’s Counsel 2
1 10/5/12 Due Process Complaint with 28 Attachments
2 5/1/14 Telephone Conference Summary 1
3 4/10/14 Letter from with
Order of Revocation of IHO Certification 3
4 4/29/14 Letter from Parent’s Counsel Requesting
Extension of Time to Render Decision for New IHO 2 5 4/30/14 Emails Between New IHO and Parties’ Counsel 3 6 5/1/14 Emails Between NYSED, IHO and Counsel
Re Serial Extensions to Timeline 3
7 5/1/14 District Letter Requesting Recusal 1 8 4/30/14 Email re IHO’s Disclosure 1 9 5/2/14 Parent Letter Opposing Recusal 2
10 5/2/14 Emails Re IHO s Defense of Parents
in Abuse/Neglect Matters 3
11 5/2/14 Email from IHO Granting Recusal Request 1 12 May-July Correspondence and Order from IHO ;
2014 including IHO s Decision Part 1, 6/3/13 11
13 8/20/14 Transcript of Telephone Conference with Index 32
14 8/21/14 Order Granting Extension 1
15 9/4/14 Order Granting Extension 1
16 9/9/14 Letter Brief Opposing IHO’s Review of SRO Case6 3
17 9/15/14 District’s Response to Letter Brief 2
Additional Documents in the Hearing Record (not exhibits):
• Bound copies of written transcript of the Impartial Hearing (Vols. 1-1 0);
• Electronic copies of written transcript (Discs 1-10);
• Parents’ Motion to Admit Testimony served April30, 2013 and reply memorandum dated May 24, 2013;
• Parents’ Motion to Extend Time served April 30, 2013 and letter dated
May 29, 2013;
• School District’s Memorandum of Law in Opposition to Motion to Admit
Evidence served May 15, 2013;
• School District’s Letter Brief in Response to Motion to Extend Time dated
May 15, 2013;
• Impartial Hearing Officer Decision #1, dated June 3, 2013;
• Parents’ Closing Brief dated August 13, 2013; and
• School District’s closing statement dated August 13, 2013.
6
As I determined to leave undisturbed the Decision Part I of the original IHO, (see fn 5), which denied Parents’ motion to admit evidence and elicit testimony regarding the CPS report, I must also decline the District’s invitation to consider SRO Appeal No. 13-222, which reportedly details further the CPS report. I have neither read the SRO’s
Appeal No. 13-222 nor considered it in rendering my Decision.
Footnotes
[2] As the NYSED report of -grade assessment scores was not released until August 22, 2011, the information regarding BB’s low ELA score was not available at the time of the CSE meeting, which occurred in March 2011.
[4] The record does not explain why Parents did not provide this information to the CSE in advance of the June , meeting. The District had repeatedly requested the information from the private school and permission to speak with a private-school representative as early as May 14, 2012. (Exs. 28, 31, 32, 34, 35 and 36.) Parents ultimately provided access to the private school records and made an employee of the private school available to the CSE but only for a limited time and scope and only after the initial CSE meeting had to be adjourned without the formulation of an IEP. (Ex. 37.)
[5] On April 30, 2013, Parents made a motion to admit evidence at hearing related to the CPS report. The motion also sought permission from the original IHO to elicit testimony re same. On May 15, 2013, the District opposed Parents’