NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
x In the Matter of the Impartial Hearing on Behalf of XX., Petitioner, And
Central School District, Respondent. x
FINDINGS OF FACT AND DECISION
Impartial Hearing Officer James McKeever, Esq.
Dated: March 14, 2018
Decision
Procedural History:
On or about October 2016, the Central School District (“District”) conducted of evaluation” of the student (IHO Exhibit 1).
Thereafter, the parents advised the District that the disagreed with the results of the evaluation and requested and IEE for a new evaluation (IHO Exhibit 1). The District disagreed and denied the parents’ request for an IEE.
Subsequently, on or about February 3, 2017, the District initiated a Due Process Hearing to defend its evaluation. The hearing was held before IHO Bumbalo on March 23, 2017, March 24 2017 and March 31, 2017. The District was represented by CCC CCC, Esq., and the parents’ were represented by , Inc. (“CCC”). is also representing the parents in the current hearing.
IHO Bumbalo issued a decision in the District’s favor on May 19, 2017 and denied the parents’ request for a IEE. The parents’ appealed. On May 10, 2017, which was after hearing for the IEE, but before the decision by IHO Bumbalo, the Parents, through their advocates CCC, requested that the District fund IEEs in the areas of reading, writing and math; speech/language with central auditory processing; occupational therapy with sensory integration; and an assistive technology evaluation (Exhibit 3).
On June 1, 2017, upon receipt of the Parents’ request, the District offered to perform its own assistive technology evaluation and reevaluations in academics, speech/language, and occupational therapy in lieu of the IEEs (Exhibit 5).
By letter dated June 19, 2017, the parents rejected the District’s offer to conduct updated evaluations (Exhibit 6).
On June 14, 2017, the District filed a Due Process Complaint (“DPC”) and initiated a hearing to defend its evaluations of the student and its decision to deny the parents’ request for IEE’s (Exhibit 1).
On July 5, 2017, the undersigned was appointed to this matter (Exhibit 9).
By letter, dated July 7, 2017, the parents filed a “response” to the District’s “correspondence” to the undersigned. The parents’ letter, written by CCC, indicated that the parent denied the allegations contained in the District’s DPC and requested dismissal of the DPC.[1]
On July 17, 2017, the parents filed a cross-DPC against the District. In their complaint, the parents’ alleged the that the District’s failure to do the following resulted in a denial of FAPE:
1. Evaluate the student in all areas of suspected disability, including but not limited to, an evaluation for occupational therapy prior to discontinuing the related service of OT for the 2016-2017 school year;
[2]. Failure to provide the District’s criteria for IEE’s when the parent requested the IEE and after the parent specifically requested the criteria be provided;
[3]. Failure to evaluate the student in the area of Speech Language after the parent provided consent for same on February 26, 2016;
[4]. Failure to recommend a neuropsychological evaluation, which the parent obtained in May of 2015;
5. Failure to recommend an auditory processing evaluation;
[6]. Failure to recommend a vision therapy evaluation;
[7]. Failure to recommend a comprehensive reading evaluation;
[8]. Failure to conduct an assistive technology evaluation;
9. Failure to measure the student’s cognitive functioning;
10. Failure to provide the parent with Prior Written Notice after the CSE meeting on November 28, 2016 that met the requirements of the Commissioner’s Regulations;
11. Failure to provide Prior Written Notice when the District requested consent for a Evaluation on September 16, 2016 and failure to provide Prior Written Notice regarding the District’s request for consent to conduct a reevaluation;
12. Failure to obtain informed consent from the parent before performing a behavioral scale to reevaluate the student;
13. Failure to include the parent and the CSE when making changes to the student’s IEP;
14. Failure of the Board of Education to approve the recommendations made by the CSE;
15. Failure to provide consultant teacher services direct and indirect for 30 minutes daily in the student’s Mathematics class for the entire 2016-2017 school year;
16. Failure to provide speech and language therapy 3 time per week per the last evaluation;
17. Failure to provide OT services despite the student’s need for same;
18. Failure to generate annual goals for the student for the 2016-2017 school year;
19. Failure to measure progress or lack of progress toward annual goals as reflected on the IEP dated November 28, 2016; and
20. Failure to provide a special education and/or relate services based on the student’s needs during the 2016-2017 school year (Exhibit 11).
On July 31, 2017, the District’s DPC and the Parents’ DPC were consolidated (Exhibit 16).
On or about August 13, 2017, the District filed a response to the parent’s DPC and denied the parent’s allegations. The District also asserted various affirmative defensives.
District’s Motion for Summary Judgment:
On August 8, 2017, the District filed a motion for summary judgment and dismissal of the parent’s DPC (IHO Exhibit 1 ).
On August 24, 2017, the parents’ advocate filed a response to the District’s motion for summary judgment (IHO Exhibit 2).
Thereafter, on August 28, 2017, the District filed a “corrected” version of its motion for summary judgment (IHO Exhibit 3 ).
On the same date, the parents’ advocate also filed a “corrected” response to the District’s motion for summary judgment (IHO Exhibit 4).
By email dated August 28, 2018, the undersigned advised that parties that the District’s motion for summary was denied. Specifically, as set forth below, at the time of the filing of the District’s motion, there were issues of fact as to the appropriateness of the District’s evaluations and the timeliness of the parents’ request for IEEs that needed to be decided at the hearing J.D. v. Pawlet, 224 F.3d 60, 68-69 (2nd Cir. 200). Accordingly, in light of the fact that the hearing was about to begin on September 14, 2017, the undersigned advised the parties that the District’s motion would addressed in the final decision (IHO Exhibit 5).
Hearing:
The hearing was held on October 19, 2017; October 27, 2017; January 25, 2018; and January 26, 2018. The dates of the hearing were delayed due to the availability of the parents’ advocate who could only conduct hearings on a Thursday or Friday, and due to the parents’ advocate’s inability to attend the hearing before 10:00 a.m. or continue the hearing after 4:00 p.m. The hearing was also delayed due to a snowstorm wherein the parents’ advocate cancelled the hearing because she could not safely drive to the hearing.
Extensions of the Compliance date:
Throughout the hearing process, the District made multiple requests to extend the compliance date due to witness availability, preparation for due process and preparation of post-hearing briefs. The Orders of extension were served on all parties as per the Commissioner’s Regulations and are part of the hearing record.
The Record Close date is March 5, 2018.
The current compliance date is March 19, 2018.
At the hearing, the District called the following witnesses:
CCC CCC, Jr., Director of Special Education (Tr. 505).
CCC CCC, a special education teacher who taught the student in ELA during his third grade year (2016-2017) (Tr. 38, 40).
CCC KKKK, a special education teacher who taught the student as his consultant teacher in math during his third grade year (2016-2017) (Tr. 94, 98).
CCC CCC, a general education teacher who taught the student math, social studies, and science and served as his homeroom teacher during his third grade year (2016-2017) (Tr. 206-207, 209).
CCCCC, a special education teacher who taught the student as his consultant teacher in math and ELA during his second grade year (2015-2016nd is currently the student’s consultant teacher for fourth grade (Tr. 251-253).
CCC, a licensed speech pathologist who is accredited by the American Speech-Language Hearing Association, who evaluated student and provided therapy to the student for the last 3 years (Tr. 333, 335).
CCC CCC, a licensed occupational therapist employed BOCES who evaluated the student and provided OT services to the student (Tr. 595, 604-605).
The parents did not testify at the hearing. The parents also did not call witnesses in support of their allegations contained in their complaint.
Findings of Fact:
The student is an 9-year-old boy who was classified as ” under the Individuals with Disabilities Education Act (“IDEA”) by the District’s Committee on Special Education (“CSE”) on 2015. Classification is not at issue ( (Exhibit 72, 88, Tr. 507). The student has been diagnosed with a “Specific Learning Disorder with Impairment in Reading Comprehension,” and with mild “at-risk” for global Learning Disorder, Anxiety Disorder and Adjustment-related Disorder (Exhibit 102).
The student currently attends the fourth grade at the District’s elementary school (Tr. 251). Prior to being classified by the District’s CSE, the student received services under Section 504 (Tr. 623).
Speech Evaluations:
On May 11, 2015, CCC, a licensed speech and language pathologist, conducted an initial speech and language evaluation of the student on behalf of the District (Exhibit 97, Tr. 350, 355). At the time Ms. CCC obtained consent from the parent and the student was receiving services under a 504 plan (Tr. 401). Ms. CCC administered the Clinical Evaluation of Language Fundamentals-4th Edition (“CELF-IV”). The results indicated that the student was severely delayed in “Core Language;” moderately delayed in “Receptive Language;” severely delayed in “Expressive Language,” and moderately delayed in “Language Content” (Exhibits 72, 93, Tr. 356). The interpretation of the results at the time indicated that the student had difficulty following directions with linguistic concepts, immediate recall of spoken sentences, using correct grammatical forms and formulating sentences given a specific word or picture (Exhibit 72).
The District also administered the Goldman Fristoe Test of Articulation-2nd Edition (“GFTA”), which showed that the student’s articulation skills were in the average range (Exhibits 72 and 97, Tr. 357). Based on the student’s presentation at this time, the District recommended speech language therapy three times per week for 30 minutes (Exhibit 88, 97, Tr. 359). 2
On March 20, 2016, the District conducted a CELF-V, which is the updated version of the CELF-IV, to determine and update the student’s current speech and language needs. The results indicated that the student was now in the “borderline low average” in the Core Language; “low average” in Receptive Language; “borderline low average” in Expressive Language and “borderline low average” in Language Content (Exhibits 60, page 3 and 79, Tr. 361). The CSE’s interpretation of the results indicated that the student had difficulty following directions, demonstrating a clear understanding of linguistic concepts and difficulty with immediate recall of spoken sentences. The student also showed weaknesses in responding to questions based on a short paragraph that was read to him. The two areas that were the most trouble for the student were being able to respond to questions regarding sequencing of events and making predictions. However, the student showed improvement in his basic sentence comprehension, use of correct word structures and understanding word classes and formulation sentences (Exhibits, 79, 362). Based on the student’s improvement on the CELF- V and the speech teacher’s direct observations of the student in speech therapy, which showed improvement, the District reduced the student’s speech services from 3 times per week to 2 times per week (Exhibit 72, Tr. 362). Further, the speech teacher testified that the parent agreed with her conclusion and that the parent had no objection to reducing the student’s speech services (Tr. 353-354). Occupational Therapy Evaluation (“OT”):.
On June 6, 2014 and June 17, 2014, CCC CCC, a licensed occupational therapist employed by BOCES, conducted an OT evaluation of the student on behalf of the District. (Exhibit 112, Tr. 599). At the time, the student was 6 years old and in kindergarten.
The OT evaluator utilized the Bruininks-Oseretsky Test of Motor Proficiency, Second Edition (BOT-2), to asses the student’s fine motor skills, as well as the Fine Manual Control Composite and the Manual Coordination Composite, which are subtests of the BOT-2, to assess the student’s OT needs. The evaluator also administered the Beery-Buktenica Developmental Test of Visual-Motor Integration 6th Edition (“VMI”)and the Motor Free Visual Perception Test 3rd Edition (“MVPT-3”) (Exhibit 112, 600).
The results of the testing showed mostly average scores, with the exception of Fine Motor Integration, where the student was below average. Nevertheless, the evaluator also observed that the student had average muscle tone and adequate eye movements for visual tracking. However, the student required visual and verbal cues to understand directions and had difficulty with motor planning. The student also had difficulty with multi-step directions and with “position in space” (such as stand next to me or stand in front of the ball) (Exhibit 112). Accordingly, based on the student’s presentation at the time, the District recommended OT services 1 time per week for 30 minutes in a group (Exhibit 112, Tr. 602-603).
On June 22, 2015, the OT therapist generated a progress report, which was after the student had received services for year, and noted that the student continued to need OT services 1 time per week for 30 minutes to address his fine motor precision and integration deficits, as well as his motor planning delays. The student was 7 years old at the time (Exhibit 93, Tr. 609-610).
On April 28, 2016, in a second progress report, which was two years after the student began OT services, the OT therapist reported that that student improved his “on task” behavior, as well as organization of himself and his work. She also reported that the student improved his ability to complete large motor movements in a timely fashion and that the student’s writing was “always legible.” However, the OT therapist reported that the student still required extra time and some cues to complete multi-step directions correctly. Nevertheless, the evaluator opined that the student no longer required direct OT services and that any deficits that the student had could be addressed by the classroom teacher (Exhibit 76, Tr. 610). The evaluator also reported that the “management needs” on the student’s IEP, which included visual cues, verbal prompts and extra time, was sufficient to meet the student’s needs (Tr. 614). Further, the OT therapist testified that the parent agreed with her conclusion and that the parent had no objection to discontinuing direct OT services (Tr. 610-611).
Academic Assessment:
On March 28, 2016, CCC, a special education teacher employed by the District, administered the Woodcock-CCCson Tests of Achievement Form A and Extended in order to obtain the student’s academic functioning (“WCJ-III”) (Exhibit 80, Tr. 262). The assessment measured the student’s abilities in reading, math and writing and provided the student’s grade level with respect to each score.
The student’s scores indicated deficits in reading comprehension. However, the student was on grade level for math and writing (Exhibit 80, Tr. 265-67). The District utilized the results of the WCJ-III to develop the student’s IEP for the 2016-2017 school year (Exhibit 72). Ms. CCC testified that she obtained parental consent prior to performing this evaluation and provided the parents prior written notice to explain the purpose of the assessment before conducted the assessment (Tr. 298).
Cognitive Assessment:
The District did not performed cognitive testing of the student because the District relied on the neuropsychological report prepared by Dr. CCC CCC, Ph.D., a private neuropsychologist retained by the parents, who administered a neuropsychological evaluation to the student on June 10, 2015. The evaluation was utilized by the CSE to determine the student’s initial eligibility (Tr. 410-411).3 Additionally, because the evaluation was less than 3 years old at the time of the CSE meeting in 2016, the District did not conduct any additional cognitive testing (Exhibits 72).
The cognitive testing reported in the neuro-psychological indicated that the student had “relative strength in visual processing and functions, but delays in areas such as auditory recall, phonological processing, rapid naming, task shifting and error monitoring” (Exhibit 102, page 6).
Academically, the student was functioning in the average range, with the exception of reading comprehension, where he was below grade level and in the “low average range” (Exhibit 102, page 6).
The student also presented with anxiety and “worry” with respect to his academic achievement. However, it was reported that the student is assertive and social and that he has an excellent “work ethic” (Exhibit 106, page 6).
The neuro-psychologist recommended that the student be placed in “highly structured classroom” with a second teacher, such as a class taught by a general education teacher and a special education, or Consultant Teacher services in all core academic subjects (Exhibit 103, page 6).
At the end of her report, the neuro-psychologist indicated that the parent “may wish to have the [student] evaluated to determine whether he meets the diagnostic criteria for an “Auditory Processing Disorder” (“APD”) because aspects of the student’s neuropsychological profile were consistent with a pattern seen in children with APD. The neuro-psychologist also noted that this diagnosis is made by a speech/language professional (Exhibit 102, page 7).
On or about May 17, 2017, the parent requested reimbursement for the cost of this evaluation (Exhibit 4). Specifically, the Parents requested reimbursement of their “co-pays” for use of their health insurance and travel expenses to take the Student to the evaluation (Exhibit 4).
On June 1, 2017 the District denied the parents’ request for reimbursement (Exhibit 5).
IEPs:
On April 29, 2016, the District’s CSE developed an IEP for the student, which provided placement of the student in 12:1:1 class for English, 5 times per week for 1 hour and Consultant Teacher Services for Math, direct and indirect, 5 times per week for a 30 minutes in a general education setting (Exhibit 72). The CSE also provided the student with speech and language therapy 2 times per week for 30 minutes (Exhibit 72). The IEP noted that previously, the student received OT services 1 time per week in a group setting. However, the CSE determined that the student did not require direct OT services in order to obtain an educational benefit from instruction (Exhibit 72, page 2). Nevertheless, the CSE indicated that OT services were available upon “teacher request/concern” (Exhibit 72, page 2).
Additionally, the CSE believed that any occupational therapy needs of the student were met with the use of his management and physical development needs, which reinforced occupational therapy concepts such as use of a graphic organizer or following multistep directions (Tr. 613 - 154, 638 ).
Further, the IEP also provided for extended time on tests in a location with minimal distractions. It also provided that directions be read to student and that the language directions be simplified (Exhibit 72, page 9-10). The management needs on the IEP included repetition and shortening, as well as chunking of verbally presented information and the use of visual cues. Additional time to process information and formulate responses was also provided, as well as visual and verbal prompts and repeated practice until learning had been consistently demonstrated (Exhibit 72, p. 7). The student’s management needs and his testing accommodations were provided by the District staff during the subject school year (Tr. 43-44).
The IEP also included five measurable annual goals in the areas of study skills, reading, writing, mathematics, and speech/language, which were as follows:
STUDY SKILLS
1. [student] will follow multi-step directions with 3 verbal prompts 80% success over 10 months, measured by structured observations quarterly .
READING:
2. When prompted with narrative and/or informational text from [student] content area subjects at his instructional level, [student] will answer questions to demonstrate an understanding of text while referring explicitly to the text as the basis of his answer, measured by 60% success over 10 months, utilizing work samples reported quarterly.
WRITING:
3. When given a writing assignment, [student] will write up to 2 paragraphs with relevant content that includes a logical introduction and closing statement written with proper sentence instruction and grammar, 80% success with moderate assistance over 10 months, utilizing work samples measured quarterly.
MATHEMATICS:
4. Given a multi-step problem, [student] will use some type of graphic organizer (tape, diagram, number board, etc.) or other strategy to categorize the information and identify which operations to use to correctly solve with 80% success over 10 months utilizing moderate assistance with work samples measured quarterly.
SPEECH/LANGUAGE:
5. [Student] will follow multi-step directions presented orally (e.g. point to the big red car before pointing to the red bicycle) incorporating basic linguistic language, 4 out of 5 trials, by observation measured monthly (Exhibit 72, page 8, Tr. 41).
On November 28, 2016, the District’s CSE held a “reevaluation review” meeting to consider vision evaluation that was administered to the student (Exhibit 60). The CSE determined that based on the evaluation, the student did not qualify for vision services and that the student’s program and placement would remain the same (Exhibit 60, page 2).
Tracking Progress:
The District staff tracked and reported on the student's progress towards his IEP goals throughout the 2016-2017 school year (Exhibit 39, Tr.48, 114). Specifically, the classroom teacher in the student’s 12:1:1 English class (Tr. 40), stated that she tracked the student's progress towards the reading and writing goals and used biweekly “AIMS web timed reading mazes” to assess the student’s progress (Tr. 50). She also used “running records,” as well as informal assessments during instruction to assess the student’s progress in reading (Tr. 49).
In writing, the student's work samples were evaluated and compared to his writing goals and reported to the parents on a quarterly basis (Exhibits 55 and F, Tr. 50, 53).
With respect to math, the Consultant Teacher stated she tracked the student's progress toward his math goals and documented the student’s improvement on a quarterly basis and sent it to the parents (Exhibit 39, Tr. 107). The Consultant Teacher also used a “tally sheet’ to tracked to the student’s study skills, which measured the amount of verbal cues the student required (Exhibit 39, Tr. 108, 110). Additionally, the parents were provided with quarterly reports regarding the student's progress towards his math and study skills goals (Exhibit 40, Tr. 107).
Regarding speech, the speech teacher noted that she tracked the student's progress towards his speech and language goal on a monthly basis during the 2016- 17 school year (Exhibit 72; Tr. 363). She also provided a report to the student’s parents regarding the student’s progress on his goals every 10 weeks during the subject school year (Exhibit 39, Tr. 366). Additionally, the student’s speech and language therapy was provided in accordance with the student’s IEP (Exhibit 72), which was confirmed by the speech teacher at the hearing (Tr. 337).
Consultant Teacher Services:
Consultant Teacher services both direct and indirect, were provided to the student in ELA and math. The Consultant Teacher for math services stated that from September 2016 until on or about March 2017, the “indirect” Consultant Teacher services were provided by a Teaching Aide and not be the student’s special education teacher (Tr. 145). However, thereafter, the indirect services were provided by the student’s special education teacher (Tr. 285).
Progress:
The student made progress toward his academic and related services goals during the 2016-2017 school year as reflected in the student’s report card and the testimony of his teachers at the hearing (Exhibits 34 and 39, Tr. 120, 213). Specifically, the student grades averaged well above 80 in ELA and math (Exhibit 34). Additionally, the student’s reading comprehension skills improved significantly, as did his speech and language skills (Exhibits 36 and 39, Tr. 48, 366). Prior Written Notice (“PWN”):
The parents were provided with PWN on November 30, 2016, following the CSE meeting held on November 16, 2017 (Exhibit 59). Additionally, the parents were provided with PWNs regarding the District’s request for consent for reevaluation and when the District considered and/or a rejected a service for the student (Exhibits 59, 69, and 83, Tr. 289, 326). Board Approval and the Student’s Program:
The District’s Board of Education approved the recommendations of the District’s CSE with respect to the IEP developed on November 28, 2016 (Exhibit 58, 66 and 85 Tr. 525).
District Criteria and List of IEE’s:
On June 20, 2017, the parents asked the District for a list of IEE providers and the District’s criteria for same. By letter dated July 6, 2017, the District declined the parents’ request because by letters dated May 10, 2016 and May 1, 2017, the parent identified their proposed IEE providers and because the District had already initiated the within due process hearing (IHO Exhibit 2-Exhibit 25 to the parent’s opposition to District’s motion for summary judgment).
FAPE:
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits 8 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). Additionally, 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: Endrew F. v. Douglas County School District, 137 S. Ct. 29 (2016). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (CCC B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
IEE:
Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 5 , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].
District’s DPC:
Here, the evidence shows that the parent requested that the District fund IEEs in the areas of reading, writing, math, speech/language with central auditory processing, occupational therapy with sensory integration, and an assistive technology evaluation (Exhibit 3). The District denied the parent’s request and initiated the within hearing to defend the evaluations the District conducted.
Speech Evaluations:
The evidence shows that on May 11, 2015, a licensed speech and language pathologist conducted an initial speech and language evaluation of the student on behalf of the District. The evaluator utilized the CELF-IV (Exhibit 97, Tr. 55, 355). The District also administered the Goldman Fristoe Test of Articulation-2nd Edition.
Thereafter, the same licensed speech pathologist conducted a second evaluation on March 20, 2016, utilizing the CELF-V, which is the updated version of the CELF-IV.
I find that the evidence shows that the speech evaluations were appropriate. Specifically, the evidence shows that evaluations were conducted with the standard protocols and that the evaluations were of the type that are typically used and generally accepted in the educational setting in order to determine a student’s speech and language functioning. I note that contrary to the parents’ assertions, there is no evidence in the record to support the parent’s contentions that the CELF-IV, CELF-V or the Goldman Fristoe were inappropriate assessments to measure the student’s speech and language abilities. Additionally, the record shows that the parent failed to testify at the hearing and that the parents failed to call a speech pathologist, or anyone else to testify on their behalf. Thus, I find that the record evidence presented by the District, which was unrebutted, demonstrates that the District’s speech and language evaluations conducted on the above referenced dates were appropriate.
Further, although the evidence shows that the parents did not promptly object to the District’s speech evaluations, the parents did notify the District of their disagreement within the two-year statue of limitations and timely filed their DPC with respect to same. Additionally, I note that although the regulations indicate that the District must initiate a hearing to defend its evaluations “without unnecessary delay,” the regulation is silent as to when the parents are required to notify the District of any dispute with respect to the District’s evaluation. As such, I do not find that the parents’ objections to any of the evaluations were untimely.
OT Evaluation:
The evidence shows that on June 6, 2014 and June 17, 2014, a licensed occupational therapist employed by BOCES conducted an OT evaluation of the student on behalf of the District. (Exhibit 112, Tr. 598). The evidence shows that the OT evaluator utilized the BOT-2 to asses the student’s fine motor skills, as well as Fine Manual Control Composite and the Manual Coordination Composite, which are subtests of the BOT-2. The evaluator also administered the VMI and the MVPT-3 (Exhibit 112, 599).
I find that the evidence shows that the OT evaluation was appropriate. Specifically, the evidence shows that evaluation was conducted with the appropriate protocol and that the evaluation is typically used and generally accepted in the educational setting in order to determine a student’s OT needs. I note that contrary to the parents’ assertions, there is no evidence in the record to support the parent’s contentions that the BOT-2, the VIM or the MVPT-3 were inappropriate assessments to measure the student’s OT needs. Additionally, as indicated above, the record shows that the parents failed to testify at the hearing and that the parents failed to call an OT therapist, or anyone else to testify on their behalf to rebut the evidence presented by the District. Thus, I find that the record evidence demonstrates that the District’s OT evaluation conducted on the above referenced date was appropriate. I also note that the two subsequent OT progress reports were not formal evaluations.
Academic Assessment:
Here, the record shows that on March 28, 2016, a District a special education teacher administered the WCJ-III Form A in order to obtain the student’s academic functioning (Exhibit 80, Tr. 265). As indicated above, the assessment measured the student’s abilities in reading, math and writing, as well as the subsection of these skills, and provided the student’s grade level with respect to each score.
I find that the evidence presented by the District demonstrates that the WCJ-III assessment was appropriate. Specifically, the evidence shows that WCJ- III is an assessment that is typically used and generally accepted in the educational setting in order to determine a student’s academic ability in the areas of reading, writing and math. I note that contrary to the parents’ assertions, there is no evidence in the record to support the parent’s contentions that the WCJ-III was an inappropriate assessment to measure the student’s academic ability. Additionally, as indicated above, the record shows that the parents failed to call an educator, or anyone else to testify on their behalf, to rebut the evidence presented by the District. Thus, I find that the record evidence demonstrates that the District’s WCJ-III assessment conducted on the above referenced assessment was appropriate and that the District was not required to conduct any additional academic testing.
Cognitive Assessment:
Here, the evidence shows that the District did not performed cognitive testing of the student but relied on the neuropsychological report prepared by the parents’ expert, who is a private neuropsychologist. The evidence shows that neuro-psychological evaluation was conducted on June 10, 2015, which was less than 3 years old at the time of the CSE meeting in 2016. Thus, the District was not required to the conduct any additional cognitive testing (Exhibits 72, 88 and 112). Accordingly, based on the above, I find that all of the challenged evaluations/assessments conducted by the District were appropriate. Parent’s Request for an IEE for Speech Evaluation with Central Auditory Processing Testing:
The parents claim that the District failed to evaluate the student in all areas of “suspected disability” when it failed to conduct an auditory processing evaluation of the student. The parents’ claim appears to rely on one sentence contained in the private neuro-psychological obtained by the parents’ in 2015, wherein the evaluator noted that the parent:
“may wish to have the [student] evaluated to determine whether he meets the diagnostic criteria for an “Auditory Processing Disorder” (“APD”)
because aspects of the student’s neuropsychological profile were consistent with a pattern seen in children with APD [emphasis added].”45
As referenced above, I found that the District’s speech evaluations conducted in 2015 and 2016 were appropriate. Additionally, the evidence shows that the student made significant progress with respect to his speech and language skills and there is no evidence that he needs have not been met in this area. Moreover, the evidence shows that the student has performed well in his current academic program. Thus, I find no evidence to support the parents’ contention that the District denied the student a FAPE by failing to conduct an auditory processing evaluation. Further, as indicated above, the parents failed to call the neuropsychologist to testify at the hearing, or anyone else, to support their claim that the student required a central auditory processing evaluation. Accordingly, the parents’ request is denied. Parents’ Request for Assistive Technology Evaluation:
As referenced above, I found that the District’s evaluations were appropriate. I also found that the student’s program has enabled the student to make significant academic gains in all domains. Thus, I find no evidence to support the parents’ contention that the student requires an assistive technology evaluator and/or that District denied the student a FAPE by failing to conduct an assistive technology evaluation. Finally, as referenced throughout the this decision, the parents failed to call anyone at the hearing, including themselves, to support their claim that the student required an assistive technology evaluation or any other evaluation. Accordingly, the parents’ request is denied Parents’ Request for a Sensory Integration OT Evaluation:
Here, the evidence shows that the student received OT services for approximately two years before it was determined that the student no longer required OT services to access his education. Significantly, I find no evidence in the record to support a finding that the student requires a sensory integration evaluation. Thus, I find that the District’s failure to conduct a sensory integration evaluation did not deny the student a FAPE. Accordingly, the parents’ request is denied. Reimbursement for the Neuro-psychologist:
On May 17, 2017, the parents requested that the District reimburse the parents for the cost associated with the parents privately obtained neuropsychological evaluation, which was performed in June of 2015, However, the parents did not file a DPC seeking same until July 17, 2017, which is beyond the two year statute of limitations for claims brought under the IDEA 20 U.S.C. §1415(f)(3)(C); 8 N.Y.C.R.R. § 200.5(j)(l)(i). Accordingly, the parents’ request for reimbursement is denied. Failure to provide OT despite the Student’s Need for Same:
Here, the evidence shows that the District discontinued the student’ OT services after having provided the student with OT services for two years. The District’s decision to eliminate the student’s OT services was based on the OT service provider’s observations during the student’s OT sessions, which showed a significant improvement in the students motor skills and his ability to organize himself, as well as student’s successful participation in the classroom. The evidence also shows that the parent consented to the District’s decision to discontinue OT services. Thus, based on these facts, without any evidence presented by the parent to the contrary, I find that the District’s decision to discontinue OT services did not deny the student a FAPE. Failure to recommend a neuropsychological evaluation, which the parent obtained in May of 2015, and Failure to Measure the student’s Cognitive Functioning:
The evidence shows that the District relied on the cognitive testing conducted by the private neuro-psychologist retained by the parent in 2015 when it determined that student’s initial eligibility for special education services. As referenced above, the testing was less than 3 years old when the District developed the student’s IEP in 2016, which is the IEP at issue. Thus, I find that the student was not denied a FAPE when the District relied on the cognitive testing contained in the parents’ neuro-psychological evaluation. Additionally, to the extent the parents are claiming that the District should have conducted a neuro-psychological evaluation in June of 2015, that claim is time barred time under the statute of limitations 20 U.S.C. §1415(f)(3)(C); 8 N.Y.C.R.R. § 200.5(j)(l)(i). Failure to Recommend a Vision Therapy Evaluation:
This claim was brought before another IHO before the within claims were filed by the parents. Additionally, the parents noted that this issue was the subject of a prior hearing, as well as an appeal to the SRO. Accordingly, pursuant to the principal of Res Judicata, this claim is dismissed. Failure to Recommend a Comprehensive Reading Evaluation:
Here, the neuro-psychological evaluation obtained by the parents and the WCJ-III conducted by the District, confirmed that the student has reading deficits, particularly in reading comprehension. I find the testing results contained in these two evaluations was sufficient to assess the student’s reading ability. Thus, I find no evidence in the record to support a finding that the District failed to offer the student a FAPE by failing to conduct an additional reading evaluation. Accordingly, this claim is dismissed. Failure to provide the District’s criteria for IEE’s when the Parent request the IEE and after the Parent specifically Requested the Criteria be Provided:
Here, the record shows that the parent requested that the District provide the parents with the District’s criteria for IEE’s. The record also indicates that the District denied the parents’ request because the parents previously identified the evaluators with whom they wish to conduct the IEEs and because the District had already filed its DPC seeking an order denying the parents’ request. I find that to the extent the District’s failure to provide the parents with the criteria for the IEEs was a procedural violation under the IDEA, there is no evidence that the District’s decision impeded the student's right to a FAPE or significantly impacted the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, and/or caused a deprivation of educational benefits, See 20 U.S.C. § 1415(f)(3)(E)(i). Accordingly, this claim is dismissed. Failure to evaluate the student in the area of Speech Language after the parent provided consent for same on February 26, 2016:
Here, the record shows that the District conducted an appropriate speech and language evaluation of the student in 2015 and 2016. I also note that the parents failed to present any evidence to the contrary. As such, this claim is dismissed. Failure to provide the parent with “Prior Written Notice” after the CSE meeting on November 28, 2016 that met the requirements of the commissioner’s regulations:
As stated above, the District provided the parent with PWN on November 30, 2016. Accordingly, this claim has no merit and is hereby dismissed. Failure to provide Prior Written Notice when the District requested consent for a Vision Evaluation on September 16, 2016:
As referenced above, this claim is not properly before the undersigned base on the principal of Res Judicata. As such, this claim is dismissed. Failure to provide Prior Written Notice regarding the District’s Request for Consent to Conduct a Reevaluation:
As stated above, the District provided the parent with PWN on November 30, 2016. Accordingly, this claim has no merit and is hereby dismissed. Failure to obtain Informed Consent from the Parent before performing a Behavioral Scale to Reevaluate the Student:
The District asserted that the subject behavioral scale was obtained from the parents’ neuro-psychological evaluation. The parent failed to offer any evidence to rebut this claim. Thus, because there is no evidence to support a finding that the District conducted a behavior scale, I find that this claim is without merit and is hereby dismissed. Failure to include the parent and CSE when making changes to the student’s IEP:
This claims appears to relate to the fact that the student’s scores on a vision evaluation were inadvertently added to the student’s IEP after the CSE meeting was held in November 2016 (Tr. 524). The District advised that this was an administrative error. The parent failed to offer any evidence to rebut the District’s assertion. As such, I find that this claim has no merit and is hereby dismissed. Failure of the Board of Education to approve the recommendations made by the
CSE:
Mr. CCC testified that the District’s Board of Education approved the recommendations made by the CSE with respect to the student’s IEP. As such, this claim is dismissed Failure to Provide Consultant Teacher Services Direct and Indirect for 30 minutes Daily in Mathematics class to the student for the Entire 2016-2017 School Year:
Here, although there is no evidence to support a finding that the District failed to provide direct consultant teacher services in ELA or math, the evidence does show that from September 2016 through March 2017, the District’s Consultant Teacher directed the Teaching Assistant to provide the student’s indirect consultant teacher services in math instead of having the student’s special education teacher provide the service. Thus, I find that the District failed to properly deliver the student’s indirect consultant teacher services in math from September 2016 through March 2017. However, because the evidence does not show that this fact impeded the student's right to a FAPE or significantly impacted the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, and/or or caused a deprivation of educational benefits, this claim is dismissed (20 U.S.C. § 1415(f)(3)(E)(i)). Failure to Provide Speech and Language therapy 3 Times Per Week per the Last evaluation:
The evidence shows that when the student was reevaluated in March 2016, as part of his annual review for 2016-2017 school year, the student’s scores on the CELF V were better than they were the year before, which demonstrated improvement (Tr. 360). Although the evaluation noted that the student still had difficulty following directions and demonstrating understanding of linguistic concepts, the student showed improvement in his basic sentence comprehension and his use of his correct word structures. The student also made progress with his grammatical skills and his understanding of “word classes” (Exhibit 79). Thus, based on these improved results, and the speech teacher’s observations of the student in therapy sessions, which also showed improvement in the student’s speech and language skills, the speech teacher recommended that the student’s speech services be reduced from 3 times per week to 2 times per week (Exhibit. 72, Tr. 362) . Further, the evidence shows that the parents agreed that the student was “doing well” and that they agreed with the District’s decision to reduce the student’s speech services so the student would be able to remain in the classroom and not be pulled-out for an additional speech service (Tr. 495, 535). As such, this claim is dismissed. Failure to Generate Annual goals for the Student for the 2016-2017 school year:
The evidence clearly shows that the District included annual goals on the student’s IEP. This fact was also confirmed in the parents’ brief who restated all the goals. Thus, I find no merit to this claim. Failure to measure Progress or Lack of Progress Toward Annual Goals as reflected on the IEP dated November 28, 2016:
Here, the evidence shows that the District staff tracked and reported on the student's progress towards his IEP goals throughout the 2016-2017 school year (Exhibit 39, Tr.48). Specifically, the classroom teacher in the student’s 12:1:1 English class stated that she tracked the student's progress towards his reading and writing goals and used biweekly “AIMS web timed reading mazes” to assess the student’s progress. The teacher also used “running records,” as well as informal assessments during instruction to assess the student’s progress in reading (Tr. 48).
In writing, the student's work samples were evaluated and compared to his writing goals and reported to the parents on a quarterly basis (Exhibits 55 and F, Tr. 50, 53).
With respect to math, student's progress was tracked by the Consultant Teacher, who documented the student’s progress on a quarterly basis (Exhibit 39, Tr. 104).
The Consultant Teacher also used a “tally sheet’ to tracked to the student’s study skills, which measured the amount of verbal cues the student required (Exhibit 39, Tr. 108). Additionally, the parents were provided with quarterly reports regarding the student's progress towards his math and study skills goals (Exhibit 40, Tr. 108).
Regarding speech, the speech teacher noted that she tracked the student's progress towards his speech and language goal on a monthly basis during the 2016- 17 school year (Exhibit 72). She also provided a report to the student’s parents regarding the student’s progress on his goals every 10 weeks during the subject school year (Exhibit 39, Tr. 366). Thus, based on these facts, I find that the District tracked and/or measured the student’s progress toward his annual goals during the 2016-2017 school year. Again, I note that the parent failed to present any evidence to rebut these facts. As such, I find that this claim is without merit. Failure to provide a special education and/or related services based on the student’s needs during the 2016-2017 school year:
The issue has been address above and I find no evidence to support this claim. I note to the extent that the parents’ alleges that the student did not receive special education services in the 12:1:1 class, the student’s special education teacher confirmed that he did. Accordingly, this claim is denied. Pendency and FAPE for 2017-2018 School Year:
Claims regarding pendency and FAPE during the 2017-2018 School year, which were raised in the parents’ post-hearing brief, are hereby dismissed because they were not raised in the parents’ DPC
ORDERED
That the relief requested in the District’s DPC is granted
That the parents’ DPC is dismissed in its entirety, with prejudice.
Dated: Suffolk, New York
March 14, 2018 James McKeever James McKeever, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 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. Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
Parents’ Exhibits:
ID F Progress report 6/16/2017 6 pages G Scholastic Reading Inventory report 6/12/2017 3 pages H Progress to College and Career Report 6/13/2017 2 pages
Exhibit Date #Pgs. Type Author Recipient # 1 6/14/17 49 Hearing CCC L. CCC CCC YYY YYYn Request 2 5/3/17 1 Email YYY YYYn CCC CCC
3 5/10/17 3 Letter CCC CCC CCC
4 5/17/17 5 Letter CCC CCC CCC
5 6/1/17 2 Letter CCC L. CCC CCC Exhibit Date #Pgs. Type Author Recipient # 9 7/7/17 1 Letter James McKeever CCC/CCC CCC 10 7/7/17 2 Letter CCC CCC CCC/ James McKeever
11 7/17/17 8 Hearing CCC Request 12 7/19/17 3 Letter CCC L. CCC CCC 13 7/21/17 2 Letter CCC CCC CCC
14 7/25/17 1 Letter CCC L. CCC CCC 15 7/31/17 2 Order James McKeever CCC L. CCC/ CCC 16 7/31/17 3 Order James McKeever CCC L. CCC/ CCC 17 8/5/17 2 Letter James McKeever CCC L. CCC/ CCC 18 8/8/17 34 Letter CCC L. CCC James McKeever 19 8/8/17 2 Letter CCC CCC CCC Exhibit Date #Pgs. Type Author Recipient # 20 8/8/17 1 Email CCC CCC CCC CCC
21 8/10/17 1 Email CCC CCC CCC CCC 22 8/10/17 2 Email CCC CCC CCC CCC
23 8/10/17 2 Email CCC CCC CCC CCC
24 8/24/17 156 Letter CCC James McKeever
25 8/28/17 32 Letter CCC L. CCC James McKeever 26 8/28/17 8 Letter CCC James McKeever/CCC CCC
27 8/29/17 2 Letter CCC CCC CCC
28 8/30/17 2 Order James McKeever CCC CCC/ CCC 29 9/1/17 3 Letter CCC CCC CCC Exhibit Date #Pgs. Type Author Recipient # 30 9/7/17 2 Letter CCC CCC CCC
31 2017-2018 2 Report File
32 9/16-6/17 5 Report C. KKKK File 33 2016-2017 2 Report File
34 2016-2017 4 Report File
35 1 Report CCC KKKK File
36 9/6/16- 2 Report File 6/13/17
37 6/15/17 1 Report File 38 6/15/17 1 Report File 39 5/31/17 9 Letter C. KKKK CCC YYY 40 5/12/17 1 Report CCC KKKK File
41 5/10/17 1 Report File
42 2016-2017 4 Report File Exhibit Date #Pgs. Type Author Recipient # 43 3/20/17 3 Email CCC CCC YYY YYY 44 3/10/17 1 Report File
45 3/10/17 1 Report File 46 3/10/17 6 Report File
47 3/8/17 3 Report File
48 3/8/17 4 Report File
49 3/8/17 3 Report File
50 3/6/17 13 Report File
51 3/3/17 1 Report CCC KKKK File
52 3/1/17 1 Report File
53 2/16/17 1 Report File 54 2/6/17 1 Form File
55 2/2/17 6 Report Exhibit Date #Pgs. Type Author Recipient # 56 2/15, 3/1 3 Letter CCC CCC Jr. Parent/Guardian
57 1/25/17 2 Report File
58 12/14/16 1 Letter CCC CCC Jr. CCC YYY YYY
59 11/30/16 2 Letter CCC CCC Jr. CCC YYY YYY
60 11/28/16 13 IEP File 61 11/28/16 2 Report File 62 11/28/16 1 Report File 63 11/23/16 1 Email CCC CCC CCC CCC 64 10/27/16 4 Report CCC CCC File
65 9/19/16 1 Form CCC YYY File
66 7/13/16 1 Letter CCC CCC Jr. CCC YYY YYY
67 2015-2016 2 Report File Exhibit Date #Pgs. Type Author Recipient # 68 9/8/15- 2 Report File 6/24/16 69 6/17/16 1 Letter CCC CCC Jr. CCC YYY YYY
70 5/17/16 12 Report File
71 4/29/16 1 Letter File 72 4/29/16 12 IEP File 73 4/29/16 3 Report File 74 4/29/16 1 Report File
75 4/29/16 1 Form CCC YYY File
76 4/28/16 2 Report CCC M. CCC File
77 4/15/16 1 Letter CCCM. CCC File
78 4/14/16 2 Letter CCC CCC Jr. CCC YYY YYY
79 3/30/16 2 Report CCCM. CCC File Exhibit Date #Pgs. Type Author Recipient # 80 3/28/16 2 Report File
81 3/2/16 1 Report CCC CCC File
82 2/26/16 2 Report File
83 2/24/16 3 Letter CCC CCC Jr. Parent/Guardian
84 8/31/15 1 Form Dr. CCC CCC File 85 7/15/15 1 Letter CCC CCC Jr. CCC YYY YYY
86 6/30/15 1 Form File
87 6/30/15 2 Letter CCC CCC Jr. CCC YYY YYY
88 6/23/15 10 IEP File 89 6/23/15 3 Report File 90 6/23/15 1 Report File Exhibit Date #Pgs. Type Author Recipient # 91 6/23/15 1 Form CCC YYY File
92 6/23/15 1 Form CCC YYY File
93 6/22/15 2 Report CCC M. CCC File
94 6/10/15 2 Letter CCC CCC Jr. CCC YYY YYY
95 6/8/15 1 Letter YYY & CCC YYY Mr. CCC CCC 96 5/29/15 1 Letter CCCM. CCC File
97 5/11/15 2 Report CCCM. CCC File
98 1 Report CCC CCC File
99 6/24/15 1 Letter CCC CCC YYY & CCC YYY 100 2014-2015 2 Report File
101 9/3/14- 1 Report File 6/25/15 102 6/4/15 11 Report CCC CCC, Ph.D. File Exhibit Date #Pgs. Type Author Recipient # 103 5/21/15 13 Report File
104 5/13/15 1 Report CCC CCC File 105 4/27/15 3 Form File
106 4/20/15 1 Letter CCC CCC File 107 3/10/15 1 Report CCC CCC File 108 12/10/14 1 Report CCC CCC File 109 10/1/14 1 Report CCC CCC File
110 9/23/14 1 Form CCC CCC File 111 9/11/14 2 Report File
112 6/6/14; 4 Report CCC M. CCC File 6/17/14 113 2013-2014 2 Report File
114 2/4/14 1 Form File 115 1/23/14 1 Letter CCC CCC YYY and CCC YYY 116 1/8/14 1 Form YYY YYY File
117 20 CCC YYY File 118 4 Letter CCCM. CCC Parents/Guardians Exhibit Date #Pgs. Type Author Recipient #
IHO Exhibits. 1-District’s Motion for Summary Judgment. 2- Parents Opposition. 3- District’s Supplement. 4-Parents Supplement: 5-Post Hearing Briefs. 6-Orders of Extension.
Footnotes
[1] I note that although the parents’ advocate claimed in her post-hearing brief that the undersigned did not address her request for dismissal contained in her response to the District’s DPC, the record shows that parents’ advocate failed to file a motion to dismiss the District’s DPC prior to the hearing. The parents’ advocate also failed to raise this issue outside her response to the DPC until she filed her post-hearing brief, which was insufficient. Additionally, based on the parents’ advocate’s assertions in her brief, it appears that the parent advocate failed to understand that a response to a pleading is not the same as a motion to dismiss. Moreover, it must be noted that the parents’ advocate’s alleged request for dismissal, which was based on the parents’ failure to participate in a resolution meeting, was not grounded in any authority.
[2] The evaluator stated that she did not include all the scores of the subtests because she believed it would confuse the Parents. (Tr. 403).
[3] The evaluation was supplied to the District on June 4, 2015, and reviewed by the CSE on 2015 at the student’s initial eligibility CSE meeting (Exhibit 8).
[4] The parent’s neuro-psychologist noted that this diagnosis is made by a speech/language professional (Exhibit 102, page 7).
[6] 6/19/17 6 Letter CCC CCC CCC
[7] 6/20/17 51 Letter CCC L. CCC CCC
[8] 7/6/17 3 Letter CCC L. CCC CCC