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Cover Sheet
Student: Student
DOB:
School District: School District
Request by Parents
IHO: Robert Briglio
Hearing Dates: October 29, 2013; October 30, 2013; October 31, 2013; December 10, 2013; December 11, 2013
Record Close Date: April 1, 2014
Decision Date: April 9, 2014 Hearing Officer’s Finding of Fact and Decision Case No….
Introduction
This hearing was requested on July 30, 2013, by parent and parent., parents of student, student (or student) The hearing was requested because the parents disagreed with the School District (School District) recommendations on the student’s Individualized Education Program (IEP)
for the 2012/13 and 2013/14 school years. The parents are seeking an amended IEP providing for …
services, among other relief. Exhibits 1 & I1
I was appointed to hear the matter by the School District on or about August 1, 2013. The case was not resolved at resolution, and a preliminary conference was scheduled and conducted on September 1, 2013. The hearing was scheduled to commence on October 29, 2013. On October 29, 2013 a hearing commenced pursuant to the Individuals With Disabilities Education Improvement Act (I.D.E.I.A.) at 20 U.S.C. §1415 (f). The hearing continued on October 30, 2013, October 31, 2013, December 10, 2013, and December 11, 2013.[2]
1 The parents requested and were granted permission to amend their proposed remedy in this matter after the close of the District’s case. The parents were not permitted to amend the allegations in their Due Process Complaint. (See Tr. 348-349) In granting the parents’ request, I note that there is no requirement in the law for parents to specify a proposed remedy. See 34 C.F.R. §300.508 (b)(6) Accordingly, I find that the amended remedy in this case is consistent with the Due Process complaint requirements. I note that the District argued that they provided the student with a free, appropriate public education (FAPE) during the period in question nullifying the provision of any relief in this matter. Accordingly, I find there was no prejudice to the District permitting the parents to amend the proposed remedy. I note the District had time to review the proposed remedy and resolve the matter if it wished pursuant to the amended proposed remedy. (Tr. 350-351; see 34 C.F.R. 300.510) There was no delay in the matter occasioned by the amended proposed remedy. (Tr. 349-350) I further note that the I.D.E.I.A. grants hearing officer’s the right to fashion relief that is appropriate. See 34 C.F.R. 300.516 (c)(3)
Appended to the record are lists of the persons in attendance and documents received in evidence.
Background
Student. is … … IEP for the 2013/14 school year recommends… Testing accommodations on the IEP include: …Goals on the IEP include … The student’s home public school was recommended for placement.
See Exhibit 38
Student was referred to the School District’s Committee on Special Education (CSE) by his parents in 2009 when Student was in the first grade. A … Report was conducted by the District in December, 2009. Cognitively, Student scored …
The report did not make a recommendation regarding student’s eligibility for special education. Absent a recommendation for an IEP, the report recommended …
See Exhibit 3
A Teacher Report from January, 2010 when Student was in the first grade indicated
Student… Exhibit 4
A …Evaluation reports Student scored … Exhibit 5
A …Evaluation by Dr. … obtained by the family in March, 2010 reported that Student…
A … was made in Dr. … report. Recommendations included: …
Exhibit 6
The School District CSE met on June 23, 2010 to make special education recommendations for Student for his 2010/11 (second grade) school year. In attendance were the CSE Chairperson, school psychologist, two general education teachers, a special education teacher, the parents, and two parent advocates.
Dr. …’s evaluation was considered by the CSE. The IEP developed at the meeting reports…
Program modifications recommended on the IEP included …. Exhibit 7 The IEP was not finalized at the meeting on June 23, 2010, and notice of the CSE recommendation was sent to the parents. Exhibit 7-13
The CSE reconvened on July 29, 2010. The school psychologist, two special education teachers, a general education teacher, academic administrator, the parents, and a parent advocate were present. The IEP notes the parents …. Much of what was reported at the June 23, 2010 CSE meeting was referred to. A recommendation was made for …
Goals on the July 29, 2010 IEP were recommended for …
Exhibit 8
Student’s IEP was reviewed on October 20, 2010. It was reported by his general education teacher that Student is … The District will not pay for … according to the review, and no changes were made to the IEP. Exhibit 11-2
A …. Evaluation was conducted when Student was in first grade in December, 2010. It was reported that Student’s … Exhibit 12-3
Student’s IEP was reviewed on February 16, 2011. The … were reviewed. … The District will conduct additional testing, according to the review. Exhibit 13-2
An annual review of Student’s IEP took place on June 13, 2011 in anticipation of Student’s third grade 2011/12 school year. The CSE Chairperson, two school psychologists, two school principals, a special education teacher, general education teacher, parents and parent advocate participated in the meeting.
A … provided newly considered information for the CSE.
Student is reported …
Goals on the IEP included: …
Program recommendations were made for …
Exhibit 13
A notice of the continuation of recommendation of services was sent to the parents, dated June 27, 2011. Exhibit 14
A second … Evaluation from Dr. … was conducted from April to July, 2011. The report was the result of a parent referral. Prior testing done by Dr. … was in 2010. It was reported that Student
…
Recommendations in the … Evaluation include: …, among other recommendations.
See Exhibit 15
Student’s IEP was reviewed on October 5, 2011 when Student was in the third grade. The
CSE Chairperson, school psychologist, school principal, special education teacher, general education teacher, parent member, parent advocates and the parents attended the meeting. Dr. …’s
…Evaluation, a teacher report and parent report were considered in addition to prior testing. Student presents with … testing was reported to be …
Additional … goals were added to the IEP for … …continued not to be recommended. Test accommodations were added for …. Program recommendations remained the same on October, 2011 IEP except that … provided in Student’s home public school.
Exhibit 16
Prior Written Notice was sent to the parents, dated November 4, 2011 indicating that Dr.
…’s evaluation was reviewed at the October, 2011 CSE meeting, additional goals in … were added to the IEP. Exhibit 18
On November 16, 2011, Student’s IEP was reviewed again by the CSE. At the meeting were the CSE Chairperson, special education teacher, general education teacher, school principal, school psychologist and the parents. The purpose of the meeting was to review … was added to the IEP.
See Exhibits 19 & 21
A District …. Exhibit 22
A Student … was performed in February, 2012. The report stated that student … Access to… were recommended. Exhibit 23
A report of the …Testing Program … Exhibit F4-1-4, 6
On March 6, 2012, ’s IEP was reviewed by the CSE at an annual review for the 2012/13 school year when student would be in fourth grade. In attendance were the CSE Chairperson, school psychologist, school principal, special education teacher, general education teacher, and parents.
The CSE continued the …
Goals on the 2012/13 IEP included: …
Recommendations on the IEP included … …was recommended. Testing accommodations on the IEP included … Services were recommended in Student’s home public school.
Exhibit 24
The School District responded to the parents’ request for … program by letter, dated March 22, 2012, rejecting the program because the student continues to make progress in the District program, his goals can be met there, and … is not the least restrictive environment (LRE) for Student. Exhibit 26
A Progress Report for Goals and Objectives during the 2011/12 third grade year reported that Student was … Exhibit 45
A re-evaluation was conducted by the District CSE in October, 2012, when student was in the fourth grade. Student was described cognitively … In academics Student’s… Exhibit 48
By notice dated, October 17, 2012, the CSE notified the parents of its intent to amend the 2012/13 IEP without convening a CSE meeting to … The notice indicated the change was based on
… Exhibit 28
The CSE met on November 13, 2012 to consider the proposed change to the IEP identified in the October 17, 2012 notice to parents. The CSE Chairperson, school psychologist, school principal, special education teacher, general education teacher, and parents attended the meeting.
The CSE decided to implement the program change for … Exhibits 29 & 30
The School District received a letter from …, dated March 18, 2013 indicating that Student is … The letter requests that the District accommodate Student. Exhibit 31
Dr. … performed a third …Evaluation of Student in December, 2012 through February, 2013, when Student was a fourth grade student. The Evaluation was faxed to the School District on March 18, 2013. The …Evaluation was partially funded by the School District.
The report notes … Student is described as …
Recommendations on Dr. ….’s report include …
Exhibit 32
By notice dated March 19, 2013, the School District informed the parents that it considered Dr. ….’s … Evaluation. A … was recommended to address … The CSE recommended a follow-up meeting after further review of Dr. …’s evaluation. Exhibit 33
A letter from the student’s …. in support of the … program was received by the District on April 16, 2013. (Exhibit 34) A letter from …, who evaluated Student reported support for Dr. …’s recommendations to address Student’s significant … Exhibit 36
A report of the …Testing Program from ELA testing taken by Student when he was in fourth grade indicated he performed at … (Exhibit F4-6) Student scored at … Exhibit F4-6
A Draft of Student’s 2013/14 IEP was sent to the parents in advance of the CSE meeting scheduled to make IEP recommendations for Student for the 2013/14 school year. Exhibit I5
The CSE initially met for an annual review of Student’s IEP for the 2013/14 school year on March 19, 2013. Dr. … was present at the CSE meeting and presented the findings of her most recent evaluation of Student. (Exhibit R5) The CSE was scheduled to re-meet after reviewing Dr.
…’s Evaluation. Exhibit 33-4
The District psychologist offered to conduct an evaluation for … for Student after the CSE meeting on March 19, 2013, where student … was discussed. (Exhibit 33) The parents declined the District offer of … services for Student. Exhibit T5-1
On April 22, 2013, the CSE met for an annual review of Student’s IEP in anticipation of the 2013/14 (fifth grade) school year. In attendance were the CSE Chairperson, Director of Special Education, school principal, school psychologist, special education teacher, general education teacher, the parents and a family friend. A …evaluation from February, 2013, Report Cards and re-evaluation summary were considered.
The IEP reports Student has made progress in … … is described as being on… instructional level … Report card grades include … In … the IEP describes Student as ….
Annual goals on the IEP included for …
…
See Exhibit 38
The parents renewed their request for Student to attend the … program at … for the 2013/14 school year by letter received by the School District on May 7, 2013. Exhibit 40
A report of the student’s progress in … Exhibit 41
A Progress Report for Goals and Objectives in the 2012/13 school year reported that by the end of the 2012/13 school year, Student … Exhibit 46 s fourth grade report card indicated final grades of … Exhibit 43
By letter, dated May 24, 2013, the School District informed the parents that Student was invited to attend the District’s … Exhibit R6
The parents requested this hearing on July 30, 2013 because the parents disagreed with program and placement recommendations of the School District CSE for student, and the failure of the District to recommend the … program. The request contends that Student has a right to an appropriate public education that provides him with instruction, services, and support to enable him to … The request raises claims under the I.D.E.I.A., Section 504 of the Rehabilitation Act (§ 504), and Americans With Disabilities Act (A.D.A.). The hearing request claims the District did not provide the student with an appropriate IEP for the 2012/13 and 2013/14 school years, recommend appropriate special education services, address Student’s …, determine LRE based on his individual needs, provide meaningful goals that are objectively measurable, recommend appropriate … services, provide the Board of Education with required evaluations, and failed to provide Student FAPE for the 2012/13 school year. A proposed resolution requests an appropriate IEP with input from staff at the … program and placement in the … program to address Student’s…. Exhibit 1
Position of the Parties
School District’s Position
The School District contends that the 2012/13 and 2013/14 IEPs provided Student with instruction reasonably calculated to provide meaningful educational benefit. During the 2012/13 school year, the student received … Goals were recommended in …
Student made progress in the …Student made significantly more progress- approximately twice expected progress. The IEP satisfied the reasonably calculated standard in the law and the student made gains demonstrating that the IEP, in fact, satisfied the legal standard. The student achieved some of his IEP goals. He made meaningful progress in … but needed greater effort
…to progress further. Significantly, Student obtained …, which demonstrates the appropriateness of the special education program and services he received. Standardized achievement testing …
The student’s IEP for the 2013/14 school year (grade 5) includes … The CSE (except the parents) believed the … The CSE considered the private evaluation of Dr. … and her recommendation that Student …, but the CSE rejected the recommendation as …
Student would benefit from …Although not relevant for a determination of the appropriateness of the District’s special education program recommended for the 2013/14 school year, testimony from Student’s …indicates he is making significant progress in this school year.
The CSE appropriately considered parents’ concern regarding Student’s … The parents were primarily concerned with the District recommending the … program and did not give the CSE an opportunity to discuss the issue at the April, 2013 CSE meeting. At the March, 2013 CSE meeting …was discussed and a … evaluation offered even though …was not being witnessed in school. An evaluation and …was also offered at the April 2013 CSE meeting. The parents declined the offer.
The School District contends that IEP goals for the 2013/14 (fifth grade) school year are meaningful and objectively measurable. The use of … The goals address the student’s … … are an appropriate means to measure goal progress. … goals address the student’s weakness in…
and are objective. …goals focus on … and address the student’s needs.
The … services recommended by the School District, … were appropriate to address …
deficits, but the student did not attend. Even without …, the student …
There is no requirement that every evaluation relied on by the CSE in making recommendations for Student be forwarded to the Board of Education as alleged by the parents.
The Prior Written Notice lists the information relied on by the CSE, and there is no requirement it all be forwarded to the Board. The failure to send all the reports to the Board did not deny the student FAPE in any event.
See School District’s Memorandum of Law
Parents’ Position
The issues raised in the parents’ due process complaint notice are not moot as suggested by the District. The inappropriateness of the 2012/13 recommendation contributed to the deficient recommendation in the 2013/14 school year. The parents’ claim is within the statue of limitations period and capable of repetition and evading review which defeats a mootness claim.
The School District failed to provide Student with FAPE in both the 2012/13 and 2013/14 school years. The failure to do so violates the I.D.E.I.A., A.D.A., and § 504. The record indicates Student made trivial progress. The District’s CSE did not give reasonable consideration to Dr. …’s evaluations and the CSE relied on less reliable teacher information. The District failed to consider and recommend … The amended IEP from November 2012, inappropriately removed reference to Dr. …’s report for Student’s functional levels in … Student’s …was also not reported appropriately in the 2012/13 IEP. The CSE neglected information from Dr. …
demonstrating needs in … The IEP does not address Student’s need for …
The goals on the 2012/13 IEP are not appropriate, meaningful, or objectively measurable.
Student’s IEP goals, if achieved, should result in Student’s ability meet … Goals on the IEP should have addressed all deficits in …, identified in Dr….’s report. One…, one…, and two …
goals on the IEP are inadequate. No … goals were recommended on the IEP despite need for identified by Dr. …
The special education programs recommended for Student in the 2012/13 school year do not relate to the deficits identified in Dr. …’s reports and include use of … Rather, the District used … The policy of using the District’s … The program did not meet the legal standard in the I.D.E.I.A. that requires specialized instruction, which is individualized to the needs of the student. … recommended was not appropriate because the District ignored Student’s need to
Because of inappropriate services, Student’s parents were forced to …
The District acted improperly by changing Student’s program to … in the fall, 2012 without notice to the parents and over their objections. The CSE placed the … program on Student’s IEP contrary to the claim that methodology is not placed on the IEP. School District policies discriminate and should be waived for case manager approval of reports provided to the CSE, special education teachers do not receive reports about the student only the IEP, no… is provided, Student required …, and a cap on the amount the District paid for Dr. …’s evaluations discriminated against Student.
The District did not recommend … individualized to Student’s needs for the 2012/13 school year. Contrary to the District’s contention, Student was eligible for … services or the rules determining eligibility should have been waived to prevent discrimination. The record indicates … The …program provided Student during … had no IEP goals and no progress reports. The district offered the same inappropriate program for …. The District should have offered a program consistent with Dr. …’s recommendations …
The District failed to provide special education consistent with LRE in the 2012/13 school year because Student was placed in …. …. Student experienced … as a result which the District did not address through …
The District denied the parents equal participation in the development of the 2012/13 IEP by unilaterally removing Student from his recommended program in September, 2012 and placing him in the …
Student did not make meaningful progress in the 2012/13 school year. The District misconstrues the law by claiming it is required only to provide the student with an opportunity for an appropriate education. The trivial benefit standard no longer applies since the passage of the No Child Left Behind Act (N.C.L.B.A.). Rather, the goal for every child in the State is to ….
Student did not make meaningful progress because all of his needs identified by Dr. …
were not described on the IEP with goals and services to address them. Student only achieved four of eight IEP goals on the 2012/13 IEP. Dr. …’s testing indicates minimal progress or regression. It is inappropriate for the District to blame Student’s lack of effort for failure to achieve IEP goals. District measurements of progress are inappropriate because they do not address deficit areas and are unrelated to Student’s ability to…
The 2013/14 IEP recommended by the School District for Student does not reflect Student’s special education needs described in Dr. … updated 2013 report. The District failed to develop appropriate, meaningful, measurable goals on the 2013/14 IEP. The District did not recommend appropriate special education programs or services including specific methodologies to address Student’s unique needs for the 2013/14 school year. The District again disregarded
Dr. …’s findings and recommendations. …was inappropriately removed from Student’s IEP.
The IEP incorrectly denies Student experiences …
The School District recommendations for Student for the 2013/14 school year did not comply with LRE requirements.
See Parents’ Closing Statement
Findings of Fact and Conclusions of Law
Legal Framework and Standard
The I.D.E.I.A. mandates that participating States provide students with disabilities FAPE.
FAPE requires special education and related services tailored to meet the unique needs of a particular student and reasonably calculated to enable a student to receive educational benefits.
Meaningful educational progress under the I.D.E.I.A. requires that special education be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade and does not require that services maximize a student’s potential. Board of Education v. Rowley, 102 S.Ct. 3034, 3048-49 (1982) What the statute guarantees is an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak v. Florida
Union Free School District, supra, 142 F.3d 119, 122, citing ” Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567
The law expresses a strong preference for students to be educated to the maximum extent appropriate with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily.
Walczak v. Florida Union Free School District, 142 F.3d 119, 127 (2d Cir. 1998)
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. Walczak, supra at 122 citing 20 U.S.C. §1401(a)(20)
Parents play a significant role in the IEP process. They must be informed about and consent to evaluations and have the right to an independent educational evaluation of their child. They are members of the IEP team. (Schaffer v. Weast, 126 S.Ct. 528,532 [2005]) Moreover, parent’s participation at IEP meetings must be “meaningful”. (Deal v. Hamilton County Board of Education, 392 F.3d. 840,853 (6th Cir. 2005) Parents must also be given prior written notice of any changes to the IEP and notice of procedural safeguards, including the right to an impartial due process hearing. Schaffer, supra 126 S.Ct. at 532
Adequate compliance with the procedures prescribed by the I.D.E.I.A. will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S.Ct. at 532 citing Rowley at 206; M.S. v. Board of Education of the City School District of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000)
With respect to a determination of the appropriateness of a school district IEP recommendation, Congress now requires that a hearing officer render a decision on substantive grounds based on a determination of whether the child received a FAPE. Where a procedural violation is alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. §1415 (f)(2)(E)
The School District bears the burden of proof with respect to the appropriateness of its recommendation. New York Ed. Law §4404 (1) (c)
The I.D.E.I.A. provides authority for a court (or hearing officer) to fashion relief pursuant to the I.D.E.I.A. that is equitable. See 20 U.S.C. §1415 (i)(2)(C)(iii); Reid v. District of Columbia, supra
Findings of Fact and Law
Did the School District’s CSE Make Appropriate IEP Recommendations for Student for the 2012/13
School Year
The parents’ objections to the development of the 2012/13 IEP include that the IEP does not accurately describe Student’s needs based on Dr. …’s specific findings of disability, meaningful and measurable goals were not developed based on Dr. …’s findings related to …’s disabilities, and the program recommendation on the IEP(s) for the 2012/13 school year, similarly, failed to follow Dr. …’s recommendations to … As a result the parents claim both that Student was denied FAPE and that he was discriminated against because he was not provided supports needed to …
I disagree with the parents that the 2012/13 IEPs did not accurately reflect Student’s functional levels or that the IEPs were inconsistent with Dr. …’s findings. The March 6, 2012 IEP contained substantial information about the student’s needs from a variety of sources including parent report and observations, formal standardized testing, teacher reports, and report cards. The information included results from Dr. …’s evaluations. While the scores reported on the IEP were from Dr….’s … testing in 2010 (Exhibit 6) rather than more recent testing by Dr. … (Exhibit 15),
Dr. … recent report was reviewed and the … were similar in both reports with the exception of
…where his skills …. (Exhibit 15-12) Dr. Curley indicates in the later report that Student is making modest gains in some areas of … but concludes he … His …. skills have improved and … Dr. …’s more recent testing of Student at the time of the CSE review was used on the IEP to describe Student’s cognitive ability. (See Exhibit 15-12-13) I note that the formal testing relied on by the CSE more than satisfied the requirement that evaluations be conducted at least once every three years. 34 C.F.R. §300.303 (b)(2)
I disagree with the parents’ contention that Student’s IEP inappropriately relies on teacher information to describe … I find such information to be … who will be responsible for implementing the 2012/13 IEP. See 34 C.F.R. §300.305 (a)(1)(ii)(iii)
I also disagree that the IEP description of the student required more specific reference to the deficits in standardized testing results of Dr. … The purpose of the description of needs section of the IEP is to state present levels of performance, so that annual goals can be developed and specific services recommended to meet those goals with objective criteria for determining whether goals and objectives are being achieved. See Walczak, supra at 122 citing 20 U.S.C. §1401(a)(20) I find that the student’s 2012/13 IEP sufficiently described the student’s needs such that goals could be developed and services recommended to achieve the goals on Student’s IEP.
I find that the goals on IEP address all areas of the student’s needs at the time of the review.
(34 C.F.R. §300.320 [a] [2]) In conjunction with the description of the student’s functional levels on the IEP (Exhibit 24-4-6), the goals provided sufficient information for the student’s teacher to measure the student’s progress during the 2012/13 school year. The goals on Student’s IEP for the 2012/13 school year addressed areas of need including … All of the goals addressed needs identified in Dr. …’s report, contrary to the parent’s contention. I note that Dr. …’s recommendation for …
goal on the IEP was adopted. See Exhibits 15-14, 24-7
Were the Parents Denied Meaningful Participation in Developing the IEP for the 2012/13 School
Year
I agree with the parents that the process used to change the IEP for the 2012/13 school year was done inappropriately and in violation of the I.D.E.I.A. The student’s IEP was apparently changed in September, 2012, at the start of the 2012/13 school year without any involvement by the parents. The record is clear that the parents were not involved in any way in determining that Student’s IEP would be changed by … (See Tr. 165-166, 457) The notice sent to the parents dated, October 17, 2012, indicating the proposed change (Exhibit 28) was after the fact and provided no meaningful or any opportunity for parent participation in the decision. The IEP meeting on November 13, 2012, which formalized the implementation of the change on the student’s IEP (Exhibits 29 & 30) reflects the fact that the District had predetermined the changed recommendation without any parent input. I find this constituted a serious procedural violation of the I.D.E.I.A. (See 34 C.F.R. 300.322; Deal, supra at 853) I note, moreover, that educational methodology is an appropriate consideration for review by the CSE. Id
I further find that the failure of the School District to involve the parents in this very substantial change in the student’s IEP was particularly disturbing in light of the fact that the parents had continuously expressed interest in being involved in decisions regarding the student’s special education program and …in particular having …secured private evaluations of the student by Dr. …
to examine this area of need and providing the student with …. See Exhibits 6, 15, 32; Tr. 372-373,
410-411, 418-419, 424, 426
While not condoning the program change in the student’s IEP without parent participation, I do not find that the violation of the parents’ rights impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. See 20 U.S.C. §1415 (f)(2)(E
I reach this conclusion because the District reconvened to appropriately consider the issue without substantial delay on November 13, 2012 (Exhibit 29), and the program change … (Compare
Exhibits 24 & 29) I also note the student had previously received … (See Exhibit 13) The manner in which this change in the student’s IEP was conducted, however, could result in the family losing confidence in the District’s ability to dialogue with them regarding Student’s special education program in the future absent assurance this conduct will not be repeated, which remedy I am ordering. See Schaffer v. Weast, supra at 532; Deal supra at 853; 34 C.F.R. §300.516(b)(3)
Was the 2012/13 IEP for Student Reasonably Calculated to Provide the Student with Meaningful
Educational Benefit
I find that the decision to enhance the student’s level of … contributed to the provision of FAPE for Student in the 2012/13 school year. I find that significant progress was made in the … in the 2012/13 school year. The … (Tr. 46) The program … (Tr. 189) … (Tr. 191) The program …
Tr.193
Student’s … (Tr. 51, 54) Student… (Exhibit 42-9-14; Tr. 199-200) Student continued to make progress … when his IEP was reviewed in April, 2013. (Tr. 60; Exhibit 38-3) Student was …
(Tr. 183, 202) Clearly, Student made significant progress in his special education program in the 2012/13 school year. See Tr. 204
Significantly, the record reflects that Student made progress on his IEP goals (Exhibit 46) He
… Student… While Student reportedly demonstrated ... Exhibit 46
Most significantly in terms of demonstrating meaningful progress under the I.D.E.I.A.,
Student… Exhibit 43
I disagree with the parents that the measure of progress through … is unreliable and contrary to Dr. …’s evaluations. I note that Dr. … recognized some gains in … to her second evaluation in 2011, including improvements in … (See Exhibit 15) In any event, there is nothing in the I.D.E.I.A.
to suggest that … Rather, the contrary is true.
I find that the record reflects Student made meaningful educational progress and was provided a FAPE by the School District in the 2012/13 school year. See Rowely, supra at 203, regular examinations, passing grades, yearly advancement to higher grades in a public school setting constitutes an important factor in determining educational benefit. See also, Walczak, supra at 130, citing Mrs. B. v. Milford Bd. Of Educ., 103 F.3d at 1121 (2d Cir. 1997), meaningful educational benefit based on test scores and similar records must be viewed in light of limitations imposed by the student’s disability.
The case law on meaningful education benefit in the Second Circuit and U.S. Supreme Court precedent does not reflect the standard which the parents wish to impose on the District- equality of educational opportunity with non-disabled peers citing the A.D.A. and N.C.L.B.A. I am not aware of any case supporting the parents’ position, which in effect means that I.D.E.I.A. now requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children, which the Court in Rowely specifically rejected.
The parents have not offered case authority in their memo for what would be a sea change in the law. A court considering a similar claim and looking at alleged conflict between the I.D.E.I.A.
and N.C.L.B.A. dismissed the claim. Bd. of Ed. of Ottawa Tp. High School v. Spellings, 517 F.3d
922 (7th Cir., 2008)
Was the District’s 2012/13 IEP Supported by Considerations of LRE
I find that the student’s IEP for the 2012/13 school year was strongly supported by LRE considerations. The I.D.E.I.A. is clear that a student should be educated with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily. Walczak, supra at 122
I find that Dr. …’s recommendation for … was overly restrictive in light of Student’s ability to make significant progress in the District’s public school with interaction in … (See Exhibits 29-5,
12; 43-3, F4-6) I also note that Student benefitted from interaction with peers and was described by his teacher as … (Exhibit 24-7, Tr. 170-171) I find that such a child should … Id
Does the Student’s Inability to … Reflect a Denial of FAPE or Discrimination Under the A.D.A.
I disagree with the parents that the A.D.A. extends the School District’s responsibility for providing Student with FAPE. I find that parent’s A.D.A. claim, if successful, would re-define requirements for FAPE such that it is discriminatory to … when the I.D.E.I.A. would not impose this requirement.[3] Such a finding would do nothing short of re-shaping requirements under the I.D.E.I.A., which is the Statute that funds special education. See David B. v. Esposito, 675 F.3d 26,
39-40 (1st Cir. 2012), explaining that an A.D.A. claim involving special education services provided under the I.D.E.I.A. requires a denial of FAPE which is discriminatory to succeed and, where FAPE has found to have been provided, an A.D.A. claim regarding the adequacy of special education services provided under an IEP will fail.
Did the Failure to Provide Student With … in the 2012/13 School Year Result in a Denial of
FAPE
I find there was no denial of FAPE for the District’s not making recommendations to ….
The 2012/13 IEP developed in March, 2012 did not reflect … A subsequent evaluation by the District, which included an observation of the student, did not report student … I find that nothing in the report supported further inquiry regarding Student’s … needs. (See Exhibit 48-2-
3; Tr. 125-127) Significantly, the student’s special education teacher did not report … (Tr. 171) I note that notwithstanding …, the District CSE adopted Dr. …’s recommendation that Student…
See Exhibits 15-15, 24-10, 29-9
When the issue of … was presented to the District’s CSE at the March, 2013 IEP meeting where Dr….’s latest … Evaluation was presented (Exhibit 32), the CSE considered the report.
Subsequent reports of student … (Exhibits 34, 36) at the April, 2013 CSE meeting were considered and responded to by offering an evaluation of the issue and provision of …, which the parents rejected. (Exhibit 38-20, 22, Exhibit 39) Plainly no denial of FAPE occurred under these circumstances.
School District Provision of … for the 2012/13 School Year The parents contend that Student was entitled to individualized …services for the 2012/13 school year and the District’s provision of its … did not satisfy the I.D.E.I.A.
requirement that services be tailored to Student’s individual needs. Dr. … recommended … in her original evaluation and reported that prior recommendations remain relevant in her subsequent evaluation in 2011. (See Exhibits 6-10, 15-13) Dr. …’s recommendation apparently triggered an assessment for …for the 2012/13 school year IEP, which was done in January, 2012. (Exhibit 22) The CSE then recommended … Exhibit 24-11
The parents’ complaint about … is similar to the complaint regarding the student’s special education program for the 2012/13 regular school year that the CSE failed to follow
Dr….’s recommendation for … (See Exhibit 6-10-11) The parent accepted the District …. See
Exhibit T3-7
Given … (8 N.Y.C.R.R. 200.1[eee]; 200.6[k][1][v]), I find that the District program of
…See Exhibits 24-4-6, 6-5-6, R6-5
I note, however, that …must be provided in accordance with the student’s IEP and the District is prohibited from unilaterally limiting the type, amount, or duration of services. See 34 C.F.R. §§300.106(b)(1)(ii) & 300.106(a)(3)(ii) Accordingly, predetermination of … services by the District is prohibited, and … services must be provided based on individual needs and goals on the student’s IEP.
Did the School District’s CSE Make Appropriate IEP Recommendations for Student for the 2013/14
§6311(b)(3)(C)(ix)(II); Connecticut v. Spellings, 549 F.Supp.2d 161, 173-174 (D. Conn. 2008) School Year
I find that Student was provided an appropriate special education program for the 2013/14 school year. The appropriateness of an IEP should be measured from the time the recommendation is made. R.E. and M.E. v. New York City Dept. of Educ., 694 F.3d 167, 185-187
(2d Cir. 2012; see also, Antonaccio v. Board of Education of Arlington Central School District, 281 F.Supp. 710,724 (S.D.N.Y. 2003); D.F. ex rel. N.F. v. Ramapo Cent. School Dist., 430 F.3d 595, 598-599 (2nd Cir. 2005)
As stated, supra, in some detail, which I will not repeat here, the reports of the student’s progress and evaluations available to the CSE supported continuation of the program and services that were successful for Student during the 2012/13 school year. (See Exhibits 41, 42, 43, 46; Exhibit 38-3-7; Tr. 51, 54, 60, 183, 199-204) By relying on the reports of progress in the student’s present program, the District’s CSE developed an IEP reasonably calculated to result in meaningful progress for Student in the 2013/14 school year. Rowely, supra
I find that there was nothing in Dr. …’s most recent evaluation in the 2012/13 school year, which negated the demonstrated improvements in a number of … areas that Student made pursuant to the 2012/13 IEP. Rather, the report substantiates improvements including: … I note that Student was … with Dr. …’s 2012/13 testing. His … See Exhibit 32
Accordingly, I find that all of the information available to the CSE supported the continuation of the recommendations on the student’s 2012/13 IEP during the 2013/14 school year. I further find that Dr. …’s continued recommendation for the … program not appropriate for LRE considerations, discussed supra.
While it is unclear what specific objections the parents have regarding the goals on the 2013/14 school year IEP, the issue was raised in the parents due process complaint notice and I find that the goals suffer from the same imperfection noted for the 2012/13 IEP. All of the goals did not specify a baseline for measuring progress as required by Commissioner’s regulations (see 8 N.Y.C.R.R. §200.4(d)(2)(iii); M.H. supra at 247-249)
I also note that a… goal was dropped from the student’s previous IEP for the 2012/13 school year in the current recommendation. While Dr….’s most recent …Evaluation indicates that Student is … (see Exhibit 32-8). I find that the CSE should give consideration to developing a goal in this area. Similarly, a …goal for … that was recommended on the 2012/13 IEP (Exhibit
29-8) was removed in the 2013/14 IEP, and Dr. … continues to report that … is an area of substantial deficit and Student’s weakest area of … (Exhibit 32-7). While the IEP report of the student’s need in … is less negative, I have no reason to doubt the accuracy of Dr. …’s testing and find that a … goal should be added to Student’s IEP. Finally, it appears that a …goal was removed from Student’s IEP for the 2013/14 school year. Dr. …’s most recent testing continues to indicate Student has a significant deficit in … (Exhibit 32-5), and I find a goal in that area is required on Student’s current IEP.
On the record before me, I decline to find that the failure of some of the goals on the 2013/14 IEP to specify a baseline for measuring progress as required by Commissioner’s regulations, the failure to develop goals for … and …, and the failure to consider a goal for …
caused a deprivation of educational benefits. 20 U.S.C. §1415 (f)(2)(E)[4]
Other Issues5
I have considered all other requests and claims by the parties and find them to be without merit or insufficiently asserted. See T.B. v. Haverstraw-Stony Point Cent. Schl. Dist., 2013 WL 118479 (S.D.N.Y. 2013) citing Singleton v. City of Newburgh, 1 F.Supp.2d 306, 312 (S.D.N.Y.
1998), claim abandoned where alleged in the complaint but not raised elsewhere in the record.
Order
The School District is directed to make IEP recommendations for Student consistently with the findings herein, including providing the parents with a meaningful opportunity to participate in the review of the student’s IEP prior to any changes being implemented.
The School District’s CSE shall reconvene to:
1) Specify a baseline for measuring progress on all of Student’s IEP goals for the 2013/14 school year as required by Commissioner’s regulations;
2) Consider the student’s need for …;
3) Develop IEP goals for …;
4) Consider whether the failure to develop IEP goals as hereby ordered resulted in a deprivation of educational benefit, and, if so, provide for appropriate remedial services in addition to the student’s current IEP recommendation.
5 In the parents’ amended request for relief submitted after the hearing commenced, the parents requested appropriate accommodations to include … (See Exhibit I) However, it was deemed that the amended relief must be read in light of the allegations in the due process complaint notice, which permission to amend was not granted. (See Tr. 348-349) Accordingly, I decline to address the issue of…, which was not specified in the parents’ due process complaint notice. (See Exhibit 1-12-13) I note however, that … was recommended in the 2012/13 IEP as a result of an evaluation (Exhibit 23) including … (See Exhibit 24-10-11) … was removed from the student’s 2013/14 IEP (Exhibit 38-10) without apparent discussion or any report addressing the change. (See Exhibit 38-19-
22) It may very well be that Student requires … to support him in the District’s recommended program. Accordingly, this Decision and Order is without prejudice to the parent raising such a claim for the 2013/14 school year. Dated: April 9, 2014
ROBERT BRIGLIO, ESQ.
Impartial Hearing Officer
WITNESS LIST
October 29, 2013
For the Parent
…, Father …, Mother …, Advocate For the School District …, Esq., Attorney …, Director of Special Education …, CSE Chairperson …, School Psychologist
October 30, 2013
For the Parent
…, Father …, Mother …, Advocate For the School District …, Attorney …, CSE Chairperson …, Special Education Teacher October 31, 2013
For the Parent
…, Mother …, Advocate For the School District …Esq., Attorney …, CSE Chairperson …, Special Education Teacher
December 10, 2013
For the Parent
…, Father …, Mother …, Advocate …, Special Education Teacher …, Special Education Teacher For the School District …, Esq., Attorney …, Director of Special Education
December 11, 2013
For the Parent
…, Father …, Mother …, Advocate For the School District …, Esq., Attorney …, CSE Chairperson
EXHIBIT LIST
Exhibit Date Description Pages
| 1 | 7/30/13 Due Process Complaint Notice 165 |
| 2 | 8/12/13 Due Process Response 2 |
| 3 | 12/09 … Report 9 |
| 4 | 1/20/10 Teacher Report 2 |
| 5 | undated … Evaluation 1 |
| 6 | 3/10 … Evaluation 15 |
7 6/23/10 IEP 2010/11 13
8 7/29/10 IEP 2010/11 20
9 7/28/10 Email from … to Parent 2 10 10/17/10 Test Scores 1
11 10/20/10 IEP 2010/11 14
12 12/29/10 …Evaluation 6
13 2/16/11 IEP 2010/11 14
14 6/03/11 IEP 2011/12 15
15 8/31/11 …Evaluation 17
16 10/05/11 IEP 2011/12 17
18 11/04/11 Prior Written Notice 2
19 11/16/11 IEP 2011/12 15
21 11/28/11 Prior Written Notice 2 22 1/12 Justification 3 23 2/16/12 Student …Consultation 4
24 3/06/12 IEP 2012/13 25
25 3/06/12 Prior Written Notice 2 26 3/22/12 Letter to Parents from … 1 27 undated Basic Facts about Student’s … 4 28 10/17/12 Request to Change IEP without CSE meeting 2
29 11/13/12 IEP 2012/13 19
30 11/13/12 Prior Written Notice 2 31 3/18/13 Letter from … 1 32 3/18/13 …Evaluation 18 33 3/19/13 Prior Notice and CSE Minutes 9 34 4/16/13 Letter to from . with attach. 2 35 4/17/13 Letter to … from … 1 36 4/18/13 Letter to Parents from …, 1 37 4/22/13 Report Presented at CSE Meeting 2 38 4/22/13 IEP 2013/14 and CSE Minutes 22 39 5/06/13 Letter to… from … 2 40 5/07/13 Letter to …from Parents with attach. 5 41 9/12-6/13 Student Progress Report 7 42 10/12-3/13 Grade 4 Recording Form for… 31 43 2012/13 Grade 4 Report Card 3 44 2011/12 Grade 3 Report Card 1 45 2011/12 Progress Report 6 46 2012/13 Progress Report 6 47 2012/13 Chart 1 48 10/12 … Evaluation 4
Parents A 12/11/08 … CSE Evaluation 9 B 1/05/09 CSE Ineligibility Document 2 F 12/15/09 CSE Referral with Emails 5 L 1/29/10 IEE Request form Parents 1 R1 11/19/10 … Evaluation 4 Q2 6/23/11 Parent Follow-up to 6/03/11 CSE Meeting 5 S2 6/23/11 IEP Goals Progress Report 5 Z2 10/05/11 Email from Parent with CSE Follow-up 23 D3 11/01/11 Email Between … & Parent. 1 I3 11/16/13 Email to … from Parent with Follow-up 22 T3 4/05/12 Email to … from …with Follow-up 9 Y3 4/18/12 Email between Parents & … 2 Z3 4/19/12 Email between … & Parent 1 F4 9/06/12 …Test Results 2011/12 & 2012/13 9 J4 10/11/12 Email between Parent, … & … 5 L4 10/17/12 IEP Amendment Form 2 M4 10/24/12 Email between … & … 1 O4 10/30/12 Email between Parent & … 2 R4 11/16/12 Email between … & … 1 T4 11/13/12 Email to… from Parent with Follow-up 14 W4 11/15/12 Letter from … with Attachment 4 Z4 1/14/13 Email between Parent & … 4 B5 1/10/13 Emails between … & … 3 C5 1/18/13 Emails between Parent & … 4 I5 3/14/13 Letter to Parents with Draft IEP 13 J5 3/18/13 Email between … & Parent 2 R5 3/19/13 IEP from 3/19/13 Meeting 12 T5 3/20/13 Email between … & Parent 1 U5 3/25/13 Emails between (various) & Parent 3 V5 3/27/13 Email to … from Parent with Follow-up 17 W5 3/28/13 Email between (various) 2 X5 4/02/13 CSE Notice of Meeting 2 Y5 4/16/13 …Letter from ... 4 Z5 4/18/13 Letter from … 1 H6 5/03/13 Email to … from Parent with Follow-up 10 R6 5/31/13 Email between … & Parent with … Info. 10 V6 6/20/13 Report Card 4th Quarter 2012/13 4 C7 various Documents from … Teacher File 76 D7 6/03/13 … Assessments 16 F7 9/12-6/13 …Practice Tests 42 P7 undated District … List 3 Q7 undated District …Plan 2012/13 16th X7 9/13-10/13 Student’s 5 Grade … 30 B8 11/13 First Quarter Report Card 2013/14 3 C8 11/13/13 Goals Progress Report First Quarter 2013/14 4 D8 11/08/13 … Student Progress Report 2
IHO
I 10/30/13 Amended Request for Relief 1 II various Case Extension Orders 3 X In the Matter of the Impartial Hearing of
Student NOTICE OF APPEAL RIGHT
TO STATE REVIEW OFFICER
& …Central School District
PLEASE TAKE NOTICE
Within 35 days of receipt of this decision, the parent and/or Public School District has a right to appeal the decision to the 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. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
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 the petitioner, the date of mailing and the four 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 athttp://www.sro.nysed.gov/part279home.html.
Footnotes
[2] Case extensions were issued pursuant to Commissioner’s Regulations at 8 N.Y.C.R.R. §200.5(j)(5)(i). The parties joined in the requests. (See Tr. 350, 497-498) I find that interests of due process and the rights of the student, including the right to be represented and to produce evidence and make submissions, were furthered by granting the extensions. Copies of the extension requests were forwarded to the School District for filing with the New York State Education Department (SED) Impartial Hearing Reporting System. Case extension orders were also issued pursuant changes to the Commissioner’s regulations and are appended to record as IHO Exhibit II
[3] While it is not an appropriate issue for this hearing, it is unclear whether the … See 20 U.S.C.
[4] While not necessary for a consideration of the appropriateness of the student’s IEP for the 2013/14 school year (R.E., supra at 195), the record reflects that student continues to make satisfactory progress in the District’s special education program during the 2013/14 school year. See Tr. 395, 399