NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CORRECTED FINDINGS OF FACT AND DECISION
Case Number: P|
Student’s Name: P|
Date of Birth: 4/22/05
District: P|
Hearing Requested By: P|
Date of Hearing: December 13, 2013
January 8, 2014
January 16, 2014
February 12, 2014
February 25, 2014
February 26, 2014
February 27, 2014
May 16, 2014
June 2, 2015
July 23, 2014
Actual Record Closed Date: October 13, 2014
Hearing Officer:
FINDINGS OF FACT AND DECISION
Case Number: |
Student’s Name: UU
Date of Birth: 4/22/05
District: P|
Hearing Requested By: aun
Date of Hearing: December 13, 2013
January 8, 2014
January 16, 2014
February 12, 2014
February 25, 2014
February 26, 2014
February 27, 2014
May 16, 2014
June 2, 2015
July 23, 2014
Actual Record Closed Date: October 13, 2014
Hearing Officer: Gia.
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 13, 2013
For the Student:
Mother
For the Department of Education:
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 8, 2014
For the Student:
For the Department of Education:
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 16, 2014
For the Department of Education:
+
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 12, 2014
For the Department of Education:
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 25, 2014
For the Student:
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 26, 2014
For the Student:
For the Department of Education:
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 27, 2014
For the Student:
For the Department of Education:
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 16, 2014
For the Student:
- i
For the Department of Education:
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 2, 2014
For the Student:
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 23, 2014
For the Student:
For the Department of Education:
INTRODUCTION
On October 2, 2013, I was appointed as the Impartial Hearing Officer (THO) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of (the student), a student attending iE School GE 204 the P| Central School District ( Y The vere represented i
A list of the witnesses who appeared and the documents admitted into evidence are annexed to this decision.
POSITION OF THE PARTIES
GE: ontends that it offered a Free and Appropriate Public Education (FAPE) to the student. It contends that it complied with all Child Find requirements, properly assessed the student and created appropriate IEPs for all of the school years in question. It further contends that the parents unilateral placement is not appropriate and that the equities favor P| [HO Ex. IL.
Th<lt argue that the DOE failed to offer the student a FAPE, claiming both procedural and substantive violations, for the 2011-2012, 2012-2013 and 2013-2014 school years. The BR ec that the violated the Child Find law in that it was aware of the student’s academic struggles during his 2010-2011 and 2011-2012 school years, but did not evaluate until June 2012 for special education services. Ex. 1 at 4 They further contend that the IEPs developed for the student’s first and second grade year did not provide the student with an appropriate program as the IEPs did not target the student’s specific “academic, physical, social and emotional needs.” They claim the program developed lacked the use of “scientifically-based methodology[ies] and/or strategies to address [the student’s] cognitive and academic deficits.” Additionally they claim that the IEP created on June 19, 2012 for Ql irsi grade school failed to provide the student with | and therapy services and failed to contain goals and objectives. Ex. 1 at 4-5 They also claim that PF failed to conduct an EE (2<r2ry evaluation, a suspected area of disability, on the student. The parents also claim that the district failed to timely offer the student a program for the 2013-2014 school year. Similarly, they claim that they did not receive a final JEP for the 2013-2014 school year until the third day of that school year. They also allege that the district delayed bus transportation for the student toffrivate school during the 2012-2013 school and did not provide transportation and 2013-2014 by the time the impartial hearing request was filed. Lastly, the contend that the District failed to recognize the student’s academic regression during the summer hiatus and offer the student an extended school year for the 2012-2013 and 2013-2014 school years. Ex 1 at 5 The I further claim that their unilateral placement of the student at po met the student’s unique needs and the equities are in their favor. As such, they seek tuition reimbursement for the student’s 2012-2013 school year iii They also seek tuition reimbursement/prospective funding for tuition for the 2013-2014 and 2014-2015 school years. Similarly, they seek reimbursement for the cost of the extended year services for the summer of 2012 and 2013. In addition, hed seek reimbursement for the expenses and lost wages they incurred transporting the student to/from P| during the 2012-2013 and 2013-2014 school years. The Ei... seek reimbursement for private counseling services for the student, and the May 25, 2012 TE valuation performed > P| Finally, they also request compensatory services for that portion of the 2010-2011 and 2011-2012 school years when the student was not classified and receiving services under an TEP. Ex. 1 at 7
FINDINGS OF FACT
Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.
At the time the impartial hearing request was filed, the student was 8 and in the third grade. The student has difficulties with reading, decoding, reading comprehension, and math concepts. T at 669 & 672 a the executive director for pupil services at ae. is responsible for the special education department within the district. Transcript (T) at 86. GE provides response to intervention (RTI) services, a tiered level of services to address the needs of students who are struggling but not classified as students in need of a special education. Services can be administered by a special education teacher, a school psychologist or other specialist determines the child’s skill level and needs, provides services and monitors the child’s progress. Services can include speech, counseling, reading and math. Tier
1 is typically push-in services in a general education class, whereas tier 2 services may be more individualized and can be push-in or push-out. Tier 3 services are more intensive services. Services run in an eight week cycle, depending upon how the child is progressing. If the child requires more help, a request to the parent for consent to evaluate and a referral to the CSE for special education services may be made. T at 281-284; 409-410, 419-421, 438, 456-457 & 647 The child’s progress is shared with the parent. T at 434 pT is thel ¢ BE i tementary School QM, 2 school within the MEE schoo! district. instructs children from kindergarten through the fifth grade. T at iii is a certified special education teacher at P| | been a teacher for over 27 year and is certified in Orton-Gillingham. T at 642, 666 & 704 pe provides special education services to children struggling academically and consults with teachers to assist them with their students. T at 642
The student attended Jfrom kindergarten through the first grade. Ex.7 & 12; T at 408 During his 2010-2011 kindergarten school year, the student experienced academic difficulties. Ex. 12; T at 456, 697 & 1062 In October or November of 2010, EM initiated RTI services for the student. | the student with reading instruction through the use of Fundations, an individualized research based program. T at 191-193, 416-417, 431, 544, 643-646, 695 & 1264 BEB provided individual services to the student three days a week for approximately 20 minutes in [[classroom. Two days a week, MB ovided the student with instruction for approximately 20 minutes in a group that varied from between 3 and 6 children. T at 693-695 | helped] identify and sound out letters, learn sight words and make small sentences. T at 645 At first Bh eceived services 3 days a week; thereafter fll received services 5 days a week, by way of tier 1 and tier 2 services. T at 457, 543, 548, 556 & 576 Po regularly assessed BB progress and mproved. At the end of kindergarten year, i was ready to proceed to first grade. T at 646 & 698
During the student’s 2011-2012 first grade year J continued experiencing academic difficulties including problems with reading, organization, completing, work, staying on task and following directions. Ex. 6; T at 105-106, 197, 370 699-700 & 1073-1074 eceived math and reading RTI services fron using Orton-Gilligham and multisensory strategies. T at 416-418, 431, 544-545, 556, 576, 643, 661, 663, 699 & 705 During the year ill received tier | through tier 3 services. T at 457-458 & 464 The student received pull-out language arts services for approximately 45 minutes and during that time ffifreceived approximately 20 minutes of 1:1 or 2:1 instruction ron T at 665-666, 676 &
701-703 The student also received pull-out math services daily for approximately[45] minutes where received approximately 15 minutes of 1:1 instruction, as well as small group math instruction. T at 676, 701 & 706-707
To assist with other subject ssa made Bb tudent flash cards, rewrote WB cading passages, numbered the paragraphs of the passages and color coded the questions from the passages. | I also helpedfteacher modifyffhomework. When BB vas in the classroom with the student helped {fo understand directions, and with organization. T at 670, 710 & 719 J also pushed intoffiMscience or social studies classes for approximately 30During the two years that instructed the student, Bawvas frequently late and absent and while in first grade year, Ml completed Bi omework only about half of the time. T at 43, 154, 445, 492-493, 518, 650-651, 690 & 715-716 ; Ex. 43
On May 11, 2012, the fii requested that [Evaluate the student. Ex. 7 & 8; T at 284, 433, 1070 & 1084-1085 On May 15, 2012, MMissued a Prior Written Notice to the GB cierine the student to the committee on special education (CSE) and sought consent to conduct evaluations to determinefffeligibility for special education services. Ex. P On May 21, 2012, thedi@consented to have the student evaluated. Ex. 8; T at 106-107
On May 25, 2012, pcrfoned a privet assessment on the student. Ex. 25; T at 751; Ex. 25 P| specializes in child neuropsychology and pediatric psychology. T at 748 | RE several tests and subtests including the Wechsler Intelligence Scales for children, Fourth Edition (WISC IV), the Wechsler Individual Achievement Test, Third Edition (WIAT IID, the Wide Range Assessment of Memory and Learning, Second Edition, and the NEPSY-II. T at 756 As to verbal functioning, the student tested with average verbal skills, but had a lower comprehension score. T at 758 The student scored in the high average range on the perceptual reasoning tests, but as to working memory, Bh cores were “variable” aslifllscored in the IMbange. T at 758-761 As to po processing speed, although scored well on two of the subtests tests, on the third “coding” subtest, I made many errors and which brought processing speed score to EEE @ ia opined that thelj score on this subtest indicated thatimay have reading and writing difficulties. T at 762-763
The subtests within the NEPSY assessed executive functioning, attention, language and memory. As to auditory and visual attention, the student’s results were within the normal arrange. T at 763-764 The student had difficulty with speed naming which requires naming and identifying shapes. BE «pines that this result is common with reading disabilities because the brain has difficulty interpreting shapes and symbols. T at 764 BB ceived an average score on the comprehension of instructions subtest and the word generation subtest, as well as an above average score on the design copy subtest which assesses motor skills and performed well on the auditory attention test. T at 765-766 BE is. scored in the average range onl erbai memory tests. However on the lists test hi core fell to the kane as, after a short dela was unable to retain all of the words on the list. T at 766-769 Bi scored in the average range on visual memory tests, but experienced some word finding difficulties when asked to name what was depicted in a picture. T at 770-771
As to the academic testing, the WIAT-III indicated thatfilearty reading skills were average, buf regularly performed B and D reversals and scored in the [ange on the word reading subtests aff made letter substitutions. T at 772-773 Biesied in the range on reading comprehension and spelling tests. T at 774 Balso had average math skills. | | letter reversals, substitutions and omissions were consistent with a learning disability with an impairment in reading. T at 775
P| concluded that the student had solid verbal functioning and above average nonverbal skills. || math skills were on grade level and “[h]is memory functioning for more meaningful information and memory for visual information was intact.” attention and P| T at mc = diagnosed the student with a i ith: impairment in reading and opined that fl symptoms were Po Tat 77 8-779 CE 222 many recommendations to assist with the student’s instruction. Ex. 25 at 9-10; T at 781-787 Several iit recommendations for the student were implemented at WR Vat 497-498; Ex. 25 at 9-10 SS «eport was provided to the parents in August 2012. T at 824
On June 4, 2012, thed{ijauthorized IEE personnel to release information about the student i :.. LL-1, LL-2 & 10; T at 108
Also on June 4, 2012, thefiled a letter with]rejecting the RTI services.
T at 1085-1086 aw indicated that the program was inappropriate for the student and that reserved the right to place the student in a private school at | expense. || also sought busing for the summer program and for the upcoming school year. Ex. 9; T at 107-108 & 230
On June 5, 2012, a Social History’ report was prepared. Ex. O & 12 On June 6, 2012, p | CSE sent a notice to the student's fiilscheduling aCSE meeting for June 19, 2012. Ex. 11; T at 108
On June 13, 2012, EE issued «
TYSeg report stemming from June 11, 2012 evaluation of the student. Ex. 12; T at 491 = GE crninistered various tests including the Woodcock-Johnson HI Tests of Achievement (WJ Ill ACH), and incorporated ir repor fs WISC IV test results. Bac an average IQ score. Ex. 12; T at 109 & 494-495
The student’s WJ IH ACH math and oral language test scores placed ah in the Average range I writing scores also fell within the normal range, however, at timesfbreversed letters and had spelling difficulties. pe reading scores wer af ability to read and understand sentences and determine if the sentences were true or false were at the | | level.
The academic testing results contained cL report were consistent with Zz BE 2. 2cemic test results. T at 496 SK
On June 13, 2012, evaluated the student to determine if speech and language (SP) services were needed. Ex. 13 BRE: inisserea the Clinical Evaluation of language Fundamental 4 and Comprehensive Assessment of Spoken Language, in addition to reviewing
BB o gnitive testing, social and medical history and other reports EL ctermined that the student did not have a speech-language impairment. Ex. 13; T at 110
On June 15, 2012, a classroom observation was conducted of the student at P| The observer noted that the student appeared distracted and to have difficulty following oral instructions. WB esponded well to visual directions but needed a moderate amount of assistance and teacher intervention. Ex. LE teacher indicated that the student had difficulty following directions, maintaining focus and attention, and required 1:1 attention. struggled with reversals in writing and had an immature pencil grip. Ex. L a: the committee on Special Education Chairperson at P| | | holds a Master’s Degree in special education and is a certified general and special education teacher. T at 349-350 On June 19, 2012, convened an initial CSE meeting to determine if the student was eligible for special education services. The CSE team was comprised : school psychologist, the student’s general education teacher, ae... the parent. T at 351, 410-411, 652 &1092 ; Ex.3 The lid not request that attend the IEP meeting and the parent brought no one with ko the meeting. T at 656 & 805
The team had the student’s ae : BF evatuations, classroom observation and social history. They discussed the student’s current functioning il strengths and weaknesses and where support was needed. T at 353, 412, 652, 672-673 & 713 Po indicated that the student was a hard worker and insightful, but needed individual or small group instruction when learning new concepts and to retain previously learned concepts. BB ais. indicated that had progressed. T at 653 The team discussed that fad improved from kindergarten level to first grade level in Fountas & Pinnell, was happy in school, doing good , work and exhibited no behavioral or emotional problems in schools. T at 415, 436 7 567
The team also discussed the student’s extensive absences and lateness and how it was impeding, instruction. T at 400; 415-416 & 657 The private evaluation obtained by the GE was not provided at the meeting and ae i: not have consent to obtain it. T at 221-222 & 355 The did not request that the student be further evaluated. T at 400
The team discussed goals and objectives for the student and shared them with the J]
T at 413 The CSE classified the student JS and initially recommended a 15:1 special class instruction in English Language Arts and math, along with ae :: a related service. T at 414 & 686 Th agreed with the student’s classification, did not agree with the 15:1 class recommendation as ABlvelieved it was too restrictive cid not indicate what i clieved the student needed. T at 354, 357, 373, 376, 358, 393-394 & 654
After further discussions with the parent, the team changed its recommendation and created an IEP that included resource room at a 5:1 ratio provided once daily for 30 minutes to help with the student’s math weaknesses. They also provided indirect consultant teacher services, once weekly for 30 minutes, a special language arts class in a 15:1 ratio daily for 1 hour and 30 minutes to help remediateffilreading difficulties and | a 5:1 group once a week for 30 minutes. Ex. 3; T at 88-90; 354-355, 393-395 & 655 The (i disagreed with this recommendation. T at 395, 656 & 689-690
Also on June 19, 2012, the District issued a Prior Written Notice, Proposed Initial Eligibility for Special Education and Request for Consent to the parents indicating that the student was classified 2s and qualified to receive special education services and listed the program and services indicated on Giz. Ex. H; T at 355
The student did not receive the services on the June 19, 2012 IEP during the 2011-2012 school year because the remaining 2-3 days of school did not include academic instruction and the parent did not sign consent to initiate special education instruction for the remaining portion of that school year. T at 217-218, 220 225, 322, 356, 379, 396 & 412 On June 19, 2012, the | to the initial provision of services for the student, but only for the 2012-2013 school year. BB ais. rejected the June 19, 2012 IEP. Ex. K The student attended an 8 week summer program iit The program included academic instruction as well as field trips into the community that related to the subjects taught. T at 867, 979 & 1133 The parents paid a total of y for the program. Ex. HH; T at 866-867, 979, 1131 & 1133
On August 21, 2012, ni submitted a 10 day notice letter to po indicating that the District’s recommended placement was inappropriate and a, was unilaterally placing the student at Sh: indicated that Py would seek tuition reimbursement for the private placement and requested that transportation be provided for the student. Ex. 15; T at 111 & 236 SR is located in the IEEE school district. T at 286
On September 4, 2012, counsel for thea informed] that thal did not agree with ae; program and placement recommendation for the student, indicated that the student would attend [i starting September 5, 2012 and requested transportation to and from school for the student. Ex. 16, T at 240
In a letter to the student’s BR caica September 7, 2012, ME scheduled a CSE meeting for September 14, 2012. Ex. 17; T at 117
On September 12, 2012, they again consented to classification of the student, but indicated thal aia not agree with the CSE’s recommendation. T at 117-118 & 235 The Qa indicated thatlfwould sign a consent to release information to EE from ME ex. 18 & 19; Tat 118
At the parent’s request, the CSE meeting was rescheduled to September 28, 2012. Ex. 19
& 20 po again requested consent to obtain information from ee: pe P| regarding the student but did not receive the signed release from the parent. T at 120
On September 16, 2012, thal signed a release form authorizing EEE to “sneak, obtain, and/or release all pertinent information to” iland MG. 11 & JJ; T at 162-165 Ina second release form dated September 18, 2012, thal again gave permission to [Mh to release information about the student to FP EE x. 21, BB-1 & BB-2 Similarly, on September 28, 2012, the J submitted a records release form tol civing I permission to provide copies of the student’s records to PY Ex. at FF During the CSE meeting ae called
MEME
ce questing the student’s information andj indicated that it needed the parent’s signature on its form, not alll release form, in order to provide the student’s records to | 2t 166-167
On September 28, 2012, a CSE team held an IEP revision meeting to create an IEP for the student’s second grade, 2012-2013 school year, to reflect the student’s unilateral placement at PF and to provide transportation for the student to EET at 90-91, 94, 156, 358, 422 & 520-521 [MMe haired the meeting. Also present wa, « general education teache the school any private evaluations at the meeting or bring anyone to the meeting wit il T at 360 & 656 The P| participated at the meeting and indicated that{ibelieved the student required more targeted reading help to meetflifhceds. T at 360 The Gi did not provide any signed consents for documents at the meeting. T at 378 The team also discussed the student’s absences. T at 519 P| did not have progress reports or documents from ; or PF regarding the student.
As previously indicated in the IEP created on June 19, 2012, the student was classified with- The CSE recommended resource room at 5:1, once daily for 30 minutes, indirect consultant teacher services, once weekly for 30 minutes, a special language arts class in 15:1 ratio daily for 1 hour and[30] minutes and BRi 2 5:1 group once a week for In a Consent For Initial Provision of Special Education Services form letter provided by the District dated September 28, 2012, the (i provided consent for the provision of special education services to the student, but indicated that Mvas not “in agreement with the specific services, program or placement proposed.” Ex. F; T at 366-367 The fl subsequently signed a similar letter on October 3, 2012, dated June 19, 2012, indicating that {ff consented to initiation of services, but did not agree with services, program or proposed placement. Ex. I; T at 97-98
Starting October 16, 2012, pO provided the student with transportation to and from (MMfor the 2012-2013. Ex. R & EE; T at 115-116, 121-122, 240-241 & 279-281
On December 17, 2012, after a CSE review meeting, [J recommended that the student continue to receive supplemental special education services and agreed to the request for arf evaluation. Ex. TT In an IESP dated January 7, 2013, effective until June 20, 2013, direct and indirect consultant teacher services 3 times a year for 1 hour were recommended for the student. Ex. UU [created an JESP that covered from April 24, 2013 through June 20, 2013. The student was provided with consultant teacher services 3 times yearly for | hour and added [il in group once a week. Ex. E-1; T at 930-933 & 982-984 During the 2012-2013 school year, the student received only1 to 2 months of as Bi csisted going to therapy. During the 2013-2014 school term, the student received Wi the entire year. T at 983 MM Bihiiso made progress submitting Homework on time. Ex. SS-2
On June 11,2013, RG CSE sent the student’ J letter scheduling the annual CSE review meeting. Ex. 24; T at 100 & 122 On June 19, 2013 chaired the CSE meeting and the team created an IEP for the student’s 2013-2014 third grade school year. Ex. 5; T at 156-157 & 424 The (i did not bring anyone to the meeting to discuss the student. T at 276 The team reviewed the test results in the IEP. T at 160. The parent requested a specialized “dyslexic program.” T at 426, 428 & 541 Dyslexia is a learning disability that involves reading. Teachers ao are trained to use various research based programs to address the needs of children with dyslexia. There is no special dyslexic program at Woodglen and children with dyslexia are in special language arts classes, and have resource room help. T at 426, 458 & 504
Although it was important to have updated information about the student at the meeting, the team did not have updated progress reports from P| ii. T at 424, 429-430, 449, 503 & 563 During the CSE meeting, P| again requested that inf sien consent to give [Ih and permission to provide with academic and evaluative information. Thea not sign the forms. Theft wanted to consider private schools outside of the district but would not sign the consent forms to have information regarding the student sent to other schools and programs outside of the district. Ex. 26; T at 100-103; 124, 126, 158-159, 424, 427-430, 502 & 561 called En ma to see if they would participate and neither | P| had signed release forms from the parents allowing their participation at the meeting or to provide documents. T at 261, 459 & 584
As in IEPs previously created ya the CSE recommended resource room at 5:1, once daily for 30 minutes, indirect consultant teacher services, once weekly for 30 minutes, a special language arts class in 15:1 ratio daily for 1 hour and 30 minutes and ina 5:1 group once a week for 30 minutes. Ex. 5; T at 99, 160 & 501 The CSE recommended po as the student’s placement. T at 100; 425 Thd{p was not in agreement with the recommended program asi wanted a program for children with dyslexia. T at 425, 501-502 & 504
On June 27, 2013, Clarkstown received a signed consent form authorizing Mili to release the MM evaluation to EMM T at 253 & 258 Ex. 20 provided with the student’s MMP valuation in June and September 2013. Ex. PP; T at 794
On June 24, 2013, an updated academic evaluation was conducted on the student by school psychologist). 27; T at 137 REE ministered the WIAT-IIIE and reviewed the student’s records. As to WR ding, Mkcored at the lower limit of the average range, experiencing some difficulty with inferential reading, letter reversals and sight words reading tasks. Ex. 29 at 2 The student earned scores in the average range, but had demonstrated difficulty writing complete sentences with correct spelling and punctuation and . had “inconsistent application of phonetic analysis rules.”"bmath scores placed in the lower end of average to below average as [nad difficulty with subtraction and more than single digit addition and subtraction. TE on cluded that the student’s “academic abilities [fell] from the below average to the lower end of the average range.” Ex. 27 at 3; T at 509 The student’s math scores were lower than , | results, who administered the same test. However, the lower score was not due to regression but reflected that the student was not making sufficient gains. T at 802
In a letter dated August 26, 2013, P| was notified by the 4 that they were unilaterally placing the student in private school and would be seeking reimbursement for all costs regarding that placement. Ex. 29; T at 268 In responseliiiififJsent a letter to the parents indicating that a CSE meeting would be held to review the student’s IEP. Ex. 30 Ina meeting notice sent to the parents dated September 11, 2013, [J scheduled the CSE meeting for September 18, 2013 to discuss the student’s educational needs. Ex. 3; T at 140-141
Also on September 11, 2013, the Ect at the MEE ‘istrict office. T at 142 & 381-382 Thelfindicated that {wanted to look at private schools. ME indicated thatfffheeded consent to forward information about the student to New York State approved private schools and provided the parent with a Consent for Release of Confidential Information form during the meeting. T at142 Theil did not sign the consent forms. T at 142 & 269; Ex. 31 i: again requested that thei provide the releases for documents from [pnd I received consent or the documents. T at 145-146, 148, 251, 277 & 383-384 HM arranged for thediito visit the recommended school on September 11, 2013, but theglygggjdid not go. Ex. 32; T at 143-144, 270, 335-336 & 383
The Br eceived the CSE meeting notice on September 17, 2013 for the September 18, 2013 hearing. By email TE. on September 17, 2013 and September 18, 2013, the parent indicated that an appropriate program for the student was not provided for the 2013-2104 school year, > was placing the student at PY and requested transportation for the student. Ex. 33, C & U; T at 146-147 The September 18, 2013 meeting was not held. A bus pass was provided for the student’s transportation to and fon for the 2013 school year. Ex. D; T at 279-281
In a notice dated September 20, 2013, thefl alerted EE, that the student would attend for the 2013-2014 school year. The notice also gave I permission to provide EP:d Ewith “all pertinent educational information” about the student. Ex. B There is no evidence that the “notice” was sent to and accepted by ii
HEE )Otified the parents via letter dated September 23, 2013 that it had received heii cancellation of the CSE meeting, noted that theif-ancelled a visitation of the special education program at [nd indicated that it would reschedule the CSE meeting. PE 2s. indicated that it would again forward a release of information form to obtain documents regarding the student. Ex. 34 In a meeting notice dated September 24, 2013 sent to the parents, fF scheduled a CSE meeting for October 9, 2013 to address the student’s IEP. Ex. 35; T at 149
In a letter dated October 7, 2013, the parents were invited to a resolution session on October 15, 2013 in an effort to resolve the issues raised in the parents’ due process complaint. Ex. 36 Also on October 7, 2013, a letter was sent to thelial again requesting signed consent forms to obtain information fo a regarding the student for the upcoming October 9, 2013 CSE meeting. Ex. 36; T at 149
In an email dated October 8, 2013 sent to aa. the Ql indicated thalifihidn’t “have any idea why a CSE meeting would be appropriate” as the student was unilaterally placed and requested that future correspondence be sent tol} attorney. Ex. 37; T at 150 Fe responded to the via letter dated October 10, 2013 indicating that the October 9, 2013 date was a CSE meeting to review recent records regarding the student’s current program and as GEhad not received recent records from po or MS that it would not reschedule the CSE meeting until the information was available to the CSE. Lastly confirmed the October 15, 2013 date of the resolution meeting. Ex. 38 The[did not appear for the resolution meeting. T at 151-153
During the fall of the 2013-2014 school year, EN provided the (with a progress report of the student’s academic and social-emotional development. Ex. T The student presented with difficulty maintaining focus and keeping track of Wa materials, timely completing assignments and submitting homework assignments. T-2 & T-8 Mad a basic understanding of some math principles, but had difficulty with fractions, static addition and subtraction. T -3 Overallfjwas progressing in reading, spelling and grammar and writing, but showed some difficulty capitalization, punctuation and editing wn work. T-4 & T -5 ee a general education teacher at | and has worked in for over 22 years. T at 995 & 1042 | certified in Wilson, a multisensory reading program that is requires the student to complete and master one step before moving to the next step. a is also obtaining certification through the International Multisensory Structured Language Education Council (IMSLEC) . T at 996-998, 1002, 1004-1005 & 1036
As part off certification requirements for the IMSLEC, GME tutored the student from October 2012 through June 2013 in reading. T at 999, 1028-1029, 1260-1263 & 1267 @ met with the student and ii twice a week in their home for at least an hour per session. T at 1000 & 1261 A typical lesson consisted of a review of phonemes, dictation and reading from a fluency book and a controlled reader. T at 1000-1001 Mtracked the student’s progress and assessed the student through proficiency tests. T at 1001 & 1279-1280
When @fifirst started tutoring the student, could not rhyme, read basic CVC words, and would confuse most of (ight words. Mh also had “reversals” T at 1279 At the end of the tutoring period, the student’s handwriting and spelling improved Wc ompleted one book and was moving onto the next reader. T at 1034
Gs a new school and is not yet fully accredited. T at 850° The school has approximately 90 students and instructs children from the age of 18 months through their ninth grade year. T at 849 Each class contains students within a 3 year age group. T at 349 The school has 12 full time teachers. All of the head teachers are Montessori certified. T at 850 The remaining teachers are either Montessori certified or in the process of becoming Montessori certified. T at 850-851 & 971-972 Teachers at Montessori also participate in staff development. T at 971 Montessori adheres to the New York state curriculum standards and administers state assessments. T at 943-944 & 949
The Montessori teaching method involves instruction from the concrete to the abstract. T at 852 The children have some freedom when determining the order of their activities. Instruction utilizes scaffolding and the children must master one activity before they are allowed
* As of February 26, 2014, the date PCS testimony, Hawk Meadow was not fully accredited. T at 850 to move to the next activity. T at 853 Each student has individual lessons and may be moving at a different pace and/or learning a different subject than their classmates during the school day. T at 854, 856-857 & 950
Before a child is enrolled at | they spend time at IE and are assessed by teachers. Once they are enrolled, an educational plan is developed for the child and the child is monitored to determine if changes are needed. T at 858 & 948-949 Teachers observe the children and keep detailed reports on their progress. The children have a different comprehension book for each subject and their teachers take their books home each day to review what was accomplished that day. T at 859-860
Each classroom contains 24 children and 4 teachers. T at 864 See below. Each teacher in the lower elementary program is certified in New York State. T at 939-940 Three of the four teachers are Montessori certified. T at 940 The head teacher is a reading specialist and has been teaching for 28 years. T at 962 & 973 Children receive small group instruction and then work independently, practicing the lesson taught by the teacher. T at 864 Po utilizes Sequential English Education (SEE), a multisensory approach to language instruction wherein the students engage all of their senses when learning. T at 895-898, 961 & 977-978
On October 16, 2012, thellsigned a contract for the student’s 2012-2013 tuition at SE The sic the tuition, including before and after care and a 6% fee for payments made after July 15, 2012, for a total of TEE 00 Ex. DD & GG; T at 872 The 2012-2013 school year at EE started on or about September 5, 2013. The student started school approximately two weeks after school began. T at 875-876 & 967
For the 2012-2013 school year, as a second grader, the student was placed in the lower elementary class, a first through third grade class. T at 878 There were 20 student’s in@@jjclass and 3 teachers. T at 879 & 972 A counselor was in the classroom at all times and monitored all of the children. T at 954 Approximately 8 of the students had special education classifications. T at 959-960 & 968 a areas of instruction included math, language (consisting of spelling, reader, writing mechanics and penmanship), science, geography and a foreign language. T at 880
& 979-980.
The student’s reading ability was assessed through teacher observations. T at 945 The student had difficulty with reading, writing and math. T at 884 & 901; Ex. VV Initially, the student was quiet, reticent, and not very social andi acked confidence inf vitities. T at 882
Some of the strategies used by the teachers during instruction included prompting, written directions and visual cues. fused manipulatives and received 1:1 instruction for ia teachers ffteachers provided] with a daily and weekly work plan to net AG organize fi time. T at 883-884, 890 & 901; Ex. VV & MM During the 2012-2013 school year Jteachers monitored and tracked progress. T at 899; Ex. MM in reading and math skills improved andi was more social. T at 904
The student attended [BE 2013 summer program, performed well and was happy. T at 906 The cost of the summer program was ex. Vv
The student attended i for the 2013-2014 school year Phird grade year. On September 16, 2013, thegsigned a contract for the student’s enrollment at P| The tuition, including before and after care, and a 6% fee totaled $00. Ex. W & X; T at 980-910
The student remained in the lower elementary grouping of first through third grade children. T at 911-912 There were 24 children if class. There were 4 teachers in the lower elementary class. A head teacher and 2 additional teachers remain in the lower elementary class. A fourth teacher, and the teacher from upper elementary, rotated between lower and upper elementary depending upon the subject area being taught. T at 912-913 & 975-976 The student studied language and had novel study group, among other subjects. Jipreading improved to a second/third grade level for nonfiction and a third/fourth grade level for pleasure reading. T at 915 Each teacher assessedll reading abilities and made note lm progress in BB composition book. T at 916-917
The student progressed during WBhihira grade year. | i a good attitude towards school, was social and more confident. T at 918-920 Wilbeading and writing improved and performed well during oral presentations on the book read. BPs better organized il time and was more motivated. | skills also improved. T at 926-929 & 969; NN, OO & SS
In a Demand for Due Process dated September 27, 2013, the alleged that MEE failed to provide the student with a FAPE for the 2011-2012, 2012-2013, 2013-2014 school years. Ex. 1; T at 346
CONCLUSIONS OF LAW AND DECISION
The District Provided the Student with a FAPE for the 2011-2012 school year
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd, of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005}]).
The DOE offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an JEP" (Walczak y. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998}; see Rowley, 458 U.S. at 189). An "appropriate" education, is "not one that provides everything that might be thought desirable by loving parents." (Walezak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Moreover, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walezak, 142 F.3d at 132). However, a school district must provide "an IEP that is ‘likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere ‘trivial advancementTM (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd, of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412{a][5][A]; 34 CFR. §§ 300.1 14fa]{2][i], 300.1 16[a][2]; 8 NYCRR 200.1 [cc], 200.6fa][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008}).
The parent makes several procedural and substantive challenges to the student’s 201 1-2012 school year and IEP. When a procedural violation is alleged, a denial of a FAPE may only be found if the procedural inadequacies (a) impeded the student'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 student, or (c) caused a deprivation of educational [ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][u]; benefits (20 U.S.C. § 1415[f][3][E] Winkelman, 550 U.S. at 525-26; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] affd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008)).
i contends that there was a violation of the child find law as the student was not promptly considered for special education services despite the student’s academic struggles. THO| at 6-7 PE 2: <u<s that there was no violation of the Child Find law as it provided the student with interventions and timely referred the student for evaluation when it was requested by the parent. [HO II at 26
The point of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446. F.3d 335, 347-48 [2d Cir. 2006]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] affd.2010 WL 1049297 [2d Cir. March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.P.R. § 300.111; 8 NYCRR 200.2[a][7]). There is an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]}; 34 C-ELR. § 300.111fa][1]fi]; Forest Grove, 129 S. Ct. at 2495; see 20 U.S.C. § 1412[a][10][A] ii]; see also 8 NYCRR 200.2{a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004). The “child find" requirements apply to "children who are suspected of being a child with a disability .. . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111 [c][1]; see 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a student Suspected of Having a Disability, Appeal No. 10-009; Application of a Student Suspected of Having a Disability, Appeal No. 09-132; Application of a Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application ofa Child with a Disability, Appeal No. 93-41). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (New Paltz, 307 F. Supp. 2d at 400, n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]; see Application ofa Child Suspected of Having a Disability, Appeal No. 06-092; Application of a Child Suspected of Having a Disability, Appeal No. 06-087; Application of a Child Suspected of Having a Disability, Appeal No. 05-127; Application of a Child Suspect Suspected of Having a Disability, Appeal No. 05-040; Application of a Child Suspected of Having a Disability, Appeal No. 04-087; Application of the Bd. of Educ., Appeal No. 04-037; Application of a Child with a Disability, Appeal No. 03-043; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007)).
Moreover, states are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008], referencing 20 U.S.C. § 1400[c][5]). Indeed, districts must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]).
I find that the child find law was not violated. The child find law requires that the school district have procedures to determine if a student may be in need of special education and provide adequate academic interventions to address the student’s struggles while it determines if special education services are warranted. I find that pM Pe: procedures in place to determine if the student was in need of special education and provided the student with academic interventions that helped the student during Bi :indergarten and first grade school years.
Initially, I find that as soon as[ficachers were aware of struggles in kindergarten, BE »compty determined the student needed of academic interventions. Indeed, the student’s early struggles with reading triggered interventions that were provided 3 times a week and then daily to the student by a special education teacher. T at 191-193, 416-417, 431, 457, 543-544, 548, 556, 576, 643-646, 693-695 & 1264 Indeed, | cre@A testimony and find that MB helped the student identify and sound out letters, learn sight words and make small sentences. T at 645
At the end off kindergarten year, the student progressed and when fil frst grade year began anh continued to struggle, the student was promptly provided with RTI services daily from a special education teacher, both in the form of push-in and pull-out services and 1:1 and small group instruction. EE vices the student with math and reading RTI services and used Orton Gilligham and multisensory strategies during) instruction, Ex. 6; T at 105-106, 197, 370, 416-418, 431, 457-458, 464, 544-545, 556, 576, 643, 646, 661, 665-666, 663, 676, 698-700 , 701-703, 705-707 & 1073-1074 BB nace the student flash cards, rewrote fl reading passages, numbered the paragraphs of the passages and color coded the questions from the passages. Bsc helped|fteacher modify his homework. When 2s in the classroom with the student, helped a to understand directions, and with organization. Halso discussed the student’s progress witltteachers daily. T at 670-671, 709-710, 712 & Moreover, the RTI services proved to be effective as the student’s reading improved from a level A, beginning kindergarten, to a level G, first grade. Bil creaseaffi ign words, was writing full sentences, and was making progress phonetically spelling words. T at 431, 559, 579, 647,714 & 717
I also find that as the student was progressing with the RTI services, referral to the CSE byo: HR was not necessary. Indeed, when theffprequested that the student be evaluated and considered for special education services, the CSE promptly acted and initiated the process. Accordingly, I find no Child Find violation occurred.
The parents also claim that the CSE had insufficient evaluative material to determine the student’s needs at the CSE meetings. An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix)).
I find that the CSE had sufficient evaluative tools to assess the student’s academic, social-emotional and related service needs at the time of June 2012 JEP meeting. The team reviewed BE «222110, which included testing fron = «8S HE (esting, an observation, a IilMMlevaluation and a social history report. Notably, the academic test results contained ‘a. report were consistent wi i: academic test results. T at 496
I find that equally as important as the documents indicating the student’s strengths, weaknesses and needs, in attendance at the meeting was the student’s general education teacher, as well i, the special education teacher who closely instructed the student for the past 2 years and who, at the meeting, discussed the student’s needs and progress.”
I do not find that the failure to perform an ery evaluation was a denial of a FAPE. I find that there is no persuasive evidence that the requested an [I therapy evaluation. Moreover, besides a brief comment in the student’s June 15, 2012 observation thaffhad an immature pencil grip, there was no evidence presented that either before or at the time of CSE meeting, the CSE was aware that the student presented with deficits sufficient to warrant anf evaluation. indeed {ER evaluation did not indicate such a deficit. Similarly, I also find that it was reasonable and appropriate for the CSE not to include speech and language services in the IEP. Indeed, after being evaluated, the speech pathologist determined that the student did not have a speech-language impairment. Ex. 13; T at 110
> I also note that if the parents wante iio participate in the meeting, the parents could have invitedggiyjto attend and participate.
I find that the had a full and meaningful opportunity to participate in their IEP development for the 2011-2012 school year, even if the district came to a different conclusion and recommendation than the parent requested. Ex. 3-5 Indeed, due to thea disagreement with the CSE’s first recommendation in the June 2012 IEP, the CSE changed its recommendation in an effort to recommend a program that was appropriate for the student and agreeable to the aii at 88-90, 414, 686 Accordingly, I find that the hearing record demonstrates thapliPparticipation was not significantly impeded such that a FAPE was denied.
Generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher (Rowley, 458 U.S. at 204; M.M. v. Sch. Bd. of Miami-Dade County, 437 F.3d 1085, 1102 [11th Cir. 2006]; Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 [7th Cir. 1988]; Application of the Dep't of Educ., Appeal No. 08-075; Application of a Child with a Disability, Appeal No. 07-065; Application of a Child with a Disability, Appeal No. 07-054; Application of a Child with a Disability, Appeal No. 07-052; Application of a Child with a Disability, Appeal No. 06-022; Application of a Child with a Disability, Appeal No. 05-053; Application of a Child with a Disability, Appeal No. 94-26; Application of a Child with a Disability, Appeal No. 93-46).
Indeed, while a district is not precluded from listing methodologies on an IEP, it is not required to do so unless the student's unique needs require incorporating a methodology onto the IEP. Also, although the parent seemingly wanted a specific program addressing dyslexia, I find that there is no evidence in the record that a program specific to only dyslexia exists. Also, the student was receiving the type of instruction typically provided to children who are dyslexic. T at 426, 458 & 504 In this case, the IEP was reasonably calculated to enable the student to obtain educational benefit without the specific recommendation for the use of a specific methodoligy. Therefore, I find that Ts decision not to indicate a specific methodology did not render the IEP inappropriate.
I also find that the goals listed in the June 2012 IEP were appropriate and addressed | areas of need. Ex. 3 I also find that the program and realted service recommendation was appropriate. Although the recommended program may have been similar to the program provided to the student via RTI services, as I indicated earlier, I find that the program was helping the student. Also, if at some point the program became less effective, either the parent or | teachers/Woodglen could request a reconvene to adjust the program. Accordingly, I find that the student was provided with a FAPE for the 2011-2012 school year. The student was Denied a FAPE for the 2012-2013 School Year
I find that denied the student a FAPE for the 2012-2013 school year. As the student was classified in June 2012 as a student with A CCS | RS obligated to have an IEP in place for the student for the start of the 2012-2013 school year. The initial IEP developed in June 2012 was only applicable to the 2011-2012 school year and ended, as noted on the IEP, on June 22, 2012. Ex. 3 Thus, it was incumbent upon the CSE to have an IEP in place for the student at the start of the school year. The CSE had from June 22, 2012 to the start of 2012-2013 school year to have a meeting and create an IEP. The CSE did not draft an IEP until September 28, 2012, a few weeks into the school year. Although the CSE initially scheduled the CSE meeting for September 14, 2012 and changed the date at the a
I find that this date change did not absolve [Jof its obligation to have an JEP in place for the start of student’s second grade school year.
Also, although rfl asisagreed with the CSE’s June 2012 program recommendation and notified TEE of @ intention to place to student (iii. I find that the GE ontinued to request a special education program and services from P| for the student’s 2012-2013 school year. Accordingly, I find thatMJ denied the student a FAPE for the 2012-2013 school year.
A FAPE was Provided for the 2013-2014 School Year
I find that the student was timely provided with an IEP for the 2013-2014 school year.
Indeed, the IEP was created in June 2013 for the upcoming school year. I also find that through no fault of P| the CSE did not have updated information regarding the student, and as such, the CSE’s recommendation was appropriate based on the latest information that it did have.
1 credits evidence and find thai repeatedly asked the parent to sign consent forms to have progress and other reports regarding the student sent to Fe When thindicated thaffiibrovided I ith consent, fii vent so far as to call to intercede, but learned that they did not have a signed consent form from the —e parent authorizing documents to be sent to |. Although thd may have signed a orm authorizing HEE EEE to provide information tol ain testified, | required that its own consent form be signed by the Although they vidence includes a fax transmission verification report dated June 26, 2013 from |qyindicating that 13 pages were faxed to “Siz Central” regarding the student, the fax sheet does not specifically indicate what documents were faxed. Moreover, the hearing record does clearly indicate the substance of the information contained in the faxed documents. Ex. Y Thus, I cannot draw the conclusion that it contained new information and the new information would have changed the CSE’s recommendation. Accordingly, I find that the student was provided with a FAPE for the 2013-2014 school year.
Summer Program
As to reimbursement for the 2012 and 2013 summer program at a. I find that there is insufficient evidence that the student required a 12 month program recommendation.
I note that there is no persuasive evidence that the parent requested that the student be considered for a 12 month program. Also, none of the evaluations recommend that the student’s school year be extended to 12 months. Accordingly, the parents request for reimbursement for the 2012 & 2013 summer programs at RRis denied.
The Parents’ Placement of the Student at Hawk Meadow was Appropriate
When a FAPE is not provided, the DOE may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services selected by the parent were appropriate and equitable considerations support the parent’s claim (Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (see Burlington, at 370). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [individualized education program]” (Id. at 370-71).
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walezak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], affd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008).
The Second Circuit has set forth the standard for determining whether parents have demonstrated the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007); see Frank G. v. Bd.
of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)).
Whena private school enrolls a student in its program prior to receipt of payment by the parents, on agreement that the parents will pay, parents who fulfill the retmbursement test may be awarded retroactive prospective funding to the private school. Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998).
I find that the parents’ unilateral placement of the student iii was appropriate. I find that the student’s teachers were qualified, experienced and able to instruct a child with the student’s particular needs and deficits. T at 850-851 & 971-972 Notably, GE provides professional development training to its teachers. T at 971
During the 2012-2013 school year, the student was in a class of 20 children and [3] teachers; in 2013-2014, the student’s class included 24 children and 4 teachers. The children had similar deficits and needs, were withing age range and several had IEPs. In addition, the student was instructed in small groups. T at 849, 864, 939-940, 959-960, 962, 968 & 973
BB c:cners were aware off acticit and provided fill 1:1 instruction and supports in the classroom. For example, teachers used scaffolding and multi-sensory techniques. T at 853, 883-884, 890, 895-898, 901, 961 & 977-978 Also, the student showed progress during] second and third grade school years. T at 899, 904, 915, 918-920, 926-929, 969; Ex. MM, NN, OO & SS In sum, I find that the student’s placement at I was appropriate and met his educational needs.
Equitable Considerations
I find that there are no equitable reasons for denying funding to the parent. Parents have the opportunity to obtain tuition reimbursement when they believe the school district failed to provide their child with a FAPE and they place their child in an appropriate private school placement as a result. See 20 U.S.C. §1412(a)(10)(C)(ii) However, Congress imposed limitations on parents’ requests for such relief in particular circumstances, including limiting reimbursement where a parent acts unreasonably. See 34 C.F.R. §300.403(d)(3) I find that the BR ic: not act unreasonably. Thegl. consented to the testing of the student, attended the
NOW THEREFORE, IT IS HEREBY
ORDERED that the Gil request for tuition reimbursement for the 2012-2013 school year is granted in the amount of Sqp.00, the cost of the Lower Elementary tuition and application Tm f required to reimburse the parents in the amount of TE 00 upon submission of proof of payment 7 |.
ORDERED that thd request for transportation costs for 2012-2013 is granted for the time period starting from the student’s first day of school until on or about October 16, 2012, when EE started transportation services. EE is responsible for payment for 2 round trips to and from the student’s home tO, on the days the student attended school at the current IRS reimbursement rate upon submission of proof of mileage;
ORDERED that thei request for tuition reimbursement for the 2013-2014 school year is denied; ORDERED that the request for reimbursement for the 2012 and 2013 summer
<=
programs a is denied; ORDERED that the@ quest for compensatory services is denied; ORDERED that all other relief requested by hell is denied.
Dated: March 25, 2015
LPT FR TILIA LA
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.” (3NYCRR279.2[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. csov/appeals. bom
DOCUMENTATION ADMITTED INTO EVIDENCE ON DECEMBER 13, 2013
DISTRICT:
Ex. ITEM DATE PAGES
l Complaint 9/27/13 8
2 Answer 10/6/13 2
3 IEP 6/19/12 10
4 IEP 9/28/12 11
5 IEP : 6/19/13 9
6 Additional Education Support 9/22/11 2
Consent Form
7 Note from@R equesting 5/11/12 I
PE Valuation
8 Consent for CSE Evaluation 5/15/12 ]
9 Note from {Rejecting Services 6/4/12 ]
10 Consent for Release of 6/4/12 [1]
Confidential Information 19 Email from CA 9/12/12
20 District Confirmation Letter 9/13/12
21 Consent for Release of 9/18/12
Confidential Information
22 CSE Meeting Notice 9/28/12
23 Letter fro rr eee to 10/11/12
24 CSE Meeting Notice 6/11/13
25 Independent Assessment 5/25/12 12
26 School Placement Consent 6/2013
Form, Consent for Release of Confidential Information
District Document Release List
27 Confidential Educational 6/25/13
Evaluation Report
28 District Document Release List 6/28/13
29 CA Notice of Placement in 8/26/13
Private School 30 District Response Letter 8/29/13
31 CSE Meeting Notice 9/11/13
32 District Release of 9/12/13
Information Reminder Letter
33 Email fromffiik to 9/17/13
34 District Letter Release of 9/23/13
Information Reminder Letter
35 CSE Meeting 9/24/13 36 Invitation for a Resolution Session 10/7/13
District Release of Information
Reminder Letter
37 CA Email re: Resolution Session 10/8/13
38 District Letter Release of 10/10/13
Information Reminder Letter
39 District Letter List of 10/10/13
Correspondence
40 Invitation for a Resolution 10/18/13
Session with Certified Mail Receipt
4] District Resolution Session 10/18/13
Meeting letter 42 Pre-Hearing Conference Summary 11/8/13 43 Attendance History 2010-2012
DOCUMENTATION ADMITTED INTO EVIDENCE ON JANUARY 8, 2014
PARENTS:
Ex. [TEM DATE PAGES
I] Consent for Release of Information 9/16/12 I
JJ Consent for Release of Information 9/16/12 1
LL = Email td fron 6/4/12 2 with Consent
DOCUMENTATION ADMITTED INTO EVIDENCE ON FEBRUARY 26, 2014
PARENTS:
Ex. ITEM DATE PAGES
T iii Progress Report 2013-2014 10
V Invoice from 9/24/13 l (Summer Program)
W Invoice fror A 9/16/13 1
X PBBBBroition contract 13-14 9/16/13
DD QE uition Contract 12-13 10/16/12 |
GG Invoice from 6/25/12 l
HH — Invoice frorn I 6/25/12 1 (Summer Program)
MM [RB Progress Report 2012-2013 i
NN — Work Sample from 12/18/13 2
VV Work Sample from [a 9/12/12
DOCUMENTATION ADMITTED INTO EVIDENCE ON MAY 16, 2014
PARENTS:
Ex. ITEM DATE PAGES
E IESP 4/9/13 11
F Consent for Initial Provision of 9/28/12 1
Special Education Services
I Consent for the Initial Provision of 6/19/12
K Consent for the Initial Provision of 6/19/12
Special Education Services
M Letter fron 6/14/12
Y ([—ERR Pax Transmission Report 6/26/13
OO Progress Report for Goals and 11/17/13 from iii
SS Progress Report for Goals and 4/15/13
Objectives fro uU [esp 12/17/12
WW_ Email and Attachment from 6/15/12
Parent to XxX Email rom i 2 6/13/12
DOCUMENTATION ADMITTED INTO EVIDENCE ON JULY 23, 2014
PARENTS:
Ex. ITEM DATE PAGES
B Unilateral Placement Form 9/20/13 ]
C iro: a o1813
D [RR
Bes Pass tol 8/2013
H Proposed Initial Eligibility for 6/19/12 2
Education and Request for Consent
L Psychological Services Classroom 6/15/12 2
Observation Checklist
N Application to Inspect Records 6/13/12 1
O Social History 6/5/12 2
P Proposed Referral for Evaluation = 5/15/12 2
Request for Consent
Q Consent for Referral and 4/23/\2 ]
Evaluation
R ae: Pass tof 2011-2012
S GE
0 gress Report 11/17/13 3 U Letter from P| 9/20/13 1 W Invoice from TT 9/16/14 1 AA [RRBBBPrior Written Notice = 4/9/13 2 EE Fax from Attorney for District 10/16/12 l
To Attorney i —_— FF Records Release From 9/28/12 1 PP Letter — | 9/12/13 I
00. Email toni al 9303 TT Prior Written Notice 12/17/12 2
DOCUMENTATION ADMITTED INTO EVIDENCE ON SEPTEMBER 29, 2014
IHO
I Parents’ Closing Brief 9/26/14 39
1 = closing Brier 9/24/14 32 Il Interim Order 3/1/14 6
IV Order S/15/14 4
V Parents Email and Letter Brief 2/18/14 5
VI District Letter Brief 2/21/14 2
DOCUMENTATION ADMITTED INTO EVIDENCE ON FEBRUARY 12, 2014
DISTRICT:
Ex. OEM DATE PAGES
44 2011-2012 Profile undated
45 2012-2013 Profile undated l
46 2013-2014 Profile undated 1
Footnotes
[45] minutes every other day or upon the teacher’s request. T at 671 & 709-710 a discussed the student’s progress with BB cacters daily. T at 712 BE «ticcte data to reflect the student’s progress. T at 559 & 647 | | reading improved from a level A, beginning kindergarten, to a level G, first grade. T at 431, 579, 714 & 717 a increased Bien words, was writing full sentences, and was making progress phonetically spelling words. T at 717 Overall, the student was happy and making progress. T at 207; 444-445, 499, 646 & 658 Thegflvas aware that the student received RTI services, consented to the services and received reports regarding the student’s progress. Ba was happy with the services. Ex. 6; T at 197, 206, 288, 410, 418-419, 454, 648, 663, 710-711 & 1268 language functioning is intact.” T at 776 BB vcaknesses were in working memory, processing speed for visual information and reading and writing indicated that reading skills were The Social History appears to have originally contained 3 pages; only 2 pages were provided and admitted into evidence.
[30] minutes. The recommended placement was mi. but the IEP reflected ha unilateral placement at PT Ex. 4; T at 96-97, 359 & 362 The student was also recommended for transportation to pO T at 359, 423 & 521 The student progressed during 2012-2013 school year ay 0Uté~*@ a@lll made some gains ing math and language studies and JMability to listen and follow directions. Ex.
[3] review meetings and timely objected to the CSE recommendations. Although it is unclear why report and reports nm, | and al were not provided to a. a timely fashion (if at all), I do not find that P| were intentionally being uncooperative or unreasonable. I find that th believed they had submitted the necessary consent forms to the entities authorizing them to forward the information to Pe Accordingly, there is no equitable bar to the ET request for tuition reimbursement.
[1] CSE Meeting Notice 6/6/12 2 12 EE Report 6/13/12 12 13 Initial Evaluation 6/13/12 4 14 CA Request for CSE Folder 6/28/12 1 15 CA Notice of Unilateral Placement 8/12 ] 16 Lawyer Letter Requesting 9/4/12 2 Transportation 17 CSE Meeting Notice 9/7/12 2 18 Consent for Initial Provision 9/12/12 1 of Special Education Services