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FINDINGS OF FACT AND DECISION
Case Number: 167456
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 16, 2017
Actual Record Closed Date: August 16, 2017
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2017
Parents
(Via Telephone) — Student
(Via Telephone) — Student
(Via Telephone) — Student
(Via Telephone) — Student
Attorney — DOE
Parent requested a hearing on July 10, 2017. I was appointed on July 18, 2017. I scheduled a hearing for August 16, 2017. Parent is pro se. On August 16th the district appeared by The compliance date was not extended by either party. An impartial hearing officer is regardless of the parties' positions, to ensure compliance with the 45-day timeline for issuing a decision (see Application of the Dep't of Educ. , Appeal No. 11-
095; Application of the Dep't of Educ. , Appeal No. 11-037; Application of a Student with a Disability , Appeal No. 08-064; Application of the Dep't of Educ., Appeal No. 08-
061).
The student is , ( ) classified as disabled and currently attends a program at the in the (June 2017) in a class with students. (Exh. I)
The district concedes that it has failed to provide an IEP for the 2017 – 2018 school year. (T. 4)
Parent in their complaint request “pendency for the DOE to pay [the student’s]
tuition and for 2017-2018….” (Exh 2) and tuition reimbursement for the 2017 – 2018 school year. (Exh. G)
EXHIBITS
A Evaluation Update dated April 27, 2016 states the student achieved an . Under the title “ ” he achieved
. In he scored
. In he scored . In he scored
. The student’s
vary from to . The student’s are to . His are from to . His is
.
The recommendations are as follows:
1. placement in “
….”
2.
3. .
4. .
5. .
6. .
7.
.
8.
. (Exh. I)
SPRING REPORT 2016-2017
(Exh. N)
Progress Report –
.
. . It is strongly recommended the student continue in a program. (Exh. N)
Progress Report –
. .
. He requires a program. (Exh. N)
Report –
. . A
program is recommended. (Exh. N)
Progress Report –
Progress Report –
. (Exh. N)
TESTIMONY
Dr. ,a testified that he sees the student
. (T. 7) The student has some challenges.
.
. But overall,
.(T. 7 – 9) Dr. occasionally speaks with the from the (T. 9) According to the , the student is doing well at the school. (T. 9) Dr. has not tested the student. (T. 14)
Dr. testified that the student “
” (T. 19-20)
Dr. , the student’s testified that she met the student at and he had an . (T. 24) In 2012 the student
. (T. 25) Dr. ’s recommendation was for the student to attend school “…
.” (T. 25-26) Dr. testified that she recommends the same today. (T. 26)
Dr. stated that
. (T. 29) She testified “
.” (T. 29-30)
In 2012 Dr. diagnosed the student as follows, “ ” (T. 34) In April 2016, the student’s teacher was teaching the student who was at a , . (T. 35) Dr. testified that despite the student’s , the reason he is is because “ .” (T. 37) She testified that she is not surprised that the student’s report card reflects he is . (T. 37)
The student currently is in a class of students. In he is in a
. (T. 41)
, testified that is a with approximately students. (T. 43) The school philosophy is “
.” (T. 44) The tuition
is per year. The student is in a class. (T. 44) and are usually to students. (T. 45) Ms. testified that there are informal evaluations going on all the time throughout the classroom with quizzes, with homework, with participation in class and standardized tests at the end of the year, the and the . (T. 46)
Ms. stated that she does not know about any student’s IEPs. (T. 49,51) She testified “
.” (T. 49-50) No NYS
standardized tests are given nor are the students prepared for . (T.
50) The school looks at topics. “
.” (T. 59)
Ms. stated that she does not ascribe a diagnosis or classification to the students, “ ” Some maybe diagnosed with . (T. 51, 55, 56)
When asked the question: Do you formulate a program for each student? Ms.
testified, “
.” Additionally she added “
.” (T. 58)
When asked the question: Do you think a student’s specific disability is relevant in forming an educational program for them?
Ms. testified, “
.” (T. 56)
All the had the same goals as written as listed on the . (T. 62, Exh. N10)
, the student’s teacher testified that she was the of the student’s class. (T. 66) Throughout the school year the student is assessed by classwork, participation, homework, projects, and occasionally tests or quizzes. (T. 66) The student made a lot of progress during the school year. At the beginning of the school year he required ; at the end of the year
. (T. 66)
. (T. 67)
Ms. testified that at the beginning of the school year in order to determine the instruction, she goes through a trial and error process to see what works best for the student. “…
.” (T. 72)
Ms. taught the student . The curriculum
used is the curriculum. Pearson’s curriculum for . Ms.
taught on a level. (T. 73-74) The student is on a level. (T. 75)
In the student is . (T. 76) In the student is at
a . (T. 77) There were no standardized tests at the end of the year. (T. 77)
Ms. would not state the classification of the student or any other student in the class. (T. 78) Ms. would not state the grade level the other students in the class were functioning at. (T. 78)
School begins at and ends at . (T. 79) In addition to the classes, there are classes, and . (T. 81)
Ms. stated that the student’s is or .
(T. 84) In , the student is . (T. 84)
The Parent testified that the student tested “ .” (T. 87) She stated the student has
. (T. 87)
The Parent stated that in 2012 the student was tested at and the results were , which were incorrect. (T. 88-89)
The student started in a public school, a for two months.
The Parent removed him to the in a for and . (T. 96) In the student had a with him. (T.
97) through the student attended in a class. (T.
97, 98) Then he attended the and . (T. 98)
DISCUSSION
At the impartial hearing, the district conceded that it did not offer the student a free appropriate public education (FAPE) for the 2017-18 school year.
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, 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. v. Carter, 510 U.S. 7 [1993]). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]. Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement...'"
(Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006]
[quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 [1982] and identifying exceptions]).
Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 C.F.R. § 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New
York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents 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, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
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 M.P.G. v.
New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27 2010]).
Classification and Evaluations
A student's particular disability category or classification, federal and State regulations require districts to conduct an evaluation to "gather functional developmental and academic information" about the student to determine whether the student falls into one of the disability categories under the IDEA, as well as to gather information that will enable the student to be "involved in and progress in the general education curriculum"
(34 CFR § 300.304[b][1]; see 8 NYCRR 200.4[b][1]).
Evaluations of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]).
An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix].
Based on the evidence and the testimony, this student may have a classification of
(T. 88-89, 34); or (T. 87, 34). However, according to the district, the student is classified as . There is no classification in the
Update date April 27, 2017. (Exh. I) There is contradictory information on classification referenced in other evaluations. There were no , evaluations submitted.
A Evaluation Update dated April 27, 2016 states the student achieved an but the student’s vary from to , are to , are from to and his is . In contrast, the student’s teacher testified that the student is . (T. 75)
According to the Evaluation, the student was evaluated in Case No. 167456
2009 and was found to have and a
. In 2011, diagnosed the student with and , although the Parent testified that found the student’s diagnosis to be and to . (T. 88-89) In 2012, Dr. was unable to test the student and sent him to . In 2013, Dr. tested the student who was . She found the student of , demonstrating a
, and and and
.
I find the one evaluation that was submitted was conflicting with information on prior evaluations referenced and therefore inadequate. No evaluations were submitted as to related services.
Student’s Goals
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability, to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student's other educational needs that result from the student's disability (20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR
300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]). For students who take the New York State alternate assessment, the IEP must include short-term instructional objectives or benchmarks between the student's present levels of performance and the annual goal (8 NYCRR 200.4[d][2][iv]; see 20 U.S.C. § 1414[d][1][A][i][I][cc]; 34 CFR
300.320[a][2][ii]).
I find the listed and the Progress Report
provided are not specific to this particular student but are generalized.
Student’s Program
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; 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]).
A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 C.F.R. § 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).
The student’s program changes throughout the school year and is based on trial and error. (T. 72)
Ms. , the testified, “
.”
Additionally she added “
.” (T. 58)
I find no evidence submitted or testimony that special education services specifically met the needs of this particular student.
Student’s Class
State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR
200.1[ww][3][ii]; 200.6[a][3], [h][3]; see Walczak, 142 F.3d at 133.
Ms. stated that she does not ascribe a diagnosis or classification to the students, “ .” Some maybe diagnosed with . (T. 51, 55, 56)
The student’s teacher, Ms. would not state the classification of the student or any other student in the class. (T. 78) Ms. would not state the grade level the other students in the class were functioning at. (T. 78)
Therefore I am unable to assess whether the student ’s class meets the requirements of a special class under New York State Regulation.
Program
The IDEA does not automatically require the provision of school services during the summer months; rather, such services must be provided when they are a necessary element of a FAPE to the student (see Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010]). Pursuant to State regulations, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, . . . who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education" (8 NYCRR 200.6[k][1], [k][1][v]).
State regulation defines substantial regression as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]; see 34 CFR 300.106).
The evaluation states this student has an . (Exh. I).
The student has been in four different schools in approximately five years. According to the evaluation, he has had five evaluations since 2009, although only one was submitted. (Exh. I)
No information was provided as to his achieved in the prior year at the or the prior years at the other schools.
I find inadequate support for a program.
Least Restrictive Environment
The student's recommended program must also be provided in the least restrictive environment (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]. In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1].
I find no support in the record that this student should be restricted to a school that has only students with disabilities and no general education students.
IT IS HEREBY ORDERED
The Parent’s request is denied. The District must conduct complete evaluations, including within 30 days of this decision and hold an IEP meeting within 45 days of this decision.
Dated: September 8, 2017
MARY NOE, ESQ.
Impartial Hearing Officer MN:
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.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A IEP, 12/16/15, 24 pages
B , unidentified date, seven 18 pages
C Contract, unidentified date, five pages
D , unidentified date, two pages
E Check, unidentified date, one page
F Agreement, unidentified date, two pages
G Letter, 6/16/17, two pages
H Letter, 5/24/17, one page
I , unidentified date, 38 pages
J Parent Letter, 7/11/17, two pages
K Parent Request, unidentified date, two pages
L , unidentified date, two pages
M Affidavit, unidentified date, two pages
N Spring Report, unidentified date, 15 pages