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FINDINGS OF FACT AND DECISION
Case Number: 164175
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: February 7, 2017
May 26, 2017
June 20, 2017
June 22, 2017
August 3, 2017
September 25, 2017
October 2, 2017
October 12, 2017
December 14, 2017
May 9, 2018
Actual Record Closed Date: May 17, 2018
Hearing Officer: Judith Schneider, Esq.
`
APPEARANCES February 7, 2017 May 26, 2017 June 20, 2017 June 22, 2017 August 3, 2017 September 25, 2017 October 2, 2017 October 12, 2017 December 14, 2017 May 9, 2018
For Esq, Attorney — Parents
Parents
For District Representative — District
For Esq, Attorney — Parents
For District Representative District representative Occupational Therapist (via telephone) — District
For Esq, Attorney — Parents
For District Representative District Representative Speech Language Pathologist at (via telephone) Teacher at (via telephone) — District
For Esq, Attorney — Parents
For District Representative Teacher at (via telephone) Psychologist (via telephone) — District
For Esq, Attorney (via telephone) Advocate ( via telephone) — Parents
For District Representative — District
For Esq, Attorney — Parents
For District Representative District Representative School Psychologist (via telephone) — District
For Esq, Attorney Speech Language Pathologist (via telephone) Neuropsychologist (via telephone) — Parents
For District Representative — District
For Esq, Attorney — Parents
For District Representative — District
For Esq, Attorney Mother — Parents
For District Representative — District
For Esq, Attorney (via telephone) — Parents
For District Representative — District
On February 7, 2017, May 26, 2017, June 20, 2017, June 22, 2017, August 3, 2017, September 25, 2017, October 2, 2017, October 12, 2017, December 14, 2017 and April 9, 2018. I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated October 28, 2016. (Ex. A) I was appointed Impartial Hearing Officer on November 4, 2016 and I was available to commence the hearing within 14 days of appointment. At a telephone conference with the parties conducted on November 15, 2016, hearing dates of February 7, 2017 and February 13, 2017, the first mutually available dates for the parties and the hearing officer, were scheduled. (Ex. I) At the request of one or both parties the February 13, 2017 hearing was adjourned as were hearings subsequently scheduled for April 7, April 13, April 25, July 21 and July 31, 2017. (Ex. V) Various subsequently scheduled hearings commenced/concluded at times other than those initially expected.
(T. 1097, Ex. IV) Written communications related to scheduling are included in Exhibit
IV. Transcription errors resulted in delayed consideration of the record.
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and the submission of evidence, family emergencies, illness, change of district representative, transcription issues, the submission and consideration of closing arguments and the clarification of the parent’s request. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 7-8, 62, 69, 200, 217, 317, 322, 718-729, 924-925, 1097, 11011101, 1103, 1228,1235, Exs. I, V)
The current compliance date is June 13, 2018. The record closed on May 17, 2018 upon my receipt of the final transcript.
Background [1]
The student has attended PS XXX since kindergarten. (T. 1111-1112, Exs. K,Q) In the 2015-2016 SY she was in the 1st grade. (T. 1111). She was promoted and for the 2016-2017 SY she was in the 2nd grade. (T. 1110) She was promoted to 3rd grade for the
2017-2018 SY. (T. 299)
The parent requested an evaluation with regard to special education needs when the student was in kindergarten. She disagreed with the CSE’s conclusions and ultimately filed an impartial hearing request. As a consequence of the resolution process and in partial resolution of that matter, the district agreed to fund various independent educational evaluations (“IEEs”) including a neuropsychological evaluation by an, a visual skills and visual perception evaluation, an occupational therapy
• (“OT”) evaluation and a audiological and central processing diagnostic evaluation. (Exs. I, J, L, M,U) The hearing, however, continued and the decision of the impartial hearing officer in that matter was ultimately appealed to the State Review Office (Appeal No. 16001). (Exs. K, Q) The SRO considered, among other things, the IEEs conducted as a result of the resolution process and determined that the student qualified as a student with a disability. By SRO decision issued May 4, 2016, the CSE was ordered to reconvene, classify the student with Other Health Impairment (“OHI”) as a consequence of ADHD and consider all evaluative data and develop an IEP. The SRO concluded, among other things, that the record at that time did not support a determination that the student was eligible for special education as a student with a learning disability. (Ex. K) 2
On April 14, 2016, the student was assessed by Director of who by letter dated April 18, 2016, recommended 600 hours of 1:1 multisensory tutoring using, among other things, the “Orton-Gillingham approach” to build written language, reading comprehension and mathematics skills. (Ex. C)
The CSE reconvened on June 7, 2016. (Ex. 8) Participating in the review were: a DOE school psychologist who also served as district representative ( the student’s teacher ( a DOE school social worker ( a DOE related service provider/special educator ( a DOE guidance counselor ( the school principal ( a DOE supervisor of psychologists ( a DOE occupational therapist ( a DOE speech-language pathologist ( the student’s mother (“the parent”) a parent advocate ( and, via telephone, the parent’s counsel ( Esq.). (T. 361, Ex. 8)
The CSE considered, among other things, all the IEEs, classroom observations, a social history, a June 3, 2016 teacher progress report and a DOE psychoeducational evaluation conducted for the prior review as well as input from the participants. (T. 359381, Ex. 8). The CSE classified the student as OHI and recommended a general education program, with counseling (1x30 (1:1) and 1x30 (3:1)) It rejected General Education Only as insufficient in view of behavioral concerns, SETSS as too restrictive and an NPS Day Program (requested by parent’s counsel) as overly restrictive. (T. 383-384, 386-388, Exs. 7,8)
On June 17, 2016, the parent signed a consent to receive special education services but on June 21, 2016 revoked that consent, stating that “I have not completed my review of the IEP and will discuss any issues with with respect to any modifications and corrects.” (T. 389-390, 392, Exs. 5, 6,7)
Thereafter the staff made efforts to determine the parent’s position with regard to consent for the counseling services. (T. 429-430, 906, 907-908, 919, 394-396, Ex. T) Eventually the CSE was advised by DOE staff that the matter must be resolved because it would soon “go out of compliance” and that it could not be held open if the parent was not responding. (T. 403, 405)
A meeting scheduled by the CSE was held in October 27, 2016, to discuss parent objections to the IEP and attended by, among others, a DOE Administrator Consent for initiation of special education services (counseling) was not provided was not received by November 2, 2016. (T. 853) The case was closed by the DOE on November
2, 2016. (T. 403, 853) [3]
By letter dated November 2, 2016, after the case had been closed, the parent requested the counseling services. (T. 853-856, Ex.. 35)
To enable the provision of services after the case closing, a new case was opened and by November 17, 2017 consent for an evaluation was sought. Various efforts to obtain consent were unsuccessful and on January 24, 2017, the case was again closed. (T. 858, 862, Exs. 36, 37,38, 39,40, BB)
It is undisputed that the student did not receive counseling during the 2016-2017 SY.
An independent Neuropsychological Evaluation Update (“the update”) was issued by based upon his assessment of the student on May 6, 2017. (Ex. X)
Positions of the Parties
The parent asserts that the June 7, 2016 IEP was substantively and procedurally defective and did not provide a FAPE for the balance of the 2015-2016 SY and for the 2016-2017 SY. She alleges that the proposed program was not appropriate because speech language therapy (“SLT”), occupational therapy (“OT”) and as well as a program for her specific deficits should have been provided, that evaluations were not considered appropriately and included in the IEP, that all program options were not considered, that goals were insufficient and that the parent’s request for a reconvene of the CSE was not responded to. Further she claims that the DOE failed to comply with the SRO order. The parent seeks:
1) Compensatory services of:
a) 600 hours of 1:1 tutoring from at the rate of $100 per hour;
b) SLT, OT and
- at an enhanced rate to make up for sessions that parent asserts should have been recommended but were not.
2) An order requiring the CSE to include SLT and OT as related services.
3) A determination that a general education program is not appropriate for this student.[4]
4) The provision of counseling services to “make up” for the services recommended by the CSE but not provided.[5] (Ex. II, T.1233-1234)
The district asserts that it complied with the SRO’s order and it provided a FAPE in the review by recommending a program reasonably calculated to ensure educational benefit, that the student is not currently classified as a student with a disability and that any appropriate remedy at this time is an “initial” IEP meeting. Further the district asserts that the student does not require SLT, OT and/or and that the provision of those services should not be the result of an impartial hearing officer order. The district does not dispute the provision of counseling services to provide the services recommended by the CSE but not received by the student. (Ex. II, T. 1233-1235)
Cases Presented
Both parties presented documents which were admitted into evidence. A list of documents in evidence is appended. The following summarizes the testimony of the witnesses and referenced evidence.
(“DOE OT”)
The DOE OT participated in the CSE review. He never formally screened the student but observed her in her classroom from time to time. He reviewed the evaluation regarding vision therapy, the OT IEE and various teacher reports as well as other documents for the review. (T. 143, Exs. I, L, 23)
The student’s need for OT was discussed at the review. (T. 110) With regard to the student’s need for OT he stated that the OT IEE testing had generally indicated adequate skills but that clinical observation reported results less than optimal in certain areas and that that evaluation had stated that although they might not affect the student at the time of the August 2015 evaluation they would intensify. (T. 104-105, Ex. L) In August 2015 the evaluator recommended one session per week. (Ex. L) However, the teacher had reported in June 2016 that the student was progressing academically and was at or exceeding grade level in reading and math, notwithstanding attention/movement/behavior issues reported by the teacher and addressed by various classroom strategies. (T. 111, 182-183, 190-192, Ex. 23) Therefore, he did not recommend OT. (T. 111)
He had no recall of discussion concerning the student’s need for the review. (T. 150-151) He was aware that the student was diagnosed with , deficiencies of and paresis of accommodation, stated that some of those issues could be addressed by an OT in school depending upon severity but was unable to opine on the severity of the student’s issues due to his lack of training in that area. (T. 130-132, 162, 164-169,170, 176) He opined, however, it was possible that noted in the report could improve over the period between that report and the review. (T. 178)
( ) (“DOE SLP”)
The DOE SLP is a licensed speech language pathologist who participated in the review and is licensed to do speech evaluations. (T. 207-208, 221, 247) The SL IEE was discussed at the review. (T.235) She has never met the student and knows about her only from the review itself, the staff preconference and various documents she reviewed and information she received. (T. 217, 221, 241) She has never done a speech language screening for this student and no teacher asked her to conduct one. (T. 267, 273) She reviewed the SL IEE, the teacher report and other information discussed at the review.
(T. 262-264) She stated that the SL IEE testing showed that the student was below average range in only one area and that she did not consider that a “deficit” because the amount she was below was not “significant” and could even have been a result of some situation on that date or time. (T. 255, 272, Ex. U) However, she also looked at whether it was affecting her in the classroom and concluded that it was not. (T. 256-257) She concluded that the student did not need SL services in school and the student’s teacher agreed that speech issues were not affecting her performance in class. (T. 236, 237, 238) Although the student did not require in school SL services, she could benefit from classroom supports. (T. 227, 245, 261)
(“the teacher”)
The teacher is certified in common core nursey-6th grade, has a reading instruction license and 17 years DOE teaching experience. (T. 281-283) She was the student’s 1st grade teacher in a general education class during the 2015-2016 SY. (T. 283) She testified that when the student entered her class in September 2015 she was not even at Fountas and Pinnell (“F&P”) reading level A although most of the students were at D.
(T. 284) The student needed a lot of redirection and moved a lot but was manageable and the teacher provided her with small group instruction in reading almost daily. (T. 284) She had difficulty working independently in reading centers but needed help in math only when reading of problems was required. (T. 333-334)
By February 1, 2016, when a Teacher Progress Report was issued, the student had progressed to F&P reading level C and was at grade level for math. (T. 285, Ex. 27) The teacher testified that the student had progressed as well in spelling and sentence structure.
(T. 290-291) She needed help when math word problems were involved but was provided with strategies and her problems did not persist. (T. 331, Ex. 27) The student was at that time motivated, persistent and able to follow directions but although not appropriately ranked as “poor”, continued to struggle a little working independently. (T. 287). Her behavior was appropriate and her need for movement/fidgeting did not disrupt herself or others because of various accommodations the teacher implemented. (T. 222-289, 293) However, in accordance with school policy a Promotion in Doubt letter was issued because the student was at that time below the expected benchmark level. (T. 298, 335)
By May 23, 2016 when a Teacher Report was issued, the student had greatly improved in reading and was at grade level (F&P Level H), had mastered the required math areas, had made progress in writing, spelling and punctuation and continued to be appropriate with regard to social emotional and behavior issues. (T. 292-293, Ex. 24)
By June 3, 2016 when a Teacher Report was issued the student was at Level I in reading (grade level) and was also at grade level in math and writing. The student was also more confident. (T. 294, 296, Ex. 23) She was promoted because she had achieved the benchmark. (T. 299) In her final report card for the 2015-2016 SY she received mostly “3” (“meets expectations”). (T. 299, Ex. 22) By the end of the school year the student had no difficulty working independently. (T. 343)
The student’s reading levels were obtained via Diagnostic Reading Assessment (“DRA”), a formal assessment by the teacher which provided numbers from which the F&P levels are obtained. (T. 295, 328)
The teacher had limited recall of the June 2016 review in which she participated.
(T. 300, 304, 307 Ex. 8) Her opinion at that time and now is that the student was performing well in general education and did not need a program change. (T. 302-303, 307)
If the teacher had concluded that an inability to understand her instructions was a significant deficit she would have noted it in her teacher reports but she had had no concerns about the student’s use of language in the classroom. (T. 307, 374) The student’s fidgeting, which continued throughout the school year, did not impact her progress in the classroom. (T. 310, 332-333)
The teacher had maintained a student portfolio throughout the year and had reviewed that when preparing her teacher reports. (T. 327, 339)
(“the school psychologist”)
The school psychologist reviewed the SRO decision prior to the June 2016 review and everything required to be reviewed as well as additional material was reviewed and discussed by a full CSE. (T. 359-360, 361-379) At the review the teacher stated that the student was functioning at grade level and that there were no areas of academic weakness.
(T. 375) The CSE concluded that the student’s academic levels were within the average range and that that that was not a primary area of concern. (T. 388) However, the team concluded that, although those issues were being addressed and managed appropriately by the classroom teacher, due to the medical diagnosis of ADHD there was some distractibility and impulsivity, as well as hyperactivity and sometimes lapses in attention and focus which were interfering with classroom performance to a certain extent. (T. 375, 382) Goals were developed to address the impulsivity and distractibility and counseling sessions were provided. (T. 380-381) Management needs were developed by the entire team. (T. 379-380)
Prior to the June 2016 review, the school psychologist consulted with the district staff with knowledge of available vision services and was advised that services ( ”), a DOE related service, could address certain issues of focus but principally addressed other not relevant for this student and, further, that the student did not meet criteria for eligibility for . (T. 454, 463, 838-846) He could not recall a specific discussion of therapy and acknowledged that the IEP did not reference the diagnosis. (T. 455-456, 459-460,
468) Further, based upon the results of his testing as well as his review of the neuropsychological evaluation results in the same areas which he stated were consistent with his, as well as consideration of the student’s classroom performance as reported by the teacher and in observations which showed him that the area of concern for this student was behavior and not academics, the recommended therapy was not required. (T. 467, 470, 478, 510, 840, Exs. 34, J) He opined that certain reported results could be a function of the student’s attention/distractibility difficulties which teacher provided supports could address. (T. 488, 492, 511-512) Whether processing speed would be an issue in the future as demands increase, he stated, was speculative. (T. 494)
-
At the review there was a request for tutoring but that is not provided through an IEP and the parent was informed as to who to contact for that. (T. 474-475) The report was provided at the meeting but the report was “incomplete” and the testing results were not referred to in the IEP. (T. 475-476)
With regard to speech therapy needs, the school psychologist stated that an SLP was present and discussed the SL IEE and he noted that the student was average or above in almost all areas. (T. 514-517, Ex. U)
With regard to the September 2015 neurological evaluation, he stated that the testing had been done 10 months before the review, that the academic functioning results were therefore outdated and that the CSE therefore considered additional current data obtained from the teacher and in observations to determine if the student was below or at grade level. (T. 883)
The parent received the IEP in June 2016 and initially signed consent to provide the counseling services but promptly thereafter revoked it stating that she wanted to discuss it with her attorney. (T. 392, Exs.5, 6) The district made several efforts to communicate with the parent concerning consent and received no response but after the parent informed that any further communications should be addressed to counsel that was promptly done on September 20. (T. 906, 907-908, 919, Ex. T) Not all communications were recorded in SESIS and those that are may include ambiguities due to the system design. (T. 815, 818, 820, 834-835, 836-837, Ex. Z) Counsel thereafter informed the district as to numerous objections to the IEP. (Ex. T) Eventually counsel was directed to an Administrator for Special Education (“ASE”), a district official. (Ex. T)
A meeting with the ASE and others was scheduled for October 27, 2016. That meeting was not a CSE reconvene for review. (T. 413-414, 419) At the meeting consent to provide the counseling services was sought but not at that time received and the district was verbally informed that the parent would be filing an impartial hearing request. (T. 429-430) The ASE informed staff that the matter was going out of “compliance” and if consent was not received the case should be closed and the case was closed the morning of November 2, 2016. (Exs. Z, 3) After the close of business that day, the district received a fax from the parent stating that although she disagreed with the IEP, she consented to receipt of the services specified but the school psychologist did not receive that fax until November 3, after the November 2 case closure. (T. 433-434, 849-851, Exs. 35, Z) Further action to provide services would require opening by scheduling a new evaluation which would be deemed an “initial” evaluation in view of the dispositions of the prior evaluations/reviews.
Consent for a new “initial” evaluation as a result of the parent’s indication that she wanted the services was thereafter sought but consent was not received despite numerous efforts and the case was closed in January 2017. (T. 868-869, Exs. Z, 36, 37, 38, 39, 40)
At the commencement of the 2016-2017 SY the school’s Child Study Team considered this student and on an ongoing basis provided information to her 2nd grade teacher concerning management needs and related issues. (T. 542-544) The parent was offered “at-risk” counseling services in the absence of consent for IEP services but rejected that. (T. 436, Exs. G, 35)
is a licensed speech language pathologist who supervised staff who conducted the November 20. 2015 SL IEE and she reviewed and signed that evaluation.
(T. 933, Ex. U). She testified that the student performed globally in expressive and receptive language domains (composite scores) in the low end of the average range with “sequential memory skills” being areas of relative deficit. (T. 933, 944-945) She was in the very low end of the average range in both recalling sentences and word structure subtests. (T. 933, 942-944, 964, Ex. U) If word structures are not compatibly established a student might need more time to decipher what was meant. (T. 944) Working memory, is the ability to recall what one hears and hold on to it long enough to act on it and relates to following instructions and attention. (T. 935, 945, 968)
CTOPP 2 results also showed that the student’s management of auditory tasks was lowest in the two memory domains, although all subtest scores were in the average range, and confirmed that memory was an area of weakness. (T. 945, Ex. U) Noise in a classroom could affect this student who also has been diagnosed with ADHD. (T. 945,
947) Since some CTOPP subtests had been given within the 6 months of the SL IEE (during the neurological evaluation), some SL IEE subtests scores might have been inflated in the SL IEE testing. (T. 966-967) A November 10, 2015 screening for Auditory Processing Disorder (“APD”) showed a deficit in auditory figure-ground skills but concluded that that might be related to language-based issues which could be determined only after evaluating the student’s response to SL therapy. (T. 937-938, 959, 961-962, Ex. M)
As a result of the testing, “definitely” recommended SLT and stated that there should have been intervention. (T. 947-948, 954, 968, Ex. U) She stated, however, that over time a child could improve without therapy or could have a bigger gap and she had no knowledge about this student and had had no communication with her teacher at the time of testing or thereafter. (T. 945, 954, 973) Further she stated that this student’s ability to be at “grade level” could have been a result of the student putting in more work than is usually required. (T. 956-957) The report states that the student possessed a relative strength in comprehending language which “may demonstrate [the student’s] ability to pull from all her language knowledge to best help her comprehend more lengthy and/or complicated language.” (Ex. U)
- specializes in providing 1:1 tutorial instruction to special education students, specializes in Orton-Gillingham (“O-G”) methodology or similar research based multi-sensory techniques, can provide teachers with varying degrees of OG training and certified special education teachers and can deliver instruction in the student’s home and other locations for the rate of $120 per hour. (T. 574, 580, 619-620, Ex. C) met the student only for the assessment and has had no communication with the school and has not reviewed school reports but had reviewed the neuropsychological evaluation. (T. 582, 633, 578) Information from the February 2016 and May 2016 teacher reports would not have impacted her conclusions as she thought she had an accurate picture. (T. 608, 610, 631, Exs. 24,27)
She assessed the student on April 14, 2016 with the Wide Range Achievement Test (“WRAT”) to test decoding, spelling and math the Test of Written Language (“TOWL”) to determine written expression abilities and the Qualitative Written Inventory to determine reading comprehension skills, all of which are standardized nationally normed instruments. (T. 575, 591-592, 614-615, Ex. C) The student scored in the mid 1st
grade for decoding, spelling and math, and at kindergarten level for reading comprehension and writing. (T. (T. 675, Ex. C) The TOWL and the Reading Inventory do not provide any information as to where at the kindergarten level the student scores.
(T. 611-612)
concluded that the student required 7-8 hours per week of 1:1 instruction using O-G or other appropriate instructional techniques for a period of 2 years which totaled approximately 600 hours. (T. 580, 627, 634, 665) Prior to her testimony she reviewed May 2017 update. (T.578, Ex. X) She continues to believe that the student requires the same degree of tutoring after review of the May 2017 update because she believes its conclusions that the student has slow processing speed and difficulties with math problems and reading comprehension, validates her results. (T. 579,
665) She testified that students with language challenges can do will in terms of grades initially but face problems in the 3rd and 4th grade when language demands increase, but stated that her conclusions as to the student’s remedial needs were based only upon deficits shown by testing. (T. 605, 610, 614)
is a former certified special education teacher and coordinator, is on the board of a special education school, developed a non-profit group to support parents of students with special education and has acted as an advocate for parents. (T. 654-657, 662, 693, 695). She has known the student for several years, has read the evaluations of the student and received information from the parent principally about out of school behavior. (T. 658-659, 705-709) participated in the review as an advocate for the parent. (T. 657, 661-662, Ex. 8) She opined that the student had intense sensory integration and sensory processing problems in addition to ADHD and required OT. (T.
658-658, 683, 716) She opined that addressing auditory memory difficulties through SLT would help with reading comprehension. (T. 659, 663, 685) She opined that therapy could help with the student’s reading and perceptual problems and stated that the CSE had misunderstood the purpose and effect of that therapy. (T. 659, 665-666)
believes that the student is and therefore might not benefit from reading tutoring. (T. 662) She believed that at the time of the review` counseling alone was insufficient and that the student should have been provided with OT and SLT as well. (T. 665, 677, 683) Further, she thought that academic goals should have been provided. (T. 682-683) She noted that the student had made progress but opined that her deficits will pull her down if they are not remediated. (T. 684) also participated in the October 27, 2016 meeting and had understood from the parent that the purpose of that meeting was for an explanation/clarification of the CSE’s limited recommendation. (T. 690-691)
is a board certified pediatric neuropsychologist who conducted a neuropsychological evaluation in August 2015 (between kindergarten and 1st grade) and a psychoeducational update May 2017 (during 2nd grade). (T. 978, Exs. J, X) At the time of the August 2015 evaluation, the student was very eager for personal attention, very easily distracted, very active, almost in constant motion, needing constant redirection, very impulsive and grabbed things that were not hers. (T. 989) had received a teacher report from the student’s kindergarten teacher who reported that the student was struggling with focusing, struggling with concepts, having a hard time sounding out words, displaying low self-esteem, having difficulties with peers with appropriate social skills. (T. 981)
Cognitive testing (WISC-V) showed FSIQ of 91 just within the average range at about 25%ile (98 when there was a substitution for fine motor difficulties ) and with “pretty much average skills but has … weaknesses in… word knowledge, …visual spatial skills, arithmetic and processing and memory, mostly affected due to attention difficulties.” (T. 984, 1001-1002)[6] Weaknesses in word knowledge and digit span would result in difficulty focusing and difficulty understanding texts. (T. 985) From a variety of tests, some of which showed “extremely low levels”, concluded that the student’s fine motor skills were “problematic.” (T. 987-1002, Ex. J-9)
Academic achievement levels (WJ-IV) showed: Average range for Spelling and
Calculation; Low Average range for Letter-Word Identification, Word Attack and Applied Problems; Very Low for Passage Comprehension. (T. 1004- Ex. J. 7-8) In report he stated that certain areas of reading comprehension could not be assessed because the student’s decoding skills at that time were no yet sufficiently developed. (Ex. J-8) He testified that her scores generally were “low kindergarten” or less and as ”problematic.” (T. 1009-1110) He summarized his results as showing that the student was “very weak in decoding and word attack and particularly comprehend and somewhat weak in the spelling but very, very weak in the understanding of problems, but ok in calculation in—in a sense.” (T. 1013)
In his report he stated that Phonological Processing Skills testing (CTOPP) “suggest that [the student] has difficulties with phonological processing which could affect her decoding and work attack skills.” (Ex. J-10) He testified that her scores were at the low average level or just within the average level and that there were “some problems” in that area consistent with what the teacher said about difficulties in sounding out words to read them (T. 1016-1018, Ex. J-21) The student’s Orthographic Processing Skills testing (awareness of how print works and how it looks) showed extreme delay, “suggest marked difficulties in orthographic processing” and “make it hard for her to read words that are unfamiliar” and require her to rely more on phonemic awareness (T. 1019-1020, Ex. J-10)
With regard to attention, testing indicated that she had “a high likelihood of having a disorder characterized by attention deficit such as ADHD”, that on short tests of focused attention her skills varied from very low to average level, with better attention to visual pictures than orthographic symbols and that with regard to attentional capacity she functioned at a “high average level in her ability to remember sequences of numbers and problematic and that other tests should have been given in view of anecdotal reports received. (T. 10621063)
letters and sentences, but at a low average level in her ability to remember short narratives.” (T. 1020-1022, Ex. J-9) The testing showed that with regard to attention issues her most problematic area was inattention although there were also problems with impulsivity and sustained attention. (T. 1023)
With regard to memory, stated that it was not exact scores but rather the “profile” that mattered. (T. 1028) He testified that that there are different types of memory and the student had no problems and had superior levels in some areas, could not be tested with regard to one area due to poor attention, but could not remember the “gist of a story. ” (T. 1024-1026, Ex. J-10) The report notes that the student had marked difficulty at the borderline level in understanding the gist of the story in sharp contrast to her superior level ability to remember the factual details of the story. (T. 1030-1031, Ex. J-10) He characterized it as more of a language processing difficulty and not an auditory processing difficulty. (T. 1031) He also stated that she had difficulties holding numbers in her head and saying them backward which was “working memory.” (T. 1032)
With regard to executive functioning, information provided by the parent and teacher indicated that the ability to control oneself and self-monitoring wereareas of difficulty. (T. 1037)
As a consequence of his August 2015 evaluation diagnosed: Specific learning disorder with impairment in reading at the severe level; Specific learning disorder with impairment in written expression at the severe level; Specific learning disorder with impairment in mathematics at the moderate level; Developmental coordination disorder (which relates to fine motor and visual spatial processing issues); ADHD:Combined Presentation; and to Rule out a Language Disorder-Receptive and Expressive Language Delays (which means that he is “pretty sure” there is one but that should be corroborated by a speech and language evaluator). (T. 1038, J-14) At that time he recommended a non-public school that worked at her skill level (rather than grade level) supplemental tutoring in a 1:1 setting, counseling to improve low self-esteem, the use of evidence based reading programs to address severe reading difficulties, and an OT evaluation to clarify the extent of her fine motor skills as well as a speech evaluation. (T. 1040-1041, Ex. J at 16-18)
-- conducted a Neurological Evaluation Update (“neurological update”) in May 2017 when the student was completing stated that for a
• grade. (T. 1042, Ex. X) He
year old “things change…very, very quickly” and he wanted to determine her academic functioning levels after a period of time. (T. 1042-1043) He determined that “she was doing a lot better in decoding and…most skills were at an average level” with relative problems in weak areas of Passage Comprehension (at 90 (Average range) , a mid 1st grade level although the student was completing 2nd grade), Applied Problems (at 88 (23%ile-Low Average range, mid 1st grade level), Reading Vocabulary (91 (Average range)-mid 1st grade level; and Picture Vocabulary (90 (average range)-low 1st grade level). (T. 1043, Ex. X) He acknowledged that the teacher report included in his evaluation (2nd grade) described the student as being at or above grade in the subject areas but believed the report was not inconsistent with his conclusion that she did not understand the “gist” of what she was reading and he noted the student’s final 2nd grade report card. (T. 1085-1089, Ex. AA)
testified that the student had shown a lot of improvement over the time between the tests “basically because she relied on phonemic awareness,” as demonstrated by a November 2015 CTOPP. (T. 1043-1045, 1080) Acknowledging that progress had been shown in decoding, he stated that that had not been a problematic area for her. (T. 1043-1045) testified that he had clinically observed that “it took her forever to decode unfamiliar words” and he noted that you get the same score regardless of the time you needed and that that issue is not picked up by Fountas & Pinnell testing. (T. 1043-1045) Therefore although she may score Average she is not qualitatively Average but rather struggled. (T. 1044, 1076) He testified that that could be effective until about 3rd grade when there is dependence upon letter-word identification and sight vocabulary. Further he noted substantial impact on understanding especially in view of working memory deficits. (T. 1045-1046, 1077) He also opined that as the student experienced increasing difficulties, emotional difficulties would increase and that although it appeared that the student had had some very good classroom teachers, she might not have that in the future. (T. 1081-1082)
In view of the neurological update would still diagnose a reading disorder but more at the moderate level because her phonemic awareness skills had “kicked-in” and although she appeared to have received “a decent amount of explicit instruction in phonemic awareness or picked it up, it appeared she had not in orthographic processing. (T. 1046, 1080) With regard to a math disability he stated that problem solving is still a problem, notwithstanding a very high level in math fluency, and that he would probably consider her impairment to be at a moderate level “at this point” but it was difficult to know without the other tests. (T. 1045) He did not assess attention issues but from the background information he received believed that it “much more controlled” than previously. (T. 1045) Further, he did not assess fine motor skills. (T. 1048)
With regard to his current recommendations in view of the update results showing progress, he believed the LRE for the student at this time would be a regular classroom setting with SETSS pullout services with 1:1 tutoring to work on orthographic aspects of the decoding problem unless a reading specialist or someone supervised by a reading specialist delivered the SETSS. (T. 1048-1049, 1050-1052, 1074-1075) With regard to the use of Orton-Gillingham methodology for this student, he opined that although it included certain necessary aspects, other methodologies that a reading specialist would know were better. (T. 1052-1053) With regard to SLT, he opined that the November 2015 SL evaluation appeared to have been “cursory” and overestimated her skills. (T. 1054-1057, 1066- Ex. U) He recommended a new speech language evaluation in view of the relative weaknesses shown by the prior evaluation as well as her current language functioning indicated by the teacher report he received which suggested that it was an area that seems to be problematic. (T. 1049-1050, T. 1072-1073) ) With regard to counseling, he opined that however the issue had been addressed appeared to have been effective in reducing the attention problems that the kindergarten teacher had seen. (T. 1053). With regard to OT he opined that the OT IEE was not cursory and that it recommended therapy one time per week to improve sensory processing, poor attention span and visual motor skills. (T. 1055, 1068-Ex. L) He also noted that the convergence insufficiency diagnosed after is August 2015 evaluation could lead to some of the difficulties in orthographic processing. (T. 1083-1084, 1091)
opined that notwithstanding his opinion that the SL evaluation was cursory, the IEP should have included SL goals because it reported deficits in decoding skills. (T. 1066-1067, 1070) He also opined that math problem solving goals should have been included because the teacher reported problems with math problem solving and “she still has small problems with math problem solving.” (T. 1067)
Mother (“the parent”)
Throughout the 2015-2016 SY while doing homework, the student struggled with not understanding and expressed frustration with both reading, math and other subjects which required reading. (T. 1112-1116) The parent was informed as a consequence of the evaluation that the student required
• before the student commenced first grade but she was unable to provide it due to financial constraints. (T. 1114-1115, Ex. I) Throughout the 2015-2016 SY the teacher advised her that the student was fidgety, anxious, not participating and required redirection “constantly”. (T. 1117, 1181-1182) Although the teacher informed her the student was holding her own, the parent did not receive any tests although she requested them and the parent believed the student was failing academically. (T. 1183-1184)
The 2106-2017 SY teacher provided only 2 math tests and the student had failed both. (T. T. 1186, Ex. O) That teacher also reported that the student was fidgety, tried to get out of her seat, was unfocused and needed constant redirection. (T. 1186)
The parent signed the consent to receive services before she had reviewed the IEP and immediately withdrew consent when she realized what was recommended so that she could consult her attorney. (T. 1131-1133, Exs. 6, 5) This occurred shortly before school closed for the summer. (T. 1135)
Her understanding of the purpose of the October 27, 2016 meeting was that it was to address the issue of consent and to enable a discussion of the IEP generated by the CSE. (T. 1191, Ex. N) At the meeting the CSE discussed possible reevaluations but the parent rejected that and wanted the CSE to reconsider its determination based upon the evaluations it already had. (T.1144, 1147, Ex. R)
The parent received no notices from the school via certified mail, regular mail, email or in oral communications concerning the closing of the case or any subsequent request for consent and thereafter a closing in connection with a new evaluation. (T 1148,1163, 1167, 1168, Ex. BB) She received no notices of attempted Post Office delivery and would have collected the material had she been aware of it. (T. 1159-1160) The parent had expected a response from the school to her November 2, 2016 letter and was aware that the student was not receiving the IEP mandated counseling services, she did not inquire about a response or the reason the student was not receiving services. (T.
(T. 1208-1209, 1216)
Findings of Fact and Conclusions of Law7
With regard to the testimony of the witnesses, I find that they each testified truthfully in accordance with their recollections and as to the opinions they held.
In New York State the DOE bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. However, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances….” and “a student offered an educational program providing ‘merely more than de minimis progress’ from year to year can hardly be said to have been offered an education at all.” Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Further, a determination as to the appropriateness of a program must be based upon the information that was considered by the CSE at the time of the review and made known to the parent. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d. 167 (2d Cir. 2012)
Record references not set forth below are included above.
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).” Appeal No. 11-027. However, it is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209. “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.
In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
With regard to the inquiry that must be made, I note that it is well established that in developing an IEP a district need not provide the best possible program- i.e. maximize potential. Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. I conclude that similarly there is no entitlement to that with regard to relief when a district has failed to provide a FAPE.
Analysis
The parent has asserted numerous claims with regard to the alleged failure to provide a FAPE. I make the following findings:
Program/Academic Services: The evidence shows that the CSE reasonably relied upon information it received from the teacher concerning the student’s performance in the classroom during the 2015-2016 SY to determine a general education program was appropriate for 2nd grade. I find persuasive the testimony of the teacher that the student improved over the 1st grade school year with substantial accelerated improvement from March through June and achieved grade level in the assessments utilized by the time of the CSE review. testing does not rebut the teacher’s testimony. I note that testing was in mid-April and that the student achieved considerable progress in the period thereafter leading up to the review. evaluation was conducted almost a year previously. The student’s performance by the end of the year was inconsistent with his expectations and demonstrated that the student could meet age and State approved grade level standards when provided with appropriate learning experiences. It is noteworthy that later acknowledged that the student had made progress due to instruction and modified his diagnoses. noted in his update that her 2nd grade teacher had reported similar results similar to his. With regard to diagnostic modifications, however, I note that the student’s issues had not yet been addressed and acknowledged that those issues could have affected certain test results upon which he relied.
Therapy: It is undisputed that the evaluation diagnosed conditions which could affect the student’s academic performance as well as exacerbate acknowledged attention issues. There was no evidence presented indicating that those tests were not appropriate and reliable. Further, the evidence shows that those conditions could have impacted the results of the student’s neurological evaluation and the determination of an appropriate educational program. There was no claim that may not be provided by the DOE in appropriate cases and I find that such a claim would lack merit. I find that the CSE failed to appropriately consider the need for this service but rather focused on diagnosis. - , a service which was not designed for students with this student’s
I find no basis for a conclusion that the student’s need for consequences of the failure to provide it were appropriately considered. Neither the OT and the nor the school psychologist had any expertise in this area but rather the evidence indicates that they had virtually no knowledge with regard to it and that the information obtained by the CSE was not relevant in view of the student’s diagnosis. I give no weight to the DOE OT’s testimony as to what school-based OT might have provided to address any of this student’s vision needs in view of his lack of knowledge with regard to
- . Further, I
note that the CSE did not recommend OT.
I conclude that the failure to appropriately consider the student’s need for was a procedural violation that resulted in a loss of educational opportunity for the student, seriously infringed on the parent’s opportunity to participate in the IEP formulation process and compromised the development of an appropriate IEP in a way which deprived the student of educational benefits. Accordingly, I find that a FAPE was denied. Although not necessary in view of this finding I note that the fact that notwithstanding the diagnosis the student had performed satisfactorily was not a basis for concluding that the student would continue to do so or that her academic performance and focusing/attention issues were not affected.
Occupational Therapy: The SRO and CSE determined that the student is a student with a disability pursuant to the IDEA based upon ADHD. As such, the student was entitled to such developmental, corrective and other supportive services are were required to provide appropriate assistance. With regard to OT I note that the evaluator had reported adequate skills and the teacher had reported that with appropriate strategies the student’s difficulties with attention and focus did not interfere with instruction. However, I am persuaded that her attention, sensory processing and skill weaknesses did, as the evaluator stated, contribute to difficulties in the classroom setting and affected her ability to functionally participate appropriately. The neurological evaluation had noted similar weaknesses and had similar concerns. The CSE’s determination was based solely upon the fact that in her then current class strategies that were available to that teacher were effective in inhibiting the effect of her focus and attention and fidget problems. Those strategies did not provide the student with methodology to alter her behavior and I conclude were not a basis for rejecting the provision of OT. I note that those strategies to a significant degree merely allowed the student to move around at will. I conclude that the CSE’s failure to provide OT in the June review was a substantive defect and a denial of a FAPE.
Speech Language Therapy: The evidence shows that the student performed in the low end of the average range in expressive and receptive language domains (composite scores) with certain memory skills areas of relative deficit. The DOE SLP testified that that the relative weakness was not a “deficit” because it was not significantly below average and could have been a result of a particular situation at that date and time. I am not persuaded that the student’s relative weaknesses were situational at the time of testing in view of generally consistent results. I conclude from the evidence presented that the results may be a function of the student’s unaddressed issues and not something appropriately addressed by SLT. Further, I find credible the testimony that the student’s classroom performance was not affected by speech issues. Accordingly, I conclude that the CSE’s refusal to provide SLT was not a denial of a FAPE.
In view of the foregoing, I do not address the parent’s other claims regarding the provision of a FAPE except to note the following:
I find no support for the parent’s claim that a reconvene of the CSE was clearly requested and ignored. I conclude that the CSE’s reasonable understanding of the communications between the parties was that the parent was seeking further clarification as to the reason for the CSE’s decision and at the same time the CSE was seeking to obtain consent to provide the recommended counseling services. Further, I note that there is no claim that the parent informed the CSE of any additional information that would warrant a reconvene and, further, that the parent testified that when DOE staff raised the issue of possible additional evaluations that was rejected.
Further, I find no support for the claim that the DOE did not comply with the SRO’s order. The evidence shows that the CSE met as required and in good faith considered the material presented. Although the parent may disagree with the conclusion reached by the CSE that does not support a claim of non-compliance.
Requested Relief
Compensatory Services: The parent seeks various compensatory services. I find that there are no equitable factors here that would bar or limit the provision of appropriate compensatory services. With regard to parent compensatory requests, I find as follows:
-
Therapy: The student was entitled to receive 16-20 sessions of
-
as recommended by the in view of her diagnosis and did not. There is no basis in the record here to determine that her issues altered and/or the degree of alteration. A compensatory award should aim to place the student in the position she would have been in had the district complied with its obligations under the IDEA. However, no evidence as to the student’s current level of need for therapy has been submitted and a substantial period of time has elapsed during which the student’s issues may have changed. Accordingly, the DOE will pay for an evaluation by the or similar non-profit institution to be conducted prior to the commencement of therapy. I conclude that appropriate timely treatment would have prevented aggravation of the condition. The DOE will be required to issue authorization for such sessions as the evaluation shall determine are necessary at this time to remediate the student’s condition at this time. The authorizations shall permit the parent to obtain the services at a rate which is the usual and customary rate for appropriately credentialed providers in this geographic area. The parent shall not be limited to the DOE authorized rate for related services. I note that the not a frequent DOE service.
Occupational Therapy: I note that acknowledged that the student appeared to have been able to utilize certain classroom strategies to deal with her attention difficulties. However, there is no evidence that those classroom strategies could be utilized as the student advances in grade. Further no evidence has been presented to support a conclusion that an ADHD diagnosis is no longer warranted and that the student no longer has attention problems which impact her performance in class. Further, reported and the parent credibly testified as to ongoing difficulties doing required homework. The student is entitled to one 30 minute OT session per week for each week of the 2016-2017 SY to make up for the sessions that should have been provided based upon the recommendation of the OT evaluator. However, I find no basis in the evidence here supporting the provision of an enhanced rate. The DOE will therefore be ordered to issue RSA’s for the services at the authorized rate.
Academic Tutoring: I have concluded that the CSE’s determination as to the student’s academic program was appropriate when made. I note that the student had progressed significantly in that program by the time of the review with a variety of classroom supports. later testing, not known to the CSE at the time of the review but relevant to a determination with regard to compensatory tutoring shows significant progress in that program in the almost two school years that had elapsed since his first evaluation. Further, I am not persuaded that maintains his prior recommendation regarding remedial tutoring but conclude rather that his recommendation at this time, after the conduct of the neurospsychological update, was focused on the nature of the program to be provided in the future as the student advances in grade and certain strategies and strength thus far effective may not continue to be. At this time I find no basis for a determination that remedial academic services for denials of FAPE in the 2016-2017 SY are warranted. Further, I note that the student will be receiving therapy if currently needed which service would affect her academic performance and also that the student is in the early grades and an appropriate educational program developed by the CSE after further evaluations can address deficits inhibiting appropriate academic progress in the future. Another neuropsychological evaluation when timely is being ordered herein and will provide comprehensive and current information for CSE consideration. The evaluator shall be appropriately qualified but shall not be as I conclude that this student would benefit from the input of a second psychologist who would also consider the past evaluation and update.
Further, I give no weight to recommendation. I note that the basis for her determination of the number of hours required was conclusory and not detailed and therefore cannot be meaningfully reviewed. Further, despite the student’s substantial progress, acknowledged by recommendation as to the degree of the student’s remediation needs remained unchanged and I find that conclusion inadequately explained and unsupported by evidence. Finally, I find no basis for a conclusion that appropriately considered the student’s problems and the effect appropriate therapy could have on remediation needs.
Speech language Therapy: I have concluded that the refusal to provide SLT was not a denial of a FAPE. Therefore there is no entitlement to compensatory services. However, an independent speech language evaluation will be ordered to be conducted to determine the student’s current needs. The evaluator shall consider the possible effect of
- -
remediation and the parent may elect to delay that evaluation until the student has received substantial should that be being provided.
Counseling: The parent requests and the DOE has agreed to provide counseling sessions recommended but not provided in the 2016-2017 SY because of the confusion resulting from the parent’s delayed consent. The services shall be provided in school unless the parties agree to an alternative arrangement.
The parent’s other relief claims are denied.
ORDER
1) The DOE will issue an authorization for an independent evaluation of the student’s visual needs to be conducted by or similar non-profit institution. The DOE will issue authorizations for the number of Case No. 164175
sessions of
• recommended, if that is the conclusion of the evaluation, to be provided by an appropriately credentialed provider at a rate which is the usual and customary rate for that service in this geographic area.
2) The student is entitled to receive 40 30 minute sessions of 1:1 OT. The DOE shall issue RSAs for the provision of the services at the DOE “authorized” rate unless the parties agree that the services should be provided in school.
3) The student shall receive make up sessions for the counseling recommended by the CSE in the June 2016 review but not received. The service shall be provided in school unless the parties agree to an alternative arrangement and the issuance of
RSAs.
4) The DOE shall issue an authorization for an independent neuropsychological evaluation to be conducted after a significant amount of any recommended
•
received. However, the evaluation shall be conducted no sooner than is permitted is by clinical requirements in view of the August 2015 neurological evaluation. The evaluator shall be appropriately credentialed and shall not be
5) The DOE shall issue an authorization for an independent speech language evaluation which will include consideration of the possible effect of remediation. The parent may elect to delay that evaluation pending the student’s
•
receipt of recommended Dated: May 18, 2018
-
Judith Schneider, Esq. gc
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing parties' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
Parent
A Impartial Hearing Complaint, 10/28/16, 3 pgs.
-
B Withdrawn
C Tutoring Evaluation, 4/18/18, 4 pgs.
D Withdrawn
E Withdrawn
F Progress Report (2016-2017), 1 pg.
G DOE Letter for At-Risk Services, 10/31/16, 1 pg.
H Case Closing Document, 11/1-11-3/16, 4 pgs.
I Vision Skills Evaluation ( 8/15/15, 9 pgs.
J Neuropsychological Evaluation, 9/10/15, 24 pgs.
K SRO Decision, 5/4/16, 26 pgs.
L OT Evaluation, 8/30/15, 6 pgs.
M Auditory Evaluation, 11/10/15, 3 pgs.
N Meeting Notice, 10/25/16, 1 pgs.
O Math tests, 10/6/16 and 11/1/16, 8 pgs.
P Recording of IEP Meeting and transcript, 6/17/16
Q Impartial Hearing Decision, 1/21/16, 16 pgs.
R Emails Regarding Requested Meeting, 10/25-10/26/16, 7 pgs.
S Emails Regarding 10/27/16 Meeting, 10/26-10/27/16, 4 pgs.
T Emails Regarding IEP, 6/21-9/21/16, 4 pgs.
U Speech Language Eval. Functioning Listening Assess.,11/20/15, 8 pgs.
V Parent Letter Regarding At-Risk Counseling, 11/1/16, 1 pg.
W Email Regarding Parent Request to Reconvene, 10/26/16, 3 pgs.
X Educational Update of 6/17/17, 6 pgs.
Y Emails Regarding IEP, 6/21/16-9/27/16, 4 pgs.
Z SESIS Events Log 2016-2017, 15 pgs.
AA Report Card, 2016-2017, 3 pgs.
BB USPS Tracking Information, 6 pgs.
District
1 Withdrawn
2 Due Process Response, 11/10/16, 4 pgs.
3 Case Closing, 11/2/16, 1 pg.
4 Prior Written Notice-Case Closing, 11/1/16, 3 pgs.
5 Parent Email-Withdraw Consent, 6/21/16, 1 pg.
6 Consent for Initial Services, 6/17/12016, 1 pg.
7 Prior Written Notice, 6/17/16, 4 pgs.
8 IEP, 6/7/16, 4 pgs.
9 Parent Receipt of Evaluation, 6/3/16, 1 pg.
10 Notice of IEP Meeting, 5/27/16, 3 pgs.
11 Parent Email-IEP Meeting, 5/13/16, 1 pg.
12 Notice of IEP Meeting, 5/11/16, 3 pgs.
13 School Letter to Parent-IEP Meeting, 3/2/16, 1 pg.
14 Notice of IEP Meeting, 2/26/26, 3 pgs.
15 School Letter to Parent-IEP Meeting, 2/12/16, 1 pg.
16 Parent Email-IEP Meeting, 2/9/2016, 1 pg.
17 Parent Letter IEP Meeting, 2/8/16, 1 pg.
18 Notice of IEP Meeting, 1/29/16, 3 pgs.
19 Parent Letter-IEP Meeting, 12/7/15, 2 pgs.
20 Notice of IEP Meeting, 11/20/15, 3 pgs.
21 Notice of IEP Meeting, 10/5/15, 3 pgs.
22 2015-2016 Report Card, undated, 2 pgs.
23 Teacher Report, 6/3/16, 6 pgs.
24 Teacher Report, 5/23/16, 6 pgs.
25 Withdrawn
26 Classroom Observation, 2/2/16, 2 pgs.
27 Teacher Report, 2/1/2016, 5 pgs.
28 Withdrawn
29 Teacher Report, 11/16/15, 6 pgs.
30 Withdrawn
31 Withdrawn
32 Withdrawn
33 Withdrawn
34 Psychoeducational Evaluation, 13 pgs.
35 Parent Letter, 11/2/16, 1 pg.
36 PWN Initial Referral, 11/17/ 16, 6 pgs.
37 Notice of Social History-Certified Mail, 11/22/16, 1 pg.
38 PWN Certified Mail Receipt, 11/22/16, 1 pg.
39 Notice of Social History, 12/8/16, 1 pg.
40 Case Closing, 1/24/17, 1 pg.
Impartial Hearing Officer
I Prehearing Conference Memorandum
II District Closing Memorandum
III Parent Closing Memorandum
IV Emails -Parent, District, IHO
V Hearing Office Procedural Record
VI Subpoena
Footnotes
[1] The contents of this Background section are included herein as Findings of Fact. A more detailed history of this matter is included in Appeal No. 16-001. (Ex. K)
[3] By letter dated October 28, 2016, sent to and received by the DOE Impartial Hearing Office on November 2, 2016, the parent requested an impartial hearing. (Exs. A, V)
[4] The parent’s request for an NPS placement has been withdrawn. (Ex. III)
[5] The parent did not specifically request compensatory counseling services based upon the IEP either in her impartial hearing request or in her closing memorandum. (Exs. A. III) However, the hearing request was filed when the parent believed that counseling was being provided, it has been corrected with the consent of the district to include that request and the district has stated that it does not object to providing those services. (T. 1233-1235)
[6] February 2015 DOE testing had reported a FSIQ of 98 (Average) with all subtest areas in the Average range but for Processing Speed which was High Average. (Exs. J-3, 34) opined that the evaluation was not cursory and was “pretty much” what people give in psychoeducational evaluations but did not address attention, focus and emotional difficulties. (T. 1059-1062) He stated that the scores reported were not problematic in terms of standard scores per se but that the way the scores got to be average were