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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 22, 2014
January 16, 2015
January 23, 2015
March 10, 2015
Actual Record Closed Date: April 20, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2014
Attorney — Student
Chairperson's Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2015
Attorney — Student
Chairperson's Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2015
Mother — Student
Attorney — Student
Headmaster (Via Telephone) — Student
Teacher (Via Telephone) — Student
DR., (Via Telephone) — Student
DR., Chairperson's Designee — DOE
School (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2015
Attorney — Student
Parents
Teacher, — Student
MR., Teacher, — Student
DR., Chairperson's Designee, CSE — DOE
The parents of . filed a request for an impartial hearing on August 20, 2014 for the purpose of seeking tuition reimbursement for their unilateral placement of at (hereinafter “ ”) with the Program for the 2013-2014 school year, the cost of related services and/or
’s ( ) for the period from September 2014 through June 30, 2015 and for the costs of evaluations.[1] I was designated to hear this matter on November 14, 2014, after the prior hearing officer recused. An impartial hearing was held on November 21, 2014, January 16, 2015, January 23, 2015, and March 10, 2015. The compliance date was extended on six occasions due to unavailability of witnesses and extensive testimony and issues. The final compliance date is May 2, 2015. (IHO Ex. V, VI, VII, VIII, IX, X).
DEPARTMENT OF EDUCATION (“DOE”) POSITION
The Department of Education’s (“DOE’s”) position is that the Committee on Special Education (“CSE”) correctly determined that the student was ineligible for special education services; that the parent’s unilateral placement at is inappropriate, that the equities favor the DOE and that tuition reimbursement should be denied. (Tr. pp.
39-40. The DOE argues that it did not violate its child find responsibilities, as there was no reason to suspect that , a student achieving grades of “ ” “ ”, was a student with a . Finally, it argues that it should not be required to reimburse the parents for the cost of their evaluation, as it was obtained before the child was even referred to the CSE. (IHO Ex. XI).
PARENT’S POSITION
The parent’s position is that should have been identified as a student with a disability as of August 20, 2012 2; and that she should be classified with a . The parents request reimbursement for ’s tuition at (for the 2013-2014 school year) including the Program, from January through the end of the 2013-2014 school year. The parents allege that the CSE review held on June 18, 2014 was untimely. (Tr. p. 72; IHO Ex. XII).
EVIDENCE AT HEARING
is a year old student who was not classified by the Committee on Special Education. (DOE Ex. 3). attended public school at during the grades. (DOE Ex. 3; Tr. p. 238). Ms. , ’s mother, testified that had difficulty , and with , and was taken out for and . She was not evaluated by the DOE. (Tr. p. 237).
From grades, attended , a private
school. (Tr. p. 238). Ms. testified that throughout those years, worked with a learning specialist in the school, or times per week. (Tr. pp. 238, 266). Mrs.
felt that this would help maximize her potential. (Tr. p.. 266).While at , studied ; and then . (Tr. p. 260). In a mid-year report card, for her year, it was reported that was receiving “ ”’s in all of her academic subjects. (DOE Ex. 29).[3]
In March 2012, when was an student at , the parent obtained a private psychoeducational evaluation from Dr. , a licensed . achieved a . In her summary, Dr. reported that
’s
4 Dr. did not report a grade level for ’s understanding of ; but reported a percentile of 13-19). DOE Ex. 5, p. 5).
. (DOE Ex. 5, Tr. p. 210).
Dr. testified that has (Tr. pp. 212-213. She testified that her testing indicated ’s . (Tr. p. 213, 220). She concluded that has a (Tr. p.220).
In a letter dated January 7, 2014, Dr. recommended . (Par. Ex. C).[6] (This recommendation was also part of her original March 2012 report). (DOE Ex. 5).
Dr. testified that it was not part of her role to refer for evaluation by the CSE. She testified that it was her understanding, at the time of her testing, that was going to ; and the purpose of her report was to assure that she received the support she needed to feel competent to do the work and maximize her potential. (Tr. pp.
232-233).
Ms. testified that from private schools; however she was accepted to in March 2012 and began attending in September 2012, for her year. (Tr. pp. 238-239, 255-256).
Although has a specialized program for students with learning
5
Dr. ’s report does not include a grade level equivalent for comprehension. scored at the percentile on a test of . On a , Dr. reported ; but referred instead to her report. (DOE Ex. 5, p. 7, 18). Similarly, on an informal assessment of , she did not report a score; but referred instead to her report. (Id. at 17). disabilities ( , see below); Ms. did not enroll in that program for her year. Instead she provided private to , or times per week, with , a teacher at , starting the summer before
’s year. She testified that if she had enrolled in the program, Ms. might have been assigned to her; and could not have continued as her . (Tr. p. 239). In the subsequent year, she enrolled in because she felt that would be able to finish her work at school, and require less outside . (Tr. pp. 240-241). , her family and school staff, decided that she should continue to study at . (Tr. pp. 259-260).
Ms. secured Ms. as a for , after contacting the school, and asking if it had any suggestions for a “ ”. (Tr. p. 244). She testified that no one from told her that needed extra preparation, before attending the school; however because was entering a different program, Ms.
was concerned that she be prepared, due to her learning disabilities. (Tr. pp. 246-247).
She acknowledged that in her prior school, received “ ” “ ”s; (Tr. p. 248).
None of her teachers ever referred her for an evaluation. (Tr. p. 249). Nor did staff at recommend a referral to the CSE. (Tr. p. 251).
Ms. testified that she is licensed as a literacy teacher; and serves as the Department Chair for the and program at . (Tr. p. 280). She began in July 2012, before she started classes in September 2012. She testified that has a , in that she of ; an expressive
, evident in her and her
. She testified that has a
. (Tr pp. 281-282). She described her as an incredibly hard worker who really tries to apply strategies so that her skills improve. (Tr. p. 284).
During the 2012-2013 school year, did not participate in the program. (Tr. p. 296). She earned grades ranging from in her academic subjects. Her grades for (DOE
Ex. 18).
Ms. testified that she reviewed the private psychoeducational evaluation obtained by the parent; but never reviewed the testing performed by the CSE. (Tr. pp.
290-291. 299-300). She has never referred a student to the CSE, because is a private school; and it is not something within her purview. (T r. pp. 295-296, 299).
On November 20, 2013, Ms. sent a letter to the Committee on Special Education (“CSE”) requesting an evaluation of . (DOE Ex. 17).[7] She testified that she did this because it was clear to her that had a learning disability; and she felt that with enough support, a public school placement would be good for her. (Tr. pp. 239-
240).
A Social History was performed on February 6, 2014. (DOE Ex. 10). A psychoeducational evaluation was performed by the DOE on February 6, 2014 by , a certified school . Mr. concluded that ’s basic
, and skills were at a level commensurate with her same grade peers; without deficit or delay. (DOE Ex. 6; Tr. p. 153). At the hearing, Mr.
explained that he reviewed the previous evaluation, including the (which he relied upon); and then administered some educational tests. Based upon Dr. ’s report, he testified that had . (Tr. pp. 155-156, 188).
Nevertheless, because the private evaluator had identified possible and difficulties, Mr. conducted an update of her educational skills. He conducted testing of ’s , ; and she performed . Her overall was in the . In , she also scored within the , with skills exceeding of the population. (Tr. p. 160; DOE Ex. 6). For , her performance surpassed of the same grade population. (Tr. p. 162; DOE Ex. 6).[8] Her sample was age appropriate. She was . (Tr. p. 169).[9]
A / Evaluation was performed on April 3, 2014. ’s overall
of
. It was determined that and services were not warranted.
(DOE Ex. 8). A Classroom Observation was performed on May 8, 2014. was observed in a class. She participated frequently during class, and was observed to be . (DOE Ex. 7). , the social worker who performed the observation, testified that the class was conducted in a lecture format; and that she did not observe any given to by the teacher.
(Tr. pp. 107-108).
Ms. testified that during the 2012-2013 school year, she would meet with Dr. , the principal of , to discuss initial evaluations, reevaluations and observations of students. (Tr. p. 109). Dr. did not provide the names of any students for initial evaluations. Rather, initial evaluations were requested by letters from parents. (Tr. p. 110).
On June 18, 2014, the CSE met and determined that was ineligible for Special Education. (DEO Ex. 3). , a certified school who participated in the meeting, testified that the CSE reviewed the private psychoeducational evaluation, as well as the testing performed by the CSE. The CSE also reviewed a report from ’s Teacher (DOE Ex. 12), a Report Card (DOE Ex. 16); and report cards from ’s earlier grades ( DOE Ex. 13 and 14; Tr. pp. 49-55).
In an undated letter, , a certified specialist, wrote that she had been working with since the summer of 2012. She wrote that experiences significant . Ms. reported that she meets with each week providing with strategies for improving her and . (DOE Ex. 12).
Ms. testified that, at the time of the June 18, 2014 meeting, was attending , in an students; was participating in the Program at , and receiving additional .
(Tr. pp. 57, 93-94). During the 2013-2014 school year, maintained an average of in the first semester, and an average of in the second semester, earning her a place on the school’s . (DOE Ex. 16). Ms. did not see any significant learning issues indicated from the psychoeducational evaluations performed privately or by the DOE. (Tr. p. 64).
In the summary of ’s present levels of performance and individual needs, Ms.
wrote that, as a , needs to
. (DOE Ex. 2, p. 3) She testified that this is available at all schools. She also recommended the use of a . (Tr. pp. 77-78).
Ms. testified that all students will have a pattern of strengths and weaknesses, which is a normal part of learning. She testified that ’s scores do not point to a ; that has a lot of strengths; and that her education is not significantly affected by her weaknesses. She testified that the skills is working on with her ;(
). are areas in which many students struggle during , and are part of the . (Tr. pp. 59, 61, 64). She noted that ’s score for , when tested in in 2014, than when tested by Dr. . (Tr. p.
62). (DOE Ex. 6; Tr. p. 62). Ms. opined that the improvement may be the result of the she received.
Ms. , the representative, and the parent disagreed with the CSE’s decision not to classify . Ms. stated that requires more academic support than the “ ”; and that is providing her the support she needs in order to succeed. (Tr. p. 99).
While agreeing that Dr. noted some weakness in the inferential level of , Ms. noted also stated that she was still within the . (Tr. p. 82). Furthermore, while Dr. diagnosed with a of expressive , Ms. pointed out that scored at the percentile for ; and that her other scores were ; and did not support Dr. ’s diagnosis. (Tr. p. 85).
On January 30, 2013, the parent signed a contract enrolling at for the 2013-2014 school year, with an annual tuition of , plus an additional for the Program; a combined fee of (for activity, student accident insurance and parents association dues); and a bookstore fee of ; and paid a deposit of . (Par. Ex. D). During the 2013-2014 school year, was an student. (Tr. p. 128).
, the founder and headmaster of swore, (in an affidavit dated January 8, 2015), that during the 2013-2014 school year, the school has students. (Par. Ex. K.) He stated that approximately of the students were enrolled in the program, which provides support from a teacher who is state certified in special education or literacy, on a daily basis ( ); and per week , providing skills-based instruction to address the student’s learning deficits.
(Id. at 2). students have attained great academic success; and have been admitted to Harvard, Johns Hopkins and Oberlin, as well as other elite colleges. (Id. at 3).
The program is designed to maximize the students’ potential. (Tr. p. 149). Independent of the program, the school offered a class in , for students who have a waiver. (Tr. p.141).
studied , and did not obtain a waiver. (Tr. pp. 141-142). This was a joint decision of the school, the parents and . (Tr. pp. 147-148).
utilizes a , so that students are placed in classes, according to their ability. In , there are tracks. Classes consist of or students. (Id. at 1). The school utilizes the System, which provides online. (Id. at 2). .
, a teacher certified as a specialist, swore, in an affidavit dated January 15, 2015, that she is the Director of .
10 The normal of was pro-rated; and the parent was charged ., did not begin attending the program until January of the 2013-2014 school year . (Tr. p. 135). was made to enroll her in because of her and other problems; and because would be better program. (Tr. p. 133). was ’s teacher beginning January of the 2013-2014 school year.
teachers see students in the and the (except ) and each week . During the 2013-2014 school year, Ms.
helped with
. (Par. Ex. L, p. 1; Tr. p. 198.). was in the program for the third and fourth quarters of the 2013-2014 school year. (Tr. p. 206).
During the 2012-2013 school year, received outside . (Par. L, p. 2).
Ms. testified that for ’s year, had tracks.
is typically the ; however she stated that it was below grade level.
(Tr. p. 192).
, an teacher at , testified that was a student in his class during the 2013-2014 school year. (Tr. pp. 307-
308). He described the class (which consisted of students) as a . He met with weekly for conferences and for , if she needed it. (Tr. pp. 311-312).
He testified that has
.
Mr. provided (Tr. pp. 313-315). He described her improvement in planning and a five paragraph essay over the course of the school year. (Tr. p .316). To address her
, he used an
. (Tr. p. 319). He described
a marked improvement in ’s , over the course of the school year. (Tr. pp. 318-321). Mr. is not a licensed special education teacher. (Tr.
p. 324).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].
The IDEA guarantees an appropriate education, “not one that provides everything that might be thought desirable by loving parents”. Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay Shore, 873 F. 2d 563 (2d Cir. 1989).
School districts have an independent obligation to identify, locate and evaluate children with disabilities to determine whether these children require special education and related services. 20 U.S.C. Sec. 1412(a)(3)(A). This “child find” obligation extends to children “who are suspected of being a child with a disability --- and in need of special education” who are parentally placed in private schools located within the school district.
J.S. and A.G. v. Scarsdale Union Free School District, 826 F. Supp. 2d 635 (S.D.N.Y.
2011); 34 C.F.R. 300.131(f). A state’s child find duty is “triggered” when it has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d
394 (N.D.N.Y. 2004).
’s case was first brought to the attention of the CSE on November 20, 2013
(during ’s year), when Ms. sent a letter to the CSE requesting an evaluation. The record indicates that during her and years, received grades of “ ” “ ”. Although Ms. , a CSE social worker, periodically met with a representative from ’s school during the 2012-2013 school year, was never identified as a student suspected of having a disability. Nor did Dr. , who performed a comprehensive evaluation in March 2012, refer for evaluation.
As there was no reason for the DOE to suspect that had a disability, I find that there is no basis for me to find that the DOE did not satisfy its child find obligations to during the relevant time period.
An initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation. 8 NYCRR 200.4(b)(7). The CSE did not meet to review ’s case until months after the initial referral and receipt of parental consent. While this is a significant procedural violation, I do not find that it entitles the parents to relief, because they were given a meaningful opportunity to present evidence and the child was not wrongfully denied a FAPE. See Mr. and Mrs. .C. v. Bedford Central School District, 300 F. App’x 11 (2d Cir.
2008). The record indicates that during the time period when the CSE should have met to review ’s case, she was not entitled to special education services.
20 U.S.C. Sec. 1401(d)(3) defines a child with a disability, as a child who, by reason of disability (including specific learning disabilities) needs special education and related services. A student cannot be classified as learning disabled unless she does not achieve adequately for her age, or meet State-approved grade-level standards. 8 NYCRR
200.4(j)(3). While Dr. ’s March 2012 testing indicated that had relative
. When tested by Mr. in February 2014, scored within the for all academic areas. The and evaluation performed at that time also indicated she performed in the .
While was provided with support from private , during the time period between Dr. ’s and Mr. ’s testing, given her many strengths, there is no basis in the record for me to conclude that she would not have progressed without special education services, during the 2013-2014 school year. I credit Ms. that Dr.
’s testing does not support her conclusions that has a of . Ms. pointed out that scored at the
. I also
credit Ms. ’s testimony that ’s scores do not point to a ; that has a lot of strengths; and that her
.
Although has benefited from all of the and other supports provided by her parents, it does not follow that she requires a special education program. The record indicates that the parent has gone beyond school recommendations in providing her daughter with a high level of support. This is illustrated by the fact that she initiated for before she entered ; without any indication that the school recommended or required it.
The witnesses described special supports for and , which are areas of strength for . According to Mr. , the headmaster of the school, the program is designed to and
.
While was approved for extended time for the , it does not follow that she is entitled to be classified as a student with a disability. See Application of a Student with a Disability, Appeal No. 10-128; Application of a Child Suspected of Having a Disability, Appeal No. 06-015. There is no indication that the parent’s purpose in referring to the CSE was to secure testing accommodations.
For all of the foregoing reasons, it is hereby ordered that the parent’s request for tuition reimbursement for the 2013-2014 school year is denied.
In addition, as no evidence was presented in support of the claims for the cost of evaluations and for related services and /or ’s for the 2014-2015 school year, those claims are also dismissed.
Dated: April 23, 2015
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 RECORD
PARENT
A Complaint, 9/23/13, 4 pages
B Response, 10/7/13, 3 pages
C IEP, 8/6/13, 12 pages
D Letter to Parent, 9/12/13, 2 pages
E Letter to , 8/29/13, 1 page
F Psycho Educational Evaluation Report, 7/12/13, 6 pages
H Parent correspondence to CSE dated 7/1/14, 2 pages
I Parent correspondence to CSE dated 8/19/14, 1 page
K Affidavit of dated 1/8/15, 4 pages
L affidavit, 1/15/15 3 pages
N Testing Accommodations for , dated 10/16/13,
1 pages
DEPARTMENT OF EDUCATION
1 Letter from , undated, 1 page
2 Present levels of performance dated 6/18/14, 5 pages
3 CSE review rationale dated 6/18/14, 2 pages
4 Prior written notice dated 7/2/14, 3 pages
5 Psycho-ed Evaluation dated 3/29/12, 18 pages
6 Psycho-ed Evaluation dated 2/6/14, 3 pages
7 Classroom Observation dated 5/8/14, 1 page
8 and Evaluation dated 4/3/14, 3 pages
9 Vocational Interview with Parent dated 2/6/14, 3 pages
10 Social History dated 2/6/14 3 pages
11 Social History Package, various dates, 12 pages
12 Letter from Teacher, undated, 2 pages
13 dated 2/2008, 1 page
14 Report dated 2/2006, 2 pages
15 Results dated 5/23/13, 2 pages 16 Report Card dated 6/10/14, 1 page
17 Parent Letter to CSE dated 11/20/13, 1 page
18 Report Card dated 6/10/13, 1 page
19 Certifications, undated, 6 pages
20 Contact Sheet dated 2/23/12, 1 page
21 Application dated 2/25/12, 4 pages
22 Teacher Recommendation dated 2/28/12, 5 pages
23 Teacher Recommendation dated 3/8/12, 3 pages
24 Acceptance Letter, dated 3/19/12, 1 page
25 Entrance Exam dated 12/21/11, 2 pages
26 Year End Report '10-'11, 19 pages
27 '10-'11 Report card, 2 pages
28 Student work product dated '11-'12, 25 pages
29 Mid-Year Report, undated, 9 pages
IMPARTIAL HEARING OFFICER
I Due Process Complaint, dated 8/20/14, 5 pages
II Subpoena, dated 12/22/14, 2 pages
III Subpoena, dated 1/9/15, 2 pages
IV Subpoena from Parent,
V Case Follow-Up Sheet dated 11/16/14, 1 page
VI Case Follow-Up Sheet dated 11/21/14, 1 page
VII Case Follow-Up Sheet dated 12/22/14, 1 page
VIII Case Follow-Up Sheet dated 1/16/15, 1 page
IX Case Follow-up Sheet, dated 1/23/15, 1 page
X Case Follow-up Sheet, dated 3/10/15, 1 page
XI District’s Closing Brief, undated, 19 pages
XII Closing Brief, 4/17/15, 13 pages
Footnotes
[1] In their closing brief, the parents limited their request to reimbursement to the period beginning January 2014, when began the Program, a special education program, within the school. The parents did not seek reimbursement for their private evaluation or related services in their closing brief. No testimony was presented at the hearing as to the cost of the evaluation or related services.(IHO Ex. XII, p. 12; Par. Ex. K). This is the date two years prior to the filing of the complaint. (Tr. p. 41).
[3] No report card was submitted by either party for the second of ’s grade year.
[6] was granted by the , as an approved accommodation. While the accommodation is not dated, it appears to have been printed out on October 16, 2013. (Par. Ex. N). This information was not reviewed by the CSE when it met in June 2014. (Tr. p. 305).
[7] The record indicates the parent gave consent for evaluation on November 15, 2013. (DOE Ex. 11, p. 2).
[8] Mr. testified that while testing indicated for calculation was at an equivalent; the more accurate measure is the is in the range. testified that at the grade levels, grade equivalents are measure, because they are sensitive to one or two incorrect responses . He described this as “ ”. (Tr. pp. 182-184; DOE Ex. 6).
[9] When Mr. initially prepared his psychoeducational evaluation, he normed it against the wrong age. He later prepared a new report correcting the error. (Tr. p. 96).