NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 20, 2014
January 29, 2015
February 2, 2015
March 10, 2015
March 16, 2105
March 19, 2105
April 22, 2015
Actual Record Closed Date: July 30, 2015
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20, 2014
Attorney — Student
Parents
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2015
ESQ., Attorney — Student
Father — Student
IHRO Representative — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2015
Esq., Attorney — Student
Parent/Father — Student
Impartial Hearing Representative — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2015
Attorney — Student
DR., (Via Telephone) — Student
DR., (Via Telephone) — Student
, IHRO
, School psychologist (Via Telephone)
, Teacher (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2015
DR., (Via Telephone) — Student
Attorney — Student
, IHRO
, IHRO
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2015
Attorney — Student
DR., (Via Telephone) — Student
Director, — Student
(Via Telephone) — Student
Impartial Hearing Representation Office Representative — DOE
Impartial Hearing Observer — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 22, 2015
Attorney — Student
Parents
DR., (Via telephone) — Student
Impartial Hearing Representative — DOE
Impartial Hearing Representative — DOE
INTRODUCTION
On November 20, 2014, January 29, 2015, February 2, 2015, March 10, 2015, March 16, 2015, March 19, 2015 and April 22, 2015, I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1)
regarding the education program of a school-aged child, (“ ”). The hearing commenced at respectively, and was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
is old and is currently classified as having a . In June 2015 completed the in a class at in the .
’s father, (“the parent), by his attorney , Esq., filed an Impartial Hearing Request dated August 12, 2014 and filed an Amended Request
(“Complaint”) on October 1, 2014 (DOE Ex. 3). In the Complaint Ms. alleged that for various reasons the Department of Education failed to provide with a FAPE for the 2012-2013, 2013-2014 and 2014-2015 school years. As a remedy the Complaint asked that the case be deferred to the Community Based Support Team (“CBST”) for a non-public school placement (“NPS”) and that the Department of Education provide: 1)
compensatory sessions at an enhanced rate; 2) at an enhanced rate; 3) payment for private evaluations, specifically, (“ ”),
(“ ”), , and
(“ ”) evaluations at enhanced rates; 4) ; and 5) reimbursement for ’s private evaluation and evaluation (DOE Ex. 3 at 4).
COMPLIANCE DATE INFORMATION
I was assigned as the impartial hearing officer in this case on August 13, 2014 and the original compliance date was October 27, 2014. The parent filed an amended complaint on or about September 17, 2014 and another amended complaint on October 1, 2014. The revised compliance date was December 15, 2014. At the conclusion of the hearing held on November 20, 2014, at the request of both parties for the availability of witnesses and extensive testimony and issues, the compliance date was extended to January 14, 2015 and several hearing dates were scheduled. On January 10, 2015 at the request of the parent for the availability of witnesses and extensive testimony and issues and without objection by the Department of Education, the compliance date was extended to February 13, 2015. At the conclusion of the hearing held on January 29, 2015 at the request of both parties because of extensive testimony and issues, the compliance date was extended to March 15, 2015 and additional hearing dates were scheduled. At the conclusion of the hearing held on March 10, 2015 at the request of both parties because of extensive testimony and issues, the compliance date was extended to April 14, 2015 and additional hearing dates were scheduled. At the conclusion of the hearing held on March 19, 2015 at the request of both parties because of extensive testimony and issues and the availability of witnesses, the compliance date was extended to May 14, 2015 and an additional hearing date was scheduled. At the conclusion of the hearing held on April 22, 2015 the compliance date was extended to June 17, 2015 at the request of both parties to review the transcripts and file closing briefs. On May 28, 2015, at the request of the parent due to an extensive record of 1100 pages and without objection by the Department of Education, the compliance date was extended to July 15, 2015 for additional time to file closing briefs. On July 20, 2015 at the request of the parent due to the extensive testimony and issues and without objection by the Department of Education, the compliance date was extended to August 14, 2015 for this hearing officer to review the extensive record and detailed closing briefs and issue a Decision and Order.
The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school and evaluations were conducted during this time; (b) in accordance with due process the parties were entitled to attempt to effectuate a settlement, have their witnesses be available when it became apparent that a settlement would not be reached, submit written closing statements and have this hearing officer review the transcript, the evidence and the closing statements prior to the issuance of a Decision and Order; (c)
there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there were no prior delays in this case.
ISSUES TO BE RESOLVED AT THE IMPARTIAL HEARING
1) Whether the Department of Education provided with a FAPE for the 2012- 2013, 2013-2014 and 2014-2015 school years; 2) Whether this hearing officer should defer the case to the CBST for an NPS; 3) Whether the parent is entitled to obtain additional private evaluations at Department of Education expense; 4) Whether the parent is entitled to reimbursement for the private and evaluations; and 5) Whether the parent is entitled to compensatory sessions at (“ ”). See IHO Ex. I at 6.
FINDINGS OF FACT
Prior History
suffered from and ( :
950).1 When he was old began receiving services of , and . When was old he attended a program at the where he received , and . did not meet his milestones in a timely fashion
( : 950-953).
was evaluated by the Department of Education when he was aging out of ( : 953-954, 957-958; Parent’s Exs. T, U, V). attended in the from through the ( : 958). Each year that he attended the school the parent received a letter ( : 959).
During his time at was in a class for ,
, moved to an (“ ”) class for grade and then
moved back to a class for grade. He attended a class for
Citations to “ ” refer to the child’s father, referred to in this document as “the parent” ( : 950), at in the . was not able to because and he , particularly in the class ( : 971-974).
2012-2013 School Year
For the reasons stated in the Conclusions of Law section of this Decision and Order, the testimony by , ’s and teacher in his class for the 2012-2013 ( ) and the 2013-2014 ( ) school years, is being summarized here only for background and because Ms. testified that the methods and strategies she used with during the 2012-2013 school year were also employed during the 2013-2014 school year ( : 69).
Ms. testified that she implemented the recommendations and information on ’s relevant IEP with specific teaching methods such as a “ ” and .2 She also provided and supports for the way material was presented to , including ,
and
. Ms. incorporated because of ’s difficulty with
( : 108-110).
and and “ ” He
had in the classroom so he was able to . Sometime
during the school year Ms. received and benefited from
( : 370-371).
Ms. used the “ ” (“ ”) system in the classroom which has . The system began with
, followed
.
“ ” e.
If a student continued to struggle Ms. would work with that student .
Ms. generally worked with
There was no testimony or evidence regarding the IEP developed for the 2012-2013 school year. strategies such as , and ( : 83-84,
324-325).
During that year struggled in areas, particularly with , and . He was on a level.
’s relative strengths were in and but his was weak ( : 63, 155 343).
The students were grouped according to their levels or their levels in the particular skill being taught ( : 79). The work was differentiated for in that his groups of to four students were taught on his particular level and his work product ( : 66-67, 72-73, 77-80). Typically would have to for his or
( : 80-
81). had access to technology that allowed him to
. Ms. also and
“ ” so it would be easier for understand ( : 67). ( : 67-
69).
Ms. conferenced with several times throughout the day.
She questioned to assess his ( :
73). Ms. provided with various strategies for and he sometimes had difficulty or on a New York State an assessment ( : 316-317). ’s difficulties impacted skills ( : 342-343). During the year had informal assessments such as . Ms. also conferenced with about what he was , how he . During those inform al discussions Ms. was able to glean ’s level,
( : 92-93, 95-96). The information in the running record was used to according to his level and a particular skill that he was having difficulty with ( : 96-97).
He was on a level in and had difficulty with , particularly and ( :
63, 155-156, 343).
Ms. conferenced with individually for on an “ ” ( : 72). had “ ” “ ” and he used and to help him understand and sometimes also
( : 67-68, 87). also participated in “ ” during which he would , with the goal of building his
( : 87-88).
’s difficulties involved ( :
370). Ms. met with when he was
. used and “ ” “ ”
( : 73, 370). To address ’s difficulties Ms. often gave him “
” “ ”
“ ” because he seemed to be more comfortable . also reviewed his ( : 67-68, 73, 81). Ms. for by, for example, or and
( : 251-252).
had difficulty and
( : 368, 371-372, 392-393). Although it would have been important for Ms. to know whether had an because it would affect , Ms. used various strategies to address this issue. For example, the instruction Ms. provided to was tailored to students with those in terms of “ ,
, , (and)
.” “
”( : 293-294). ( : 368-369). The classroom did not have for ( : 295). Ms. opined that the “ ” “ ” have helped him ( : 371-372).
had difficulty in that he had issues “
” “
” in and
( : 317-318; : 974). Toward the end of the school year was showing “
” “ ”
with Ms.
about . She
also spoke to ’s other teachers and commented on his note card to let his father know how he was doing ( : 74-76, 318-319).
received the related services of and ( : 371). He did not receive because at the grade his determined that he no longer required it. The parent was not present at the meeting where the was discontinued because he was not invited to the meeting and did not know that it took place ( : 975-
976, 1076-1077). He believed that still required because in order to ( : 976). The parent believed that the decision to discontinue was impacted by a concern that would ( : 977-
979).
made some progress during the 2012-2013 school year but the progress was “ ” and he did not reach level. made some progress at the end of the school year more than he did at the beginning of the year ( : 98-99, 101). He made small gains in and was able to , but he struggled “ ” While he had difficulty
By the end of the year, with “
” was able to with
( : 98-101).
did not meet any of his IEP goals for the 2012-2013 school year but he did make progress toward those goals ( : 156-159, 170-173; DOE Ex. 23 at 7-12). At the end of the 2012-2013 school year was on level in both and , although the IEP indicates a level, largely because of ’s skills ( : 102, 155-156; DOE Ex. 23 at 1, 22).
received “ ” on his report card in subjects which is “ ” The report card grades are based on standards and do not reflect the IEP. For students with an IEP it is the information on the IEP and the Progress Reports that are relevant, not the report card ( : 290-292). took the and New York State exams. He was provided with the testing accommodations on his IEP but he “ ” “ ” because they tested his knowledge at levels and he was level in both subjects ( : 90-91, 183).
Both the parent and Ms. agreed that was not meeting the grade or his promotional criteria. The parent was in “ ” with Ms. during the school year. ( : 357-358; : 965)
Ms. believed that the program was appropriate for him. had “ ” and although he dealt with some and and had issues with , the other programs available at the school would not have been appropriate for him ( : 150-152).
May 2, 2013 IEP
Ms. participated in the May 2, 2013 IEP meeting for (DOE Ex. 23).
The parent participated in the IEP meeting as did as the District Representative and IEP teacher, a social worker and ’s teacher, Ms.
( : 110-111; DOE Ex. 23 at 25). Some components of the IEP and the program recommendation were developed prior the meeting. That information was only
“suggested” and was finalized after the meeting and the parent has provided input
( : 284-285).
The participants discussed ’s present levels of performance, the goals that were being set for him including his (“ ”) and goals, and his projected program and placement for the remainder of the school year and the next school year ( : 111-112). Ms. based the goals for curriculum on what she had observed during the school year ( : 112). At the time of the IEP meeting ’s level was and his level was ( : 288; DOE Ex. 23 at 22).
The team believed that an class was not appropriate as it would be overstimulating for in light of his difficulties, and because the pacing of the work would be too advanced for him. The team also rejected a program because those programs “typically” have more students classified with an and . The program provided with the opportunity for instruction in a class with students were able to provide for him ( : 112-115). The parent agreed to the recommended program ( : 115).
The references in the goals to increasing his skills do not specify a particular grade level for him to achieve. Ms. testified that those increases are to be measured from his present levels of performance as indicated in the Present Levels of Performance (“PLOP”) section of the IEP ( : 161-163; DOE Ex. 23 at 1-4).
The IEP indicates that the accuracy percentages of the curriculum that would be required to meet in order to “ ” each goal vary in from and in from (DOE Ex. 23 at 10-11, 13-14).3 The accuracy levels
The percentages for the goals were determined by ’s performance levels at the time the IEP was for the goals are based on a “formula” that considers general standards for all students but takes into account what the child with the IEP is capable of doing based on his or her present levels of performance ( : 164-165, 357). If a child’s was performing at a level or higher he or she would rank with students on standards. In special education class the students have a to year deficit in and ( : 167-169).
The Third Progress Reports related to the goals on the IEP indicate that for some of the goals progress was made and that although the goal had not yet been met it was anticipated that would meet those goals (DOE Ex. 23 at 6-11, 13-16). For the goals of and the Third Progress Reports indicate that little progress was made and that it was not anticipated that would reach those goals because “ ” (DOE Ex. 23 at 12-14). See ( : 163-167, 173; : 962, 967-968).
The IEP indicated modified promotional criteria from May 2, 2013 to the end of the 2012-2013 school year, meaning that in order to be promoted to the needed to master of the core curriculum and of the curriculum. For the 2013-2014 school year beginning in September 2013 and ending at the next IEP meeting on May 1, 2014, was required to master of the curriculum and of the curriculum
( : 226-227, 231-232; DOE Ex. 23 at 23).
The parent did not believe that was capable of reaching the accuracy percentages for the goals or the goals on the IEP, or the promotional criteria, because that level of work was too advanced for with the services that were being provided for him in the class ( : 962-970; DOE Ex. 23 at 13). The parent received frequent calls from Ms. reporting that was not and that she wanted him to . The parent worked
“ ” with and it seemed as if he had not even
attended the class ( : 964, 967, 969). The parent would have to and thought that was not . After the developed based on prior assessments Those levels are for reference each time the skill is assessed ( : 173, 244-245). processing evaluation the parent realized that could not process what he or anyone else was saying to him ( : 1033). The parent believed that the IEP did not reflect ’s needs but rather that it was tailored to what the school could provide ( : 979).
2013-2014 School Year
Ms. was also ’s teacher in his class during the 2013- 2014 school year. received the related services of and . Ms.
used the system in the classroom and the same or similar methods and strategies in working with ( : 325-326, 371; see 2012-2013 above). She aligned the special education curriculum to the in that she provided the students with the opportunity to develop the skills at their own particular grade levels. For example, if a skill was
( : 154-155).
and was a “ ”
“ ” “ ”
( : 63-64, 66).
worked in ( : 77-79).
The students were grouped according to their levels or their levels in the particular skill being taught, such as or “ ”( : 79).
consistently did during the day and he
. Each morning the students
began the day with of and Ms. sat with during the time to discuss what he was and assess whether he was ( : 129-130; DOE Ex. 26 at 8).
Ms. taught the same way she did during the prior year but there was more focus on . She used with ( : 85-87). had some improvement in but was level ( : 343).
’s was either with Ms. or
( : 82).
Ms. worked with the same way that she did during the 2012-2013 school-year and she differentiated the work for in a similar way to the prior school year. ’s familiarity with t helped him to be “ ” in the than he was in the ( : 69, 73, 81). He continued to have and . was very successful for in terms of
( : 69-70).
’s progress was “ ”
“ ”
ns ( : 103-104).
By the end of the school year ’ had improved
from September but he still had problems with . He was able to , thus demonstrating improvement in and ( : 64, 104-105). Ms. believed that while ’s progress was delayed as compared to students in his grade, for a student with “ ” “ ” in terms of his ability and his rate of progress ( : 287-288, 347). Although ’s level was in both the 2012-2013 and 2013-2014 school years, he progressed in in that there was “ ” in that level. For example, while struggled with , he improved in , ( : 288-289, 344-350; compare DOE Ex. 21 at 1 to DOE Ex. 23 at 1).
In still required “ ” to provide him with
( : 105). ).
At the end of the 2013-2014 school year was on an level in ( : 107; DOE Ex. 21 at 1, 21). During the year he developed and his ability to improved ( : 105-106) While still struggled with his understanding of improved ( : 106). However, he still remained level ( : 343).
The program was used during this school year but by the end of the year it was no longer implemented because it was not necessary ( : 76-77).
the New York State and assessments since they were based on level work and was not on level. The test results show that was “ ” in and in ( : 90, 183-184, 234-235, 314-315; :
1017-1018; Parent’s Ex. CC).
Ms. believed that the program was appropriate for for the 2013- 2014 school year. Although did not progress to level she testified that he did show progress in
. became
( : 152). met the promotional criteria on his IEP as determined by the documents in his portfolio ( : 226-227, 231-232, 327-329; DOE Ex. 23 at 23).
Ms. spoke with ’s parent about his progress during the school year by telephone conversations, parent-teacher conferences and meetings outside of those regularly scheduled conferences ( : 357-358, 388). The parent told Ms.
that he would like to be reevaluated because he did not believe that ’s IEP was meeting his needs since he was in the and on a level. The parent told Ms. that he was going to have evaluated so that he could better understand ’s needs, and she assisted him in arranging for evaluated independently at the ( : 960, 965-966, 981; Parent’s Ex. O).
However, there was a delay of six months before the evaluation would be done and the parent decided to expedite the process by taking for private and evaluations ( : 981-982).
December 2013 Independent Evaluation
In December 2013 the parent took for an independent evaluation by , Ph.D. ( : 982; DOE Ex. 16). The evaluation indicated that ’s , and were on a level and that his skills were also delayed. Dr. recommended a program in a “ ” and . She also recommended a test and an evaluation as well as a consult with a . Dr. noted that required modifications including (DOE Ex.
16 at 5).
In April 2014 The parent provided a copy of the evaluation report to Ms.
and to , Psy.D is a school psychologist at ( : 983, 986).4
March 2014 Independent Evaluation
The parent took to , Ph.D., for a evaluation
over four days in March 2014 ( : 617, 665; Parent’s Ex. H).[5] Dr. did not observe in a classroom setting or speak to anyone at his school ( : 666, 682-
683). Prior to the evaluation Dr. reviewed Dr. ’s evaluation and ’s 2013-2014 IEP ( : 617).
The results of Dr. ’s testing showed that scored percentile in and . is a skill that is essential for , and
.
is “ ” for a student who would, for example, ( : 618-620,
638). The demand for these skills increase as the child progresses through school
( : 620-623).
The results of the (“ ”) showed
’s abilities to be in the “ range with accuracy hitting even the
444 Dr. has a Master’s Degree and a doctorate in school psychology and is certified school psychologist in New York State ( : 411-412).
range,” indicating that was not
. ’s / skills were also in the range but his was “ ” in the range just approaching level ( : 626-627, 669-671; Parent’s Ex. H at 9-10). His skills were range and his was also . ’s was in the range if was interested in ( : 628). ’s skills were at the percentile, his was in the percentile, at the range, and his was in the percentile. ’s
h
skills were in the percentile ( : 677-678).
’s skills were in the range. His skills were because of his difficulties in ( : 627-628).
The results of the indicated that is capable of performing at range because he has and skills and that he is capable of learning ( : 628-629). His difficulties lie in the skills such as and ( : 629).
Dr. did not re-administer the because the administered by Dr. was within three months of her evaluation and a new score would not be accurate. Dr. found the scores on Dr. ’s evaluation to be “ ” in light of ’s ability to perform at the range for most academic tasks. She opined that may have negatively affected his score ( : 630-631, 672-673, 678, 732-733). had difficulty with . His scores on the (the ability to process spoken
) and parts of the indicated that he was in the percentile of his peer group in being able to , a skill not related to but related
. As a result it
. Thus, he
. The results also indicated that without any “ ” “ ” because he had difficulty , which was also reflected in the . These deficits negatively impact on all aspects of ’s ( : 634-637, 639-642; Parent’s
DOE Ex. 16 at 4).
The measures
. The results of the test showed that is capable of ( : 642-643; Parent’s Ex. H). The test includes . performed in the range indicating that he remembered the
“ ”
“very difficult” for him to
( : 643-644, 646-647). On the test that measures and scored percentile indicating that he had a difficult time for someone his age . The score shows that would have a difficult time ( : 645-648, 712-713; Parent’s Ex. H at 12).
scored percentile in the indicating
that he that had difficulty
( : 648-649; Parent’s Ex. H at 8).
The and completed by The parent based on his observations of ’s at , revealed that showed symptoms of , , , as consisted with ( : 649-654, 667-668, 681-683;
Parent’s Ex. H at 2). was “ ” at the time of testing and Dr.
( : 744-745). The parent told her that there were students in ’s class who had that and
( : 694, 746).
Based on the results of her evaluation Dr. concluded that required instruction with a approach but in an adequate where the teachers are trained to address his specific needs as described in her evaluation report ( : 703-705, 708, 716-717, 737; DOE Ex. 17;
Parent’s Ex. H at 14). She recommended a class placement of teachers and children who have similar and , and who do not have , as the LRE for She recommended that he be in a placement where he can receive instruction and support to meet his needs, his needs and his needs. Among other things, Dr. indicated that also requires , , , , , training, and services in the subjects with which he has difficulty.
Accommodations should include
( : 655-659, 663-664, 684-685, 695-701, 733-736; Parent’s Ex. H at 14-15).
Dr. recommended that receive for sessions times per week to address his “ ” , and times a week. The intensity of the recommendation is due to ’s age so that he will not fall further behind his peers ( : 660-661). The recommendation of times a week is to improve ’s and . The recommendation was based on ’s “ ” on the and ( : 661-662, 729-
730). Her recommendation for was to help
( : 662-663).
Dr. was familiar with several approved private schools such as the
, and the
, programs that address ’s issues. Those schools have teachers who are trained and knowledgeable in teaching children with the that displays. Based on her conversations with colleagues and teachers Dr. believed that the teachers in those school receive additional training to work with students who have and ( : 659, 737-738, 747-
748). She did not believe that a school would be appropriate for because, to her knowledge, those classes have students with “ ” and are not specifically for students like who have , and ( : 703-705, 708, 735-737, 746-747). Dr. believed that had the potential to achieve level or level work with the appropriate to support the development of his skills ( : 706-711; :
1031-1032).
The parent provided a copy of the evaluation report to Ms. and to Dr.
in April 2014 ( : 986).
Parent’s Request for an NPS Placement
In a letter dated April 23, 2014 the parent requested placement in an NPS program in a class with teachers who are trained to work with children like and with no more than students. He also asked, among other things, for sessions of , , and , each for to days per week to conform to the recommendations in Dr. ’s evaluation report.
The Department of Education received the letter on April 24, 2014 : 266-
267, 279; : 983-985; DOE Ex. 11; Parent’s Ex. D).
May 1, 2014 IEP[6]
Ms. began the IEP document on January 22, 2014; it was an “ongoing” document that was capable of being adjusted until the IEP was finalized after the meeting ( : 310-311; DOE Ex. 24 at 2). Ms. wrote the IEP goals in advance in conjunction with the related service providers and the counselor. It is written on a system that can be accessed by all of the professionals who are involved in the IEP meeting. The professionals input the information relevant to them and review it as a team with the parent at the IEP meeting. The program recommendation was also determined prior to the meeting by the members of the IEP team and finalized after receiving parental input at the meeting ( : 281-283, 373-374).[7] If issues arose at the IEP meeting that were not considered when developing the draft, the information and goals on the IEP could have been changed before the IEP was finalized ( : 373).
The IEP meeting was held in Dr. ’s office; he was in the room but did not participate in the meeting ( : 993). The parent brought copies of the and evaluations to the IEP meeting but Dr. told him that the meeting was just to review the year’s progress and that the evaluations were not necessary and would not be reviewed ( : 993).
Ms. participated as the special education teacher/related service provider.
She attended the meeting for about for the portion that was relevant to ’s in the classroom and the goals and promotional criteria
( : 275-278). A teacher, a social worker who provides , and ’s provider, were at the meeting along with the parent ( : 116, 262-263; : 991-992; DOE Ex. 21 at 24).
There was no psychologist at the meeting ( : 268-269; : 994). The IEP was to be implemented approximately ten days later ( : 232-233, 242-243; DOE Ex.
21). Ms. updated the parent about ’s present levels of performance, his progress, the areas in which he needed improvement and remediation, the academic goals and projected placement. The and counselor gave similar updates and intended goals. Ms. also reviewed the goals and ’s projected placement for the 2014-2015 school year ( : 116).
The participants discussed how was doing in and and , as well as . They also discussed ’s ( : 117). At the time of the IEP meeting ’s level was in and ( : 288; DOE Ex. 21 at 21). ’s and were addressed in the IEP by the (“ ”) which is a program of interventions and assessments and includes instruction to address ’s deficits ( : 124, 343-344). It was expected that the goals on the IEP would be met within one year of the implementation of the IEP, which would be up to ten days after the IEP meeting ( : 359-361). The parent did not participate in the development of the IEP goals. The IEP team told the parent that it was a review meeting.
They presented the goals to him and told him that they were putting the goals on the IEP.
He did not understand the level that the accuracy percentages on the IEP referred to
( : 998-1005).
The IEP team acknowledged that it had received the private evaluations but told the parent that they were not prepared to “ ” The special education teacher at the meeting told The parent that there was no way the amount of recommended could be provided in a public school setting because there would be no time for to spend in class ( : 994). At that point the parent realized that the IEP team would not provide an appropriate setting and services for ( : 994-996).
The participants discussed one or both of the private evaluations at the meeting.
However, Ms. did not recall the details of the recommendations except for the instruction ( : 117-120, 264; : 982). The private evaluation results are not included in the IEP but are uploaded into SESIS as a separate document
( : 351-353). Generally the IEP includes information from a private evaluation but does not identify the source of that information as the private evaluation. Ms.
could not recall which information in the IEP was gleaned the private evaluation(s) ( : 354-355). The discussion of the recommendations on the evaluation(s) r was “very brief” because Ms. did not know how many of the recommendations could be implemented ( : 264-265). She did not recall discussing any additional testing because the parent had already had evaluations done and provided them and no additional testing was recommended ( : 263, 265; :
996-997).
The parent raised some issues in the evaluation related to ’s issues ( : 274-275; DOE Ex. 16). Ms. did not recall any discussion about testing to rule out in ’s deficits ( : 275-278).
Ms. had not worked with a child who had issues or a ( : 265, 278). She was not familiar with a term that refers to a student’s inability to or ( : 303). Ms. did not recall any discussion about deferring the case to the CBST or a program ( : 278-280).
The accuracy levels for the goals on the IEP are for reference each time the skill is assessed ( : 244-245). Ms. would monitor the goals by informal assessments such as observation and conversations with and some formal assessments. Standardized tests alone are not sufficient to monitor progress because they are administered too infrequently ( : 246-248). Dr. testified that the goals do not specify the particular grade level that at which it is expected to be achieved but the child’s current levels are in the PLOP and summary sections of the IEP and the expectation is that the child will make gains within his or her current grade level ( :
492-495; DOE Ex. 21 at 7-13).
The modified promotional criteria on the IEP indicated that in order to be promoted to the had to meet of the standards and of the standards by the end of the 2013- 2014 school year. For the 2014-2015 school year was required to meet of the standards and of the standards ( : 232-233, 261-262; DOE Ex. 21 at 22). The determination of whether met that criteria would be determined by student work, assessments, teacher observation, grades, attendance and his performance on the New York State and tests ( : 234-235).
The school team determined that the program was appropriate for because he had made progress and although he did not reach level, he showed growth in several areas ( : 120, 373-374). The , :
and programs were rejected because they would have been either too overstimulating or too restrictive and would not have allowed to continue to develop in terms of his as he was doing in the program ( : 120-121, 152-153, 374-375).
Ms. was aware that the parent sent a letter requesting a placement in a private school setting with teachers who are trained to work with children like and no more than students at public expense. Ms. was not familiar with the NPS programs to which a student may be referred and she can only recommend what it available within the Department of Education setting. He also asked for various
, each for to days per week ( : 266-268, 279, 285-286; Parent’s Ex. D). was already receiving days a week and the team did not believe the additional services were feasible with in a classroom setting. Ms. did not know how the Department of Education “would proceed with that” ( : 267;
: 1043).
While Ms. ’ was at the IEP meeting the parent did not disagree with the goals on the IEP but he disagreed with the program recommendation. He noted that the promotional criteria was either lowered or stayed the same and that there was no change in ’s related services. The parent believed that ’s promotional criteria had been lowered every year because of the intent to “push him along the system so that he could pass to the next grade.” had also made little to no progress and no one explained why ’s progress was only trivial. The parent wanted additional supports that were reflected the private evaluation(s). Ms. told the parent that within the Department of Education system the program was the most appropriate for At that time the parent said that he would continue to see what other options were available to him ( : 121-122, 279-280, 376, 388-389; : 960, 995-997, 1005-1006,
1049-1050).
The Prior Written Notice dated May 15, 2014 does not include a reference to either parent’s request for deferment to the CBST or either of the private evaluations
( : 283-284; Parents’ Ex. 17). It indicates that the only evaluation relied upon at the IEP meeting was a psychoeducational evaluation dated May 10, 2012 (Parent’s Ex.
Q).[8] Nor does the Prior Written Notice explain why the IEP team rejected the parent’s requests’ (DOE Ex. 17 at 1, Ex. 18 at 1).
Ms. explained that report cards reflect grade wide standards and not the standards set forth on ’s IEP ( : 236-237, 291-293, 387). When parents receive their child’s report card they also receive a Progress Report which is a “snapshot” of the child’s progress based on the child’s individual goals and according to the standards in the IEP. The parents are provided with more specific information at conferences ( : 236-240).
May 1, 2014 Deferment Meeting
On May 1, 2014 the parent attended another meeting in response to his letter requesting a deferment for an NPS. Dr. told the parent that he would accept the evaluations as his own and that any additional testing would be done with permission or consent. At that meeting he signed a consent for to have new evaluations and assessments ( : 986-987, 1081-1087, 1095; Parent’s Ex. N). At that time the Department of Education proposed only a Classroom Observation ( : 990-991; DOE
Ex. 19 at 1).
June 23, 2014 IEP Meeting
Dr. participated as the school psychologist and the district representative at ’s June 23, 2014 IEP meeting to address the private evaluations and the parent’s request for an NPS program for ( : 412, 416, 422, 424, 428-429;
Parent’s Ex. R). The other participants at the IEP meeting were Ms. as the related service provider/special education teacher and the parent ( : 421-422;
: 1009-1010; Parent’s Ex. R at 17).
The team considered the private evaluations, the Classroom Observation and Ms.
’s report ( : 424-425; DOE Exs. 13, 14, 16; Parent’s Exs. H, M, R at 1). Dr.
’s evaluation indicated that had delays in , skills and . Dr. was aware that Dr. ’s evaluation stated that ’s , and were on a level and that his skills were also delayed. Dr. recommended a program in a “ ” and with and that required modifications including , which were already on his prior IEP ( :
426; DOE Ex. 16 at 5, Ex. 23 at 19).
Dr. ’s evaluation was consistent with Dr. ’s
evaluation in identifying ’s delays, which was why remained in a setting ( : 427-428). The evaluations also recommended ( : 427-428; Parent’s Ex. H at 15).
The Classroom Observation indicated, among other things, that ’s “
” “
( : 428; DOE Ex. 13 at 1). The
Social History Update indicated that was for which has helped improve ( : 428; DOE Ex. 14).
The participants at the IEP meeting discussed the reports, how was doing in class, his progress and what would be the best setting for The IEP team determined that was making improvement in as determined by information from his teacher and by comparing his most recent scores on teacher assessments with his prior scores. Ms. ’s Teacher Report indicated that was struggling in but she told Dr. that was making progress and Ms. noted that progress in the May 1, 2014 IEP ( : 508-509; Parent’s Ex.
M). The team reviewed the results of the that showed ’s to be at a level, that his skills were on a level, and that both his and skills were delayed level in ( :
430-432, 470; Parent’s Ex. H at 9-10). The showed that had difficulty and that he needs
( : 430-433;
Parent’s Ex. H at 9, 11-12).
Dr. acknowledged that a score of “ ”
“ ” “ ” on his report card. A Promotion in
Doubt letter would not have been issued for if he was doing well academically.
However, Dr. believed that even under those circumstances could still be making progress in school ( : 459-460, 487, 506-507).
Dr. was aware at the IEP meeting that had deficits and that the evaluation recommended evaluations/ . Upon receipt of the evaluation and the parent’s letter Dr.
, who was not familiar with the , consulted the supervisor of who told him that if was making progress the evaluation was not required. Dr.
was also told that the Department of Education did not do evaluations. Dr. asked the supervisor of about the father’s request for , a determination about which would require an evaluation as was recommended in the evaluation. The same supervisor looked at the “reports” and indicated to Dr. n that the evaluation “wasn’t needed” ( : 439, 450-454, 473, 480-481, 520; : 1043-1044; Parent’s Exs. D,
G at 5).
Dr. testified that the IEP team determined that was deemed to be “improving” with the services he was receiving (none of which addressed any challenges) as per his “ ” “ ” be warranted ( : 454-456, 473; : 1042, 1061). Dr.
also opined that if a child is making academic progress in school it follows that the child’s needs are being met, even if that progress is from a level and the child is in the ( : 471). He believed that the appropriateness of a child’s placement is determined by the child’s performance and not “necessarily” by the child’s needs ( : 471).
The IEP team did not recommend an NPS because, based on ’s IEP and reports from his previous teachers showed that was making progress in and in his current setting. The parent recalled that Dr. told him that he was not authorized to defer the case for another setting ( : 443, 449; : 1010-1011).
The team recommended continuation of because of ’s and because was still at times in class ( : 433-434, 440). The team did not recommend any additional assessments because was showing improvement with the services he was getting and the team did not “ ” ( : 435). While the evaluation recommended session of the team did not recommend that duration of services because was making progress and it would have impacted on his academics to keep him out of the classroom for that amount of time ( : 476-477).
Dr. told the parent that the team was not recommending an evaluation or screening because ’s previous told Dr. that had “ ” Dr. was aware that the results of an evaluation would have determined whether required services and if an evaluation had indicated that need for it would have been helpful in developing the IEP ( : 435-436, 475-476, 515, 520; : 1075-1076).
The goals on the IEP remained as developed at the April 29, 2014 IEP meeting because they were based on the information provided by the teacher and the related service providers who believed that the goals were appropriate. The program recommendation remained a class with and ( : 439-442, 487,
521-522).
The parent did not agree with the recommendation at the meeting. The parent believed that a program would not provide sufficient support for in ( : 442-443). The team told the parent that the only other program it could recommend would be a program which would have provided services. Dr. told the parent that he did not know of a program that would be appropriate for and that the parent would have to do the research and find an appropriate program. The parent believed that a program would be too restrictive for ( : 433-434; 443, 476-477, 524; : 1011, 1044, 1070). The day after the IEP meeting the parent sent an email to Dr. stating that he disagreed with the program recommendation and that the IEP failed to take into account the full range of ’s deficits and the accommodations and placement necessary to provide with a FAPE ( : 1066; Parent’s Ex. S at 5).
Dr. believed that the program recommendation was appropriate for because he had made improvement in that program in terms of his level and and that he did not require a more restrictive program such as an NPS ( :
449, 502-503). Dr. had limited knowledge of NPS placements, specifically he knew that such schools are privately funded and that they offer “other services” for students if parents want a more restrictive environment or if the student requires a more restrictive environment. He did not know whether there are NPS schools that specialize in the types of deficits that presents with ( : 502). Dr. had only visited
NPS schools for students with and had never visited one that taught students of who did not have issues ( : 516-
517).
At the conclusion of the meeting the parent understood that would remain in a program with no changes to the April 29, 2014 IEP ( : 1049). The team did not mention any additional evaluations. Dr. told the parent that if he did not agree with the recommendation he could request an impartial hearing ( : 1099-1100).
Dr. wrote the Prior Written Notice dated June 24, 2014 ( : 495;
Parent’s Ex. S). He did not include the evaluation under the section for the Evaluations considered in the decision to recommend the program for the 2014-2015 school year ( : 495-496; : 1068-1069; Ex. S at 1). The only evaluation noted on the document is a Evaluation Report dated May 12, 2014, although no evidence was presented about an evaluation on that date (Parent’s Ex.
S). Nor does the document indicate why the parent’s requests for particular evaluations were not conducted. Dr. testified that such information is not part of the Prior Written Notice ( : 497-499; Parent’s Ex. S). The June 23, 2014 IEP references the scores the private evaluations (Parent’s Ex. R at 1).
The parent believed that an NPS would be appropriate for because it would have the resources and specialize or teachers that could accommodate ’s and disabilities more appropriately ( : 1012, 1074). He looked at the in and the . The has an built into the classroom setting and would not has to leave the classroom to receive that service or because it is integrated into the classroom.
Those schools also are “geared to” children with ( :
1013-1014, 1074). The parent found the schools on the Department of Education website where the schools categorized by the types of deficits they address ( : 1072).
Evaluation
Dr. had made a referral for an evaluation prior to the June 24, 2015 IEP meeting and he told the parent that the parent would be notified about the evaluation either during the summer or at the beginning of the 2014-2015 school year ( : 436-
437).[9] In an email to Dr. on or about June 25, 2014. The parent indicated that his consent for testing was “ ” ( :
1065-1066; Parent’s Ex. S at 5). The parent was not contacted about an evaluation until October 10, 2014. He was called “on the spot” and told that the evaluation was taking place. At the time he did not understand where the testing was taking place or who requested and why. At the time he did not feel that he had sufficient information to consent to the test and he did not consent ( : 448; : 1062-1064, 1078-1079;
DOE Ex. 8). The parent was not asked to sign a consent after the IEP meeting on June 24, 2014 and the Department of Education never compelled him to produce for an evaluation ( : 1066-1067, 1099).
July 14, 2014 Evaluation
, Au.D. is an at the
. She performed an evaluation for on July 14, 2014 ( : 768-770; Parent’s Ex. I).[10] The parent provided Dr. with ’s history and Dr. ’s evaluation ( : 772, 931-932). is premised on the fact that the child has ( : 944). Dr.
reviewed a hearing evaluation that was done at in January 2014 that indicated had and ( : 773-
774, 935; Parent’s Ex. I at 2). Dr. did not speak to anyone at ’s school and did not observe him in school ( : 933).
An evaluation looks at how a message is interpreted by the . It examines , ( : 776-77). It is important that be able to because it can affect
, skills and ability to
( : 777).
Dr. reviewed the tests that she administered and explained the results of those tests ( : 777-787, 898-926). performed within range on test ( : 920-923, 938). The test results showed that “definitely” had weaknesses in and that there is a need for both remediation and further evaluation ( : 926).
Dr. recommended that be in a situation with so that . She also indicated that needs
and
. and he
might require ( : 918-919). Dr. also recommended a evaluation to see how ’s is influencing
( : 926-927).
Dr. summarized ’s evaluation results noting that because his scores were mainly they were suggestive of a “ ”
“
” and she recommended, among other things, “ ” and the use of an in school to alleviate the ( : 927-931, 942-943, 946; Parent’s Ex. I at 7-9). Dr.
explained that addresses , and
, while addresses , , ,
, and ( : 944-945).
September 2014 Evaluation
The parent took him to the for a
Evaluation. In an evaluation report dated September 17, 2014 the evaluator, , , diagnosed with ,
, and , all of which
are explained in the report. To address these deficiencies Dr. recommended and sessions of ( : 1023; Parent’s Ex.
EE, Ex. FF).
2014-2015 School Year
The IEP for the 2014-2015 school year was developed on June 23, 2014. The school year began at the beginning of September 2014. The Department of Education called , ’s teacher during the 2014-2015 school year at in the , as a witness ( : 536, 548; : 958-959).
For the reasons stated in the Conclusions of Law below Ms. ’s testimony is not relevant to the issues litigated at the impartial hearing and thus will not be summarized in the Findings of Fact.
is the director of on the . She is certified in ( : 792-793).
There are about at about of whom are certified in special education in New York State. If was directed to provide with by special education teachers it would do so ( : 834, 859, 877). provides supplemental instruction , , , , , and for general and special education students in grades through . The facility is accredited by the ( : 793-794).
went to for testing on March 7, 2015 when he was years-old and in the . The center administered a standard battery of diagnostic testing ( :
797, 845, 848-849, 1096). Prior to administering the assessments received ’s IEP. The tests were administered by a certified general education teacher in compliance with the testing accommodation of and and as indicated on ’s IEP. After the testing was completed Ms. reviewed Dr. ’s evaluation, an exam from the , an evaluation and a copy of his report card and his 2014 state test results ( : 806-809,
847, 849-850, 855-856 875-876).
Ms. described each of the assessments administered and ’s performance on them. did performed level on the assessments and the results were basically consistent with Dr. ’s evaluation ( : 797-802, 807-812,
884-885). His highest level of was and his was ( : 822, 841). On the tests displayed mastery only in ,a skill ( : 815-822).
Ms. determined the levels at which the instruction would have to begin to bring up to level in and in and the curriculum, materials that would be used to do so.
and programs are available but Ms. was not recommending for because his was at a level and those are programs to help a child learn to ( : 794-805,
834, 841-843, 857-858, 872-873, 878-880, 885-886; Parents’ Ex at GG at 4). The curriculum at reflects the New York State standards for and . would seek to raise level to in , . would work on developing ’s skills, including raising his to a level. In would work with to also to a level ( : 813-814).
Ms. determined that requires a total of hours of to bring him to a level and she developed a for ’s program that outlined the skills to be addressed and the number of hours required to bring up to level in each skill. Ms. based the number of hours of instruction required for each skill on ’s performance on the assessments and on her “observation and experience” ( : 823- 834, 864-865, 876-877; Parents’ Ex. GG at 4). Some of the recommendations in the evaluation will be followed at ( : 872-873; Parent’s Ex. H at 14-15). However, the actual number of hours required to bring to level also depends on how often he would be able to attend, which is up to the parents’ discretion. The more often attends the program the more rapidly he will progress. If attends hours a week during the school year and hours a week during the summer he could complete the hours in years. If he attends less frequently it will take longer ( : 871).
If is enrolled at and the parent permits, Ms. will communicate with ’s teacher or other person at ’s school referred by the parent as often as necessary to make the program “ ” Ms. is in telephone contact with the teachers of some of the student who attend and she visits some school in person ( : 847, 861, 882-884).
Parent’s Request for Additional Evaluations and Reimbursement for Prior
Evaluations
The parent is now asking for outside evaluations in , , and . In light of his past experience he does not have “a lot of confidence” in the Department of Education’s capacity to perform an evaluation and would like evaluations that are “unbiased” ( : 1097-1098).
The parent paid for testing and for a secondary test at the ( : 1020-1021; Parent’s Ex. JJ, Ex.
KK). He paid for the evaluation at the
( : 1021; Parent’s Ex. LL). These amounts represent what the parent was responsible for paying after insurance reimbursement ( ; 1022).
CONCLUSIONS OF LAW AND DISCUSSION
To begin, unless otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing. This Decision and Order is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. Any additional facts included below will be referenced to the record as well. The issues and remedies addressed in this Decision and Order are those found to be remaining at the conclusion of the impartial hearing as specified in the Parent’s Closing Brief (IHO Ex. I at 6).
A. The Issue of FAPE
a) 2012-2013 School Year
The body of the parent’s Complaint dated October 1, 2014 alleges that the Department of Education failed to provide with a FAPE because of the IEP developed on May 2, 2013, to be implemented for approximately the last two months of the 2012- 2013 school year and the 2013-2014 school year, and the IEP developed on June 23, 2014, for the 2014-2015 school year. The Complaint also alleges generally that was deprived of a FAPE during 2012-2013 school year (DOE Ex. 3 at 3-4).
Throughout the Parent’s Closing Brief, Ms. the parent’s attorney, referenced the claims generally to the “complained of school years” (IHO Ex. I at 6, 14-
15, 17, 20). The only specific references to the 2012-2013 school year is an allegation that the record failed to establish how received a FAPE “during the 2012-2013 and 2013-2014 school years” … “without appropriate evaluations being done and given his deficits” and an allegation that the parent did not receive Progress Reports during that year (IHO Ex. I at 5, 17).
There was no allegation that the Department of Education failed to evaluate for the IEP that was developed for the 2012-2013 school year. In fact, the Prior Written Notice dated May 15, 2014 refers to a psychoeducational evaluation dated May 10, 2012
(DOE Ex. 17 at 1; 18 at 1; see Parent’s Ex. Q and fn.8). Moreover, there is no evidence of, or testimony about, an IEP developed for the 2012-2013 school year and the parent did not allege facts about such an IEP in the Complaint, at the hearing or in the Closing Brief. Thus, on its face I find that the Complaint is not alleging a deprivation of a FAPE for the 2012-2013 school year but, rather is alleging that the IEP developed during that school year (on May 2, 2013) to be implemented for part of May and for June of the 2012- 2013 school year and for the 2013-2014 school year, deprived of a FAPE. To the extent that the parent is alleging a deprivation of FAPE because he did not receive
Progress Reports during the 2012-2013 school year, I find that there insufficient evidence or testimony to support that claim. I also reject any allegation that was deprived of a FAPE for the entire 2012-2013 school year based only the two month period of the 2012- 2013 school year to which the May 2,2013 IEP applies.
Thus, I find that there is no issue presented with respect to whether the Department of Education provided with a FAPE for the 2012-2013 school year.
***
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). The
Department of Education has the burden of demonstrating that it provided such students with that standard. 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v.
Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir.
2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’s unique needs (emphasis added), provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203. An IEP must accurately reflect the results of evaluations to identify the child's needs, provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012); Application of a Child With a Disability, Appeal No. 13-.
The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 1 1 0 , 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. While school districts are not required to "maximize" the potential of students with disabilities or provide an education guaranteeing any particular outcome, Rowley, 458 U.S. at 189-192, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132, a school district must recommend a program that is reasonably calculated to allow the child to receive some “meaningful' benefit,” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192, and develop 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. School District, 427 F.3d 186, 195 (2d Cir.
2005), quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P. v. Mamaroneck
Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Application of a Student With a Disability, Appeal No. 13-169.
In developing an IEP a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student and the IEP should accurately reflect the results of evaluations to identify the student's needs and establish goals related to those needs. 20 U.S.C.§1414(d)(3)(A) ; 8 NYCRR 200.4(d)(2); Tarlowe v. Dept. of Educ., 2008 WL 2736027 at *6 (S.D.N.Y. July 3, 2008); see Application of XXXXXX,
Appeal No. 14-083.
A school district must comply with the procedural requirements set forth in the IDEA when developing an IEP. While a substantively inadequate IEP automatically entitles a parent to reimbursement, not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA. Id.; Grim
v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). When procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies: (a) impeded the child's right to a FAPE, (b)
significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see 34 C.F.R. § 300.513(a)(2); K.R.
and S.R. v. N.Y. City Dept. of Educ., 13 Civ. 7454 (SAS) April 20, 2014; R.E, 694 F.3d at 190.
b) 2013-2014 School Year
The parent alleges that was deprived of a FAPE in the grade during the 2013-2014 school year in that the May 2, 2013 IEP was defective and that the program and the services provided were not sufficient to meet ’s needs (IHO Ex. I.
The Department of Education posits that it provided with a FAPE (IHO Ex. II).
I agree with the parent and find that the Department of Education failed to meet its burden of demonstrating that it provided with a FAPE for this school year.
Based on the testimony and evidence at the impartial hearing the only documents considered in the development of the IEP were academic and benchmark assessments by Ms. , ’s classroom teacher. The IEP indicated that scored of the standard on his March 2013 benchmark assessment and of the standard on his March 2013 benchmark assessment (DOE Ex. 23 at 1).
In light of the ’s deficits in , as detailed above in testimony by both the parent and Ms. , and noted on the IEP itself, and in light of the Promotion in Doubt letters sent to the parent every year that the child attended , I find that the IEP team had notice that had deficits that warranted further assessment and evaluation in order to develop an appropriate IEP for him. For example, the information in the section of the IEP detailing ’s present levels states that “demonstrates an decreased ability to
,” “ ” as compared to his cohorts, and that he does not or . This
information should have alerted the IEP team that additional evaluations were required to assess ’s individual needs (DOE Ex. 23 at 1).
The information about ’s levels of performance in subjects and in should have also alerted the IEP team that further evaluations were required. While the IEP indicates that was on a level, Ms. testified that at the end of the 2012-2013 school year ’s level was on a level in both and which was not on par with his cohorts in the class. Ms. gave extensive testimony at the impartial hearing about ’s difficulties in class, the fact that he could not keep up with his peers and the fact that he made merely trivial progress despite the individual attention and the strategies that she initiated with him. Her concern about his academics is supported by the parent’s credible testimony that Ms.
was in constant contact with him during the 2013-2014 school year and that she told him was not able to keep up with the pace of the other students and that for ( : 964, 967).
I also find that the parent’s opportunity to participate in the IEP process was significantly impeded. In particular, the IEP goals were developed prior to the IEP meeting. While Ms. testified the goals could be adjusted if the parent did not agree, there is no evidence that the parent’s input was considered. The parent’s dissatisfaction with the goals set for was apparent by his testimony that in light of the fact that was at a level and a level he did not believe was capable of reaching the accuracy percentages on the IEP because the work being provided to him was too advanced. The parent based this opinion on his experience of working with at and his discussions with Ms. in which she told him that was “ ” “ ” and that she wanted the parent to work with more at ( : 962-970).
The IEP was substantively defective in that it did not indicate the particular grade level that was expected to reach in order to master any of the goals in the IEP.
Specifically, in there is no indication as to whether the material being used to judge ’s proficiency was the level at which he was functioning at the time, a level, the standard for students of his age or the standard for the grade he would be in during the 2013-2014 school year (DOE Ex. 23). Thus, on the face of the IEP is was not possible to determine the level of skill required to meet the goal.
In light of the foregoing I find that the procedural and substantive violations specified above deprived of a FAPE for the 2013-2014 school year.
I also find that the program recommended for for the 2013-2014 school year was inappropriate in that it could not meet his educational needs in a way that would be
“’likely to produce progress, not regression”' and provide “ with an opportunity greater than mere 'trivial advancement'." See citations, supra.
Specifically, I agree with the parent that the program was recommended for not because it was appropriate to meet “unique needs” as required by law, but rather because it was the only Department of Education program that was not an class, which was found to be inappropriate after attended one for the grade, and was not unduly restrictive or inappropriate because of the particular disabilities of the students in other Department of Education programs, such as in the program ( : 112-
115; DOE Ex. 23 at 23). Indeed, Ms. testified that the program was the most appropriate program for at ( : 151-152).
That the program did not provide with a FAPE for the 2013-2014 school year is apparent in the fact that he had not meet any of his goals by the third Progress Report relevant to the IEP and that at that time it was not even anticipated that he would meet one of the goals related to and of his goals (DOE Ex.
23 at 6-16). The impropriety of the program is further apparent in the fact while ’s promotional criteria for the was of standards, that criteria was reduced to of the standards for the 2013-2014 school year. Similarly, while his promotional criteria for the was of standards, that criteria was reduced to of the standards for the 2013-2014 school year (DOE Ex. 23 at 23). I find that these reductions in promotional criteria reflect the fact that the program was not meeting ’s unique educational needs in that the expectations for him in that setting decreased rather than increased indicating that the program did not provide him with the opportunity for more than “trivial advancement.”
See citations, supra. Those reductions also support a conclusion that the promotional criteria was designed to allow to pass to the next grade regardless of whether he had sufficient skills to do so.
While, I find that Ms. ’ testimony established that she did her best to address ’s needs based on her observations and assessments of him in the classroom, without sufficient evaluative material to determine his specific deficits, his needs were not met and thus the program also deprived him of a FAPE for the 2013-214 school year.
c) The May 1, 2014 and June 23, 2014 IEPs
The parent also alleges that the IEP developed for the 2014-2015 school year deprived of a FAPE (IHO Ex. I). The Department of Education refutes this claim
(IHO Ex. II).
The relevant IEP meeting for purposes of the impartial hearing was the one held on June 23, 2014 and conducted by Dr. , the school psychologist at
(Parent’s Ex. R). The IEP team had both the and evaluation reports by Dr. and Dr. , and it was aware of the parent’s concern about a setting for and his request for an NPS and additional evaluations and services based on the recommendations in those evaluation reports.
While Dr. told the parent that he would consider those evaluations and accept them as “his own,” ( : 988, 1082-1083), it is apparent that the results of the evaluations, in particular the results and recommendations by Dr. , were not considered in the development of the IEP or the program recommendation.
To begin, the goals on the IEP were developed at the May 1, 2014 IEP meeting by Ms. and ’s related service providers. The parent credibly testified that Dr.
, who was present but did not participate at the meeting, told him at that time that the meeting was a “ ” meeting and that the evaluations would not be considered
( : 993). Ms. testified that they discussed he private evaluations but that none of the recommendations were implemented.
Nor were findings in the evaluations considered when developing the IEP goals for Indeed, Ms. testified that the goals were developed prior to the IEP meeting and that the placement recommendation was also determined prior to the IEP meeting. The parent credibly testified that the goals were presented to him and that he was not asked for his opinion or input, which significantly impeded his opportunity to participate in the IEP process ( : 998-1005). There is no dispute with the fact that the IEP team was aware of the parent’s dissatisfaction with the IEP process as it was succinctly expressed in the parent’s letter dated April 23, 2014 ( : 266; Parent’s
Ex. D).
The predetermined goals remained in place at the June 23, 2014 IEP meeting.
Despite the fact that Dr. had the private and evaluations, the goals developed at the May 1, 2014 IEP meeting were not revised to include any of the recommendations or information in those evaluations. Rather, Dr.
testified that the goals developed at the prior IEP meeting stayed as written because ’s teacher and related services providers believed that the goals were appropriate.
Despite the apparent difficulties that was experiencing in the class as described both by Ms. and the parent, and the information in the private evaluations and reflected in his grades and New York State assessments, the IEP team refused to order any of the additional evaluations or assessments recommended by Dr.
except for an evaluation. To defend this decision, Dr. testified that the IEP team determined that had made progress in his program, even if that progress was merely movement within a level from . Dr. testified that based on that “progress,” the supervisor of , who was not even a participant at the meeting, told Dr. that did not require any additional evaluations. In particular, Dr. explained that the supervisor told him that the Department of Education did not do evaluations and that which would require an evaluation, was not warranted because was making “progress” ( : 439,452-453,
473, 480-481).
The decision not to order an evaluation as recommended was based on the ’s former who discontinued ’s at grade. Based
on the evidence and testimony at the hearing, the determination to end ’s was not based on any evaluation and without consulting the parent. The parent testified that he was simply told that would no longer be receiving and the only reason given by the Department of Education for discontinuing the was the ’s determination
( : 975-976).
I find that developing the goals without considering the information and recommendations in the private evaluations, both of which were obtained by the parent and offered relevant insight about ’s deficits and needs and gave detailed recommendations of how to address those needs, and by refusing to order any of the evaluations (except for ) recommended in the reports and requested by the parent, both significantly limited the parent’s participation in the development of the IEP and deprived of a FAPE. And, as for the goals in the May 2, 2013 IEP the goals on this IEP do not reference the particular grade level required for ’s mastery of each goal (DOE Ex. 21).
Moreover, the Prior Written Notice issued after the IEP meeting was required to inform the parent, among other things why it refused to initiate the evaluations that the parent requested and defer the case the CBST, the other options that the CSE considered and why they were rejected with a description of the documents the CSE used as a basis to refuse the parent’s requests and other factors relevant to that refusal. 8 NYCRR
§200.5(a)(1)(3). However, a review of the Prior Written Notice dated June 24, 2014 indicates only that the evaluations or assessments considered were a classroom observation on June 2, 2014 and a Evaluation Report dated May 12, 2014.
I note that there is no record of a report conducted on that date (Parent’s Ex. S). Rather, Dr. issued her report in December 2013 and Dr. issued her report on April 5, 2015 (DOE Ex. 16; Parent’s Ex. H). In addition, the section of the Prior Written Notice that asks for an “explanation” of why the action proposed by the parent was refused does not provide that information. Rather, it states generically that the date that the IEP meeting was held, the fact that the parent was invited to the meeting, the fact that was determined to be eligible for special education services and that an IEP was developed to meet ’s educational needs. This information is identical to the information in this section on the Prior Written Notice issued after the May 1, 2014 meeting (DOE Ex. 17 at 1, Ex. 18 at 1; Parent’s Ex. S at 1). I find that this Prior Written Notice was itself defective and also significantly impeded the parent’s opportunity to participate in the decision making process regarding providing a FAPE to
While Dr. testified that the IEP team did not recommended an NPS because was making progress in the program, he told the parent hat he was not authorized to recommend a program outside of his school ( : 1010-1011). Dr.
testified that he was only familiar with NPS programs for students with and was not aware of any such programs that specialize in the types of deficits that presents with. Moreover, Dr. clearly relied on the incorrect legal standard when he testified that the appropriateness of ’s program was based on his progress, however trivial, and not necessarily his “unique needs” as required by law ( : 471). See citations, supra. I find that, based on the evidence available to the IEP team, including, but not limited to, ’s barely trivial progress in the program that he attended for of his years at , for example moving, at best, within a level from the end of the to the and moving from level during that period of time, the serious concerns of the parent and Ms. , his teacher as detailed in the Findings of Fact above, and yearly Promotion in Doubt letters, the program recommended by the IEP team for clearly had failed and was not appropriate to address ’s unique educational needs.
Since the parent alleges that was deprived of a FAPE during the 2014-2015 school year because the June 23, 2014 IEP was procedurally and substantively defective, any testimony about how that IEP was subsequently implemented during the 2014-2015 school year is retrospective in nature. Thus, the Department of Education cannot rely on the testimony of Ms. , ’s teacher, to attempt to retroactively demonstrate the propriety of the IEP. Rather, the propriety of the IEP must be considered prospectively only, that is, based on the information that the IEP know or should have known at the time the IEP was developed. R.E., 694 F.3d at 185-186.
In light of the foregoing I find that based on both procedural and substantive violations the Department of Education failed to provide with a FAPE for the 2013-2014 school year.
B. The Parent’s Request for an NPS
I find that there is sufficient information on the record to conclude that ’s case should be remanded to the CSE for deferral to the CBST for an NPS placement. That determination is based on several factors. At the outset, has been in a class from through the , with the exception of an class for the grade which the teachers and the parent deemed to be inappropriate. During those years made little progress and finished the with promotional criteria that appears designed to have him move from grade to grade despite his difficulties and his inability to keep up with the expectations in the class. The testimony by Dr. and the parent established that a program would not be appropriate for as the classifications and disabilities of the students in those programs are not similar to those of Indeed, the parent testified that although Dr.
discussed a program he told the parent that he did not know of any that would be appropriate for The evaluation by Dr. and her testimony specified that is capable of learning if he attends the appropriate program with teachers that are trained to meet his particular needs and students who have similar disabilities and no issues ( : 628-629). The results of the evaluation show that has resulting in difficulty understanding the information and instructions presented to him, a deficit noted by both Ms. and the parent, as well as other diagnoses that have not been addressed in the public school setting.
For the reasons stated above and in light of ’s history of merely trivial progress in the and program throughout school and the fact that he has been deprived of a FAPE for at least years, I find that the Department of Education does not have a program that can meet ’s needs and provide him with the opportunity for more than trivial advancement. Thus, I am ordering that the CSE defer the case to the CBST for an NPS that is appropriate for and can, within reason, provide the recommendations and accommodations in Dr. ’s evaluation report.
C. The Parent’s Request for Additional Private Evaluations and
Reimbursement
The parent is requesting independent evaluations as recommended by Dr. .
Specifically, he is requesting an evaluation with testing, a evaluation and an evaluation, all by “ ” not to exceed the usual and customary rate in each area. The parent is also requesting reimbursement for expenses incurred (after insurance reimbursement) for the and evaluations (IHO Ex. I at 24). The Department of Education argues that it should provide the evaluations and that reimbursement is not warranted (IHO Ex. II at 12).
I find that the parent is not entitled to these independent evaluations at Department of Education expense.
If a parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an Individual Educational Evaluation (“IEE”) at public expense. 8 NYCRR 200.5(g)(1). An IEE is "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student." 8 NYCRR
200.1(z); see 34 CFR 300.502(a)(3)(i).
The Department of Education has not conducted any of these evaluations requested by the parent and thus the parent is not entitled to have them conducted independently at Department of Education expense. To be sure the IEP teams were aware that the parent, either by his own request or by the recommendations in the private evaluations, was requesting these evaluations. However, the fact that they declined to conduct them does not foreclose the opportunity to do so now.
To begin, on May 1, 2014 the parent signed a consent to evaluate (Parent’s Ex. N). In a subsequent email to Dr. on June 25, 2015 the parent limited his consent to an evaluation (Parent’s Ex. S at 5). Since the IEP meeting was held on June 24, 2014, at the end of the school year, I credit Dr. ’s testimony that he told the parent he would be contacted about the evaluation either over the summer or at the beginning of the 2014-2015 school year ( : 436-437). However, when ’s school contacted the parent on October 10, 2014 that the evaluation was about to take place, the parent revoked his consent. The parent explained that he was called the last minute, taken by surprise and did not understand what the evaluation was about ( :
1062-1064).
The parent has had ample time to find out about the evaluation and permit the Department of Education to conduct it but has failed to do so. Thus, I am ordering the Department of Education to conduct an evaluation. I am also ordering the Department of Education to conduct the and evaluations specified by the parent. If the parent wishes to do these evaluations privately he will have to do so at his own expense. If he consents to having the Department of Education administer the evaluations and is then not satisfied with the results, he may request independent evaluations at Department of Education expense as per 8 NYCRR §§
200.1(z), 200.5(g)(1).
I do, however, find that the parent is entitled to reimbursement for the and evaluations. As noted above the Department of Education was aware that the parent was requesting these evaluations and Dr. testified that the supervisor of specifically rejected the requests for them ( : 439,452-
453, 473, 480-481). Since the Department of Education refused to conduct the evaluation or provide which would have necessitated an evaluation, I find that the parent had no choice but to obtain these evaluations privately.
Thus, under these particular circumstances I find that the parent is entitled to reimbursement for the evaluation and the first testing on September 14, 2014 (Parent’s Exs. JJ, LL). However, I find that the parent is not entitled to reimbursement for a second testing on January 15, 2015. The second test was administered months after the parent filed the Amended Complaint. Moreover, there is no evidence as to why the second test was done and the report of that testing is identical to the report for the testing administered on September 14, 2014 (Parent’s Exs.
EE, FF).
C. Compensatory Services
The parent asserts that is entitled to compensatory services at because of the years that he was deprived of a FAPE (IHO Ex. I at 21). The Department of Education argues that if is entitled to compensatory services it should be provided by a (“ ”) teacher (IHO Ex. II at 11).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3); 1412(a)(1)(B); Educ. Law §§ 3202(1); 4401(1); 4402(5). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. And, the IDEA allows a hearing officer to fashion an appropriate remedy, such as compensatory education, for the denial of FAPE. Mr. and Ms. P. v. Newington, 546 F.3d 111 at 123; Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008; Application of XXXXXXXXX, Appeal No. 13-048; Application of the Dept. of Educ., Appeal No. 12-135; Application of the Dept. of Educ., Appeal No. 11-13).
The ultimate compensatory award must be reasonably calculated to provide the educational benefits that likely would have accrued from the special education services that the school district should have supplied in the first place. Application of
XXXXXXXXX, Appeal No. 13-048. Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Newington, 546 F.3d at 123.
Courts have found that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's) educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007). An Impartial Hearing Officer has broad authority to fashion equitable remedies. Newington, 546 F.3d at 122-123.
The parents presented testimony from , the director of . Ms.
explained the assessments administered to and her estimation of the type of and the number of hours required to bring to “ ” a standard not required under the IDEA.[11] would be able to provide with a special education teacher if ordered to do so. However, there was no evidence or testimony that any of the teachers at are experienced in working with children who have or . In light of the results of the private evaluations,
Dr. ’s recommendations and ’s lack of progress in a class with a teacher who addressed his needs to the best of her ability, I find that there is no evidence that a at , even with certification in special education, would be properly trained to address ’s difficulties and
.
While I find to be an inappropriate provider for compensatory services, I also find that is entitled to compensatory services at this time for the denial of FAPE for the 2013-2014 and 2014-2015 school years. I am ordering the Department of Education to provide the parent with an Related Services Authorization (“RSA”) for a provider trained and/or experienced in working with children who have and, if possible, difficulties, for a total of hours per week. If an appropriate provider is not available the parent may look for another such provider and submit the invoices to the Department of Education, which must pay that provider at an enhanced rate. When the CSE reconvenes to develop an IEP for the 2016-2017 school year it is to reassess the need for in light of the services provided to the child at his NPS program for the 2015-2016 school year.[12]
ORDER
It is hereby Ordered that:
1) Immediately upon receipt of this Decision and Order the CSE must convene to defer the case to the CBST for a September 2015 placement in an NPS that can address ’s unique needs as detailed in the parent’s private evaluations;
2) Immediately upon receipt of this Decision and Order the Department of Education is to provide the parent with an RSA for a provider with training and/or experience in working with children who have to work with hours per week. If an appropriate provider is not available the parent may look for another such provider and submit the invoices to the Department of Education, which must pay that provider at an enhanced rate. When the CSE reconvenes to develop an IEP for for the 2016- 2017 school year ,it is to reassess the need for in light of the child’s program in an NPS for the 2015-2016 school year;
3) Immediately upon receipt of this Decision and Order or at the latest by the end of September 2015, the Department of Education is to complete an evaluation with testing, an evaluation and a evaluation;
4) Within two weeks of the completion of these evaluations the CSE is to reconvene an IEP meeting with all of the required members present, none of whom were present at the prior IEP meetings except for Ms. , if appropriate, as well as any persons with relevant information about that the parent wishes to include at the meeting, to develop an IEP for ;
5) In developing an IEP for for the 2015-2016 school year the IEP team must consider all of the evaluations including any private evaluations obtained by the parent as well as the concerns of the parent, the teachers and any other professionals with relevant information about and it must recommend appropriate related services while considering ’s NPS placement at that time;
and
6) Within 30 days of the receipt of the 9/17/14 invoice from and the 8/25/14 invoice from the , and evidence from the insurance company as to how much, if anything, the company reimbursed the parent for those evaluations, the Department of Education to reimburse the parent for his out of pocket cost for the evaluations. Dated: August 12, 2015
RonaFeinb
erg,Esq. gc
RONA FEINBERG, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION:
Exhibit 1 Due Process Complaint dated August
12, 2014, 5 pages
Exhibit 2 Due Process Complaint Amended
dated September 17, 2014, 5 pages
Exhibit 3 Due Process Complaint Amended
dated October 1, 2014, 6 pages
Exhibit 4 Due Process Response dated August
19, 2014, 3 pages
Exhibit 5 Prior Written Notice dated
November 5, 2014, 3 pages
Exhibit 6 Notice of Recommendation dated
October 2, 2014, 2 pages
Exhibit 7 Waiver of IEP Meeting to Amend
IEP After Annual Review dated
October 2, 2014, 3 pages
Exhibit 7a
dated October 10, 2014, 1 page
Exhibit 8 Omitted
Exhibit 9 Parent Letter dated July 28, 2014, 1
page
Exhibit 10 Exam dated May 19, 2014,
4 pages
Exhibit 11 Request for Reevaluation dated April
24, 2014, 1 page
Exhibit 12 Student Progress Report 2013-2014
School Year, 1 page
Exhibit 13 Classroom Observation dated June 2,
2014, 2 pages
Exhibit 14 Social Update dated May 28, 2014, 1
page
Exhibit 15 Omitted
Exhibit 16 Evaluation dated
12/7/13, 12/14/14, 12/21/14, 7 pages
Exhibit 17 Prior Written Notice dated May 15,
2014, 3 pages
Exhibit 18 Prior Written Notice with Notes
dated May 15, 2014, 2 pages
Exhibit 19 Assessment Planning dated April 30,
2014, 2 pages
Exhibit 20 Omitted
Exhibit 21 Individualized Education Program
dated May 1, 2014, 23 pages
Exhibit 21a Individualized Education Program
Signature Page dated April 29, 2014,
1 page
Exhibit 22 Eligibility for
Services dated May 10, 2013, 3
pages
Exhibit 23 Individualized Education Program
dated May 2, 2013, 25 pages
Exhibit 24 SESIS Documents retrieved
November 13, 2014, only for entries
prior to October1, 2014, 2 pages
Exhibit 25 SESIS Documents retrieved
November 13, 2014, only for entries
prior to October1, 2014, 6 pages
Exhibit 26 Running Record various dates 2013-
2014 School Year, 26 pages
Exhibit 27 Baseline Assessment
undated, 17 pages
Exhibit 28 Benchmark Assessment
dated January 23, 2014, 19 pages
Exhibit 29 Benchmark
Assessment dated January 29, 2014,
17 pages
Exhibit 30 dated
February 12, 2014, 4 pages
Exhibit 31 Assessment and Planning
Various dates in April and May
2014, 9 pages
Exhibit 32 Student Work: dated
January 21, 2014, 2 pages
Exhibit 33 Omitted
Exhibit 34 Omitted
Exhibit 35 Student Work – various dates, 9
pages
Exhibit 36 Omitted
Exhibit 37 Omitted
PARENT:
Exhibit A Omitted
Exhibit B School Performance Notice dated
September 30, 2014, 1 page
Exhibit C Omitted
Exhibit D Parent Written Request for
Deferment dated April 23, 2014,
1 page
Exhibit E Parent letter to School dated
March 13,
2012, 1 page
Exhibit F Individualized Education Program
dated May 1, 2014, 24 pages
Exhibit G Omitted
Exhibit H Evaluation
dated April 5, 2014, 15 pages
Exhibit I Evaluation dated July 14, 2014,
9 pages
Exhibit J Classroom Observation dated June 2,
2014, 1 page
Exhibit K Student Progress Report 2013-2014
School
Year, 2 pages
Exhibit L Social Update dated May 28, 2014,
1 page
Exhibit M Teacher Report to dated
June 18, 2014, 2 pages
Exhibit N Parental Consent dated May 1, 2014,
1 page
Exhibit O School Report dated April 23, 2014,
4 pages
Exhibit P Omitted
Exhibit Q Psychoeducational Evaluation
Report dated May 10 2012, 3 pages
Exhibit R Individualized Education Program
dated
June 23, 2014, 17 pages
Exhibit S Prior Written Notice dated June 24,
2014, 5 pages
Exhibit T 12 Month Program Rationale dated
January 28, 2008, 1 page
Exhibit U Evaluation Summary
Report Dated May 8, 2007, 1 page
Exhibit V Psychoeducational Evaluation dated
March 31, 2008, 6 pages
Exhibit W Student Progress Reports dated
January 30, 2012 to February 11,
2014, 4 pages
Exhibit X Psychoeducational Evaluation dated
May 8, 2007, 5 pages
Exhibit Y Classroom Observation dated May
27, 2007, 2 pages
Exhibit Z Evaluation
dated May 8, 2007, 3 pages
Exhibit AA Evaluation
dated May 23, 2007, 4 pages
Exhibit BB Student Report Card dated
November 23, 2014, 1 page
Exhibit CC NYS Test Results
(2014) 4 pages
Exhibit DD Individualized Education Program
Progress Report undated, 3 pages
Exhibit EE Report dated
September 17, 2014, 3 pages
Exhibit FF Amendment to Ex. EE dated
January 7, 2015, 4 pages
Exhibit GG
Evaluation Dated March 10, 2015,
49 pages
Exhibit HH Second Report Card
(2014-2015), 1 page
Exhibit II Individualized Education Program
Progress Report undated, 3 pages
Exhibit JJ First Testing Receipt dated
September 15, 2014, 2 pages
Exhibit KK 2nd Statement
& Receipt dated January 1, 2015, 2
pages
Exhibit LL Receipt
dated August 25, 2014, 2 pages
Exhibit MM Sample
dated March 15, 2014, 5 pages
IMPARTIAL HEARING OFFICER:
Exhibit I Parent’s Closing Brief dated June 23,
2015, 24 pages
Exhibit II Department of Education’s Closing
Brief dated May 29, 2015, 14 pages
Exhibit III Case Follow-Up Sheets Re: Timeline
Extensions various dates, 8 pages
Footnotes
[5] Dr. has a Master’ Degree and a doctorate in clinical psychology and has post-doctoral training in . She is a licensed psychologist in New York State ( : 616).
[6] The date on the IEP is May 1, 2014 (DOE Ex. 21 at 21; Parent’s Ex. F at 22) but the actual signature page is dated April 29, 2014 (DOE Ex. 21(a); Parent’s Ex. F at 24) and the implementation date is April 30, 2014 (DOE Ex. 21 at 1; Parent’s Ex. F at 1).
[7] Ms. has never participated in an IEP meeting where the parents disagreed with the goals or program. She “assume(d)” that under that circumstance the parent would “seek some other recourse” ( : 281).
[8] That evaluation was conducted on May 7, 2012 but the evaluation report is dated May 10, 2012 (Parent’s Ex. Q at 1, 3).
[9] In September 2014 the psychologist at ’s told Dr. that she spoke to the parent indicated that he did not want the evaluation done at that time ( : 448).
[10] Dr. has a Doctorate of and is a licensed in New York State. She has a Certificate of Clinical Competence from (“ ”) ( : 769-770).
[11] As noted above, school districts are not required to provide an education guaranteeing any particular outcome. Rowley, 458 U.S. at 189-192, 199.
[12] While the Complaint also asked that the Department of Education pay for (DOE Ex. 3 at 4,) this remedy is not included in the Parent’s Closing Brief and there was no testimony provided to explain why the recommended sessions of or the rate for such . Thus, I deem this request to be waived without prejudice to renew it at another time (Parent’s Ex. EE at 2).