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The University of the State of New York The State Education Department Impartial Hearing Pursuant to 8 N.Y.C.R.R. 200.5 Jerome D. Schad, IHO Presiding ________________________________________________________________________
In the Matter of the June 7, 2017 Request for Due Process Hearing by the Parent of Student Decision on the Merits
Petitioners
vs.
Case Identification Number -------- ---------- School District
Respondent
DECISION
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.SA.C. § 1400 -1482) and Article 89 of the New York State Education Law.
On June 9, 2017, in a letter by her attorney, the Parent of STUDENT, a Student enrolled in the ---------- School District (hereafter the “District”), submitted a Request for Impartial Hearing to the District to challenge the appropriateness of multiple Individual Education Programs (IEPs) from 2014-2015 through 2017-2018 and the timeliness and comprehensiveness of evaluations of the Student. (Ex. P-A).
The Parent is represented by the Attorney # 1. The District is represented by Attorney # 2.
The Student
The Student is eighteen years old and currently attends the District’s ____________ High School. He is identified as a student with {an educational disability] (See, IEPs D-1 through D-13). Although classification was initially disputed (Tr. 494), the Parent’s independent neuropsychologist reported and testified that the {classification} was appropriate. (Ex. P-JJ, p. 19). The Student’s pendency placement is in 15:1 special classes program for his core academic subjects with {related services}. (See Decision on Pendency, 9/22/17).
Since third grade, he has been identified as having {an educational disability}. Every IEP, in the years 2014 – 2017, indicates that he exhibits delays in reading, decoding,
-------------- School District Decision on the Merits 1 reading comprehension, written expression, and speech and language skills. (See, IEPs, Exs. D-1 – D-13).
The Evaluation Dispute
At issue is whether the District’s evaluations adequately identified the Student’s disabilities or deficits to properly develop IEPs to meet his ----------, reading, decoding, reading comprehension, written expression and behavioral needs.
Results of standardized evaluations indicated an unexplained 30-point -------- decline first measured and reported in 2014 when the Student was 15 years and 6 months old and in 10th Grade.[1] The Parent argued that the District should have conducted further evaluations to better understand why the -------- results so dramatically changes and to know which set of results was more accurate in order to develop appropriate IEPs. and the District maintained that such additional results would not have been a productive exercise. (See, School Psychologist #1 testimony Tr. 301, 396).
Ultimately, the District acknowledged that the Parent’s independent neuropsychological evaluator’s use of assessment instruments, that mitigated the adverse effects of the Student’s ------ deficits, explained why the Student’s 2014-2015 -------- levels appeared to drop by 30-plus points.[2] I conclude that all IEPs drafted for school years within the two-year statute of limitations period considered in this matter were drafted without a clear base-line to establish appropriate goals for the Student.
The Student’s Educational Program Summary
During the 2014-2015 school year, the Student was in his second time in ninthgrade and received his education in a 15:1 special class program. (Exs. D-1, D-2, & D-3).
In in the middle of the Student’s tenth-grade, 2015-2016, school year, the Student began receiving his education on in-home instruction pursuant to an agreement between the Parent and the CSE due to parental concerns over the student’s safety related to gang issues. (Ex. D-6). Initially, that home instruction was to end in June 2016.
After the Student did not return to school in September 2016, the CSE and Parent agreed to continue in-home instruction (Ex. D-11) with re-entry planned but which did not occur due to continued Parental concerns for the Student’s safety. The CSE contemplated the Student’s full return to school by January 3, 2017 (see, D-11 & D-12).
On June 9, 2017, the Parent filed her Request for an Impartial Hearing that challenges the “classification, program, placement and implementation of special education and related services” for the 2014-2015, 2015-2016, 2016-2017 and 2017-2018 school years. (Ex. P-A, p. 1).
On August 10, 2017, I determined preliminary motions seeking disqualification of counsel and for an order for Independent Educational Evaluations (IEEs).
When the Student did not appear in school at the ------- High School, the Parent sought an order regarding pendency that I resolved by my September 22, 2017 Decision on Pendency. The Student then began attending the District’s ____________ High School in the 15:1 special class with ---------- therapy and counseling as related services.
Interim Orders
I issued five interim orders to determine issues of disqualification, a pre-hearing IEE request, pendency, scheduling and a renewed IEE requesting during the hearing.
• On August 10, 2017, I issued my Decision Determining Motions for
Disqualification of Counsel and IEEs.
• On September 22, 2017, after hearing arguments from the District’s successor attorney, Mr. Attorney # 2, Esq., and Parent’s attorney, Mr. Attorney # 1, I issued my September 22, 2017 Decision on Pendency to resolve the parties’ disagreement over the Student’s pendency status. I determined that his Pendency Placement was the program outlined in his January 3, 2017 IEP to be implemented at the District’s
____________ High School.
• In my Scheduling ORDER of November 10, 2017, I directed that the District provide the Student with his ---------- related services during the school day from 8:30 a.m. and 2:49 p.m. daily. I reserved decision on two other Parent requests – one for an IEE pursuant to 8 NYCRR § 200.5(g)(2) and one for home instruction two hours per day as part of the Student’s pendency placement.
• On December 9, 2017, I issued my further ORDER determining those Parent motions determining that an IEE “as part of the hearing” was not required on an incomplete record and determining that the home instruction services are not part of the pendency IEP.
-------------- School District Decision on the Merits 3
• On February 2, 2018, I issued Scheduling ORDER # 2 to address witness availability concerns for then-scheduled Parent witnesses setting February 21, 2018 as a further hearing date and I granted a further 30-day extension of the timeline for a decision.
Hearing Proceedings
Hearing proceedings were conducted on September 19, 2017 (Conf. Call), October 11 and 12, 2017, November 1, 2017, December 15, 18, and 19, 2017, and February 21, 2018 and March 5, 2018 (rebuttal testimony). On the final date for taking testimony, I set March 12, 2018 for submission of post-hearing briefs, subsequently adjusted to March 13, and March 12, 2018 as the record close date.
Analysis and Decision
Statute of Limitations
The Parent’s complaint challenges every IEP in place for the Student from the end of the 2014-2015 school year to the present. I conclude, however, that the two-year statute of limitations bars adjudication of the appropriateness of the 2014-2015 IEP.
New York has adopted the IDEA two-year statute of limitations in Commissioner of Education Regulation at 8 NYCRR § 200.5(j)(1)(i). That section implements the Individuals with Disabilities Education Act (“IDEA”) two-year statute of limitations. See, 20 U.S.C. §1415(f)(3)(C) and §1415(f)(3)(D). New York’s regulation, at section 200.5(j)(1)(i), reads:
. . . . The request for an impartial due process hearing must be submitted within two years of the date the parent . . . knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school districts’ withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title.
The Commissioner’s regulations create a two-exceptions standard, consistent with the IDEA, that limits claims to a two-year period unless (a) parents were misled or (b) information required to be provided was not provided.
The first of the two exceptions, “specific misrepresentations,” is not defined in the IDEA or the Commissioner’s regulations. To satisfy the first standard “plaintiffs must show
-------------- School District Decision on the Merits 4 that the school intentionally mislead them or knowingly deceived them regarding their child’s progress.” D.K. v. Arlington School District, 696 F.3d 233, 246 (3rd Cir. 2012).
For the second of the two exceptions, “withholding of information . . . that was required to be provided to the parent under this Part or under Part 201 . . .”, all that is required is proof of a failure to provide the mandated notice of procedural rights. Commissioner of Education regulations at 8 NYCRR § 200.5(f)(1) Procedural safeguards notice, requires every New York school district to “use the procedural safeguards notice prescribed by the Commissioner of Education” and, pursuant to § 200.5(f)(3), the . . . notice must be given to the parents of a student with a disability, at a minimum one time per year and also:
(i) Upon initial referral or parental request for evaluation; (ii) Upon the first filing of a due process complaint notice to request mediation or an impartial hearing as described in subdivisions (h) and (j) of this section; (iii) Upon request by a parent (iv) Upon a decision to impose a suspension or removal that constitutes a disciplinary change in placement pursuant to section 201.2(e) or this Title; and (v) Upon first receipt of a State complaint pursuant to section 200.5(l) of this
Part.
I find, under the first exception, no evidence supports an inference or conclusion that the District intentionally misrepresented information to the Parent that prevented her from exercising her due process rights. On the second exception, again, I find no evidence that the Parent was not given the required written notice of either the CSE meeting or the recommendation from the meeting. The due process hearing requests does not allege facts to support expansion of the two-year statute of limitations period to a date prior to June 9, 2015 – one month after the May 8, 2015 CSE Annual Review meeting to draft the 20152016 IEP (Ex. D-9). Thus, I will not make findings regarding the adequacy of the 20142015 IEP and only address the 2015-2016 as relevant in light of the January 11, 2016 and subsequent CSE meetings. I make findings and conclusions of law below regarding the balance of the claims.
Substantive and Procedural Legal Standards
The IDEA (20 U.S.C. §§ 1400 – 1482) requires (a) that students with disabilities are offered a Free Appropriate Public Education (FAPE) (20 U.S.C. § 1401(9)) through
-------------- School District Decision on the Merits 5 an Individualized Education Program (IEP) (20 U.S.C. § 1414(d)) that provides special education and related services designed to meet their unique needs and prepare them for future education, employment and independent living and (b) prepared “in collaboration among parents and educators,” Endrew F. v. Douglas County Sch. Dist., 580 U.S ___, 137 S.Ct. 988, 994 (2017) with the rights of students with disabilities and parents of those students being protected (see, 20 U.S.C. § 1400(d)(1)(A) & (B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009).
The IDEA scheme includes evaluations of a scope broader than mere academic performance from which IEPs are to be developed. IDEA evaluations must not only use a variety of assessment tools and strategies but must gather relevant “functional” and “developmental” as well as academic information to help determine the “content of the child’s [IEP]”. 20 U.S.C. § 1414(b)(2)(A)(i) & (ii). Schools are “not to use any single measure or assessment” for either an eligibility decision or to determine and appropriate IEP. 20 U.S.C. § 1414(b)(2)(B).
A school district offers a FAPE to a student when:
(1) the district complies with the procedural requirements in the IDEA and
(2) the IEP that is developed by the CSE following the IDEA procedures is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances,” Endrew F. v. Douglas County Sch. Dist., 580 U.S. at
___, 137 S.Ct. at 999. “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content of an IEP” (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2nd Cir. 1998), quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982).
“The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F. v. Douglas County Sch. Dist., 580 U.S. at ___, 137 S.Ct. at 999. Academic advancement includes passing grades and movement from grade to grade. Functional advancement includes measurable skill improvement over time in light of each child’s circumstance. See, Endrew F. v. Douglas County Sch. Dist., 580 U.S. at ___, 137 S.Ct. at 999.
-------------- School District Decision on the Merits 6
An appropriate IEP begins with one that includes a statement of the student’s present levels of academic achievement and functional performance (see, 34 CFR § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals designed to meet the student’s needs that result from the student’s disability and enable the student to make progress in the general education curriculum (see, 34 CFR § 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services (see, § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
When challenging a school district’s CSE decisions, parents have a statutory right to file a due process complaint [20 U.S.C. § 1415(b)(6) & (7) & §1415(c)]. Parents’ right to a due process hearing [20 U.S.C. § 1415(f)(1)(A)] includes the right to present new evaluation reports and offer recommendations from those evaluations even if those evaluations were conducted after the date of CSE meeting that developed the challenged
IEP. The only limitation on that right is that if the evaluation report has not been disclosed, the “hearing officer may bar” the introduction of the evaluation and recommendations. 20 U.S.C. § 1415(f)(2)(B). Here, the Parent obtained four evaluations during the process of the due process hearing [Ex. P-Z (Teacher # 1 June 2017 Academic / Skills), Ex. P-II (Provider ----------), Ex. P-FF (Therapist # 1 September 2017 OT), and Ex. JJ (Private Psychologist October 2017 Neuropsychological) all of which were disclosed to the District prior to the evaluator testifying in the proceeding.
Classification:
The CSE’s classification of the Student’s disability as a speech or language impairment is appropriate. The Private Psychologist Neuropsychological evaluation report concurs with the CSE’s classification decision. (See, Private Psychologist’s Report, Ex. JJ at p. 19). Thus, the record evidence supports the CSE’s decision. In so finding, I do conclude that the District did not adequately assess the Student as to the impact of his ---- ------ impairment on his educational programing prior to development of all of his IEPs.
Sufficiency of Evaluation Information:
The Parent complains alleges that over time, the Student’s testing scores demonstrated unmistakable regression. There is some evidence to support that conclusion.
-------------- School District Decision on the Merits 7 School Psychologist # 4, M.S. Ed., C.A.S., conducted a clinical interview and administered the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), the Wechsler Individual Achievement Test-Third Edition (WIAT-III), the Vineland Adaptive Behavior Scales-Second Edition (Vineland-II) and conducted a records review. She reported that his February 2010 and December 2012 psycho-educational and speech and language re-evaluations had consistently indicated *************. (Ex. D-31& P-T). Those evaluations reported ***************** abilities. (Ex. D-31 & P-T).
A comparison of the WISC-IV results over time indicates a downward path.
• On the Verbal Comprehension Index (VCI), he achieved a score of ---- (Ex. D-31
p. 6) but had scored ---- in 2012 (Ex. P-R, p. 1 & P-S, p. 2), a ----in 2010 (Ex. P-Q,
p. 2) and a --- in 2007 (Ex. P-N, p. 2).
• On the perceptual reasoning index (PRI)scores, he achieved a score of --- in 2014 (Ex. D-31, p. 6), but a score of --- in 2012 (Ex. P-R, p. 1 & P-S, p. 2), a score of --
- in 2010 (Ex. P-Q, p. 2), and a --- in 2007 (Ex. P-N, p. 2).
• On the working memory index (WMI), he scored a ___ (Ex. D-31, p. 6), but a score of --- in 2012 (Ex. P-R, p. 1 & P-S, p. 2), a score of --- in 2010 (Ex. P- Q, p. 2), and a score of --- in 2007 (Ex. P-N, p. 2).
• The Student’s processing speed index (PSI) in 2014 was only --- (Ex. D-31, p. 6), but was --- in 2012 (Ex. P-R, p.1 & P-S, P. 2), --- in 2010 (Ex. P-Q, p. 2) and --- in 2007 (Ex. P-N, p. 2).
A comparison of the WIAT-III results overtime indicates a predominantly downward path as well.
• On the word reading subtest, he scored a --- (Ex. D-31, p. 6), but a score of --- in 2012 (Ex. P-R, p. 6 & P-S, p. 3), a score of --- in 2010 (Ex. P- Q, p. 3), and a score of --- in 2007 (Ex. P-N, p. 3).
• On his reading comprehension subtest, he scored a --- (Ex. D-31, p. 6), but a score of --- in 2012 (Ex. P-R, p. 6 & P-S, p. 3), a score of --- in 2010 (Ex. P- Q, p. 3), and a score of --- in 2007 (Ex. P-N, p. 3).
• On numerical operations, he scored a --- (Ex. D-31, p. 6), but a score of --- in 2012 (Ex. P-R, p. 6 & P-S, p. 4), a score of --- in 2010 (Ex. P- Q, p. 4), and a score of --
- in 2007 (Ex. P-N, p. 3).
-------------- School District Decision on the Merits 8 School psychologist 4’s test results from the WIAT-III indicated that the Student’s reading scores were -------------, his numerical operations skills were -----------, math problem solving at ----------, sentence composition skills at ---------.
On the WISC-IV, the Student’s verbal comprehension was ------------, his perceptual reasoning was -------------, his working memory ----------, and processing speed . (Ex. 31 & P-T). The Vineland Adaptive Behavior Scales-Second Edition indicated . (Ex. D-31 & P-T).
In October 2014, ---------- Speech/Language Therapist # 1, CCC/SLP/TSHH-BE, conducted a speech language evaluation at the Parent’s request. The Student, then age 15 years and seven months, demonstrated ---------- skills. Evaluator Speech/Language Therapist # 1 reported that the Student’s “.” (Ex. D-32, p. 1). From administration of the Clinical Evaluation of Language Fundamentals-Fifth Edition (CELF5), the Student’s core language score was . She reported that the Student . . . demonstrates .” (Ex. 32, p. 7).
The evaluator recommended continuation of ---------- therapy to improve his ------ -------- skills and improve at all levels and made no specific program recommendations.
Dr. School Psychologist #1 testified that 2007 testing when the student was 7 years 11 months old 3, the 2010 -------- testing 4 and 2012 testing 5, when the student was 11 and 13 years old, were consistent that the Student’s -------- abilities were in the ------ range.
Dr. School Psychologist #1 said that 2014 District testing showed significant decline of 30-plus points in -------- findings and she recommended that the District obtain an additional evaluation. That additional report was by school psychologist # 6, who evaluated the Student in January 2015 when the Student was 15 years, 11 months old. (D35 & P-X).
3 Ex. P-N, Psycho-Educational Evaluation by School Psychologist # 2, M.A., School Psychologist. 4 Exs. P-Q, Psycho-Educational Evaluation by School Psychologist # 3, M.A., School Psychologist & see Ex. P-O, the Clinical Evaluation of Language Fundamentals 4th Ed. By Susan Andrasko, M.A., CC SLP & attached WISC-IV & WIAT-II 2007 testing reports. 5 Ex. P-S, Psycho-Educational Re-Evaluation by Candice Bailon, Graduate Intern Psychologist, supervised by School Psychologist # 7, School Psychologist.
-------------- School District Decision on the Merits 9 The shift in evaluation results in cognition from the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) showed -------, the explanation for which she hoped to determine. WISC-IV 4th 1/26/2007 – 2/25/2010 2/13/12 9/11/14 – 1/28/15 Edition for 1/31/2007 Student 11 Student 13-years 9/15/14 Student 15 years Children Student 7 years years old. & 9 months old Student 15 11 months old -------- Areas 11 months old. years, 6 months old. WISC-V 5th
Evaluator: Edition for
Evaluator School Evaluator: School Evaluator: # 4 Children
Psychologist # 2 School Psychologist # 7 Ex. P-T
Ex. P-N Psychologist # Ex. P-S Ex. D-31 Evaluator: # 6
3 Ex. P-X
Ex. P-Q Ex. D-36
Composite Composite Composite Composite Composite Verbal -->1% Comprehension -- -- -- --
Perceptual -- -- -- -- -- Reasoning
Working -- -- -- -- -- Memory
Processing -- -- -- -- -- <0.1% Speed
Full Scale IQ -- -- -- -- --
Dr. School Psychologist #1 initially testified that further testing was not called for to explain ---- shown in the Kirshenberg and School Psychologist # 6 testing. (Tr. 301, 396, & 528). The October 2017 Private Psychologist testing, however, points to the opposite conclusion: that further testing would have been critically helpful to the CSE to understand the Student’s -------- functioning when developing IEPs for the years 2015 – 2018.
The District looked for the cause of the decline such as possible environmental factors [traumatic brain injury, other medical conditions, habits (including drug use) but largely ruled out motivation factors during evaluations or assessment error. Inquiry of the Parent about possible trauma is, in reality, data gathering seeking to confirm the validity of the lower of the two sets of test scores. That inquiry itself is more consistent with a recognition that the District was not yet in a position to know the Student’s current level of performance. Rather than do additional testing to obtain more reliable data on which to develop present levels of performance for the Student’s IEPs, thereafter the District was
-------------- School District Decision on the Merits 10 relied entirely on anecdotal information (e.g., the Student’s academic grades improved while on home instructions and that he passed several Regents examinations).
The IDEA required that further evaluations be conducted. They were not. (Tr. 301, 318, 396, 400-401, 412-413, 504).
The IDEA triennial reevaluation requirement “at least one every 3 years” (20 USC § 1414(a)(2)(B)(ii)) creates a floor, not a ceiling, for the evaluation process. That evaluation process drives the determination of a Student’s needs in an IEP. When the CSE met on July 13, 2016, the first decision the IDEA required it to make was whether the Student’s educational needs and related service needs, “including improved academic achievement and functional performance” (20 USC § 1414(a)(2)(A)(i)), warranted reevaluation.
When the CSE decided to shift from an educational program focused on functional levels at the first and second grade level, to one focused on the eleventh grade, it did so solely on the single measure of teacher anecdotal report of grades achieved and Regents examinations passed while the Student was in the one-to-one home instruction. That sole measure drove the IEP program. (See, D-10, Comments, p. 1; Tr. 391-395). The January 2, 2017 amendment (Ex, D-12, listing of the evaluation/reports relied upon), highlights the CSE’s reliance on the September 19, 2016 Report Card and Transcript as the measurement source. The IDEA directs that schools “not use any single measure or assessment as to the sole criterion for determining . . . an appropriate educational program for the child.” (20 USC § 1414(b)(2)(B)) (emphasis added). New York’s Education Regulations at 8 NYCRR § 200.4(b)(6)(v) similarly prescribe a limitation on CSE decision-making for a Student’s IEP. The CSE drafted the Student’s 2016-2017 IEP by relying on “a single measure” without conducting a reevaluation.
In her March 5, 2018 testimony, Dr. School Psychologist #1 testified that Dr. Private Psychologist’s October 2017 evaluation reported very similar results to the District evaluations conducted six and nine years earlier where the findings indicated that the Student’s -------- levels were in the low average range.[6] She explained that he had used some instruments that did not rely heavily on the Student’s speech abilities to gain a more accurate assessment of the Student’s IQ that helped resolved the up-to-then-unanswered question: Which evaluation results more accurately described the student’s abilities - the 2012 and earlier evaluations showing -------- ability in the low average or borderline range or the 2014 – 2015 testing that showed a 30-plus point -------- decline?
The District’s school psychologist, Dr. School Psychologist #1, testified, that “I think at the District level, we were also concerned about placing [the Student] in a life skills class without a full answer as to why the evaluations were much lower than the previous evaluation.” (Tr. 189).
Programmatically, the District’s CSE hop-scotched around without the follow-up evaluation needed to adequately understand the Student’s disability. For instance, after receiving the Kirchenberg (Ex. D-31) and School Psychologist # 6 (Ex. D-35) reports, the CSE, on March 19, 2015 immediately changed the Student’s program to a Special Class 15:1 life skills program (Ex. D-4; Tr. 196 & 178-180). The CSE, two months later on May 8, 2015, reversed course. It placed the Student back in a Special Class 15:1 in which he had previously been placed and did so on anecdotal-based information and with Parent opposition to the life skills program. Tr. 186, 188 – 190. The IEP comments say that the change was “Based on the teacher report, parent discussion, committee discussion, the student has turn[ed] around, he is attending classes and participating in the class discussions.” (Ex. D. 5).
That the District did not have a “full answer as to why the evaluations were much lower than the previous evaluations” (Tr. 189) is evidence of a denial of FAPE. Dr. Private Psychologist’s October 2017 Neuropsychological Evaluation Report (Ex. P-JJ) and
Provider’s July 13, 2017, Speech and Language Evaluation (Ex. P-EE) highlight the need for a sufficient understanding of a student’s disability based on thorough current evaluations. The subsequent, and challenged, IEPs for the 2015-2016, 2016-2017 and 2017-2018 school years are, as a matter of law, inappropriate because they were not based on sufficient assessment tools to “assess the relative contributions of -------- . . . factors . . .” with confidence. 20 U.S.C. § 1414(b)(2)(C). The District’s Objection to the 2017 Private Psychologist, Provider, Therapist # 1 and Teacher # 1 Evaluations as allegedly-prohibited “Retrospective Evidence [see, District Brief, pp. 21 – 23]”
-------------- School District Decision on the Merits 12 The District argues that testimony from the Parent’s expert witnesses may not be considered in a hearing officer’s evaluation of whether the Student was denied a FAPE. The argument is flawed and undermines core IDEA parental rights.
The District relies on a distorted application of the Second Circuit’s evidentiary rule prohibiting a school district from using evidence of services a student “would have received” that are not listed on an IEP (i.e., what the Court says is “retrospective evidence”) to cure deficiencies in an IEP. R.E. v. New York City Department of Education, 694 F.3d 167, 186-187 (2nd Cir. 2012). The IDEA does not contain a retrospective evidence rule. The Second Circuit’s delineation of the “retrospective evidence” rule was to make clear that the sufficiency of an IEP is measured prospectively: “ ‘as of the time it [the IEP] was made and [the court / hearing officer] should use evidence acquired subsequently to the creation of an IEP only to evaluate the reasonableness of the school district’s decisions at the time they were made.’ ” Id. at p. 186, quoting, D.S. v. Bayonne Bd. Of Educ., 602 F.3d 553, 564-65 (3d Cir. 2010).
Application of the R.E. “retrospective evidence” rule “forecloses the school district from relying on evidence that a child would have had a specific teacher or specific aide.” Id. at p. 187. The converse of the R.E. retrospective evidence rule is that where a student has been withdrawn from public school and enrolled in private school – and thus does not participate in public school pursuant to a challenged IEP - Parental evidence that the school district “would have provided” the Student different or lesser services than described within the IEP should not be admitted.
The R.E. holding did not create a rule prohibiting evaluations or recommendations based on evaluations conducted after the date of a CSE meeting that developed a challenged
IEP. Actually, the R.E. permits courts and hearing officers to consider “evidence . . . to evaluate the reasonableness of the school district’s decisions at the time they were made.” Id. at p. 186.
Under the R.E. decision, the Parent’s offer of the Teacher # 1, June 2017
, Academic / Skills Evaluation (P-Z), the Therapist # 1, Ph.D., OTR, September 8, 2017 Occupational Therapy Evaluation (P-FF), the Provider, M.S. / CCC-SLP July 13, 2017 Speech and Language Evaluation (P-II), and the Private Psychologist, Psy.D. October 2017 Neuropsychological Evaluation (Ex. P-
-------------- School District Decision on the Merits 13
JJ) help the trier of fact evaluate the reasonableness of the school district’s decisions at the time they were made. They all also provide recommendations based on the evaluation results.
The District’s brief’s assertion that “the Second Circuit, its District Courts, as well as the State Review Office, expressly prohibit the introduction evaluation reports as ‘retrospective’ evidence to challenge the appropriateness of an IEP” (District Brief at p.
22) is a misstatement of the R.E. holding. The one unreported Federal District Court case cited by the District, and the five State Review Officer decisions cited 7 by the District, go beyond and fail to follow the R.E. binding precedent. They are distinguishable on their facts and more limited in their holding that the District asserts.
The only court decision stating that the retrospective evidence rule has a converse application that includes evaluations is the trial-level court case of C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376 (S.D.N.Y. Dec. 23, 2013), a case decision that recites that it is “Not Reported in F. Supp.2d.” It is not binding precedent. The Court, after citing the R.E. holding correctly on the issue of a deficient IEP, gratuitously, without citing any precedent or rationale, asserted the “ . . . a substantively appropriate IEP may not be rendered
7 In Application of the Bd. Of Educ. of the Clarkstown Central School District, SRO Appeal No. 16-069, the IHO improperly issued an order retroactively changing a student’s disability classification and the IHO then relied on C.L.K. v. Arlington Sch. Dist., supra, to prohibit consideration of an independent neuropsychological evaluation of the student (a) that had not been considered by the CSE and (b) the who report had not been placed in evidence and the SRO quoted C.L.K. but articulated no clarifying justification for adopting the blanket prohibition to receipt of expert witness testimony about a student’s functioning levels. In Application of a Student with a Disability, SRO Appeal No. 16-067, the parent raised some claims not contained in the due process complaint and the one private school witness testified about services to be provided to the student that were beyond what was in the IEP leading to a footnote reference to C.L.K. and retrospective evidence as applied to implementation of an IEP. The SRO in Appeal No. 16067 did not seek to bar evaluation reports and expert testimony about a Student’s functioning levels. In Application of a Student with a Disability, SRO Appeal No. 16-002, the cited reference to C.L.K. and that retrospective evidence is limited to the R.E. standard about implementation measures beyond what an IEP provided. Again, Appeal No. 16-002 did not hold that an evaluation done subsequent to the challenged CSE meeting and the evaluator’s report and expert testimony from the evaluator was prohibited in the due process hearing. In Application of the NYC Dept. of Educ., SRO Appeal No. 14-112, the parent had not raised claims related to certain February 2012 IEP annual goals or the “sufficiency of the evaluative information considered by the CSE” (Appeal No. 14-112 at p. 4). The retrospective evidence analysis was properly limited to consideration of “how the district would have implemented the student’s February 2012 IEP” (Appeal No. 14-112 at p. 10) and, again, the SRO did not hold that all post-CSE meeting evaluation reports and expert testimony were prohibited. Finally, in Application of the Board of Education of the Cazenovia Central School District, Appeal No. 14-109, the SRO found that an IHO’s reliance on progress in subsequent school years as evidence of a prior-school year IEP deficiency to be retrospective evidence but, again, Appeal No. 14-109 did not hold that all post-CSE meeting evaluation reports and expert testimony is prohibited. Pursuant to 8 NYCRR § 279.12(3), these SRO Decisions “shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever.”
-------------- School District Decision on the Merits 14 inadequate through testimony and exhibits that were not before the CSE about subsequent events and evaluations that seek to alter the information available to the CSE [emphasis added]” 2013 WL 6818376 at p. 13. That position, as far as this IHO can determine, has never been adopted by the Second Circuit or any other Federal appellate court. That C.L.K. statement, if taken literally, creates a rule prohibiting all expert testimony about a Student’s disability, academic and functional abilities, and needs when the evaluation on which the expert testimony is based is conducted after the date of the CSE meeting at which a challenged IEP was developed.
Here, the Parent’s offer of the four evaluations and expert testimony was not “about subsequent events” but rather about the Student’s abilities and deficits. Those reports do not seek to alter what was before the CSE in any of the challenged meetings. They help the trier of fact understand the Student whose life was in the hands of the CSE when it made its decisions.
The District’s position runs afoul of the IDEA to the detriment of Parents and Students and fundamental due process.
Post-CSE meeting evaluations and evaluation reports and expert witness testimony from those reports serve the purpose of providing insight into a Student’s disability and needs. An evaluation conducted after the commencement of a due process hearing is not about “subsequent events” but rather about the very student who is entitled to have be heard and who is entitled to be evaluated using sound instruments to “assess the relative contribution of -------- and behavioral factors in addition to physical or developmental factors.” 20 U.S.C. § 1414(b)(2)(C).
The District offered no evidence to suggest that a student’s aging – i.e., mere passage of time following a CSE meeting - renders a subsequent evaluation unreliable for purposes of understanding a Student’s disability, functioning levels and needs. For instance, if, as here, a Parent claims that their school district “failed to comprehensively evaluate the Student to understand the Student’s needs and abilities” (P-A, p. 2), one question arises at every CSE meeting thereafter: Should the CSE have conducted further evaluations to be in a position to make a more informed decision about the IEP created at those CSE meetings? “In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior
-------------- School District Decision on the Merits 15 to making a placement decision.” R.E. v. New York City Department of Education, supra, at p. 186. When a school district has not obtained sufficient evaluative information, the burden to obtain it remains with the school district and does not shift to the Parent to hire experts and provide the lacking evaluation reports to the CSE.
The IDEA explicitly contemplates admission of Parentally-obtained post-CSE meeting evaluations and expert testimony in due process hearings. The IDEA contemplates such evidence if, “Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1) [i.e., 20 USC § 1415(f)(1)], each party [i.e., school district and parents] . . . disclose to all other parties all evaluation completed by that date, and recommendations based on the offering party’s evaluation that the party intends to use at the hearing.” 20 USC § 1415(f)(2)(A).
The IDEA rule provides that a hearing officer “may bar any party that fails to comply with subparagraph (A) [i.e., 20 USC § 1415(f)(2)(A) - the prior disclosure requirement] from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.” 20 USC § 1415(f)(2)(B). In this hearing, this hearing officer prohibited the testimony of Dr. Private Psychologist on December 19, 2017 because the evaluator’s report had not yet been disclosed and required that it be provided to the District’s counsel. The testimony of Dr. Private Psychologist was not offered or admitted until after the District had had a full opportunity to review the evaluator’s report. The District then called Dr. School Psychologist #1 back to testify on March 5 as a rebuttal witness to offer additional testimony on its behalf.
Evaluations that “the party intends to use at the hearing.” 20 USC § 1415(f)(2)(A) constitute evidence for admission in due process hearings. It is absurd to read the IDEA language any other way. The statute contemplates that “the relevant evaluation or recommendation at the hearing” is subject only to a prior disclosure requirement. To adopt the District’s position (District’s Brief, pp. 21 – 23) that the four expert witnesses’ testimony and their reports “must be disregarded” also runs afoul of the IDEA due process safeguard that parents have a “right to present evidence” 20 USC § 1415(h)(2).
The District’s position would vitiate the vital due process statutory right in IDEA Section 1415(f) to offer current evaluation reports and expert testimony in due process hearings. It is for Congress, not the Courts or the SRO, to repeal this due process evaluation
-------------- School District Decision on the Merits 16 and expert testimony evidentiary right. Because Congress has not acted to terminate that right, the Parent here was acting within her rights to obtain the evaluations and offer expert testimony that included recommendations based on those evaluations.
A core purpose of an evaluation is to help make determinations of “the content of a child’s individual education program” 20 USC § 1414(b)(2)(A)(ii). Parent who claim that a school district “failed to comprehensively evaluate” (P-A, p. 2) are permitted to offer current evaluation reports at the due process hearing to answer two questions on which the evaluations shed light:
(a) whether the District had, when a CSE met to formulate an IEP, a sufficient understanding of the Student’s disability and
(b) what “would” have been appropriate in an IEP if the CSE had comprehensively evaluated the Student. The IDEA statutory language contemplates expert opinion testimony of recommendations for a Student’s IEP will be admitted in due process hearings – not excluded.
Finally, the District’s position would create is a very, very high financial burden on every parent during the CSE and IEP development process. The District’s position would require concerned parents to retain experts at their own expense “prior to” CSE meetings in anticipation that the outcome of the CSE meeting might not be what they sought. The unreported federal district court case and the SRO decisions [not precedent under 8 NYCRR §279.12(a)] cited by the District are inconsistent with the IDEA statutory language and the Second Circuit’s clear language in R.E.
2014-2015 – The Student’s Second Ninth Grade School Year:
May 20, 2014 CSE Meeting:
The Student’s 2014-2015 IEP was prepared in an annual review meeting on May 20, 2014. (Ex. D-1). The Student continued to be classified as a student with a and a March 5, 2013 Speech and Language Reevaluation is reported among the evaluation reports considered by the CSE. The Test of Language DevelopmentIntermediate 4th Edition indicates that the Student achieved a grammar score in the percentile, an organizing score in the percentile, a semantics score in the percentile, a speaking score in the percentile and a spoken language score in the percentile. (Ex. D-1, “Test Results”).
-------------- School District Decision on the Merits 17
The Wechsler Individual Achievement Test-III, administered on December 12, 2012, reported basic reading skills in the percentile, math problem solving in the percentile, mathematics in the percentile and numerical operations in the percentile. (Ex. D-1, “Test Results”).
The IEP describes the Student’s present levels of performance (PLPs) that he “requires extra time to process language tasks,” “is able to identify unknown vocabulary when provided with moderate assistance,” “struggles with providing oral definitions to words, as he demonstrates poor word retrieval skills,” and concludes that he needs continuation of speech-language services to address “receptive and expressive language delays” and that he needs a “more structured environment with increased supports” (emphasis added). The PLPs note that the Student “has a visual learning style” and “does well with one-on-one instruction and can retain information when it is explained visually and narratively (emphasis added).” (Ex. D-1, p. 3 of 10).
Under management needs, the Student “continues to display significant delays in all areas of academics and should continue in a small teacher-to-student ration program with minimal distractions.” (emphasis added) (Ex. D-1, p. 4 of 10). His IEP states that “The student has a [sic] significant delays in reading decoding, reading comprehension, written expression, speech and language skills which adversely impacts progress in the general curriculum.” (Ex. D-1, p. 4 of 10).
His IEP identifies five study skills, two reading, two writing, four math, two ------- ---, and one social/emotional goals. (Ex. D-1, pp. 5-7 of 10). In a September 3, 2014 IEP Amendment without a meeting, the Student’s placement was returned to a 15:1 Special Class for the same courses and related services due to Parental opposition to the 12:1 class (Ex. D-2, Comments, p. 1).
2015-2016 – The Student’s Tenth Grade School Year:
At his May 8, 2015 CSE meeting, the CSE recommended continuation of the 15:1 Special Classes for his tenth-grade year with the same related services. (Ex. D-5).
Program/Services Duration Frequency Location Special Class (Special Class – 9/3/15- 1 x Daily, 43 min. Special Class English/Language Arts) 15:1 6/23/16 Special Class – Math 15:1 9/3/15- 1 x Daily, 43 min. Special Class
6/23/16 Special Class – Social Studies 15:1 9/3/15- 1 x Daily, 43 min. Special Class
6/23/16
-------------- School District Decision on the Merits 18 Special Class – Science 15:1 9/3/15- 1 x Daily, 43 min. Special Class
6/23/16 ---------- Therapy – Individual 9/3/15- 2 x Weekly, 30 min. Therapy Room
6/23/16 Counseling – Individual 9/3/15- 1 x Weekly, 30 min. Therapy Room
6/23/16
The IEP contained three reading goals using second grade-level literature, two writing goals addressing correct capitalization, narrative writing using temporal words (first, next, then …), math goals focused on addition and subtraction and word problems involving dimes, nickels & pennies, one speaking/listening goal to verbally express inferences based on a written text of one paragraph, and four ---------- goals addressing verbal expression, identification of antonyms & synonyms, homonyms and multiple meaning words, producing meaningful communication interactions through appropriate rate, volume and pragmatic language and demonstrating skills through phonemic awareness skills.
January 11, 2016 CSE Meeting Amendment – No Meeting:
On January 11, 2016, the IEP was Amended by agreement without a meeting and the Student was placed on in-home instruction “until an appropriate program is obtained” [D-6]. The change was made at the Parent’s request for concern for her son’s safety related to fears of gang bullying of her son. Counseling was continued but speech services were discontinued.
March 11, 2016 CSE Meeting – Program Review:
On March 11, 2016, in a Program Review, the then-most-recent evaluations were reviewed and some discussion of a possible 1:1 teaching assistant as part of a safety plan for his return was discussed but the CSE continued the Student’s in-home instruction program pending his annual review. (Ex. D-7).
May 5, 2016 CSE Meeting – Program Review:
On May 5, 2016, in a Program Review Meeting, requested by the Parent, the inhome instruction was continued through the end of the school year. (Exs. D-8 & D-9). His educational program consisted of the following:
Program/Services Duration Frequency Location Consultant Teacher Services (Home 4/1/16 – 1 x Daily, 1 hr. Home/Community Instruction) Direct 6/23/16 ---------- Therapy: Individual 4/1/16 – 2 x Weekly, 30 min. Home/Community
6/23/16
-------------- School District Decision on the Merits 19
Counseling: Individual 4/1/16 – 1 x Weekly, 30 min. Home/Community
6/23/16
He completed his 10th grade year, 2015-2016 on in-home instruction, passing most of his courses and earning credits toward his Regents diploma (Ex D-49), yet the CSE comment - that he “is unable to complete work independently” (Ex. D-7, Comments, p. 2) – is an indication of the continued level of direct support the Student needed. In his subsequent CSE annual review meeting, the IEP comments noted that: “Through Home Instruction, [the Student] has passed 4 regents and has earned a total of 5 and ½ credits.” (Ex. D-10, Comments, p. 1). He had accumulated a total of 12 credits to that point. (Ex. D-48).
All of the Student’s IEPs said that the Student “will be provided the opportunity to participate in a Level I career assessment” but the District did not provide this opportunity. Tr. 691, 709 (Exs. D-1 through D-13). Also, the Student manifested attention, fine-motor, focus and daily living skills deficits but the District failed to conduct an OT evaluation after 2010. (Ex. P-X, Tr. 315), an evaluation that the District conceded would be helpful. (Tr. 316-320). Finally, no ---------- reevaluation was conducted after the 2014 evaluation.
2016-2017 – The Student’s Eleventh Grade School Year:
July 31, 2016 CSE – Annual Review:
At the July 31, 2016 Annual Review meeting, the Parent expressed an interest in an out-of-district placement for her son over her continuing concern for her son’s safety and gang activity but that no nonpublic school alternative placement was considered. (Tr. 733 & 736). Teachers noted that the Student had difficulty transitioning from class to class. (Ex. D-10). No new evaluation data was considered. (Tr. 738). The CSE continued the same special class program that he was in before the he began in-home instruction. The CSE did not discuss placement in a different high school building other than High School to address the parent’s safety concern. (Tr. 736)[8] and CSE Chair, Ms.
did not recall if placement in a BOCES program was discussed. (Tr. 814–817). The program recommended is as follows:
Program/Services Duration Frequency Location Special Class (Special Class – 9/6/16 - 1 x Daily, 43 min. Special Class English/Language Arts) 15:1 6/23/17 Special Class – Math 15:1 9/6/16 - 1 x Daily, 43 min. Special Class
6/23/17 Special Class – Social Studies 15:1 9/6/16 - 1 x Daily, 43 min. Special Class
6/23/17 Special Class – Science 15:1 9/6/16 - 1 x Daily, 43 min. Special Class
6/23/17 ---------- Therapy – Individual 9/6/16 - 2 x Weekly, 30 min. School
6/23/17 Counseling – Individual 9/6/16 - 1 x Weekly, 30 min. Home/School
6/23/17 Counseling – Small Group 9/6/16 - 2 x Monthly, 30 min. Therapy Room
6/23/17
The CSE meeting comments indicate that compensatory ---------- services for those missed in the period May 5, 2016 through June 23, 2016 would be provided during the 2016-2017 school year. (Ex. D. 10, Comments, p. 1). Chairperson indicated that the student had not received speech and language services between the period of January to June 2016. (Tr. 819–820).
The IEP contained thirteen goals that included five study skills goals. Two reading goals sought to help the Student “provide an objective summary” of content area subjects using 11th grade level material and his being able to identify the author’s point of view. Two writing goals sough to achieve the Student’s use of conventions of standard English grammar in writing and speaking and writing a formal objective argument presenting knowledgeable claims and counterclaims on a topic. One math goal sought to have the student graph “5 trigonometric functions”. Two speaking/listening goals sought to have the student express conclusions, identify the main idea and make inferences based on a written text read aloud or from information presented in diverse media and formats. The second goal sough to achieve the precise communication of ideas. Two social/emotional goals focused on personal qualities about himself and use of positive strategies when faced with social conflict with peers. (Ex. D-10 pp. 7-8 of 10).
At no CSE meeting to develop IEPs in 2016-2017 or 2017-2018, did the CSE consider the effect of the one-to-one instruction in the home situation as qualitative information of programming that would meet the Student’s needs. (See, Tr. 436–437) Specifically, the CSE meet on multiple dates in 2016 and 2017 without determining
-------------- School District Decision on the Merits 21 whether the Student needed a class smaller than one of 15 students to receive educational benefit.
New York States special class configurations (e.g., 15:1; 12:1; 8:1:1 or 6:1:1) are not driven by IDEA’s statutory language. New York’s regulations provide for various class size options, but school districts are not required to limit their educational program offerings to only that regimented scheme. Smaller classes of just six or eight students need not be available only for students with more severe -------- and management needs than the Student here. Dr. Private Psychologist reported that the Student required a class of just six or eight students. (Ex. JJ, p. 19). If a District does not have such smaller classes available within the District, an out-of-district placement can be considered. Special Education Supervisor testified of her concern, in early 2016, that Student needed a smaller class that she said, “would work best for him. (Tr. 911; & 907-911). Assistant Director of Special Education, , indicated that in the July 13, 2016 CSE meeting no student-teacher ratio classes other than 15:1 or 12:1 were discussed. (Tr. 760).
The July 2016 IEP’s reference to the Student’s passing Global history and Geography II and Algebra I CC classes (Ex. D-10, p 4 of 12) lacks context for concluding that the recommended 15:1 special class would meet his needs. The academic section indicated a need to improve “higher level linguistic comprehension” and “improve grammatical accuracy during written and spoken language tasks” but his reading and speaking/listening goals do not address those needs. (Ex. D-10, pp. 8-9 of 12).
The Student did not return to school in September as the CSE had contemplated. Rather, after commencement of the school year, at a CSE review meeting on September 19, 2016, the Student’s re-entry was delayed to January 3, 2017 and his home instruction was continued. (Ex. D-11). At that meeting, the Student expressed his desire to return to school and that he missed the socializing and being in school.[9] He expressed an interest in auto mechanics and possible vocational programs. Related services for his return were also discussed. (Ex. D-11, Comments, p. 2). The program developed for the period September through January 3, 2017 to transition the Student back into school for full days of classes is as follows:
Program/Services Duration Frequency Location Consultant Teacher Services – Direct 9/19/16 – 1 x Daily, 2hr. Home/Community
1/3/17 Special Class (Special Class – 1/3/17 start 1 x Daily, 43 min. Special Class English/Language Arts) 15:1 Special Class – Math 15:1 1/3/17 start 1 x Daily, 43 min. Special Class Special Class – Social Studies 15:1 1/3/17 start 1 x Daily, 43 min. Special Class Special Class – Science 15:1 1/3/17 start 1 x Daily, 43 min. Special Class ---------- Therapy – Individual 9/19/16 - 2 x Weekly, 30 min. Home/School
1/3/17 Counseling – Individual 9/19/16 – 1 x Weekly, 30 min. Home/School
1/3/17 Counseling – Small Group 9/19/16 – 1 x Weekly, 30 min. Therapy Room
1/3/17
The CSE decided that the group counseling should be removed as a related service until the Student had fully re-entered school for full days and reported Parent agreement (Ex. D12, Comments, p. 2). The CSE also concluded that the Student was owed 10 hours of compensatory speech for missed undelivered services.
January 3, 2017 CSE Meeting – Amendment No Meeting
In a January 3, 2017, IEP Amendment, the CSE acted to implement the Student’s September 19, 2016 re-entry plan with the contemplation being that the Student would be attending public school as of January 3, 2017. He remained on in-home instruction, but he did not return due the Parent’s continued opposition to his return to school if the high school building were the Senior High School.
2017-2018 – The Student’s Twelfth Grade School Year:
May 16, 2017 CSE Meeting – Annual Review:
In his May 16, 2017, annual review meeting, the CSE proposed a program for the Student’s senior year in school commencing at the start of the 2017-2018 school year. The CSE considered the Student’s report card, transcript and parent report and observations from 2016 and 2017 and his prior IEP and the 2014 – 2015 re-evaluation test results.
Faced with the parent and teacher reports of success in course work while the Student was on one-to-one in-home instruction, as contrasted with the 2014-2015 test results of ------ and -------- delay, the CSE continued the programing previously recommended with a goal toward high school graduation in June 2018.
Program/Services Duration Frequency Location
-------------- School District Decision on the Merits 23 Consultant Teacher Services 9/7/17- 1 x Daily, 2 hr. Home/Community
6/22/18 Special Class (Special Class – 9/7/17- 1 x Daily, 43 min. Special Class English/Language Arts) 15:1 6/22/18 Special Class – Math 15:1 9/7/17- 1 x Daily, 43 min. Special Class
6/22/18 Special Class – Social Studies 15:1 9/7/17- 1 x Daily, 43 min. Special Class
6/22/18 Special Class – Science 15:1 9/7/17- 1 x Daily, 43 min. Special Class
6/22/18 ---------- Therapy – Individual 9/7/17- 2 x Weekly, 30 min. Home/School
6/22/18 Counseling – Individual 9/7/17- 1 x Weekly, 30 min. Home/School
6/22/18 Counseling – Small Group 9/7/17- 1 x Weekly, 30 min. Therapy Room
6/22/18
The program’s location was to be the Senior High School, the location that the Parent continued to oppose (Ex. D-13).
The IEP reports that the Student presents with “both receptive and expressive language deficits” with some improvement in pragmatic skills. The Student benefits from verbal prompting to increase his utterances beyond 2-5 words. He “requires frequent repetitions and moderate scaffolding of information for better understanding” (Ex. D-13).
In writing, the Student continued “to struggle with his formal writing assignments, particularly sentence structure, grammar, and punctuation (emphasis added).” (Ex. 13).
Academically, the Student needs higher level linguistic comprehension skills, support to improve grammatical accuracy during written and spoken language tasks and use of a graphic organizer to assist with his organizational skills. (Ex. 13)
His management needs included “refocusing and redirection” and that he “displays significant delays in processing and focusing and benefits from a small teacher-to-student ratio program with minimal distractions (emphasis added).” (Ex. 13)
Overall, the Student’s May 16, 2017 IEP repeats the assessment found in all of his prior IEPs: he has “significant delays in reading decoding, reading comprehension, written expression, and speech and language skills which adversely impacts progress in the general education curriculum” (Ex. 13) that appeared in his past IEPs (See, Exhibits D-5 through D-13).
The May 16, 2017 IEP also does not identify baseline data on which progress can be measured and gives no clear description of current reading, writing and speech language skills.
-------------- School District Decision on the Merits 24
The twelve goals in the May 16, 2017 IEP are almost identical to the thirteen goals from the prior year. The four study skill goals are the same. The two reading goals are the same except that material referenced is now 12th grade level material. The two writing goals are identical to the prior year. The Math goal is very different with the new IEP math goal is to help the Student “solve functional daily living math problems” within his reading level. The two speaking/listening goals are identical to the prior year. Finally, there is only one social/emotional goal which is identical to the first of the two goals from the prior year. (Ex. D-13, pp. 6-7 of 11).
FAPE (Ex. P-A, pp.10-13):
For the reasons already discussed, I find and conclude that the Student was denied a Free Appropriate Public Education for the 2016-2017 and 2017-2018 school years due to the failure of the District to evaluate the Student further after the School Psychologist # 4 and School Psychologist # 6 evaluations raised a question regarding whether the 20142015 testing accurately measured a -------- skill decline -------. Further, the District, in light of the Student’s ---------- deficits, should have then re-evaluated the Student’s ---------- deficits to accurately understand his needs to develop appropriate goals in subsequent IEPs.
As to the Parent’s claims regarding the portion of the 2014-2015 school year encompassed from June 9, 2015 to the end of that school year, I cannot conclude that the Student was denied a FAPE because to reach that conclusion, I would have to adjudicate the CSE decision-making for the program that occurred outside of the two-year statute of limitations.
Also, I find that the multiple instances when the District developed IEPs for the Student on the singular ground that the Student had passing grades and passed Regents examinations - while on one-to-one home instruction - was flawed because the District did not adequately consideration the Student’s need for a smaller class [i.e., smaller than 15:1 Regents track class] in order to receive educational benefit.
Teacher # 2, special education teacher, who had taught the Student in the 20142015 school year, part of the following year, and during the 2017-2018 school year after the Student’s return to school at ____________ High School (Tr. 1048–1049), testified that the class setting in 2017-2018 is the same as that 2014-2015. His current class with the Student is “participation in government.” (Tr. 1049). He said that the Student sometimes
-------------- School District Decision on the Merits 25 “would have difficulty expressing his ideas” and “. . . would have the ideas verbally and have difficulty either explaining them orally or translating them on to paper.” (Tr. 1069).
The evidence does not support a conclusion of strong academic and functional success in the 15:1 class configuration as contrasted to the evidentiary value of the Student’s success in the one-to-one educational setting of his in-home instruction.
For the 2017-2018 school year, the CSE’s decision that the student work with 12th grade material without more individual support is based solely on teacher report and no updated evaluations to determine if the Student would be successful.
The CSE decision to change the goals to 12th grade level fails to individualize the goals to the Student and does so without adequate evaluation data. Goals assigned because of the expected grade level where a Student is being placed, without more, are procedurally deficient. See, M.H v. New York City Dept. of Educ., 685 F.3d 217, 247 – 249 (2nd Cir. 2012).
The Functional Behavior Assessment (FBA) Issue (Ex. P-A, pp. 10-12):
The Parent seeks a finding that the District failed to conduct a FBA and provide a Behavior Intervention Plan (BIP) for the Student. However, the District’s proof indicates that in January 2015, the CSE considered an FBA (see, Ex. 18) but the Parent declined consent to conduct the FBA. (Tr. 203-204, 262-263, 489-490). The Parent did not testify to contradict the evidence on the consent issue. The District was not required to conduct an FBA of the Student.
Parental Participation in the CSE Meeting Process (Ex. P-A, p. 12):
To the extent that the District failed to conduct further evaluations after the 20142015 assessments raise concerns for the Student’s level of -------- function, the Parent was deprived of information necessary to participate in the CSE process. The evidence otherwise, however, does not support the Parent’s claim that the District failed to supply the Parent with educational documents to review prior to or during CSE meetings or failed to explain evaluation and testing results. The Parent chose not to testify and there is no evidentiary basis to support the balance of the Parent’s claim on this issue.
Timely and Complete CSE Meetings (Ex. P-A, p. 12):
Contrary to Parent’s complaint (Ex. P-A, p. 14), the record of the CSE meetings and testimony offered indicate that the District held timely CSE meetings and, at times,
-------------- School District Decision on the Merits 26 held multiple meetings to attempt to address the Parent’s concerns. There is simply no evidence in the record supporting the Parent’s claim.
Failure to Provide All Mandated Related Services:
Evidence of the extent of alleged missed related services that the Student’s IEPs required to be provided is not well-developed in the record. In spite of the schedule of related service delivery (Ex. D- 47), I cannot conclude that specific ---------- services or counseling services were not provided for which relief must be awarded. Several IEPs refer to compensatory additional related services for prior missed services. Evidence of non-delivery of those services is absent from the record. The hearing request’s relief request number 1 (Ex. P-A, p. 13) addresses this issue by seeking records for the past three years. But, I do not have jurisdiction to order that relief. Absent testimony from the Student or Parent about missed services, no relief may be awarded.
Remedy
Compensatory Education:
The IDEA provides that courts “shall grant such relief as the court determines is appropriate” when adjudicating claims arising under the statute. 20 U.S.C. § 1415(i)(2)(C)(iii). The Second Circuit has relied on the IDEA statutory language to hold that compensatory education relief – in the form of supplemental special education or related services – is appropriate where a denial of FAPE exists. See, P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2nd Cir. 2008). Such relief may be awarded to a student under the age of twenty-one. See, generally, R.C. v. Bd. Of Educ., 2008 LEXIS 113149, at 39-40 (U.S.D.C., S.D.N.Y. March 6, 2008).
The Student is entitled to meaningful relief for the District’s failure to reevaluate and for denial of FAPE. While one might wish that in spite of inappropriate IEPs, the Student will complete senior year and graduate with the requisite number of credits to do so, I cannot presume that result. He is now eighteen years old and largely in charge of his own education and he has been in a stay-put placement for more than half of this school year.
The July 13, 2017 ---------- Evaluation (Ex. P-EE) by ----- Provider, M.S./CCCSLP, the September 8, 2017 Occupational Therapy Evaluation (Ex. P-FF) by ------
-------------- School District Decision on the Merits 27 Therapist # 1, Ph.D. OTR, and the July 12, 2017 (Ex. P-
Z) and the October 2017 Private Psychologist Neuropsychological Evaluation were not before the CSE for consideration. They need not to have been before the CSE for me to consider their value in fashioning a remedy for a denial of a FAPE. Rather, they provide assistance to the hearing officer in framing meaningful relief.
Student Skills:
I conclude that the educational records provide unrefuted evidence that the Student’s skills are and ----- in high school. (See, Exs. D-1 through D-13, D-28, P-EE, P-FF, P-JJ at pp. 16-18 & P- Z). The IDEA’s requires goals and progress reports toward those goals. The record supports the conclusion that the Student, with consistent one-to-one support, is able to achieve passing grades and pass Regents examinations, but yet unable to demonstrate skills much above ---------- in many areas. Thus, he has made “academic” progress of an illusory nature when receiving one-to-one support throughout his school day. As an eighteen-year old, he will be making his own educational decisions and is entitled to compensatory relief to help him achieve success in “skill acquisition” and not merely “grade recognition” with one-to-one support. Educational progress is a function of both “academic” progress usually signified by passing grades; but more importantly, educational progress is best measured by “skill acquisition” usually indicated by discrete measurement. Thus, I conclude that the nature of compensatory education relief to which the Student is entitled is predominantly one of the skill-development and the proposed support through the tutoring program (see, Ex. P-Z) is relief to which he is entitled to access, at public expense, until he is 21 years of age.
ORDER
In light of the above findings and conclusions, it is
ORDERED, that the Parent’s claims for relief for the 2014-2015 school year and for the CSE’s May 8, 2015 decision for the Student’s 2015-2016 school year are dismissed as barred by the two-year statute of limitations; and it is
ORDERED, that the Parent’s claims of denial of a FAPE on the grounds that the Parent was prohibited from meaningfully participating in the CSE educational decisions for her son are dismissed; and it is
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ORDERED, that the Parent’s claims of denial of a FAPE on the grounds that the timely and complete CSE meetings were not provided are dismissed; and it is
ORDERED, that the Parent’s claims that the Student is entitled to specific makeup related services sessions for mandated related services allegedly misses are dismissed; and it is
ORDERED, that the Parent’s claim that she is entitled to an order directing that a Functional Behavior Assessment of the Student be provided is dismissed; and it is
ORDERED, that the Parent’s claims of denial of a FAPE for the 2016-2017 and 2017-2018 school years is granted in their entirety, including, specifically, that the District failed to sufficiently evaluate the Student under circumstances that the IDEA statute required reevaluation of the Student in order to prepare an appropriate IEP; and it is
ORDERED, that the Parent’s refusal to consent to post June 9, 2017-evaluations initiated by the District does not bar the Parent from relief and it is not a limitation on the Parent’s right to offer Parent-acquired evaluations and expert testimony; and it is
ORDERED, that the Parent’s claims for an order that the District reimburse the Parent for the cost of the --------- Provider, Dr. ------ Therapist # 1, Dr. ----- Private Psychologist and ----- Teacher # 1 evaluation reports as “Independent Educational Evaluations” is dismissed; but nothing in this decision and order shall be construed to prohibit the Parent from seeking reimbursement for those expert witness reports expenses as costs in an appropriate application in court since this hearing officer does not have the authority to determine Parent’s prevailing or non-prevailing party status or entitlement to costs as part of relief as a prevailing party; and it is
ORDERED, that the Student is entitled to compensatory educational services for denial of FAPE under the facts of this case to the full extent set forth in the tutorial program outlined in Parent Exhibit Z, for the full 690 hours described therein, at the rate of $85.00 at public expense, at any time between this date and the Student’s 21st birthday; and for those services, the Student shall:
(A) Schedule the tutoring services and provide a copy of the invoices to the District promptly after the invoice is received by the Student or Parent; and,
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(B) Upon the District’s receipt, the District shall pay for such services directly to the service provider; and
(C) Nothing in this order prevents the parties from mutually agreeing to different payment arrangements documented in writing and signed by the parties; and it is
ORDERED, that the District’s CSE shall re-convene within thirty calendar days to review the Student’s educational program and the ----- Therapist # 1, Ph.D., ------ Provider, M.S. and ----- Private Psychologist, Psy. D., evaluation reports and shall provide an appropriate program in a class of no more than eight students, unless otherwise agreed by the Student and District in a writing signed by Student, Parent and the District.
March 23, 2018
Jerome D. Schad, 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 the 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 party’s 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 appeals before an 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 are available at http://www.sro.nysed.gov.
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Footnotes
[1] (Compare Ex. P-N [School Psychologist 2’s January 2007 Psycho-Educational Evaluation], Ex. P-Q [School Psychologist 3’s March 2010 Psycho-Educational Evaluation], & Ex. P-S [School Psychologist Intern 5’s December 2012 Psycho-Educational Re-Evaluation], to Ex. D-31 & Ex. P-T [School Psychologist 4’s September 2012 Psycho-Educational Evaluation] and Ex. D-35 & Ex. P-X [BOCES School Psychologist 6’s January 2015 Psychological Re-Evaluation]).
[2] See Dr. School Psychologist #1’s rebuttal testimony, the March 5, 2018 transcript of the which was not yet available as of the writing of this decision. -------------- School District Decision on the Merits 2
[6] At the time of the writing of this decision, I relied on my notes because the Transcript from the March 5, 2018 proceedings had not yet been received. -------------- School District Decision on the Merits 11
[8] Although the District sought specific information on individuals that the Parent considered a threat to the Student, the Parent did not provide specific information to the school. The District’s inquiry, though legitimate, appears to reinforce the Parent’s argument that the District would only consider the High School as a possible placement for the Student and not another high school in the District. -------------- School District Decision on the Merits 20
[9] The Student did not want a teaching assistant shadowing him throughout the day as a security monitor as part of a safety plan the school sought to develop for his return. (Ex. D-11, Comments, p. 2). As a Student then about to turn 18 years of age, the CSE should have given more weight to his concerns. -------------- School District Decision on the Merits 22