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FINDINGS OF FACT AND DECISION
Case Number: 166523
Student’s Name:
Date of Birth:
District: 1111 Hearing Requested By: Parent
Date of Hearing: July 26, 2017
August 8, 2017
September 6, 2017
September 7. 2017
September 27, 2017
October 4, 2017
November 20, 2017
November 28, 2017
January 17, 2018
January 30, 2018
February 8, 2018
February 13, 2018
March 6, 2018
March 20, 2018
April 10, 2018
May 1, 2018
May 31, 2018
June 19, 2018
Actual Record Closed Date: November 2, 2018
Hearing Officer: Martin J. Kehoe III, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 26, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
ESQ., Attorney — DOE
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
ESQ., Attorney — DOE
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 6, 2017
ESQ., Attorney (Via Telephone) — Student
Special Education Teacher (Via Telephone) — Student
ESQ., Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
Parents
Special Education Teacher (Via Telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
ESQ., Attorney — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2017
ESQ., Attorney (Via Telephone) — Student
ESQ., Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
ESQ., Attorney — DOE
Witness (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
ESQ., Attorney — DOE
ESQ., Attorney — DOE
School Psychologist, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
Principal Administrative Associate, (Via Telephone) — Student
ESQ., Attorney — DOE
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2018
ESQ., Attorney — Student
Witness (Via Telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2018
ESQ., Attorney — Student
ESQ., Attorney — Student
Teacher at the (Via Telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2018
ESQ., Attorney — Student
ESQ., Attorney — Student
M.S.ED., School Psychologist, — Student
(Via Telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2018
ESQ., Attorney — Student
Teacher (Via Telephone) — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 20, 2018
ESQ., Attorney — Student
ESQ., Attorney — Student
Psychiatrist — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2018
ESQ., Attorney — Student
ESQ., Attorney — Student
OT and PE Teacher — Student
Parents
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2018
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
ESQ., Attorney, District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2018
ESQ., Attorney — Student
Head of the (Via Telephone) — Student
ESQ., Attorney, District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2018
ESQ., Attorney — Student
ESQ., Attorney — DOE
Law Clerk — DOE
Educational Consultant (Via Telephone) — DOE
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. This is a “child find case with a “reimbursement” component. The Parents filed a complaint notice, dated April 10, 2017. (Ex. A) and a second complaint notice dated August 28, 2017 (Ex. AA). The cases were consolidated on December 27, 2017. A hearing was held on July 26, 2017; August 8, 2017; September 6, 2017; September 7, 2017; September 27, 2017; October 4, 2017; November 20, 2017; November 28, 2017; January 17, 2018; January 30, 2018; February 8, 2018; February 13, 2018; March 6, 2018; March 20, 2018; April 10, 2018; May 1, 2018; May 31, 2018 and June 19, 2018.
Overview In this Decision and Order I will briefly outline the positions of the parties and review some student history. First, I address “Child Find” issues and will then move to apply a three-prong analysis to the balance of the case, examining first whether the District met its burden to demonstrate the appropriateness of their action not to classify the Student, second, whether the Parents met their burden to demonstrate the appropriateness of the placement at Private School, and third, whether equitable considerations favor the District or the Parents in this matter. The Student has a reported history of difficulties with executive functioning and attention/concentration1. Nevertheless, he seemed to be progressing in academics from 1 Student History At the time the complaint notice was filed, the Student was 14 years old and attending ninth grade in the Private School (Ex. 5). From the neuropsychological evaluation report made in the Summer of 2016 we learn that the Student has a diagnosis of attention deficit hyperactivity disorder, predominantly inattentive presentation; specific learning disability with impairment in written expressions; and adjustment disorder with mixed anxiety and depressed mood. On the Weschler Intelligence Scale for Children – fifth edition (WISC – V) the Student’s cognitive composite and subtest scores ranged from high average to superior in Case No. 166523 year to year. In June 2016 (T. 1024) the Parents hired an educational consultant to help them find an appropriate school for the Student. She recommended that they have the Student privately evaluated, and the Student was evaluated by the Neuropsychologist, who diagnosed him with attention deficit hyperactivity disorder, specific learning disorder in written expression, and adjustment disorder. (Ex. E). The Neuropsychologist made educational recommendations and the Educational Consultant identified the Private School as a potential placement. (T. 857).
The Parents allege that the District denied the Student a Free Appropriate Public Education FAPE for the 2015-2016 and 2016-2017 school years under the Child Find provision of the law. However, the record does not support this claim and I rule for the District on this issue. Regarding the Parents’ reimbursement claim, I find otherwise. The Parents enrolled the Student in the Private School in August 2016 for the 2016-2017 school year. In October 2016, the Parents requested that the District evaluate the Student to determine eligibility for special education services. The Committee on Special Education (CSE) held a meeting on January 9, 2017; however, the Father maintained that he was not aware the meeting was scheduled and was therefore unprepared. He further alleges that the CSE did not give him the opportunity to meaningfully participate at the meeting. Additionally, the Student’s ELA Teacher was only able to participate in the meeting for a short time as she had to return to teaching, shortly after the meeting began. The CSE determined that the Student was not eligible for special education services.
his academic scores, and the cluster scores were between average and high average and on the subtests ranged between average to superior. (Ex. E). The Student’s ELA Teacher testified that the Student presented with hyperactivity, impulsivity, difficulty with attention, challenges with reading comprehension, and knowledge of grammar (T. 551 – 552). She said the Student’s inattention, verbal and physical impulsivity impacted the Student’s comprehension, and he needed significant support to address those needs (T. 560). She said his deficits also impacted the ability of other students to learn (T. 561). She described the Student as a “synchronous learner”, with areas he does well in and areas where he needs extra support. (T. P. 570). At the time the Student began attending the Private School, he was reading between a sixth – eighth grade level, depending on the content area (T. 571).
During the hearing, the District called the CSE Teacher Assigned and the School Psychologist to defend their claim that they acted appropriately in deciding not to classify the Student. The Father and ELA Teacher from the Private School testified about what occurred at the CSE meeting. The Parents also called additional witnesses to testify about the appropriateness of the Private School. Based on the totality of the evidence presented, I find that the District denied the Student a FAPE for the 2016-2017 school year by significantly impeding the Parent’s opportunity to participate in the decision-making process regarding classification and the provision of a FAPE. As an equitable remedy I find that tuition reimbursement is warranted for the period of January 1, 2017 to June 30 2017.
Events Leading to the CSE Meeting The Father testified that he met with an educational consultant in May of 2016 who recommended that the Parents have the Student evaluated (T.770, 850-852). The Educational Consultant testified that the Parents signed a contract with her agency for educational consulting, not special education advocacy (T. 1028). She made recommendations for schools that would be appropriate for the Student (T. 1030, 1033). She said that the Parents did not indicate whether they wanted a public or private school
(T. 1035). She did not discuss the process of having an IEP meeting for the Student (T. 1035). She testified that she advised the Parents to seek legal counsel to understand their legal rights with finding the best placement for the Student (T. 1036-1037).
The Student was evaluated by the Neuropsychologist in June 2016 (T. 771-772, Ex.s E & 10). The Educational Consultant recommended schools including the Private School (T. 776). The Father said the Student began the 2016-2017 school year at the Private School and he referred him to the District’s CSE after the year started. When asked why he waited, he said he didn’t know the CSE existed (T. 776). He said that the Private School told him about the possibility of reimbursement by the District in September (T. 854, 856).
The Student’s Father sent a request for an initial assessment to the CSE Chair on or about October 21, 2016, asking that the CSE meet to evaluate the Student’s need for special education services (Ex. C). The District sent a letter to the Parents, dated October 28, 2016 requesting a meeting to conduct a social history interview (Ex. 4). The Parents signed the consent forms for the evaluation process on or about November 16, 2016 (Ex. 5). The District sent the Parents an appointment letter for a psychoeducational evaluation dated November 21, 2016 (Ex. 7) and November 29, 2016 (Ex. 8).
The Father remembered the CSE asked for consent to do a psychoeducational evaluation and that he withheld consent. He said he hoped they could use the Student’s neuropsychological report instead of asking the Student to be tested again. The Father explained his reasons for not wanting the CSE to do further testing of the Student after the neuropsychological evaluation. He said that he felt it would be superfluous, an exertion for the Student, and that the results might be affected by having him taking the same test repeatedly (T. 824-825). He said that he initially sent a letter to the District (Ex. C), and then later gave them the neuropsychological evaluation. (T. 859-866) After discussing the timing that the CSE received the report with the Father, I find that it was first shared with the District on November 16, 2016. (Tr. P. 865).
The Student was observed in his ELA class for the classroom observation, (Ex. 9-dated December 12, 2016). The CSE conducted a Level I Vocational Interview with the Student, dated December 12, 2016 (Ex. 6).
A CSE Meeting was held for the Student on January 9, 2017 (Ex. 19). The Parents’ attorney sent the CSE Chair a “10 day notice” letter, dated February 17, 2017, describing the Parents’ concerns about the January 9, 2017 CSE meeting and requesting a reconvene of the CSE to develop an IEP for the Student. The attorney informed the CSE Chair that unless the Student received an appropriate program, the Parents would send him to the Private School and seek funding/reimbursement. (Ex. B).
The CSE Meeting The Special Education Teacher Assigned to the CSE, the School Psychologist from the District, the ELA Teacher from the Private School, and the Father each testified about their recollections of the January 9, 2017 IEP meeting held for the Student. The meeting minutes also add to my review of this meeting (Ex. 18)
Review of Testimony
The Special Education Teacher Assigned The Special Education Teacher Assigned admitted that the Father did not appear at the beginning of the CSE meeting and the Student’s Teacher from the Private School was on the phone briefly. She explained, the Father later telephoned into the meeting (T. 111-
113) but that there was only a short overlap when all were together. (T. 120-121). She testified vaguely that they discussed the social history, observation, vocation assessments, the Teacher reports, the neuropsychological evaluation, and eligibility for special education. (T. 117-118, 122). In support of the decision that the Student was not eligible for special education services she testified that although the Student has a diagnosis of ADHD and some variability academically, he was functioning on grade level and did not have an academic deficit (T. pp. 122 & 173-174). She said the Team discussed the Student’s academic functioning with the ELA Teacher before she left the meeting (T.167). She said the Team recommended a 504 plan for testing accommodations because of the Student’s diagnosis of ADHD (T. 123).
The School Psychologist
The School Psychologist testified 2 that she and the CSE Teacher Assigned sent the Student’s Private School an email informing them about the initial IEP meeting, and when the District learned the ELA Teacher would be available, they sent the Private School an email and copied it to the Father (T. 220). She testified that she mailed the evaluations to the Parents with the meeting notice. (T.229-230). The School Psychologist testified as to the accuracy of the meeting minutes: that the Father joined the meeting at 11:10, and the Teacher left the meeting at 11:30 (T. 316) (Ex. 18). She said that she had enough data as well as the Father’s and ELA Teacher’s participation and did not feel the meeting needed to be rescheduled (T. 260-261). She said she did not see a need to reschedule the meeting and did not think the Father would not have wanted to participate by phone. She said she thought he was prepared to participate because he had received the documents (T. 342-345).
The School Psychologist said she reviewed the neuropsychological evaluation before the meeting and had sufficient information (T. 233). She said the IEP Team reviewed the social history, vocational interview, classroom observation, progress reports from the former school, progress reports from the current Private School, and the speech progress reports (T. 234). She did not recall if she reviewed the recommendations on the neuropsychological report at the meeting (T. 243). She said that during the 20 minutes the Teacher was on the phone, they only discussed the Private School report (T.323).
She said they discussed the neuropsychological evaluation, the social history, classroom observation, the previous Private School reports, the counseling, and the speech reports with the Student’s Father, after the Teacher left the meeting (T. 323-325). Importantly,
2 The Parent’s Attorney had an exception to the School Psychologist’s testimony because she had spoken to the CSE Teacher Assigned about the content of her testimony apparently in preparation for testimony (T. 203, 209). When asked, she said that the CSE Teacher Assigned talked to her about her testimony in the case but she did not recall what she said. (T. 215 – 216).
she later admitted that they did not discuss the specific recommendations made by the neuropsychologist (T. 404-405).
The School Psychologist stated that the Student’s current teacher (The ELA Teacher from the Private School) reported that the Student was meeting grade level expectations across academic areas, and the results of standardized testing showed that he is at or above grade level in math, reading, and writing. She added that he has demonstrated that he is able to learn despite his diagnoses without any special services (T. 244-245). She explained that the Student’s present levels of performance of individual needs (Ex. 15), based on the Woodcock – Johnson Tests of Achievement from the neuropsychological evaluation demonstrated the Student’s ability to learn (T. 249-254). She said the Team disagreed with the Neuropsychologist’s assessment that he was underperforming (T. 246).
She said that they discussed the possibility of a 504 plan with testing accommodations, educational accommodations and modifications with the Father (T. 247-248). She said the Team advised the Father that he would have to present a medical document to the school to qualify for a 504 plan and that the neuropsychological evaluation could be the document used (T. 277 – 279).
The School Psychologist testified they considered three disability classifications related to the Student’s diagnoses: other health impairment (for ADHD), learning disability (for written expression skills), and emotional disturbance (for adjustment disorder), but decided that he does not meet the eligibility criteria for any of these classifications (T. 263-264).
It was her perception that the Father was able to ask questions, share his concerns, and provide additional information during the meeting (T. 265 – 266).
She testified that the neuropsychological report used a medical model to diagnose the Student (T.400). She explained, “. . . you cannot make the correlation between the medical diagnosis and its impact on the student’s educational or academic achievement then… We can’t determine eligibility or conclude eligibility for special education.” (T. 400).
The ELA Teacher from the Private School The ELA Teacher testified that she did not know if the Parents were aware of the meeting date or their need to participate prior to the meeting (T. 543). She remembered that the meeting was scheduled for one hour in the morning and that she was told she would be called at the beginning of the hour. She said she was not called until 10 minutes before the end of the hour. She could only participate for 10 minutes because she had to leave to teach a class. (T. 545) She said she thought the Student’s father sounded as though the phone call for the meeting was unexpected. (T. 546) She said they discussed the Student’s present levels of performance and the class size. They did not discuss the neuropsychological evaluation, the social history, the classroom observation, vocational interview, or the previous private school reports (T. 545-547). She said they did not discuss the curriculum at the Private School or the issue of whether the Student qualified for classification under IDEA while she was on the phone. (T. 548).
The Father’s Testimony The Father was questioned about his understanding of the email exchange about the meeting between the District and the Private School. (Ex. 20) He testified that his impression was that he was supposed to coordinate a meeting between the District and the Private School, but that he was not expected to participate (T. 794 – 795). The Father testified that his understanding was that the District wanted to talk to the Student’s teacher, and he helped connect them. He did not realize they were scheduling a CSE meeting. “… For me,… I just thought, okay,… Someone from the District wants to talk to my teachers, and I wouldn’t have described it as a meeting of the Committee of Special Education.” (T. 874). Although, the Father testified that he saw the vocational interview and social history before the CSE meeting, and thought he received them by regular mail, he did not remember seeing the meeting notice until after the CSE meeting (T. 873, 880, 889-890). He said that he was not aware he was required to participate at the meeting until he received the phone call , while in a taxi about a half hour after the meeting had begun (T. 796-797). He said the CSE did not offer to send him documents or inform him that the meeting could be continued later or rescheduled so he would have access to documents (T. 798). He said that he was asked very few questions and had minimal participation in the meeting (T. 798- 799, 875). He did not remember the CSE discussing the neuropsychological evaluation with him during the meeting (T. 800, 887). He said they did not ask any questions related to the Student seeing a psychiatrist or psychologist.
(T. 798-800).
The Father said he did not understand some of the terminology used at the meeting, or what it meant that the Student did not qualify for classification (T. 800-802). The Father said he did not request documents during the CSE meeting and did not ask for the meeting to be rescheduled because he had the impression that it was helpful but not necessary for him to be at the meeting. (T. 812). By the time he was called, he said “the meeting was well underway already” (T. 796). He added that based on the context, it sounded as though the substantive part of the meeting had happened before he was called
(T. 813-814). He said he did not remember if a 504 plan was discussed (T. 817).
Analysis
Child Find Claim
Child Find Law The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446.
F.3d 335, 347-48 [2d Cir. 2006]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] aff'd 2010 WL 1049297 [2d Cir. March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 129 S. Ct. at 2495; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Student Suspected of Having a Disability, Appeal No. 10-009). Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (Application of a Child Suspected of Having a Disability, Appeal No. 05-127). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (New Paltz, 307 F. Supp. 2d at 400, n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]; see Application of a Child Suspected of Having a Disability, Appeal No. 06-092) To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008] referencing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention programs (8 NYCRR 200.4[a]).
Facts Related to Child Find
2015-2016 School Year In determining if there was reason to suspect a disability for this Student, I focus my attention on his attendance in the private school during the 2015-2016 school year (T. 483). The Middle School Director from that private school testified that the Student underperformed academically, which she surmised was related to his behavior problems
(T. 484). Although she indicated in her testimony that the District did not communicate with her school about the possible presence of students with disabilities or the availability of services for students with disabilities (T. 490 – 491), she said that she knew about the District’s special education programs (T. 498). It was her understanding that if a teacher suspected a student needed special education services, the private school would contact the student’s parents about their referring the student to the District (T. 499-500). She said the school staff did not discuss referring the Student for special education services with his parents because “he performed well enough academically”. (T. 505). She stated her private school informs parents when they suspect a student has a learning disability or attention issue, and recommends evaluations (T. 505). Given this testimony, I find that the private school that the Student attended during the 2015-2016 school year knew of the District’s special education services and had a protocol in place to inform parents about the referral process if they suspected a disability. There was no suspicion of a disability during the 2015-2016 school year and therefore the District did not fail in its child find provision for the 2015-2016 school year. He was not receiving academic intervention serves nor did he require Response to Intervention. In fact, his academics were adequate to obtain passing grades. (Ex.s 11, 12 and BB). Although the Student had some behavioral issues, his academic performance did not cause the private school staff to believe that he presented with any disabilities at that time. Accordingly, I dismiss the Parents’ claim for a Child Find violation for the 2015-2016 school year.
2015-2016 School Year
Likewise, for the 2016-2017 school year, the only new information that arguably changes the status quo from the 2015-2016 school year is the report from the Neuropsychologist. This was not turned over to the CSE until after the referral of the Student was made.
The Law Concerning Tuition Reimbursement and the Procedural and Substantive
Standards used in Determining FAPE A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985).
Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).
This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).x
Procedural Standard Detailed procedural provisions lie at the heart of the IDEA.[20] U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See Case No. 166523 school district failed to provide a FAPE. Id.
For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176.
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07007.
Factual Analysis Finding a Procedural Violation that Resulted in the Denial of
FAPE
In this case, the Student was denied a FAPE because the CSE significantly impeded the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE and the determination the Student’s eligibility for special education. The District witnesses, the Student’s Teacher, and the Father all testified that at the time of the CSE meeting, the Father was unaware that it was occurring and that he was expected to attend it. Although copied in emails about the meeting, and mailed a letter scheduling it (which he testified he did not see before the meeting), a misunderstanding occurred in which the Father did not realize that the District was scheduling a CSE meeting on January 9, 2017, but instead he thought it was a meeting between the District and the Private School (T. 794). The District failed to follow up with a phone call to confirm his attendance although that is their usual protocol (T. 110 – 112, (EX. FF – 14, 16). After the Father learned of the meeting, he called to participate by phone, but he was not prepared as he did not have any documents with him in the taxi where he made his phone call. Although the Special Education Teacher and School Psychologist maintain that the meeting did not start until the Father was on the phone, the Father’s perception was that the important part of the meeting had already happened. While the Father was on the phone for 20 minutes, he testified that he only had the opportunity to speak for a few minutes and was not able to describe the Student’s needs in any detail. Also, by the time the Father called into the meeting, the Student’s Teacher only had 10 minutes left to participate because she had to leave to teach a class; her brief participation prevented the CSE from having any in – depth discussion of the Student’s needs in school. As a consequence of the rotation in attendance I find that the School Psychologist’s assessment that the Team disagreed with the Neuropsychologist’s assessment that he was underperforming (T. 246), is not realistic because the Team was only together for a very short time. A review of the testimony demonstrates that the entire CSE probably did not review all of the evaluative materials that were available and certainly not at one time (T. 243, 323, 545-547, 800, 887). One example is that it is questionable if the CSE Teacher Assigned reviewed the neuropsychological evaluation at all. If she did, her input related to the Student’s needs as diagnosed in that document was limited, and in any case, her input was subordinated to the opinions of the School Psychologist. (Tr. Pp. 190-193).
Whether or not it was true, the Father did not think the CSE members listened to his concerns or considered what he shared about the Student’s difficulties. The Father is not an educator and was not familiar with the terminology used at the meeting, which indicates that the District did not adequately explain its reasons for determining that the Student was not eligible for special education services. The meeting ended soon after the Father called. In this case, 20 minutes does not seem enough time to accurately determine the Student’s eligibility.
The Parents did many things right. When the Student’s difficulties in school increased, the Parents met with an educational consultant to find a suitable program. They followed her recommendation to have the Student evaluated, and when the Private School recommended that they investigate the possibility of having the Student classified with a disability, they contacted the District to request evaluation for special education services.
During his testimony, the Father displayed a naïveté about his role in the eligibility determination process. I contrast that with his obvious ambition to help his son and his persistent efforts to do so. In my view, he should have been given an opportunity to participate fully at the CSE meeting. This is an involved parent who has participated in his son’s education at every other level. I found him to be credible.
On the other hand, the District did not demonstrate that they gave the Parents the opportunity for fully participate in the determination process. It may have been because of circumstances, such as the Father not understanding the emails or not reading the letter in time, but this was a major CSE meeting for the Student – to determine eligibility – and it could have easily been rescheduled at a time when the Parents would have been prepared, able to review documents, and given time to express their concerns.
Because this finding against the District is based upon a procedural violation, the ultimate determination of classification and the substantive need for special education services is deferred 3 . (See, Forest Grove School Dist. v. T. A., 557 U.S. 230 (2009) for the 3 The recommendations in this record seem to support a classification but because the finding that FAPE was denied, the CSE meeting was essentially a nullity and an analysis would necessarily rely upon evidence that was created after the meeting: ie. One of the Student’s current teacher’s opined that he has a Learning Disability (Tr. P. 633) See also, the Neuropsychologist’s recommendation of a learning environment that includes multisensory learning, smaller class sizes and a lowered student – to teacher ratio; a higher degree of structure; a setting that encourages him to work to his full potential and is flexible enough to accommodate proposition that the IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school.) I now turn to Prong II to decide if the Parents found an appropriate unilateral placement for their son.
Prong II
I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 18485; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
his needs; consistency in teaching and behavioral strategies; and 50% time on classroom exams and standardized tests.(Ex. E).
The Student’s former Psychiatrist testified that the Student was his patient from December 2015 until late fall of 2017, and he treated him for ADHD and anxiety (T. 693-696). He said that the Student’s diagnosis has impacted his education by causing impulsivity in class, low self – esteem related to his inability to perform well academically, and avoidance. The Student was asked not to return to his previous Private school because of his disruptive behavior (T. 696-698). He stated that he agreed with the results of the neuropsychological evaluation (T. 700-701). He concurred with the diagnosis of the neuropsychologist of ADHD and adjustment disorder with mixed anxiety and depressed mood. Although his diagnosis differed slightly (generalized anxiety disorder and unspecified depression), he said it is not a significant difference (T. 712713). He said that his clinical impression was that the Student has general anxiety related to school while the neuropsychologist felt it was only situational because of school (T. 722-724). He stated that ADHD with executive dysfunction (which the Student has), requires “environmental structural intervention”, not just medication (T. 729).
On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.
2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d
Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]. Parents learn about the unique needs of a handicapped child through first-hand knowledge, but parents may also rely on the experience of professionals.
The Private School is an independent school for high ability students in kindergarten through 12th grade, including students with classroom-based learning challenges. (Ex. Y).
The School has classrooms of no more than 12 students, uses a multisensory approach, and highly structured, specialized instruction (Ex. C).
The Private School Psychologist, who was the Student’s case manager, testified that she saw the Student once a week for individual counseling and co-taught the Student’s social skills group. (T. 611-612) She would check in with the Student during his homeroom to see how he was doing, encourage social connections with peers, and check-in during lunch or less structured times (T. 619 – 620). She said the Student’s challenges were in needing support with impulsivity and social connections, and his avoidance of certain academic activities (T. 621). She said she would help the Student to determine the cause of his avoidance and re-engage (T. 621). The Student had an intervention plan with specific interventions and specific goals (T. 625). She said he benefited from movement breaks, strategies to focus his attention, and the daily report card. (T. 634) In counseling, she said they worked on peer conflicts, initiating peer conversations, and building reciprocal friendships (T. 647).
The ELA Teacher contributed that during homeroom, the Student focused on executive functioning, organization, time management, and preparation for the day. At the end of the day she helped him get prepared for what he needed to do that night (T. 549-550). She said the Private School addressed his hyperactivity and impulsivity through movement breaks, fidgets, extended time, and one-to-one assistance with writing (T. 552 – 553). The Student did not have a behavior plan but there was a daily report card which included behavior goals and monitored progress (T. 557-558). The ELA Teacher said he made some progress behaviorally with the daily report card and weekly psychology sessions (T. 574).
The OT/PE Teacher/High School Mentor testified that he met with the Student to develop a movement break plan (T. 745-746). He also met with the Student weekly for mentoring. He focused on helping him develop more awareness of his self-regulation and attentional issues by working with younger students in two occupational therapy sessions (T. 747750). He said the Private School addressed the Student’s attentional and impulsivity difficulties by mentoring, the movement break plan, 1:1 support in the classroom, the daily report card, and verbal, written, and visual reminders for behavior (T. 754). The Head of the Private School testified that the Student received school counseling, speech language therapy, and occupational therapy, and had the assistance of a learning specialist
(T. 943- 944).
The Student’s Progress The Student made progress in his classes (Ex. H, Ex. W) and made progress in his related services (Ex. I, Ex. J, Ex. K, Ex. L, Ex. M, Ex. N). The Private School Psychologist said the Student made progress as his disengagement improved and he needed less interventions with check ins (T.621). He also developed two friendships (T. 619). She said the Student made progress with his goals and became much more engaged with his history class (T. 626). The Student made progress on his daily report card (T. 629). His social emotional progress was measured by counseling reports and consultation with teachers and family (T. 630). She said in counseling, the Student became more able to engage in counseling and more open and receptive to the School Psychologist’s feedback, developed friendships, had a decrease in anxiety, and was more able to handle challenging directions independently (T. 631). She said the Private School appropriately addressed the Student’s social-emotional, behavioral, and attention needs during the 2016-2017 school year because he made progress in engagement, had a decrease in anxiety, and an increase in appropriate peer relationships. (T. 635) The ELA Teacher said the Student’s reading comprehension improved; he went from reading independently on a seventh-grade level to a ninth-grade level. He also improved in grammar and usage. (T. 558-559).
The Father testified that the Private School was appropriate for the Student in the 20162017 school year because he learned new academic habits, such as chunking projects; received accommodations such as movement breaks; received speech therapy; received help for his handwriting; and was given a high level of attention from teachers (T. 804805). The Parents satisfied the Prong II requirements. The Private School was appropriate to meet the Student’s needs and afforded him educational benefit.
Prong III A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
The Parents fully cooperated with the CSE. They initiated the CSE process by the Father’s letter requesting services, signed consent to evaluate the Student, gave the District a copy of the Student’s private neuropsychological evaluation, and the Father was willing to participate at the CSE meeting even though he was unprepared at the time. After he disagreed with the District’s decision, the Parents submitted a 10-day notice letter for unilateral placement. The District did not respond by reconvening another CSE meeting.
I find that the Parents acted reasonably and in good faith with the CSE and did nothing to impede the CSE process. Therefore, I find the equities favor the Parents.
The District received a letter from the Parents requesting evaluation for eligibility for special education services for the Student and giving consent to evaluate on October 13, 2016. The District made to appointments to conduct a psychoeducational evaluation of the Student for November 30, 2016 and December 21, 2016 (Ex. 7 and Ex. 8). The Father did not consent to the evaluations because the Student had just been given a neuropsychological evaluation. The District’s other evaluations were completed by December 12, 2016. This would have been within the 60 days requirement for completion of initial evaluations according to the regulations (see regulations 200. 4 (a) IV, 9, b.) However, the CSE did not schedule the meeting until January 9, 2017, which delayed the process of determining eligibility. Given the issue of the timing in this matter, I award tuition reimbursement for that portion of the 2016-2017 school year that began on January 1, 2017 through June 30, 2017.
It is therefore ORDERED
The District shall provide reimbursement for payments made to the Private School for that portion of the 2016-2017 school year that began on January 1, 2017 through June 30, 2017, and to the extent that there remains an unpaid balance per this order for the 2016/17 school year, direct payment shall be made for tuition. Dated: November 9, 2018
Martin J. Kehoe III, Esq. gc
MARTIN J. KEHOE III, ESQ.
Impartial Hearing Officer
MJK:gcPA
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Request for Due Process hearing, 6/19/17, 9 pages B Ten Day Notice, 2/17/17, 3 pages C Request for Initial Assessment Letter to CSE, 10/21/16, 1 page D 2015-2016 Progress Reports, 8/5/16, 19 pages E Neuropsychological Evaluation, 6/13/16, 6/18/16, 27 pages F The Description, undated, 1 page G Student Schedule, undated, 1 page H The Progress Report, September 2016-January 2017, 30 pages I The Speech Language Therapy Update, Spring 2017, 1 page J The Speech Language Therapy Update, March 2017, 1 page K The Speech Language Therapy Update, November 2016, 1 page L The Counseling Report, Spring 2017, 1 page M The Counseling Report, Winter 2017, 1 page N The Counseling Progress Report, Fall 2016, 1 page O The Contract 10/27/16, 6 pages P The Financial Affidavit, 7/11/17, 1 page Q Attendance Record, 7/11/17, 1 page R Proof of Payment, 9/13/16; 10/27/16, 2 pages S The Daily Report Cards, November 2016-June 2017, 8 pages T The Related Services Hours Summary, 2016-2017, undated,
1 page U The Case Conference Notes, 1/4/17 & 3/22/17, 10 pages V The Additional Goals, 2016-2017, undated, 1 page W The Progress Report, January 2017-June 2017, 27 pages X The Curriculum 2016-2017, undated, 11 page Y The Mission Statement, undated, 1 page
Z The Pamphlet, undated, 2 pages AA Request for Due Process Hearing – Case #168196, 8/28/17, 4 pages BB School 2015-2016 Conference Notes, 9/9/16, 9 pages CC School core Information Data, 1/31/18, 3 pages DD Affidavit of , 2/9/18, 4 pages EE for Young Men, 2/9/18, 2 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint 166523, 4/10/17, 9 pages 2 Due Process Response 166523, 6/21/17, 3 pages 3 Initial Referral, 10/2016, 1 page 4 Notice of Social History, 10/28/16, 2 pages 5 Social History Package, 11/16/16, 13 pages 6 Level 1 Vocational Interview – Student, 12/12/16, 2 pages 7 Appointment Letter for Psychoeducation – 1, 11/21/16, 1 page 8 Appointment Letter for Psychoeducational – 2, 11/29/16, 1 page 9 Classroom Observation, 12/12/16, 2 pages 10 Neuropsychological Evaluation, 6/13/16, 6/18/16, 27 pages 11 , Spring 2015-16, 9 pages 12 Winter 2015-16, 10 page 13 Teacher’s Progress Report – , 12/8/16, 3 pages 14 Notice of IEP Meeting, 12/22/16, 3 pages 15 Ineligible Special Education Services Letter, 1/9/17, 2 pages 16 Present Levels of Performance and Individual Needs, 1/9/17, 5 pages 17 Attendance Page, 1/9/17, 1 page 18 Meeting Minutes, 1/9/17, 1 page 19 Prior Written Notice, 1/9/17, 3 pages 20 Events Log, 10/21/16-1/9/17, 5 pages 21 Counseling and Speech Progress Reports, Fall 2016, 2 pages
22 Procedural Safeguards Marked June 2016, 6/2016, 45 pages 23 Procedural Safeguards Marked July 2017, 7/2017, 49 pages 24 Family Guide to Special Education Services for School-Age Children
Booklet, undated, 59 pages 25 Affidavit of , 12/20/17, 2 pages 26 Due Process Complaint, 168196, 8/28/17, 4 pages 27 , undated, 4 pages 28 Due Process Response 168196, 11/7/17, 3 pages
IMPARTIAL HEARING OFFICER
IHO #1 District’s Closing Brief, 30 pages IHO #2 Parents’ Closing Brief, 31 pages
Footnotes
[20] U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987). The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a