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FINDINGS OF FACT AND DECISION
Case Number: 163879
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 26, 2016
December 16, 2016
January 3, 2017
Actual Record Closed Date: January 13, 2017
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 26, 2016
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2016
Attorney — Student
Parents
Parents
Attorney — DOE
Senior — DOE
and IEP Provider — DOE
School Principal — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2017
Attorney — Student
Parents
Parents
(Via Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
The parents of filed a request for an impartial hearing on October 18, 2016 challenging the Committee on Special Education’s (“CSE’s”) recommendation to declassify ; and seeking an independent evaluation, and an (“ ") evaluation at the Department of Education’s (“DOE”)
expense, (at the market rate); and that the CSE reconvene to recommend placement in an classroom (“ ”) with related services and appropriate supports.
(DOE Ex. 1).1
. I was designated to hear this matter on October 19, 2016. An impartial hearing commenced before me on October 26, 2016 on the issue of pendency. 2A hearing on the merits was held before me on December 16, 2016 and January 3, 2016. The compliance date was extended on one occasion, due to the extensive testimony, with a final compliance date of February 25, 2017. (IHO Ex. II).
DOE Position
The DOE’s position is that the student was appropriately declassified, with . (Tr. p. 291).
Evidence at Hearing
is an boy who attends . He has received special education services since ; and is currently receiving and related services pursuant to the Interim Order on Pendency herein.
In his most recent IEP, dated October 26, 2015, he was classified as , and recommended for
1
On the first day of hearing, it was agreed that the DOE would reimburse the parents for the cost of a evaluation, performed by , at the rate of ; and the evaluation performed by at the rate of . (Tr. p. 22).
2 Both parties agreed that effective October 18, 2016, and during the pendency of all due process proceedings, the student shall continue to receive the following services:
(1) ;
(2) , ;
(3) ;
(4) , ;
(5) All other accommodations and services provided in the October 26, 2015 IEP. (Par. Ex. B;
(IHO Ex. I).
; and related services of and . All
related services sessions are . (Par. Ex. B).
On October 27, 2015, ’s reported that has no issues which require service. She reported that scores on various assessments for , , all indicated that was his age. (DOE Ex. 5). She continued to recommend termination of services, in a report dated September 15, 2016. (DOE Ex. 17).
On October 28, 2015, ’s , , also recommended that services be terminated. (DOE Ex. 5). She continued this recommendation in a report dated September 15, 2016. (DOE Ex. 16). She testified that her report was based upon and his previous performance; and not a formal evaluation. (Tr. pp.
37-38).
On August 2, 2016, ’s father wrote to the CSE requesting placement for in an to address difficulty in his , and his “ ” . He wrote that “an class would provide he needs to successfully , and would avert additional (DOE Ex. 8).
In a Social History update dated August 16, 2016; his parents reported that to instead of at school, some of whom
. They also reported that the school informed them of , when has been . (DOE Ex. 10).
The DOE conducted a evaluation in August 2016. On the , obtained a of , at the ; with strengths in and ; and weaknesses and . testing indicated with in . It was noted that he has ongoing
. (DOE Ex. 11).
, an who has been providing to since he started at , testified that she attended the September 16, 2016 IEP meeting, at which was declassified. (Tr. pp. 37-38). She testified that the parents requested that be placed in an , and that he continue to receive . They expressed their concern that had been .
recommended that be discontinued, because was and performing and she did not feel that he needed to benefit from his education. (Tr. p. 39).
also participated in the December 1, 2016; when the participants reviewed the parents’ independent evaluations. While she felt the independent evaluation was accurate in terms of ’s it did not reflect this school functioning. (Tr. p. 42). She did not perform any formal evaluation of prior to the December 1, 2016 meeting. (Tr. p. 41). On that date, the CSE continued to recommend declassification with ; including , for .
(Tr. pp. 45-46) testified that at school, is able to ,
. (Tr.
pp. 60-61).
She acknowledged that works , which can of his work; but testified that this is an issue that can be addressed by his teacher.
(Tr. pp. 62-63). He . (Tr. p. 64).
This is a skill which was worked on in his sessions. (Tr. p. 65).
An independent evaluation was performed in September 17, 2016 by , reported that demonstrates consistent with a based , . She wrote that he is and his . She reported that his continue to be ; and that the and issues are and . She recommended continuation of with a ,
, to improve and
.
She also recommended that he be given a and taught .
(Par. Ex. F).
At the hearing, testified that while based upon testing she performed, he was still ,
; and he
, so he can function successfully in school. (Tr. pp. 190-191) . She testified that has issues; in that he seeks out that She testified that he . She stated that he was doing more of this when she first met him. (Tr. p. 177). As examples of , she testified that could be given ; as an alternative to .[3] It could also include opportunities to and help improve
. (Tr. pp. 180-181). She testified that due to , requires more than the session he is currently provided. (Tr. pp. 182-
183). She agreed with the goals in ’s last IEP ( ;
); but stated that she would add a goal for finding appropriate strategies to be implemented , to help him with his . (Tr. p. 186). She explained that requires to continue to progress in his , due to his with and , which would also be addressed. (Tr. pp. 200-201).
In October 2016, the parents obtained an independent evaluation from . The evaluation included a observation, during a participated in the activity, including ; but did not , or , which was part of the activity. , he did not
; but instead. His teacher reported that he is
”; and stated that if left on his own, She did note some , as of late. (Par. Ex. E).
noted that ’s pattern of performance on testing she performed was consistent with the testing conducted in August 2016; and characteristic of a . Specifically, exhibited on , . His ability to was . The quality of his s was noted to be .
’s , and were also
expectations. She recommended that be classified as a student with and that he continue to receive for a minimum of for ; as well as and a facilitated to address . An was recommended; although it was noted that changing classes at this time of year could be .
Recommended accommodations included
. (Par. Ex. E; Tr. p.
144).
At the hearing, testified that needed “at a minimum” to have for , , and a , which he was receiving at school. (Tr. p. 157). She also felt that he would benefit from an , where he would be educated in a setting, with other students ; and in the class. (Tr.
p. 159). When asked whether based upon her observation, was receiving the amount of teacher support he required; responded: “ so that’s a hard question to answer. but
”. (Tr. p. 160). expressed all of these concerns at the CSE meeting; and the other members of the team acknowledged concerns for ’s need for , , and and . (Tr. pp.
161-162).
Reviewing the DOE’s evaluation (DOE Ex. 11),
testified that ’s performance in was with his
, indicating a
. (Tr. pp. 135-138). She testified that he needs , in the form of and from the teacher, to and complete his work. (Tr. p. 139). She testified that his disability in his skills, and impacts him , as he is not . (Tr. p. 140).
She testified that his skills were also ; and that his grade level . (Tr. pp. 145,
147, 169). She noted that in his report card, received scores of for . (DOE Ex. 30; Tr. p. 153). She testified that because of his very , she would expect him to get all ; and that he is able to achieve at the level he achieves [mostly
, because he is getting . (Tr. pp. 154-155).
The CSE reconvened following receipt of the independent evaluations; but continued to recommend declassification. (DOE Ex. 25).
, a certified special education and teacher, testified that she provided services to since . (Tr. pp. 71-72).
participated in the September 16, 2016 IEP meeting. Prior to the meeting, she conducted a assessment, had do some , reviewed his classwork; and prepared a progress report. (Tr. p. 73). At the meeting, the parents’ primary concerns were with ’s and with his academics in the future. The parents requested an placement, and the team recommended .
(Tr. pp. 74, 76) also participated in the December 1, 2016 IEP meeting.
She prepared another progress report, based upon her observation of , another sample, and discussion with his classroom teacher. At the December meeting, the team reviewed the parents’ independent evaluation. While agreed with the report’s description of ’s strengths and weaknesses, she disagreed with the recommendations. (Tr. p. 75). Specifically, she disagreed that he required services. This time, the parents requested services during the current school year; and commencing the following school year. (Tr. p. 76).[4]
She agreed that has difficulty ; and
. (Tr. pp. 79-80). She also agreed that he has a ; with with . (Tr. p. 81). She testified that due to his with , it is in ; but that he can participate, with teacher . (Tr. p. 83). This could include a . (Tr. p. 94). The teacher also reported to her that she has created for in the classroom, to , so that he is .
(Tr. p. 95).
She testified that he benefits from to and use a which is typical of boys his age. (Tr. pp. 85-87,
94).
testified that has been grade level since
; and that she began recommending termination of services when he was in . She testified that he needs at times; but not more than students. She does not feel he needs a teacher to him. (Tr. p. 77).
In a report dated September 14, 2016, reported that continues to be grade level in areas, including . She reported that his annual goal (in ) , and recommended that he no longer receive supports (DOE Ex. 13).[5]
A Classroom Observation was performed on September 14, 2016, during . attended to the activity, involved and completed his work. The
observation was performed by ,a . (DOE Ex. 14; DOE Ex. 25, p.
2).
On September 15, 2016,
) described as “ ’. She
reported that he She
wrote as follows:
“
” (DOE Ex. 15).
In a subsequent report, dated December 1, 2016, reported as follows:
He will benefit from
these skills across a wide variety .” (DOE Ex. 22).
She recommended an annual goal, that will use and skills to . He will describe approaches for and practice them situations. (DOE Ex. 22).
, the acting principal at , testified that she has a Master’s Degree in . (Tr. p. 97). She testified that when first came to , he was ending his year at another school. He was , and . The decision was made for him to
. (Tr. p. 98)
described , last year, when ’s teacher reported that a
The guidance counselor
involved, and with the parents; and as far as the school knows, it stopped. The parents reported other ; when they requested a re-evaluation and placement, last summer. (Tr. pp. 100-102). is not aware of or during the current school year. (Tr. pp. 112-113).
acknowledged ’s ; although the school
has seen . (Tr. p. 103). In the last year or two, the school has recommended to the parents that they enroll in ; which are not available through the DOE. (Tr. p. 103).[7] testified that ’s academics have , in most areas. In addition, the school has and in his . (Tr. p. 104). When asked how his impacts him in school, testified that the impact is “ ”; but that it (Tr. p. 115).
is .
games,
.
(Tr. pp. 105-106).
, ’s mother, testified that was evaluated as a , and received an IEP with recommendations for and . (Tr. p. 209). He entered as a student, and at the recommendation of the school, he his year. (Tr. p. 210). The parents obtained an independent evaluation in the summer of 2011, and learned that had a and .
(Tr. p. 211). He benefited from program, and began to receive in his (in addition to the and ). In or , was added to his IEP, to help him with . (Tr. pp. 212-
213). testified that while used to be (Tr. p. 214).
A CSE review meeting was held in October or November 2015 ( ’s
). The parents were requesting continuation of services, while the Committee was considering withdrawing services. It was determined that would continue to receive services, with a reduction . (Tr. p. 217). At the end of his , it became apparent that , by , . (Tr. p. 220). The parents learned that ; and (Tr. pp. 221-222).
”, which he believed
was
. (Tr. p. 223) The teacher was unaware of this situation. The parents also learned that , ; or
. (Tr. pp. 226-227). ; however . feels
that these issues caused . (Tr. pp. 227-228). She testified that she was not aware of , within the classroom, during the current school year; although it may have occurred in his . As of the time of hearing, was no longer an issue. (Tr. p. 267).
At the conclusion of his , the parents felt that was not able to receive a sufficient amount of support from his teacher, to ; and concluded that he should be placed in an for his . (Tr. p. 230). The parents communicated with the school over the summer, about placing in an ; and were told that this could be done if here were declassified, but not with an IEP. (Tr. p. 231). A re-evaluation was performed, and the CSE reconvened on September 16, 2016; when the CSE recommended that he be declassified, . (Tr. pp. 233-234); DOE Ex. 18).[8] The parents were told that could no longer be classified because he was ; and scored on his and testing. (Tr. p. 235). The parents disagreed with this recommendation; as they felt that has benefited from the supports he received, including , for . was without services for approximately . (Tr. pp. 240-241).
After the parents obtained independent evaluations, the CSE reconvened on December 1, 2016, and continued to recommend that be (DOE Ex.
25). testified that even though all of the participants agreed that should be declassified, the guidance counselor , , was saying that needed to continue receiving sessions. His classroom teacher, , described ’s , and stated that he to complete his work. She stated that his . (Tr. pp. 248-
249). There was also a discussion about entering . is concerned about how will manage the in the . (Tr. pp. 256-257).
continues to request that be placed in an classroom at this point in the school year; although she acknowledges that she is conflicted about this, because he has a . (Tr. p. 257). She testified that about , but still feels it would be the better choice, because he needs . (Tr. p. 266, 269- 270). She testified that there is an in his school; but does not know if there is space in it. (Tr. p. 266). She acknowledged that none of the other students are likely to be on his ; but feels that they “ ”.
(Tr. p. 270). She is also requesting continuation of all of his other services, including which provides with . (Tr. pp. 260-264).
Closing Arguments
In their closing argument, the parents argued that met the criteria for classification as ; that the CSE failed to conduct an adequate observation (because the observation was performed by a social worker); or follow the regulatory requirements to determine if he had a . The parents maintain that he did meet those criteria. (Tr. pp. 279-285).
They also argued that there is no requirement that the student be negatively impacted educationally, in order to be classified as . (Tr. p. 280). They requested that be immediately placed in an classroom with continuation of all of the other services in his IEP ( , ); except that the parents request that sessions be rather than in duration. (Tr. pp. 288-
290).
The DOE argued that the CSE complied with applicable regulations in declassifying . (Tr. p. 291).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the CSE’s recommendation that a student not be classified as a child with a disability. Application of a Child Suspected of Having a Disability, Appeal No. 04-063.
While it is true, that the classroom observation by , a social worker, did not satisfy the requirements of 8 NYCRR 200.4(j)(2), because she was not a teacher, psychologist, speech/language pathologist or reading teacher; by the time the CSE met in December 2016, it also had before it the classroom observation of , which did satisfy the requirement.
Substantively, I agree with the parents that qualifies for classification as a student with a . It is undisputed that he has a . Based upon the testimony of , I find that his manifests itself in an . See 8 NYCRR 2000.1 .
While the parents are correct that the classification does not explicitly require a finding that the disability adversely affects the student’s educational performance; there still must be some impact on the student’s educational performance.
See 8 NYCRR 200.4 . A student may be determined to have a if “the student does not achieve adequately for the student’s age or to meet State-approved grade-level standards” in one or more academic areas, including
. 8
NYCRR 200.4 .
I credit that ’s is
. He also exhibits a pattern of
.
I do not credit ’s statement that ’s goal had been met.
This statement is inconsistent with the information provided to by his teacher, and with the report card and sample in evidence. (DOE Ex. 6, 30).
’s disability also impacts his . In summary, he is a student with a disability, who requires services and program, and should be classified with a . 8 NYCRR 200.1(zz).
The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F.
3d 119 (2d Cir. 1998). The IDEA does not require schools to “maximize the potential” of students with disabilities. M.H.v. N.Y.C. Dep’t of Educ. 685 F. Ed. 217 (2d Cir. 2012).
A student’s educational placement must be provided, to the maximum extent appropriate to his needs, with other students who do not have disabilities. 8 NYCXR
200.1(cc).
Applying the above standards, and for the reasons stated below, I find that ’s IEP should continue to include those all of the services, programs, and accommodations included in the October 26, 2015 IEP, with the exception of The progress reports in evidence, recommending discontinuation of services, were not effectively challenged by the parents. ’s IEP should also include and , as recommended by , and which were part of his prior IEP. (Par. Ex. B). [9]
While I credit that continues to require to address his , and of ’s needs is not consistent with the classroom observations in evidence or the testimony of the witnesses who see at school. There was no evidence that he , . Therefore, I do not find that he requires more than the for , which he currently receives.
I do not find that requires placement in an , in order to make meaningful progress toward his IEP goals. The record indicates that he has made appropriate progress, in a classroom, with and related services.
While the parents would like to reach his full potential academically, the school district is not held to that standard. See M.H.v. N.Y.C. Dep’t of Educ. supra. Nor is it clear that the program they request would address ’s difficulty with , which is one of the parents’ primary concerns. Both classroom observations in evidence indicate that of a classroom, with from his teacher. The for him appears to arise (e.g. ); and would not be addressed by placing him in an setting. The school appropriately addressed the which occurred; and the record indicates that this is no longer an issue at school.
The parents’ preference for their son to be educated alongside students who exhibit , runs contrary to the principle that students should be educated, to the greatest extent possible, with typically developing peers. Both . and acknowledged the difficulty of changing ’s class, at this point in the school year, where he has with his classroom teacher.
The parents’ concerns that may experience in a setting, where he will face more , can be addressed by scheduling a CSE review within two months after commences ; to consider whether he requires additional supports .
ORDER
Therefore, it is hereby ordered as follows:
1. The CSE shall reconvene within 15 days of this order to classify as ; and to recommend a program which includes
( ) , , for ; and . ’s
IEP shall also provide , ; and such other supports and accommodations as the CSE shall determine are appropriate.
2. The CSE shall again reconvene by November 1, 2017, to review ’s progress in , and to consider whether he requires additional supports .
3. By agreement of both parties, the DOE shall reimburse the parents for their private evaluation (by ) and for their private evaluation (by ), upon presentation of proof thereof.
Dated: January 19, 2017
DORA LASSINGER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial hearing request, 10/18/16, four pages
B IEP, 10/26/15, 12 pages
C Amended request for hearing, 12/7/16, six pages
D Emails, 9/29/16, two pages
E evaluation, October 2016, 15 pages
F evaluation, 9/27/16, seven pages
DEPARTMENT OF EDUCATION
1 evaluation, 10/4/15, eight pages
5 progress report, annual progress report, October 22 2015, four pages
6 Writing assessment, 11/2/15, two pages
8 Parent request for reevaluation, 8/2/16,one page
9 planning, 8/8/16, four pages
10 Social history update, 4 8/16/16, two pages
11 , 8/18/16, five pages
13 , , 9/14/16, two pages
14 Classroom observation, 9/15/16, one page
15 , , 9/15/16, one page
16 , , 9/15/16, two pages
17 , , 9/15/16, two pages
18 IEP, declassification from special education services, 9/16/16, three pages
19 , 9/16/16, four pages
21 , , 11/30/16, two pages
22 , , 12/1/16, two pages
23 , , undated, two pages
24 , undated, two pages
25 IEP declassification from special education services, 12/1/16, pages
28 inquiry, 2015/2016, one page
29 Student year-to-date attendance, 2016/2017, one page
30 Report card, 2016/2017, two pages 31 , 12/8/16, three pages
IHO
I , 10/28/16, 5pp II Case Follow Up Sheet, 1/3/17, 1pp
Footnotes
[3] There was no evidence in the record that , at school.
[4] At the hearing, however, the parents requested that placement begin immediately. (Tr. p. 90).
[5] The annual goal was for to continue to incorporate when ; including . (DOE Ex. 13, p. 2).
[6] When questioned about intent, understood that the child meant that and ; and that the was . (Tr. p. 122).
[7] ’s mother testified that she enrolled him in . She feels that he he receives at school, and requests that it continue. (Tr. pp. 271-272).
[8] The recommended supports were , ; each . (DOE Ex. 18, p. 1).
[9] Although also , these accommodations were not requested as part of the hearing, and were not litigated. Whether they should be part of his IEP is an issue which can be discussed when the CSE reconvenes.