NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
Susan M. Barbour
April 3, 2015
New York State Education Department Office of Special Education 89 Washington Avenue Albany, New York 12234
Re:
To whom it may concern,
Enclosed please find a redacted copy of my Findings of Fact and Decision for the above indicated matter. Also please find a Corrected Findings of Fact and Decision cover page and an additional exhibit page (2112/14, district exhibits 44-46) mistakenly excluded from my original decision. All documents have been sent to the attorneys and the district. At this point, the matter should be closed within the impartial hearing system.
Impartial Hearing Officer
CORRECTED FINDINGS OF FACT AND DECISION
Student's Name:
Date of Birth:
..
4122105
District:
Hearing Requested By:
Date of Hearing: D ecember 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
Student's Name:
Date of Birth:
District:
Hearing Requested By:
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:
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2013
ill ~ — Student
If. Hg;I T 'L — Student
19:Mother — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2014
l • — Student
-.... — DOE
-.- UHLI 71111 nr — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2014
_......_" •' — DOE
~ -~ — DOE
- ---. - -- ·~,. ' ' -~~ — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12, 2014
-zlllill I I 11 U. — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25, 2014
For the Student:
$ f• J3 . PHI L
For the Department of Education:
d ill lLl ti (
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2014
2 tmL_.LlMlliL — Student
•r l h I — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2014
For the Student:
For the Department of Education:
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2014
r 11 1; - •, re· o: — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 2, 2014
- — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2014
-· — Student
INTRODUCTION
On October 2, 2013, I was appointed as the Impartial Hearing Officer (IHO) to conduct a hearing pursuant to the Individual with Disabilities in Education Act ("IDEA"), 20 United States Code, Section 141 S(f)(l ), concerning a dispute involving the special education program o .
(the student), a student attending Montessori School ( ) and the Central School District Th.-were represented b~
••••••ft. was represented by
A list of the witnesses who appeared and the documents admitted into evidence are annexed to this decision.
POSITION OF THE PARTIES
contends that it offered a Free and Appropriate Public Education (F APE) 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 Clarkstown.
IHO Ex. II.
Th 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 z F argue 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. first grade school failed to provide the student with and services and failed to contain goals and objectives. Ex. 1 at 4-5 They also claim that failed to conduct an 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 IEP 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 to#private 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
Thei1c•• further claim that their unilateral placement of the student at 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 at . 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 of2012 and 2013. In addition, the~ seek reimbursement for the expenses and lost wages they incurred transporting the student to/from during the 2012-2013 and 2013-2014 school years. The~lso seek reimbursement for private services for the student, and the May 25, 2012 evaluation performed b~ - - - 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 IEP. 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 is the executive director for pupil services at and is responsible for the special education department within the district. Transcript (T) at 86.
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
- is the~f Elementary School ( ), a school within the school district. instructs children from kindergarten through the fifth grade. T at 4 0 - is a certified special education teacher at . ..
been a teacher for over 27 year and is certified in Orton-Gillingham. Tat 642, 666 & 704 49 provides special education services to children struggling academically and consults with teachers to assist them with their students. Tat 642
The student attended from 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; Tat 456, 697 & 1062 In October or November of2010, initiated
RTI services for the student. • • • • provided the student with reading instruction through the use of Fundations, an individualized research based program. Tat 191-193, 416-417,
431, 544, 643-646, 695 & 1264 • provided individual services to the student three days a week for approximately 20 minutes in .classroom. Two days a week, •provided 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. Tat 645 At first areceived services 3 days a week; thereafter,- received services 5 days a week, by way of tier 1 and tier 2 services. Tat 457, 543, 548, 556 &
576 - - r e g u l a r l y assessed . . progress and' improved. At the end of41l kindergarten year,llwas ready to proceed to first grade. Tat 646 & 698
During the student's 2011-2012 first grade year, e.continued experiencing academic difficulties including problems with reading, organization, completing 9 work, staying on task and following directions. Ex. 6; Tat 105-106, 197, 370 699-700 & 1073-1074 ''°eceived math and reading RTI services from IB•••lllS• using Orton-Gilligham and multisensory strategies. Tat 416-418, 431, 544-545, 556, 576, 643, 661, 663, 699 & 705 During the year,.
received tier 1 through tier 3 services. Tat 457-458 & 464 The student received pull-out language arts services for approximately 45 minutes and during that time, -received approximately 20 minutes of 1:1or2:1 instruction from~ Tat 665-666, 676 &
701-703 The student also received pull-out math services daily for approximately 45 minutes wherein-received approximately 15 minutes of 1:1 instruction, as well as small group math instruction. Tat 676, 701 & 706-707
To assist lll'with other subjects, hi made Mstudent flash cards, rewrote •reading passages, numbered the paragraphs of the passages and color coded the questions from the passages. • also helped ~eacher modify l'f homework. When & was in the classroom with the student,. helped Wlto understand directions, and with organization. Tat 670, 710 & 719 . . also pushed intollscience or social studies classes for approximately 30-
45 minutes every other day or upon the teacher's request. Tat 671 & 709-7lo•••••a discussed the student's progress with lflteachers daily. Tat 712
. . . . . .I collected data to reflect the student's progress. Tat 559 & 647 llJI reading improved from a level A, beginning kindergarten, to a level G, first grade. Tat 431, 579,
714 & 717 - increased-sight words, was writing full sentences, and was making progress phonetically spelling words. Tat 717 Overall, the student was happy and making progress. Tat
207; 444-445, 499, 646 & 658
T~as aware that the student received RTI services, consented to the services and received reports regarding the student's progress. - was happy with the services. Ex. 6; T at 197, 206, 288, 410, 418-419, 454, 648, 663, 710-711 & 1268
During the two years tha~instructed the student,A was frequently late and absent and while in first grade year,. completed llPomework only about half of the time.
Tat 43, 154, 445, 492-493, 518, 650-651, 690 & 715-716; Ex. 43
On May 11, 2012, thet19t requested that evaluate the student. Ex. 7 & 8; T at 284, 433, 1070 & 1084-1085 On May 15, 2012, issued a Prior Written Notice to t h e - - referring the student to the committee on special education (CSE) and sought consent to conduct evaluations to determine.ligibility for special education services. Ex. P On May 21, 2012, th~e••Y consented to have the student evaluated. Ex. 8; Tat 106-107
On May 25, 2012, performed a private
assessment on the student. Ex. 25; Tat 751; Ex. 2 5 - specializes in child and pediatric . Tat 748 - performed several tests and subtests including the Wechsler Intelligence Scales for children, Fourth Edition (WISC IV), the Wechsler Individual Achievement Test, Third Edition (WIAT III), the Wide Range Assessment of Memory and Learning, Second Edition, and the NEPSY-II. Tat 756 As to verbal functioning, the student tested with verbal skills, but had a comprehension score. Tat 758 The student scored in the range on the perceptual reasoning tests, but as to working memory, . . scores were "variable" as'8scored in the range. Tat 758-761 As to
Ill processing speed, although" scored well on two of the subtests tests, on the third "coding" subtest, 11 made many errors and which brought "processing speed score to .•
.._opined that the on this subtest indicated thattWmay 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 . Tat 763-764 The student had difficulty with speed naming which requires naming and identifying shapes. _ . o p i n e d that this result is common with reading disabilities because the brain has difficulty interpreting shapes and symbols. Tat 764 llfreceived an on the comprehension of instructions subtest and the word generation subtest, as well as an on the design copy subtest which assesses motor skills and on the auditory attention test. Tat 765-766 .also scored in the on I& verbal memory tests. However on the lists test, ~core fell to the as, after a short delay," was unable to retain all of the words on the list. T at 766-769 '9 scored in the on visual memory tests, but experienced some word finding difficulties when asked to name what was depicted in a picture. Tat 770-771
As to the academic testing, the WIAT-III indicated that~early reading skills were , but I regularly performed Band D reversals and scored in the on the word reading subtests as . . made letter substitutions. T at 772-773 • tested in the range on reading comprehension and spelling tests. Tat 774. also had math skills.
9', letter reversals, substitutions and omissions were consistent with a with an
. T at 77 5
••••&concluded that the student had solid verbal functioning and nonverbal skills. 1il' math skills were on grade level and "[h]is memory functioning for more meaningful information and memory for visual information was intact." llftattention and language functioning is intact." Tat 776 lllweaknesses were in working memory, processing speed for visual information and reading and writing.indicated tha~ reading skills were
.Tat 77~diagnosed the student with a with in and opined that-symptoms were " ." Tat 778-779.
~made many recommendations to assist with the student's instruction. Ex. 25 at 9-10; T at 781-787 Several o~ recommendations for the student were implemented at . Tat 497-498; Ex. 25 at 9-10 report was provided to the parents in August 2012. T at 824
On June 4, 2012, th~c•l.llaauthorized personnel to release information about the student t o - · Ex. LL-1, LL-2 & 1O; T at 108
Also on June 4, 2012, the••*filed a letter with rejecting the RTI services.
Tat 1085-1086 -indicated that the program was inappropriate for the student and that.
reserved the right to place the student in a private school at expense. a also sought busing for the summer program and for the upcoming school year. Ex. 9; Tat 107-108 & 230
On June 5, 2012, a Social History 1 report was prepared. Ex. 0 & 12 On June 6, 2012, CSE sent a notice to the student's.mPscheduling a CSE meeting for June 19, 2012. Ex. 11; Tat 108
On June 13, 2012, psychologist [1]
1 The Social History appears to have originally contained 3 pages; only 2 pages were provided and admitted into evidence.
The student's WJ III ACH math and oral language test scores placed~ in the . 9' writing scores also fell , however, at times.reversed letters and had spelling difficulties. • reading scores were a • ability to read and understand sentences and determine if the sentences were true or false were at the K.8 level.
The academic testing results contained i~ report were consistent with -
- academic test results. Tat 496
On June 13, 2012,- - evaluated the student to determine if
) services were needed. Ex. 13 ~dministered the Clinical Evaluation of language
Fundamental 4 and Comprehensive Assessment of Spoken Language, in addition to reviewing
• cognitive testing, social and medical history and other reports._.determined that the student did not have a speech-language impairment. Ex. 13; Tat 110
On June 15, 2012, a classroom observation was conducted of the student at .
The observer noted that the student appeared distracted and to have difficulty following oral instructions. eresponded well to visual directions but needed a moderate amount of assistance and teacher intervention. Ex. L • teacher indicated that the student had difficulty following directions, maintaining focus and attention, and required 1: 1 attention. 9' struggled with reversals in writing and had an immature pencil grip. Ex. L
~s the committee on Special Education Chairperson at . • holds a Master's Degree in special education and is a certified general and special education teacher. Tat 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
••llrethe school psychologist, the student's general education teacher, and the parent. T at 351, 410-411, 652 & 1092 ; Ex. 3 The p p did not request that attend the IEP meeting and the parent brought no one with 9f to the meeting. T at 656 & 805
The team had the student's psychoeducational and evaluations, classroom observation and social history. They discussed the student's current functioning, .strengths and weaknesses and where support was needed. Tat 353, 412, 652, 672-673 & 713 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. aalso indicated that~ had progressed. Tat 653 The team discussed that-had 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. Tat 415, 436 7 567
The team also discussed the student's extensive absences and lateness and how it was impeding- instruction. Tat 400; 415-416 & 657 The private evaluation obtained by the . . . . .was not provided at the meeting and did not have consent to obtain it. T at
221-222 & 355 Th~did not request that the student be further evaluated. Tat 400
The team discussed goals and objectives for the student and shared them with the • •
T at 413 The CSE classified the student as and initially recommended a 15: 1 special class instruction in English Language Arts and math, along with as a related service. Tat 414 & 686 Th~agreed with the student's classification, did not agree with the 15: 1 class recommendation as .believed it was too restrictive. •id not indicate what
~elieved the student needed. Tat 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 remediat4reading difficulties and in a 5: 1 group once a week for 30 minutes. Ex. 3; Tat 88-90; 354-355, 393-395 & 655 The disagreed with this recommendation. Tat 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 as and qualified to receive special education services and listed the program and services indicated on -IEP. Ex. H; Tat 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. Tat 217-218, 220 225, 322, 356, 379, 396 & 412 On June 19, 2012, the
~greed to the initial provision of services for the student, but only for the 2012-2013 school year. • also rejected the June 19, 2012 IEP. Ex. K The student attended an 8 week summer program at . The program included academic instruction as well as field trips into the community that related to the subjects taught. Tat 867, 979 & 1133 The parents paid a total of for the program. Ex.
HH; Tat 866-867, 979, 1131 & 1133
On August 21, 2012, thq 5 t submitted a 10 day notice letter to indicating that the District's recommended placement was inappropriate andflltwas unilaterally placing the student at ow~her indicated that.would seek tuition reimbursement for the private placement and requested that transportation be provided for the student. Ex. 15; T at 111 & 236 is located in the Arlington school district. Tat 286
On September 4, 2012, counsel for thCill•• informed ~at th~e•••• did not agree with program and placement recommendation for the student, indicated that the student would attend 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 . . . dated September 7, 2012, scheduled a CSE meeting for September 14, 2012. Ex. 17; Tat 117
On September 12, 2012, the r again consented to classification of the student, but indicated tha.did not agree with the CSE's recommendation. Tat 117-118 & 235 The indicated that •would sign a consent to release information to from . Ex. 18 & 19; Tat 118
At the parent's request, the CSE meeting was rescheduled to September 28, 2012. Ex. 19
& 20 again requested consent to obtain information from Arlington and regarding the student but did not receive the signed release from the parent. T at 120
On September 16, 2012, th~••signed a release form authorizing to
"speak, obtain, and/or release all pertinent information to" and Arlington Ex. II & JJ; Tat 162-165 In a second release form dated September 18, 2012, tbs again gave permission to to release information about the student to Arlington and . Ex. 21, BB-1 & BB-2 Similarly, on September 28, 2012, the submitted a records release form to , giving permission to provide copies of the student's records to . Ex. at FF During the CSE meeting, called
Arlington requesting the student's information and Arlington indicated that it needed the parent's signature on its form, not a release form, in order to provide the student's records to
.Tat 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 and to provide transportation for the student to .Tat 90-91, 94,
156, 358, 422 & 520-521 111F•Z••tlt:Lhaired the meeting. Also present w~, a general education teacher the school psychologist. Tat 358-359, 422-423, 488, 535-536, 538 & 691-692 The Q f did not provide any private evaluations at the meeting or bring anyone to the meeting with tit. Tat 360 & 656
The . . participated at the meeting and indicated tha~believed the student required more targeted reading help to meet9needs. T at 360 The GE did not provide any signed consents for documents at the meeting. Tat 378 The team also discussed the student's absences. Tat 519 did not have progress reports or documents from Arlington or regarding the student.
As previously indicated in the IEP created on June 19, 2012, the student was classified with a 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 in a 5: 1 group once a week for unilateral placement at . Ex. 4; Tat 96-97, 359 & 362 The student was also recommended for transportation to .Tat 359, 423 & 521
In a Consent For Initial Provision of Special Education Services form letter provided by the District dated September 28, 2012, the. . . provided consent for the provision of special education services to the student, but indicated that .was not "in agreement with the specific services, program or placement proposed." Ex. F; Tat 366-367 The; pj subsequently signed a similar letter on October 3, 2012, dated June 19, 2012, indicating that• 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, provided the student with transportation to and from for the 2012-2013. Ex. R & EE; Tat 115-116, 121-122, 240-241 & 279-
281
On December 17, 2012, after a CSE review meeting, Arlington recommended that the student continue to receive supplemental special education services and agreed to the,.......
request for an 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 Arlington created an IESP that covered from April 24, 2013 through June 20, 2013. The student was provided with consultant teacher services 3 times yearly for 1 hour and added in group once a week. Ex. E-1; Tat 930-933 & 982-984 During the 2012- 2013 school year, the student received onlyl to 2 months of as9.-esisted going to therapy.
During the 2013-2014 school term, the student received the entire year. Tat 983
The student progressed durin4 2012-2013 school year at afJI made some gains in. math and language studies and.ability to listen and follow directions. Ex.
MM .also made progress submitting •homework on time. Ex. SS-2
On June 11, 2013, CSE sent the student's p b a letter scheduling the annual CSE review meeting. Ex. 24; Tat 100 & 122 On June 19, 2013, b £ l chaired the CSE meeting and the team created an IEP for the student's 2013-2014 third grade school year.
Ex. 5; Tat 156-157 & 424 The pt did not bring anyone to the meeting to discuss the student.
Tat 276 The team reviewed the test results in the IEP. Tat 160. The parent requested a specialized " program." Tat 426, 428 & 541 Dyslexia is a learning disability that involves reading. Teachers at are trained to use various research based programs to address the needs of children with dyslexia. There is no special dyslexic program at 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 Arlington or .Tat 424, 429-
430, 449, 503 & 563 During the CSE meeting, - again requested that the f sign consent to give Arlington and permission to provide with academic and evaluative information. The f 9 did not sign the forms. The191tt 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 Arlington and to see if they would participate and neither Arlington nor had signed release forms from the parents allowing their participation at the meeting or to provide documents. Tat 261, 459 & 584
As in IEPs previously created by , 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 in a 5: 1 group once a week for 30 minutes. Ex. 5; Tat 99, 160 & 501 The CSE recommended as the student's placement. Tat 100; 425 The g was not in agreement with the recommended program as4twanted a program for children with a. Tat 425, 501-502 &
504
On June 27, 2013, received a signed consent form authorizing._.. to release the evaluation to Tat 253 & 258 Ex. 26 provided with the student's evaluation in June and September 2013. Ex. PP; Tat 794
On June 24, 2013, an updated academic evaluation was conducted on the student by school psychologist Ex. 27; Tat 137 administered the WIAT-III and reviewed the student's records. As to .reading,.scored at the of the , experiencing some difficulty with inferential reading, letter reversals and sight words reading tasks. Ex. 29 at 2 The student earned scores in the , but had demonstrated difficulty writing complete sentences with correct spelling and punctuation and had "inconsistent application of phonetic analysis rules." . .math scores placed in the as"had difficulty with subtraction and more than single digit addition and subtraction. - o n c l u d e d that the student's "academic abilities [fell] from the to the range." Ex. 27 at 3; Tat 509 The student's math scores were than~ results, who administered the same test.
However, the 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, was notified by the••• that they were unilaterally placing the student in private school and would be seeking reimbursement for all costs regarding that placement. Ex. 29; Tat 268 In response,--sent a letter to the parents indicating that a CSE meeting would be held to review the student's IEP. Ex. 30 In a meeting notice sent to the parents dated September 11, 2013, 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, t h e • • • • • • • • et at the district office. Tat 142 & 381-382 The• tindicated that.wanted to look at private schools. • • • i indicated that 'needed consent to forward information about the student to New York State approved private schools and provided the parent with a Consent for the consent forms. T at 142 & 269; Ex. 31 • again requested that th~ provide the releases for documents from and Arlington. ~never received consent or the documents. Tat 145-146, 148, 251, 277 & 383-384 -arranged for theq g tato visit the recommended school on September 11, 2013, but tht11ca••t did not go. Ex. 32; Tat 143-144,
270, 335-336 & 383
The eceived the CSE meeting notice on September 17, 2013 for the September
· 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 and requested transportation for the student. Ex. 33, C & U; Tat 146-147 The September 18, 2013 meeting was not held. A bus pass was provided for the student's transportation to and from for the 2013 school year. Ex. D; T at 279-281
In a notice dated September 20, 2013, the z g alerted that the student would attend for the 2013-2014 school year. The notice also gave Arlington permission to provide and with "all pertinent educational information" about the student. Ex. B There is no evidence that the "notice" was sent to and accepted by Arlington.
notified the parents via letter dated September 23, 2013 that it had received thy cancellation of the CSE meeting, noted that the Q cancelled a visitation of the special education program at and indicated that it would reschedule the CSE meeting.
also 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, scheduled a CSE meeting for October 9, 2013 to address the student's IEP. Ex. 35; Tat 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 the•• again requesting signed consent forms to obtain information from Arlington and regarding the student for the upcoming October 9, 2013 CSE meeting. Ex. 36; Tat 149
In an email dated October 8, 2013 sent t o - . , the Ir t indicated that~idn't "have any idea why a CSE meeting would be appropriate" as the student was unilaterally placed and requested that future correspondence be sent to., attorney. Ex. 37; Tat 150 ~ responded to th~"'. . . . 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 had not received recent records from Arlington or , 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. Tat 151-153
During the fall of the 2013-2014 school year, provided the p&Alb 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.materials, timely completing assignments and submitting homework assignments. T-2 & T-8 e had a basic understanding of some math principles, but had difficulty with fractions, static addition and subtraction. T -3
Overall41Dwas progressing in reading, spelling and grammar and writing, but showed some
' difficulty capitalization, punctuation and editing.own work. T-4 & T -5
~s a general education teacher at and has worked in for over 22 years. Tat 995 & 1042 • • • • •is certified in Wilson, a multisensory reading program that is requires the student to complete and master one step before moving to the next step. Mis also obtaining certification through the International Multisensory Structured Language Education Council (IMSLEC) . T at 996-998, 1002, 1004-1005 & 1036
As part o - certification requirements for the IMSLEe, . - . . tutored the student from October 2012 through June 2013 in reading. Tat 999, 1028-1029, 1260-1263 & 1267 - met with the student a n d . _ twice a week in their home for at least an hour per session. T at I 000 & 1261 A typical lesson consisted of a review of phonemes, dictation and reading from a fluency book and a controlled reader. Tat 1000-1001 lllt tracked the student's progress and assessed the student through proficiency tests. T at 1001 & 1279-1280
When . . first started tutoring the student, . . could not rhyme, read basic eve words, and would confuse most of(lsight words. l'&also had "reversals" Tat 1279 At the end of the tutoring period, the student's handwriting and spelling improved, .completed one book and was moving onto the next reader. T at 1034 is a new school and is not yet fully accredited. Tat 8502 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 849 The school has 12 full time teachers. All of the head teachers are Montessori certified. Tat 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.
Tat 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 o. . . . . testimony, was not fully accredited. Tat 850 to move to the next activity. Tat 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 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. Tat 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. Tat 859-860
Each classroom contains 24 children and 4 teachers. Tat 864 See below. Each teacher in the lower elementary program is certified in New York State. Tat 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. Tat 864 utilizes
Sequential English Education (SEE), a multisensory approach to language instruction wherein the students engage all of their senses when learning. Tat 895-898, 961 & 977-978
On October 16, 2012, th~lmll•tIE• .,signed a contract for the student's 2012-2013 tuition at . Th £ ' paid the tuition, including before and after care and a 6% fee for payments made after July 15, 2012, for a total of Ex. DD & GG; Tat 872 The 2012- 2013 school year at started on or about September 5, 2013. The student started school approximately two weeks after school began. Tat 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. Tat 878 There were 20 student's inf19class and 3 teachers. Tat 879 & 972 A 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 Ila 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. Tat 945 The student had difficulty with reading, writing and math. Tat 884 & 901; Ex. VV Initially, the student was quiet, reticent, and not very social and" lacked confidence in IL'abilities. T at 882
Some of the strategies used by the teachers during. instruction included prompting, written directions and visual cues. 9 used manipulatives and received 1: 1 instruction from Ill\ teachers. Ill teachers providedllt with a daily and weekly work plan to help lllorganizetla time. Tat 883-884, 890 & 901; Ex. VV & MM During the 2012-2013 school year,lllteachers monitored and tracked-progress. T at 899; Ex. MM Jltreading and math skills improved and I was more social. T at 904
The student attended 2013 summer program, performed well and was happy. Tat 906 The cost of the summer program was . Ex. V
The student attended for the 2013-2014 school year, llllthird grade year.
On September 16, 2013, th~signed a contract for the student's enrollment at . The tuition, including before and after care, and a 6% fee totaled . Ex. W
& X; Tat 980-910
The student remained in the lower elementary grouping of first through third grade children. T at 911-912 There were 24 children inlltclass. 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. Tat 912-913 & 975-976 The student studied language and had novel study group, among other subjects.,Wreading improved to a second/third grade level for nonfiction and a third/fourth grade level for pleasure reading. T at
915 Each teacher assessed JI reading abilities and made note ofjf progress in \tcomposition book. Tat916-917
The student progressed during.ird grade year. 'had a good attitude towards school, was social and more confident. Tat 918-920 ltlreading and writing improved and"f performed well during oral presentations on the books- read. flalso better organized . . time and was more motivated. •math skills also improved. Tat 926-929 & 969; NN, 00 & SS
In a Demand for Due Process dated September 27, 2013, thtJio••r•· alleged that 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
AF APE 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 IEP" (Walczak v. 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." (Walczak, 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; Walczak, 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 advancement"' (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 C.F.R. §§ 300.l 14[a][2][i], 300.116[a][2]; 8 NYCRR 200.l [cc], 200.6[a][l]; 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 2011- 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 F APE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[t][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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]).
Th~ 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.
IHO I at 6-7 argues 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. IHO 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] aff'd,2010 WL 1049297 [2d Cir. March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.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.F.R. §
300.11 l[a][l][i]; 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 fmd" 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. § 300.11 l[c][l]; 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 of a Child with a Disability, Appeal No. 93-41 ). A district's child fmd 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 of a 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 and had procedures in place to determine if the student was in need of special education and provided the student
Footnotes
[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. Tat 281-284; 409-410, 419-421, 438, 456-457 & 647 The child's progress is shared with the parent. Tat 434
[1] llllllJIB•••LCI• issued a psychoeducational report stemming from . . June 11, 2012 evaluation of the student. Ex. 12; Tat 491 • SJ _'?administered various tests including the Woodcock-Johnson III Tests of Achievement (WJ III ACH), and incorporated i n . report a . I. I 1 s WISC IV test results. -had an IQ score. Ex. 12; Tat 109 & 494-495
[30] minutes. The recommended placement was , but the IEP reflected thQ t '