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THE UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
x In the Matter of the Application of XX a Child with a Disability, by his Parent XX., for a Due Process Impartial Hearing DECISION AND ORDER
IHRS Case No. 510168
Petitioner,
-againstXXXXXXXXXXXXXXXX CENTRAL SCHOOL DISTRICT,
Respondent. x
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
Law Office of , P.C. Attorneys for Petitioner
By: , Esq.
, Esq.
of Counsel
, Esq. Attorneys for District
By: , Esq.
of Counsel
APPEARANCES April 11, 2018
For Parent:, Esq., Attorney, Esq., Attorney
Mother
Grandmother For District:, Esq., Attorney
XXXXXXXXXXXXX, Director of Special Education and Student Services
May 14, 2018
For Parent:
, Esq., Attorney
, Esq., Attorney Mother Grandmother
For District:
, Esq., Attorney XXXXXXXXXX, Director of Special Education and Student Services XXXXXXXXX , Special Education Teacher XXXXXXXXX, School Psychologist XXXXXXXXXX, Special Education Teacher
June 11, 2018
For Parent:
, Esq., Attorney
, Esq., Attorney Mother Grandmother
For District:
, Esq., Attorney XXXXXXXXX, Director of Special Education and Student Services
June 14, 2018
For Parent:
, Esq., Attorney Mother Grandmother
For District:
, Esq., Attorney XXXXXXXXXX, Director of Special Education and Student Services
June 29, 2018
For Parent:
, Esq., Attorney
, Esq., Attorney Mother Grandmother XXXXXXXXXXXX, Neuropsychologist
XXXXXXXXXXXX
For District:
, Esq., Attorney XXXXXXXXXXX Director of Special Education and Student Services
August 8, 2018
For Parent:
Esq., Attorney
, Esq., Attorney Mother XXXXXXXXXX, Neuropsychologist
For District:
, Esq., Attorney XXXXXXXXXX, Director of Special Education and Student Services
September 18, 2018
For Parent:
, Esq., Attorney
, Esq., Attorney Mother
For District:
, Esq., Attorney XXXXXXXXXX, Director of Special Education and Student Services XXXXXXXXXXX, XXXXXXXXXXXX, Special Education Teacher
On April 11, 2018, May 14, 2018, June 11, 2018, June 14, 2018, June 29, 2018, August 8, 2018, and September 18, 2018, I conducted an Impartial Hearing at administrative offices of the XXXXXXXXXXXXXXXXXXX (XXXXXXXX or “district”),XXXXXXXXXXXXXXXX New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program provided by the district for XXXXXXXX (“the student”).
PROCEDURAL HISTORY
The proceeding was initiated at the request of the parent by correspondence dated November 22, 2017. (Ex. 1)[1] I was thereafter appointed Impartial Hearing Officer. By correspondence dated January 16, 2018, the district filed an Answer and Motion to Dismiss 2015-2016 Claims. (Ex. B)
At a telephone conference with the parties scheduled on January 1, 2018 and conducted on January 5, 2018, the hearing was scheduled for various dates commencing March 5, 2018, the first mutually available dates for the parties and the hearing officer. (T. 3-4) Subsequently certain previously scheduled dates were adjourned at the requests of parties and rescheduled. (T. 3-4) Additional dates were thereafter scheduled to enable the completion of the testimonial portion of the hearing, including the testimony of rebuttal witnesses. (T. 221, 495-496, 800, 1078) The testimonial portion of the hearing concluded on September 18, 2018.
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and the submission and consideration of closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions with regard to the extensions were given to the parties. (T. 4-5, 222, 262, 497, 526, 1081, 1440, 1638, 1739, 1940, Ex. I )
The current compliance date is January 10, 2019. The record closed on December 1, 2018. (Ex. VI)
POSITIONS OF THE PARTIES
Parent
The parent asserts that the student was denied a FAPE for the 2016-2017 and 20172018 school years (“SY”). 2 She claims that for each of those school years she was denied meaningful participation in the development of the IEPs. Further, with regard to the 20162017 SY she claims insufficient evidence of progress with a substantially similar program in prior years and that the district has failed to establish that the recommended program was appropriate and further that recommended counseling services were not provided. With regard to the 2017-2018 SY the parent claims insufficient evidence of progress in a substantially similar 2016-2017 SY program and that the program recommendation is not supported by the available evaluative material and that the district has failed to establish it was appropriate. Further, the parent claims that recommended counseling services were not provided. (Ex. V)
The parent seeks as relief: compensatory tutoring from a provider selected by the parent at the provider’s usual and customary rate; compensatory counseling from a provider selected by the parent at the provider’s usual and customary rate; transportation to and from the compensatory services; a reconvene of the CSE; and such other relief determined by the hearing officer to be appropriate and necessary to enable the student to 3 make meaningful educational progress. (Ex. V)
2 The parent initially made claims concerning the 2015-2016 SY but thereafter withdrew all claims concerning that school year. (Ex. III, V) 3 Hearing request claims not addressed in the parent’s closing statement are deemed to have been abandoned. However, I note with regard to those claims, that I find that the record does not support the parent’s claims and/or they are moot.
District
The district asserts that: the issues are limited to those set forth in the hearing request; the challenged IEPs were appropriate the parent’s other challenges are not supported by the hearing record; the relief requested is not supported by the hearing record. (Ex. IV)
CASES PRESENTED
Both parties submitted documentary evidence. A list of documents in the record is appended:
The district presented the testimony of: XXXXXXX, Director of Special Education and Student Services; XXXXXXXX, the student’s special education teacher in the 5th grade; XXXXXXXXX, the student’s special education teacher for math, science and academic support classes, case manager and study hall support teacher during the 6th grade; XXXXXXXXXX, the student’s special education teacher for ELA in the 7th and 8th grade; XXXXXXXXX the student’s provider of services for the (“TOD”);XXXXXXXXXXXXX, school psychologist.
The parent presented the testimony of Dr. XXXXXXXXXXXXX, Neuropsychologist; XXXXXXXXXX Director of Educational Services, XXXXXX
; the student’s mother.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A) Legal Framework
The parent asserts that the district failed to provide a free, appropriate public education (FAPE) for the 2016-2017 and 2017-2018 SYs. In New York State the district bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] Further, hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. However, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances….” and “a student offered an educational program providing ‘merely more than de minimis progress’ from year to year can hardly be said to have been offered an education at all.” Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir.
2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).” Appeal No. 11-027. However, it is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209. “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027
In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
B) Findings of Fact
With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held.
The following concerns the student’s evaluations, assessments and educational programs:
Background
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XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The CSE
was aware of the foregoing, referenced in numerous IEPS and evaluations discussed below.
The student is consistently described as hardworking, having a sweet temperament, being very motivated, being anxious about not completing XXXX work or not doing well/failing and as being willing to accept help. (T. 423-424, Exs. 3, 4, 5,6, 7, 8, 165)
The student received Early Intervention (“EI”) services commencing at 8 months
(T. 605), had been classified as a preschooler with a disability and transitioned to a school age classification of XXXXXXXXXXX) in the district’s schools. (T. 18-24) XXXX was in a self-contained classroom until grade 3 and an integrated co-teaching (“ICT”) classroom thereafter. (T. 24, Ex. 43-2)
July 1, 2013-June 30, 2014
State or District-wide assessments conducted in April 2014 during the student’s 3rd grade reported the student to be at Level 1 for ELA and Math. (Ex. 7-7) There is nothing in the record indicating specified grade level equivalents or percentiles (“%ile”) for these assessments.
The student’s 4th grade program (2014-2015) was developed at an April 28, 2014 CSE Subcommittee 4 meeting which the parent attended with an advocate. (Ex. 3) The student had been placed in an ICT class and provided with a number of related services. (Ex. 3) It was reported that XXXXX had “done remarkably well this year in the integrated setting” (Ex. 3 at 1) The student was reported to have progressed in academic and social areas although difficulties XXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Exs. 3, 22, 23, 24) An extended school year (“ESY”) program was considered in view of parent concerns but it was reported that staff had not observed substantial regression in any therapy area. (Ex. 3) The CSE recommended that the student continue in an ICT class with individual and group occupational therapy (“OT”), individual and group speech/language therapy (“SLT”), , counseling and parent counseling and training. (Ex. 3) In addition the CSE recommended , and OT consultations, individual and classroom assistive technology (“AT”) to address , and program modifications and testing accommodations. (Ex. 3)
July 1, 2014-June 30, 2015
“State or District-Wide Assessments” scheduled for April 2015 had not been conducted and the sole explanation in the record is “Refused to take the test”. (Ex. 8-8)
There is nothing else in the record with regard to any 2014-2015 SY (4th grade) state or district-wide assessments. However, in January 2015, the parent was informed that the student was working at a guided reading level of XXXXXXXXXXXXXXXXXX when working on fluency, word work and writing in the Leveled Literacy Intervention (“LLI”)
program. (Ex. 74)
A CSE meeting was held on April 10, 2015 to develop a program for 5th grade
(2015-2016 SY). The parent attended with an advocate. Staff reported that the student had continued to make “nice progress,” had advanced four levels in reading to
XXXXXXXXXXXXX showed progress in mathematics and was an “avid writer” with 4 IEP team meetings, whether CSE or CSE Subcommittee meetings, are hereinafter referred to as CSE meetings.
strong mechanics. (Ex. 4) The ), who is also a certified special educator (T. 1806) described XXX progress as “notable” and indicated that XXXX was ready for a reduction in direct support from her. (Ex. 31) The OT (Ex. 30) and PT (Ex. 27) providers each reported gains in their respective areas as did the SLT provider who reported that the student was “eager and enthusiastic” although XXX SLT progress was sometimes “slow.” (Ex. 33) The counselor reported that “the student’s anxiety has been reduced and almost eliminated in school.” (Ex. 4) Although the parent requested that the student be placed in a “smaller, self-contained environment in order to get the individual support she feels XXX needs” (Ex. 4) the CSE disagreed and recommended continuation of the full-time ICT and related services program provided in the 4th grade as well as a series of program modifications, testing accommodations, individual and classroom AT to assist in view of the student’s hearing deficit and consultations with the , and OT provider. The parent requested consideration of ESY for ELA, Math and Speech and Language but none of the educators felt that was necessary because regression had never been observed after long breaks during the school year. (Ex. 4) The parent requested and was granted an opportunity to meet again after the IEP was written to have additional time to discuss her concerns. (Exs. 4-1, 81, 82, 83, 85)
State or District-Wide Assessments scheduled for April 2016 had not been conducted and the sole explanation in the record is “Refused to take the test”. (Ex. 8-8) There is nothing else in the record with regard to any 2015-2016 SY (5th grade) state or district wide assessments.
The CSE reconvened on June 19, 2015. (Ex. 5) The parent attended with an attorney 5 and with XXXXXXXXXX a parent friend who sometimes worked as an advocate. (T. 774, Ex. 5) The district’s attorney was also present. The CSE reviewed the recommendations made at the April 10, 2015 meeting. The parent’s attorney noted that the parent’s “concerns are directed at the size of [the student’s] class and the amount of support available to [him] in school. (Ex. 5) After reviewing the recent
5 Parent’s current counsel was not representing the parent during the period at issue. References to parent’s attorney refer to a different attorney unless specified otherwise.
(Ex. 35) that showed the student’s to be , considering that “there is very little that he ”, the presence of a personal and classroom system and the academic gains particularly in reading and writing reported to have been made, the CSE continued the recommendation made at the April 10, 2015 meeting. (Ex. 5) However, the CSE noted that math progress “remains inconsistent and XXXXXXXXXXXX” and indicated that the student would be receiving building level supports (RTI) in both reading and math. (Ex. 5) The parent did not initially consent to the RTI services and they did not commence at the beginning of the school year. (Ex. 102)
July 1, 2015-June 30, 2016
A triennial evaluation was required during the 2015-2016 SY. By Prior Written Notice dated August 24, 2015, re-sent on September 9, 2015, the district sought the parent’s consent for various evaluations. (Exs. 95, 98) On September 18, 2015, the parent provided the signed consent and in an accompanying letter requested, among other things, that “the District conduct a neuropsychological evaluation” to determine how the student’s XXXXXXXXXX impacted XXXX cognitive functioning and to develop an appropriate program. (Ex. 99) The district did not respond to that parent request (Ex. 106-2) but conducted various other evaluations including Educational, Psychological and Speech/Language Evaluations and a Services Summary (Exs. 39, K, 127 at 73-77, H).
The Educational Evaluation, consisting of WIAT-3 academic core subtests, was conducted by the student’s 5th grade teachers in three 30 minute sessions on three different days in September 2015 with multiple breaks provided during each session. The student’s reading was determined to be in the Average Range for each of the reading areas tested: XXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX). XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Written language scores were also in the Average range. XXXXX math scores, however, were
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX.Among other things the evaluators noted XXX need for small XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and that
“at times” XXX was developing and demonstrating strategies to help learning but needed to apply them more consistently and independently. It was noted that when left to read independently the student’s comprehension seemed more literal. (Ex. 39)
The Psychological Evaluation was conducted in October 2015. (Ex. K) As measured by the WISC-V, the student’s XXXXXXXXXXXXXXXXXXXXXXXXX with XXX performance relatively consistent across all areas of cognitive ability, suggesting that those abilities were developing evenly. The Test of Nonverbal Intelligence (TONI-3 Form A) was administered and the student achieved a Non-Verbal IQ of 85 ( ), placing him in the range of intellectual functioning. Those results were consistent with the non-verbal skills assessed by the WISC-V. On the Wide Range Assessment of Memory and Learning, 2d Edition (WRAML2)
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The evaluator noted that the results suggested that XXX overall memory functioning was XXXXXXXXXXXX than XXX same aged peers. On the Working Memory Index, the student was at XXXXXX, weaker than his performance of working memory tasks on the WISC-V. The evaluator concluded that the student would have difficulty retaining information at levels consistent with his peers. It was reported that anxious behaviors and problems with attention were evident during the evaluation and may have impacted performance although the profile of strengths and weaknesses was consistent with previous test results. It was also noted that with encouragement and positive reinforcement XXX could get back on task and meet with success. (Ex. K)
A Speech/Language Evaluation was conducted in September 2015. CELF-5 results included Core Language Index XXXXXXXXXXXXX for XXX age XXXXXX and overall receptive and expressive language skills that XXXXXXXXXXXX expectations XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Specific areas of weakness (XXXXXXXXXXXXXXXXXXXXXX) included understanding the relationship between words, formulating sentences when given a specific word to use, the ability to define words and the ability to manipulate words to formulate grammatically correct sentences. (Ex. 127 at 73-77)
The Summary stated that the emphasis of the services from the (3x in a 6 day cycle for 30 minutes) was academic support and enrichment, vocabulary development, preview and review of content material and self-advocacy skills. Testing was conducted over two weeks. Administration of the Comprehensive Assessment of Spoken Language (CASL) resulted in a Core Composite score showed the student was in the XXXXXXXXXXXXXXXXXXXXXXX. The student’s scores in all subtests had been in the Average range XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX The Test of
Auditory Processing Skills-Third Edition (TAPS-3) resulted in scores characterized as demonstrating that the student’s auditory skills were in the average range with areas of weakness in word memory and number recollection (XXXXXXXXXXXXXXXXXXX) (Ex. H)
The CSE reconvened on November 18, 2015 to review the triennial assessments. (Ex. 6) The parent’s attorney was present as was the district’s. At that meeting the district reviewed the updated psychological (Ex. K), educational (Ex. 39), SLT (Ex. 40),
(Ex. 44), OT (Ex. 42) and PT (Ex. 41) evaluations, as well as an updated physical examination (Ex. 38), social history (Ex. 37) and classroom observation (Ex. 161). The parent “indicated that … [the student was] having a very good year and it is XXX best group of teachers ever.” (Ex. 6-2; see also Ex. 106) The Director of Special Education was informed XXXX was “the shining star” of the class. (T. 76) The IEP noted that the student demonstrated “grade level decoding skills, along with accuracy and fluency” and continued to make progress in reading comprehension but “remained below grade level expectations in his reading” and that math skills were an “area of weakness” and the student’s XXXXXXXXXX XXXXXXXXXXXXXXXXXXX (Ex. 6-7) The CSE continued prior recommendations but for a change in PT to a small group for one session. (Ex. 6) The IEP noted that the parent had previously rejected offered building level reading and math services but now stated that she would provide consent. (Exs. 6-2, 110) By email dated November 17, 2015 and at the review the following day the parent had requested an independent neuropsychological evaluation (“IEE”) and the district agreed to that at the review. (Exs. 106, 6-2) A copy of the district’s IEE policy and regulation, specifying $3000 as the “established reasonable” rate but that reimbursement beyond that may be considered on a case-by-case basis, as well as a list of potential qualified neuropsychological evaluators was sent to the parent on November 23, 2015. (T. 92, Ex. 108)
The neuropsychological testing did not commence until August 2016. Accordingly, it was not available for consideration when the student’s 2016-2017 SY program was developed. The reasons for the delay are discussed below in the Conclusions section.
The CSE convened on May 25, 2016 to develop the student’s 6th grade (2016-2017) program and Ms. XXXXXXXXX was a participant. (Ex. 7) The student would be entering middle school which would require adjusting to a different educational model with different teachers for various subjects in a different building. The CSE considered, among other things, recent progress summaries, the student’s report card, a recent doctor’s letter noting diagnoses including XXXXXXXXXXXX, an evaluation as well as the triennial assessment results. (Ex. 7) At the end of the 2nd marking period the student was reported to have achieved or to be progressing satisfactorily toward all but 6 of the 29 goals, including all reading, writing and math goals. (Ex. 10) The RTI Message to Parent/Guardian for the 2015-2016 SY showed that by March 2016 the student had made reading gains. (Exs. 163, 6) By the end of the school year the student had achieved reading independence for decoding, fluency and comprehension at XXXXXXXX XXXXXXXXXXX XXXXXXXXXXXX. (T. 446-447, Ex. 163 ) The student had been at XXXXXXXXXX at the end of the 2014-2015 SY and XXXX had advanced an entire grade (T. 447-448, Ex. 4-1) Math gains were also reported by his RTI teacher. (Ex. N)
The student’s 2nd trimester report card stated that XXX at that time did not
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XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX but was at or approaching grade level in other areas and teacher comments described areas of academic and other growth. (Ex. 159 at 13-15) Progress in other areas, including social development, was also noted. (Exs. 7, 165) XXX special education teacher reported that XXX was eager and willing to work hard and accept help and that XXXX was able to keep up with the class with the supports provided. (Ex. 165) All related service providers reported progress and the reported that the equipment utilized to address the student’s continued to work well. (Exs. 7, 48, 49, 50, 51) The IEP noted reports that the student was making progress in XXXX XXXXXXXXXX skills although XXXXXXXXXXXXXXXXXXXXXXX and that the student would continue to work on XXXXXXXXXXXXXXX “with minimal support” in the next year. (Ex. 7-8) Slow steady progress toward goals was reported for XXXXX with differentiated instruction and materials providing access to grade level concepts and it was stated that the goals would continue in the 6th grade “with minimal support.”[6] (Ex. 7-2)
The CSE recommended for the 6th grade continuation of an ICT program (daily 41 minute periods of ELA, Math, Science, Social Studies), the addition of a special class (15:1) (hereinafter “academic center”) (3x6 day cycle)[7] and related services (30 minute sessions in a 6 day cycle of SLT (2 small group and 1 individual), OT (1 small group and 1 individual), PT (2 individual sessions, 1 in the therapy room and 1 in the classroom),
(3 individual in the therapy room), as well as program modification, individual and classroom AT and staff consultations in the areas of ,
, OT and PT. (Ex. 7) The parent “strongly disagreed” with the recommendations. (Ex. 7-2) The CSE noted that it believed that its recommendation was appropriate but at the parent’s request it agreed to send packets to various day programs requested by the parent in order to explore options. (T. 69, 116-117, Exs. 7, 122, 123, 127, 134, 136, 140) None of the day programs accepted the student. (T. 68-69, 117)
The student’s end of year5th grade report card was substantially the same as the 2nd trimester but for improvement in a reading comprehension skill and substantial improvement (exceeding grade expectations) in a math skill. (Ex. 159 at 13-15) The end of year goals progress report noted progress on all IEP goals. The student was reported to have achieved all but one of XXXX reading, writing and math goals and to be progressing satisfactorily toward the remaining one. Inconsistent or gradual progress was reported for only 3 of the remaining goals. (Ex. 10)
July 1, 2016-June 30, 2017
The student commenced attendance at the district’s middle school in September 2016 in grade 6.
STAR testing was conducted in September 2016 and it was reported that XXX was reading XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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XXXXXXXXXXXXXXXX.[8] Math was reported to be XXXXXXXXXX when compared to others in the same grade.) There was no specification that XXX was given additional time to complete the test. (Ex. EE)
Although the student had some anxiety XXX was receptive to strategies in place and XXX transition went reasonably well until at least the second week in October. (T. 271-271, 279-281, 286-288, Ex. NN) In the subsequent period until about mid-December, 2016, however, the student frequently demonstrated substantial anxiety about entering school, including at various times extended periods of screaming in and around the school building and running in and out of it, which resulted in lateness ranging from 10 minutes to up to 2 hours. (T. 288-290, 554-555, Exs. 53-25, SS) However, once successfully transitioned and commenced in XXX classes on those days, XXX behavior reverted to the way that it had been earlier in the year. (T. 403)
Frequent team meetings, including teachers, the teacher’s assistant (“TA”), the guidance counselor and the psychologist, were held and various strategies to address the student’s difficulties, including the assignment of the TA, with whom XXX had a good relationship, to be present when XXX arrived, were developed but had limited success. (T. 290-291) By December 1, 2016, however, staff had concluded that the student’s anxiety related to anticipated testing and concern about inadequate completion of homework and a plan was in place to address that by providing an opportunity to do homework in school and by staggering testing. (T.292-294, 400-401, Ex. 53 at 24-25) A very substantial decrease in the student’s difficulties in entering resulted and although they did not disappear they became “very isolated and random. “ (T. 294, Ex. 65) By the end of the 2nd quarter no special supports were required to get XXXXX into school. (T. 404)
In addition to lateness for various classes due to the student’s difficulties in entering the school, neurospychological testing, XXXXXXXXXXXXXXXX, dentistry and school refusal due to anxiety, among other things, had resulted in substantial absences in the first trimester. (T. 588, Ex. 53-24)[9] The absences were speculated to have exacerbated the student’s anxiety arising from missing classwork and being unprepared. (Ex. 53)
By letter dated December 8, 2016, the parent made a “Records Request”, which sought the student’s entire record including production or an opportunity to review “the actual raw data demonstrating student’s work on IEP goals, progress/regression on IEP goals”. (Ex. T) The parent’s claim that requested material was not provided in response to that letter was not disputed by the district. (Ex. GG)
The student had been receiving counseling from XXXXXXXXXXXX, the school psychologist for the 6th grade from his entrance into middle school. By email dated December 13, 2016, the parent withdrew consent for Mr. XXXXXXXXXX to provide the service and requested another counselor. (Ex. 145) She was informed that no other counselor was available. (Ex. U) Accordingly, if she rejected she would be, in effect, waiving counseling services. (Ex. U) The parent continued to reject service from the offered provider. (Ex. 148) The student did not receive counseling for the balance of 6th grade and the entirety of 7th grade although counseling from Mr. XXXXXXX continued to be available throughout that period. (T. 154, 201) This issue is more fully addressed in the Conclusions section below.
The district received the final version of the neuropsychological on February 17, 2017. (Ex. 53) Dr.XXXXXXXXXXXX diagnosed: XXXXXXXXXXXXXXXXX XXX
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XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX (Ex. 53-56) The student’s intellectual abilities were reported to be in the average range. (Ex. 53-59) Academic functioning when there was “ongoing interaction with the evaluator” was in the average or above average range for all areas, except math problem solving. (T. 1561, Ex. 53-40 & 54) Dr. XXXXXXXX concluded that the student’s most significant impairment XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 53-54) He reported that when the student was given an untimed reading comprehension test requiring reading short passages and answering questions on XXXX own, XXXXX performance fell to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (Ex. 53-
54) The student noticeably fatigued after about 20-40 minutes of work and was particularly tired after 90 minutes despite multiple rest breaks. (Ex. 53-53) Dr. XXXXXXXXXXXXXX also reported that the student’s memory was XXXXXXXXXXX, with the exception of XXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 53 at 41-42) Speech language functioning was in the normal range. (Ex. 53-37) Visuospatial abilities were all in the average range. (Ex. 53-38) However, XXXXXXXXXXXXXXXXXX were reported. (Ex. 53-55) Dr. XXXXXXXXXXXXXXX stated that in view of the student’s attention difficulties, for “high-value material ,XXXX will likely need to be instructed individually or in a small group.” Further, he stated that “[i]f there is minimal background, ambient noise that learning could occur in the classroom. Otherwise [the student] will optimally learn in a quiet distraction free environment.” Other recommendations included the development of a detailed behavioral plan to XXXXX XXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX (Ex. 53-57) Although he was “optimistic” about the student’s ability to progress, Dr. XXXXXXXXXX noted that due to impaired ability to XXXXXXXXXXXXXXXXXXXXXXXXXXXd, XXXX “may not be able to keep abreast with XXXXX peers, especially when the volume of work markedly increases in Eighth and Ninth grades.” (Ex. 53-57)
On the date the neuropsychological was received the district scheduled a CSE review for March 16, 2017 to consider it. (T. 143, Ex. 149) However, that review and a subsequently scheduled May 9, 2017 review were canceled at the request of the parent. (Exs. 149, 150, 151, 152, 153)
On March 4, 2017, the student provided information for a Level 1 Assessment in which XXX reported doing best in “school, math, HW, getting things done before its due” and that after graduation he hoped for “going on to study math” in order to “have a career with a lot of math.” Student perceived needs to be braver, not be so scared and be able to concentrate were noted. (Ex. W)
At the end of the 3rd quarter 2016-2017 SY marking period the student was reported to have been progressing satisfactorily (expected to achieve) all reading writing and math goals but for one writing goal toward which XXX was progressing gradually. XXX was reported to have been progressing satisfactorily (expected to achieve) toward all other goals but for one speech goal which had been achieved and all social/emotional/behavior goals for which it was noted that the parent had refused services. (Ex. CC) [10]
A Speech and Language Progress Summary, completed on May 1, 2017, reported that the student had demonstrated progress on all SLT goals and objectives, that XXX had learned to independently ask for repetition and clarification as needed and required minimal teaching support when using various tools with occasional checks for comprehension. However, difficulty in expressing XXXX knowledge in a clear and concise manner specifically during periods of high stress and/or anxiety was noted. (Ex. 64)
His reported on May 10, 2017 that although XXX had had difficulty initially transitioning to middle school the student had become comfortable. She noted various gains and that the student benefited from preview of content area vocabulary, language and key concepts in upcoming classroom curriculum to assist with understanding and comprehension of the material. (Ex. 65) STAR testing was conducted on May 22 and May
24, 2017. XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX (Exs. EE, HH) The student was given three times the normal time limit to complete the reading test. (Ex. HH-1) XXX was given twice the normal time limit for the math test and the questions were read to XXX. (Ex. HH-3) The record does not indicate when the test results were known to the district.
The CSE met on May 30, 2017 to develop an IEP for grade 7. (Ex. 8) The neuropsychological was discussed. (Exs. 8-2, 53) Teachers reported that the student had made academic gains, demonstrated good use of strategies and worked well with others.
(T. 311-314, Ex. 8-2-9) The IEP noted with regard to reading that XXX decoding skills were at grade level, that XXX was “making slow steady progress toward XXXs comprehension goals”, that XXX needed to demonstrate a higher level of academic success when working independently, that when engaged and reading at a slower rate XXX demonstrated literal comprehension skills independently but that XXX benefited from teacher support to go beyond the words of the text to make inferences (Ex.8-9) The CSE stated that reports of “tremendous improvement this year” had been received. (Ex. 8-2) The student was passing all his classes. (Ex. 159-17) The OT, PT and SLT providers and the reported continued gains. (Exs. 60, 66, 62, 64) The reported continued effectiveness of the equipment and . (Exs. 63, 67) Twenty-five goals were developed and no disagreement with the goals was expressed but for an OT goal which was then modified. (T. 319-320) Although the May 30, 2017 IEP reported about State and District-Wide Assessments in grades 3, 4 and 5, it did not report and STAR assessment results during 6th grade although the student took them. (Exs. 8-8, EE, HH) The CSE recommended a program substantially similar to that provided the previous year but specified that the Special Class (15:1) would be every day and although retaining the group SLT sessions removed the individual session previously provided. [11] (Exs. 8, 7)
The student’s 2016-2017 SY Report Card reported that the student had received High Honors the 1st quarter, had made the Honor Roll for the 4th quarter and that his final grades included ELA-81, Math- 77, Social Studies-80 and Science-82. (Ex. 159-17)
By letter dated June 23, 2017, captioned “RECORDS REQUEST-THIRD REQUEST”, the parent stated that: at the May 26, 2016 CSE review she had requested raw data regarding the student’s progress on his IEP goals but no data had been received; on December 8, 2016 a written request had been made for the student’s entire file and nothing had been received; the parent was now again requesting the material specified in the December 8, 2016 letter. (Ex. GG) These claims were not addressed by the district in this proceeding.
July 1, 2017-June 30, 2018
The student entered the 7th grade in September 2017.
A STAR reading test was conducted on September 15, 2017. The student ‘s grade equivalent was reported to beXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX”. The student had been given extra time to answer each question. (Ex. ZZ-1) [12]
In January 2018, the XXXX evaluated the student who was then in Grade 7.4. (Ex. JJ-4) Its results indicated that the student’s word reading scores wereXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX. (T.1247-1249, 1251-1263, 1273, Ex. JJ
at 4-5)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1247-1249, 1262-1263, Ex. JJ at
4-5) An Informal Reading Inventory was also administered and indicated that
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(Ex. JJ-4) The student’s writing level was assessed as “poor.” (Ex. JJ at 4-5) Math CAT
5 results indicated that the student was XXXXXXXXXXX. (Ex. JJ-5) Dr.
XXXXXXXXXX testified that elements of CAT 5 assessment indicated a “significant decline” in vocabulary, reading comprehension and math since his testing 15 months prior. (T. 1208-1210) He had no knowledge as to how the tests were administered by . Evidence shows that although various breaks of varying periods were provided, the testing occurred over a period of some 6 hours, and the evaluators had no knowledge of the student’s history and deficits. (T. 1306, 1308-1309, 1322) In view of Dr. XXXXXXXXXXX’s report and testimony concerning the student’s impairments and difficulties sustain attention, I conclude that the precise reliability of each the reported results is limited. However, I find it significant with regard to that issue that ’s conclusion that reading remediation should commence at the XXXXX grade level is substantially consistent with the district’s determination pursuant to an assessment a few months later, discussed below, that the student struggled with text at the beginning XXX grade level. (Ex. BBB) [13]
In a report issued May 16, 2017, the student’s “mid-year” STAR reading score was reported by XXX ELA teacher to have been XXXX GE. (Ex. BBB-1) 14
For the 2nd quarter of Grade 7 the student received grades of 69 in ELA, 86 in Math, 92 in Science and 73 in Social Studies. These grades were consistent with 1st quarter results. (Exs. LL, XX) The student’s ELA teacher comments included that the student needed to complete assignments when absent and needed to prepare more for assignments. (Ex. LL-3) Absentee/tardiness specifications indicate a higher level for ELA, XXX 1st period course, than for other core academic courses. (Ex. LL)
The 2nd quarter IEP goals Progress Report stated that the student was progressing satisfactorily on all reading, writing, study skills, hearing and speech/language goals, progressing gradually on his one math goal (which related to word problems) and progressing satisfactorily or gradually on all others but for social/emotional/behavioral goals where the parent had not agreed to services. (Ex. MM)
The student’s final grades for 7th grade (2017-2018 SY) included: Math-88; ELA70; Social Studies-68 (although XX had a failing test average); Science 90. (Ex. XX) His Report Card specifies that total absences in the year were 9 with 8 in the 2nd Quarter. Lateness was not recorded. ELA was the student’s 1st period class. (Ex. XX)
The record includes undated Teacher Progress Reports from several of the student’s 7th grade teachers. (Ex. YY) XXX math teacher reported that that the student had great math ability but a weakness was XXX need to have a teacher next to XXX to reassure that XXX is doing it correctly and asking for help before trying. The math teacher noted that good and bad days sometimes affect the student’s ability to work but when comforted and reassured “XXX is amazing in getting back on track. (Ex. YY-1)XX ELA teacher reported that the student needed a great deal of reinforcement, 1 to 1 assistance and reteaching as well as often needing emotional support to continue in the classroom, was reading and writing below grade level, would shut down and refuse to work when faced with difficult tasks, was distracted easily and became very frustrated when XXX could not complete XXX homework in school and had to bring it home, would often not respond when asked a question, and was often absent “which makes it difficult to remain on track with the curriculum and workload.” (Ex. YY-4) His Social Studies teacher reported that the student needed a great deal of assistance with abstract concepts, had trouble with tests and projects with any type of rigor and was often off-base in XXX class contributions, and had difficulty socially with peers and was emotionally unstable at times. (Ex. YY-2) The Science teacher reported that the student was very capable with his homework almost always complete but that he wanted help before attempting a task, obsessed about homework being complete, forgot to provide equipment, had minimal meltdowns occasionally usually over little things but reported what was causing his general stress. (Ex. YY-3)
Pursuant to parent request a Fountas & Pinnell reading screening was conducted by his ELA teacher in May 2017. There is nothing in the record indicating that any F&P screenings were conducted after 5th grade when he was reported to have achieved level
XXX. (T. 446-447, Ex. 163) Two level XXX materials were used on different days. The
student was rated “unsatisfactory” in reading comprehension with regard to the first with the examiner noting that the student struggled “within the text, beyond the text and about the text.” The student’s comprehension of the other Level XXX book was rated as “limited” with the examiner noting that “XX didn’t pick up on the most important part of the story”. Testing with Level XX material resulted in a comprehension rating of “Excellent.” The screener reported that the student struggled with text that is at the beginning of the XXXX grade. (Ex. BBB)
There is nothing in the record with regard to the results of any STAR testing conducted in April-June 2018 or whether such testing occurred. [15]
C) Conclusions 16
The parent asserts that she was denied meaningful participation in the development of the IEPs at issue by: failure to consider her concerns and/or to provide her with adequate time to present them; district actions which delayed the completion and consideration of a neuropsychological evaluation necessary to appropriately determine the student’s program; failure to provide requested academic data inconsistent with district reports of progress. (Ex. V at 22-26)
Further the parent asserts that the district has not met its burden to demonstrate that the IEPs for the years in question were substantively appropriate. (Ex. V at 26-32)
1) Denial of Meaningful Participation Claims
a) Lack of Opportunity to Present Concerns/CSE Lack of Consideration
The evidence shows that the challenged review meetings were at least approximately 2 hours in duration, that each evaluator discussed his/her report and the parent had an opportunity to ask questions and adequately present her concerns with regard to each report and to the CSE recommendations and those concerns were considered and, further, that diagnoses and other evaluative material presented by the parent were reviewed and considered. (T.74, 96, 112, 851-854) That the CSE did not agree with the parent and/or did not give evaluative material, including a newly provided XXXXXXXX diagnosis, the same weight does not demonstrate that the parent was denied meaningful participation. [17]
b) Delayed Neuropsychological Evaluation
The parent asserts that the neuropsychological evaluation was not timely considered due to district actions. Although an IEE was requested mid November 2015, it is undisputed that the resulting evaluation was not considered by the CSE until the May 30, 2017 review.[18] (Exs. 6-2, 8)
The evidence shows that the district consented to an IEE at the November 2016 review when it was first requested and that within a few days of the request it sent the parent necessary information concerning implementation as well as the names of five possible evaluators. (Ex. 108) It was the parent’s responsibility to identify an evaluator. (Ex. 108) The parent did not contact Dr. XXXXXXXXX, who was not on the district provided list but was referred by someone who was, until March 16, 2016, and he thereafter, on March 22, 2016, provided the parent with a copy of his resume. (T. 1830) It appears that there were discussions between the parties concerning the district’s general cap of $3000 and his fee of $5000 but on May 4, 2016, the parent informed Dr. XXXXXXX that the district has authorized the rate. (T. 131, Ex. 108) Although the district sought additional information concerning parental ability to utilize insurance for the IEE by June 8, 2016 the district’s agreement to pay the entire fee had been sent to the parent. (Ex. 127) The parent did not provide Dr. XXXXXXXXX with the written confirmation he required until June 22, 2016. (Ex. 184)
The evaluation was scheduled by Dr. XXXXXXXX, after consultation with the parent, and commenced on August 30, 2016 and continued on various dates in September and October 2016. (Exs, 185, 186, 189, 202) The district had no role in testing scheduling. Although the testing was apparently completed on October 7, 2016, as of November 17, 2016 Dr. XXXXXXXXXXXX had not yet begun writing his report. (Ex. 198) On December 1, 2016, a date selected by him, Dr. XXXXXXXXX conducted an observation at the school. (Ex. 53) Although Ms. XXXXXXXXXtestified to receiving the “Rough Draft” of the report in November 2016, I find that testimony unreliable and note that the document includes discussion of the December 1, 2016 observation. (T. 140, Ex. 202) On December 22, 2016, in an email to Dr. XXXXXXXX the parent’s attorney asserted that his “protracted delay” with regard to the report was “unreasonable” and had “negative repercussions” for the student. (Ex. 201) The “Rough Draft” of the report was ultimately sent by Dr. XXXXXXX to the district for comment and Ms. XXXXXXXX’s sole proposed change, communicated in a telephone conversation on January 24, 2017, was a correction of the spelling of the name of a staff member. (T. 139-140, Ex. 203)
The district received a copy of the finalized evaluation on February 17, 2017. (T. 141, Ex. 53) On the same date the district scheduled a CSE review for March 16, 2017. (T. 143, Ex. 149) That review was rescheduled at the request of the parent to a date consistent with her stated availability. (T. 143-144, Exs, 150, 151, 154) but was then again rescheduled at the request of the parent to May 30, 2017 on which date the CSE considered the IEE. (Ex. 154)
I find that the record does not support the claim that any undue delay was attributable to the district. The CSE’s consideration of the IEE is discussed below in the section concerning the May 30, 2017 IEP (2017-2018 SY).
c) Failure to Provide Data Inconsistent with Progress
The parent asserts that the district failed to timely provide STAR Assessment reading and math results in its possession that were relevant to the issue of the student’s progress despite repeated parent requests for such information. (Ex. V-25) The evidence shows that during the 5th grade there was no STAR testing of this student. (Ex. 8) However, although some 2016-2017 SY (6th grade) tests were conducted, the parent testified that tshe received some results only at the end of the school year and after the CSE had, on May 30, 2017, developed the student’s program for the 2017-2018 SY (7th grade). (Ex. 647-648,
683, Exs. EE, HH) [19]
The STAR results in evidence indicate that the student made progress during the 2016-2017 SY, advancing 4 months in reading and 1.7 years in math, in about 8 months as measured by the STAR. Precise comparability to other assessments and evaluative material cannot be determined from the evidence in the record. However, I note that the IEP, although not referencing the STAR report, described, based upon reports presented to the CSE, very significant student deficits with regard to, among other things, independent reading. The parent’s belief that the district’s program would not result in meaningful educational gains in view of the student’s deficits was made known to the district which concluded otherwise. I find that in the circumstances here a failure to provide the parent with the STAR results in the district’s possession, if such occurred, was not sufficient to support a conclusion that the parent was denied meaningful participation in the development of the IEP.
2) Substantively Defective IEP Claims
The following findings are relevant to both the 2016-2017 and 2017-2018 SYs:
a) Counseling Services
It is undisputed that the student did not receive IEP counseling from mid-December 2016 through the end of the 2016-2017 SY and for the entirety of the 2017-2018 SY. It is also undisputed that the student’s anxiety about his performance significantly impacted his performance and that the student had on occasion social difficulties with peers.
By email dated December 13, 2016, the parent withdrew consent to permit XXXXX XXXXXXXXXX, a school psychologist with over 30 year experience at the middle school who had been providing IEP counseling services to the student since September 2016, to continue to provide those services. (T. 392-394, Ex. 145) The parent informed the district she believed Mr. XXXXXXX to be ineffective and further, that he had “also made a series of comments and recommendations that are so inappropriate they have jeopardized [the student’s] emotional well-being and undermined my maternal relationship with my XXXXXXX, as any shred of trust I might otherwise have had about Mr. XXXXXXX.” (Ex. 145) No additional information was provided at that time or thereafter to the district until the parent testified at this hearing. (T. 922-924) The parent stated that her action was triggered by a report from the student concerning XXX communication with Mr. XXXXXXXX. (T. 565-566) I note that the parent did not attempt to confirm with Mr. XXXXXXXX the accuracy of the student’s report and that Mr. XXXXX testified as to a somewhat different version of what occurred. (T. 406-408, 416-418) Further, Mr. XXXXXXXX testimony that at no time prior had the parent said anything to him expressing dissatisfaction with his work was not contested by the parent. (T. 409) The parent had not previously raised any objections or concerns regarding Mr. XXXXX with the district and Ms. XXXXX testified that she was aware of no objections or concerns regarding Mr. XXXXXXXX services to the student. Indeed, the parent acknowledged that she was aware that she had not adequately informed the district as to what she alleged had occurred but had hoped to “open a dialogue.” (T. 924, 1656) I note, however, that the parent rejected a meeting with the district’s Superintendent to discuss the student’s difficulties when she learned he had proposed that Ms. XXXXXXX participate. (T. 152, Ex. 145) Although the parent continued to request a change, Ms. XXXXX credibly testified that there was no other provider available. (T. 156) Counseling service by Mr. XXXXXX was thereafter routinely offered but rejected by the student on, he reported, the instructions of the parent. (T. 323-324) There is no evidence in the record that supports parent claims that the student was apprehensive about Mr. XXXXXXXX. I note that there is no evidence that the district was proactive in this matter. However, based upon the foregoing, I find no Case No. 510168 support for a parental claim that the district denied counseling services and no basis for compensatory counseling services as relief in this matter.
b) Student’s Hearing Deficit
It is undisputed that the student has a and wears provided by the parent. For the school years at issue the district provided a personal , an additional in each academic classroom, support services to the student from a who consults with teachers routinely and various specialists who check the equipment routinely, confer with staff and issue reports which are considered by the CSE. (T. 43, 54, 1858-1860, Exs. 7, 8)
During the neurological evaluation at the commencement of the 2016-2017 SY the student mentioned that XXX ELA class was “very loud” and that XXX could not hear well in that class. (T. 1147-1148, Ex. 53-26) The student’s , who has been providing services to XXX since elementary school, credibly testified thatXXXe never mentioned to her that he could not in ELA or in any other class and the record does not support a conclusion that XXX so informed anyone else in the school. (T. 1875) Although the evidence shows that during the 2017-2018 SY the student periodically refused to use XXXX and/or to provide equipment necessary to enable (T. 18651868, 1876-1877, 1886, 1898-1900, 1920-1921, Exs. 67-2, MM) the evidence does not support a conclusion that the district did not appropriately consider and address the student’s issues or that difficulties resulting from district action/inaction significantly impacted the education XXX received.
c) Grade Levels and Assessment Instruments
Specific grade levels are not included in IEP present levels of performance (PLEP) or in the goals sections because staff has been instructed not to include grade levels on any of their evaluations or in the IEP. (T. 178) Ms. XXXX testified that is because “those are not valid assessments” (T. 178) and no additional explanation was provided. With regard to any absence of specified age level equivalencies, percentile data and standard scores are considered by the district to be a much better representation of a measure of a student’s ability compared to similar age peers. (T. 177) Nevertheless, note that although the IEPs do not specify the precise grade level they do state that the student is below grade in various critical areas.
The district does not conduct annual testing. Each service provider bases progress on the extent to which goals are achieved and is required to provide a narrative summary in the reports for annual reviews. (T. 183-184) The CSE provides teachers with goals that need to be addressed and they are to deliver the service appropriate at the student’s level.
(T. 185)
However, the district does utilize STAR computerized assessments as a beginning and ending evaluative tool, to give a base for the student’s start and end at the end of the school year and to help gauge independent reading. (T. 186, 1922) Those assessments specify grade equivalents and compare a student to others in the same grade.(Exs. EE, HH) The record is unclear as to the number of STAR assessments routinely conducted each year. Those assessments were not conducted for this student during XXX 5th grade year but some were administered in XXX 6th grade year. (Exs. 7, EE, HH) The district also uses Fountas & Pinnell reading levels as screening instruments which correlate to approximate grade levels which are noted by staff. (Ex. BBB) Although F & P levels were referenced in the student’s May 2016 at the end of the 5th grade but the record does not indicate whether they are routinely conducted in middle school and there is no indication in the record that there were any further screenings until the one conducted at the parent’s request in May 2018. (Ex. BBB)
The middle school reports grades quarterly. Grade calculation is based upon the grading for homework, participation and tests although teachers differ in the relative weight given to each area. (T. 296, Ex. VV) Very detailed specification of the various results is provided on an ongoing basis online through the district’s PowerSchool program. (T. 300)
It is undisputed that the student received pre-teaching, reteaching and review and well as test preparation and help with homework in XXX core academic classes, in the academic center with XXXX special education teacher and in study hall from the . That provided instructional assistance but also mitigated consequences of student anxiety. I note that teachers reported that the student sometimes understood what to do but due to XXX anxiety required repeated repetition of instructions and/or reminders to slow down.
Further demonstrated ability in class was sometimes not reflected in his test scores. (T. 1917-1918)
At reviews the parent repeatedly questioned the reliability of the district’s reports concerning the student’s ability and progress asserting that the student’s ability to work independently could not be determined as a consequence of the support that he received and therefore meaningful progress could not be determined. (T. 169-170)
* * * *
In considering the substantive appropriateness of the IEPs at issue I consider what was known to the CSE at the time of the creation of the IEP. What may have become known to the CSE thereafter is relevant to consideration of succeeding IEPs. Improper failure to reconvene the CSE to reconsider recommended programs based upon information learned subsequent to the creation of the initial IEP for that school year is asserted by the parent. With regard to the 2016-2017 SY, I find that the evidence does not support that. With regard to the 2017-2018 SY, at the hearing the claim that that issue was not raised in the complaint was asserted by the district and not disputed by the parent. (Ex. 1, T. 1755) I note there has been no claim that the parent requested a reconvene of the CSE in either of the school years at issue.
May 22, 2016 IEP (2016-2017 SY)
The parent asserts that district has not met its burden to establish that the May 25, 2016 IEP was substantively appropriate. (Ex. V)
The evidence, discussed above, shows that the CSE considered written and/or oral reports from each of the student’s service providers in the 2015-2016 SY as well as the evaluations conducted for the November 2015 triennial and that all were discussed. Specific parental concerns about the middle school’s physical environment were considered and addressed and the CSE concluded that any issues arising from a changed academic environment could be addressed appropriately in the middle school. (T. 461465)
The CSE recommended a continuation in middle school of the ICT program the student had been in for several grades in which the district claims the student had progressed. Progress reports indicate that the student was progressing satisfactorily in all reading, writing and math goals. The parent lacks confidence in the reliability of the reports as a measure of the student’s independent ability in view of support that he received. However, I note that the evidence shows an advance of four F & P reading levels, the equivalent of one grade, in both the 4th and the 5th grades and that that determination was based upon independent reading. (T. 450) Further, the student’s triennial Educational Evaluation conducted byXXXXXXXXXXXX, the student’s 5th grade special education teacher, some 6 months prior showed that the student was at that time in the Average Range in all reading areas tested including reading comprehension although in that area the student sometimes required the repetition of questions several times.
The parent claims the district failed to follow the programmatic recommendation specified in the Educational Evaluation. Further she asserts that district claims concerning progress made and reasonably expected were contradicted by goals developed for the 20162017 SY.
However, Ms. XXXXXXXXX testified that at the review there were no differences voiced about the reports of the student’s performance in 5th grade. (T. 461; see also T.
113) I note that Ms. XXXXXX credibly testified that she was informed that the student was the “shining star” of that class, thatXXX had made the most progress of all the special education students and that XXX teachers had no reservations about continuing XXX in that program. (T. 76-77, 103) For Ms. XXXXXXX her educational evaluation “reiterated a lot of what we knew” and “reiterated that XXX was whereXXX should be.” (T. 430-
431) She stated that with special education teacher and other supports the student was able to access the curriculum and keep up with what the rest of the class was learning. (T. 435, 452) XXX F & P reading level progress was consistent with her observations while teaching XXX. (T. 448) She informed the CSE and testified that the student had “tremendous growth” based upon XXX growth against XXXXX as an IEP student. (T.
468) Ms. XXXXX believed the recommended 6th grade program was appropriate because the student “did so well in a very similar program in the 5th grade.” (T. 466) With regard to goals the parent asserts indicate a lack of progress, Ms. XXXXXX testified as to differences significant for this student in view of XXX deficits and/or that the student had progressed but not met the goal in the preceding year. (T. 486-493)
I find Ms. XXXXXXX testimony credible. Further, I find that it is not significantly inconsistent with a BASC report submitted by her in August 2016 in which she rated the student on a large number of characteristics. (Ex. 54) It is undisputed that the student continued to have difficulties in class. The district’s claim is that is that its program enabled him to make meaningful gains. I give no weight to the parent’s claim that that the May 25, 2016 IEP was defective because it ignored recommendations for “small groups” with instruction in reading strategies recommended by Ms. XXXXX in the Educational Evaluation. Rather the evidence shows that Ms. XXXXXXX provided instruction in accordance with her recommendation as part of the normal functioning of the ICT class in the district.(T. 449, Ex. 6) and that the recommended program was “very similar” and would therefore provide the type of instruction she recommended. (T. 466)
As discussed above, the unavailability of the neuropsychological evaluation in developing the student’s 6th grade IEP may not be attributed to the district although I note, as discussed below, that I find that Dr. XXXXXXXX results were consistent with results of the district’s triennial evaluations.
Based upon the foregoing, I conclude that district has met its burden to establish with regard to the May 25, 2016 IEP that” it offered an IEP reasonably calculated to enable … progress appropriate in light of the child’s circumstances….” Endrew
.
May 30, 2017 IEP (2017-2018 SY)
The parent asserts that the district has not met its burden to establish that the May 30, 2017 was substantively appropriate. With regard to parent claims concerning this I find as follows:
The student had a history of success, including with independent reading comprehension, with virtually the same program in at least two. prior school years
At the time of the review the district was aware of the student’s then current areas of deficit, including comprehension, the ability to do independent work and the need for differentiated instruction to access grade level material, and articulated them in the IEP. (Ex. 8)
The CSE considered written and/or oral reports from each of the student’s service providers in the 2016-2017 SY as well as the evaluations conducted for the November 2015 triennial, all were discussed and all indicated progress although in varying degrees.
With regard to the student’s anxiety and school refusal, although the student experienced very substantial difficulties entering school during an approximately 6 week period in the fall, by about December 1, 2016, the district had developed an effective plan to address that and during the balance of the 2016-2017 school year similar behavior was very minimal and manageable by school staff and did not impact the program XXX was receiving. Further, during XXX period of extreme difficulty once XXX commenced attending classes XXX behavior was substantially unexceptional and manageable by staff.
Parent claims concerning inadequacies in CSE consideration of social/emotional issues and related goals are not considered in view of the parent’s rejection, detailed above, of the counseling offered.
With regard to the parent’s claim that the CSE did not properly consider the evaluation of Dr. XXXXXXXXXX and failed to follow its recommendations, I find as follows:
The evaluation’s findings concerning the student’s strengths and weaknesses were very consistent with information provided previously to the CSE including in its triennial evaluation results. The student continued to be in the average range or above in all areas of academic functioning but for XXXXXXXXXXXXXXXXX. This testing was about a year after the district’s testing which I conclude supports the district’s claim of academic progress in the prior year ICT program.
The evaluation included a number of recommendations including small group or individual instruction for “high value material”, “focused tutoring in math” detailed behavior plans” and “a systematic communication protocol” between home and school.
(T. 1190-1191, 1561-1567, Ex. 53 at 56-57)
At the review the CSE considered the recommendations and concluded that its program was consistent with them. (T. 163) I note with regard to that conclusion that: the recommended ICT program included small classes with two teachers and its methodology included instruction 1:1 and in small groups (T. 204-205)[20] ; the student had substantially progressed in math with the instruction provided after the evaluation (Exs. EE, FF); the school refusal and similar behavior that was very problematic at the time of the evaluation had been successfully addressed and there was a class wide behavior plan in place to which the student responded; the school had an online system which provided extremely comprehensive information to parents on a daily basis if desired.
I find the CSE’s conclusions with regard to the evaluation’s recommendations reasonable. I conclude that although Dr.XXXXXXXXX knew the student was in an ICT program he did not indicate in a very comprehensive report any concerns about the appropriateness of that program discernable to the CSE. (T. 163) Indeed, Ms. XXXXX credibly testified that she had been informed by staff who were present that Dr.
had stated that the student was in a good program. (T. 202-203)
At the hearing Dr. XXXXXX testified that he meant by his small group recommendation only “one to three other students” and that a classroom would not be appropriate for 1:1 instruction. (T. 1579, 1567) I note that by that time he had been made aware of testing in January 2018 which indicated student lack of progress and possible regression in reading and math areas tested by him. I am not confident that his currently expressed opinion was held by him at the time of his evaluation. However, I conclude that those qualifications were not conveyed to the district in the evaluation.
Based upon the foregoing, I find no merit in parent claims that the evaluation was not appropriately considered.
The parent also asserts that that the district’s claims of progress during the 20162017 SY were unreliable and that it has failed to meet its burden to establish that the recommended program was reasonably calculated to enable meaningful gains in XXX unique circumstances.
For the 6th grade, Ms. XXXX was the student’s math and science teacher as well as the special education teacher in XXX academic center and the support teacher in XXX study hall, seeing him for 3 periods a day for academic instruction and one period every other day in the study hall. (T. 270, 276) She was also the student’s case manager which required making sure the IEP was followed and working closely with the ELA teacher. (T.
333) She testified that: The district followed a 6th grade curriculum in all of the academic classes and utilized 6th grade texts generally. (T. 306, 365) With the support provided the student was able to handle the curriculum and pass XXX classes. (T. 295-296) Goals were measured with various teachers providing input and she utilized a spread sheet to measure math goals. Although she worked with the student on some reading goals she did not know precisely how the ELA teacher measured goal achievement. (T. 363-366, 370-371) Grades were determined by computer after grades for all homework, class participation and assessments were determined and that information was available online. (T. 298-230) All quizzes and tests were completely independently and she never provided answers for the student during testing. (T. 371) This student had substantial pre-teaching, reteaching and homework assistance during the course of the school day and benefited from that as well as from an after school homework center (T. 387)6-387) and any work XXX missed XXX had multiple opportunities to make up. (T. 330-331) She routinely collaborated with the as well as the student’s other teachers with regard to what the student should be working on. Although they had a great deal of communication, the parent never indicated to her that she thought any grades were inaccurate. (T. 301-302)
With regard to progress during the 2016-2017 SY, Ms. XXXXXX specifically noted growth with regard to independent use of strategies and reduced request for directions and increased confidence. (T. 328) Dr. XXXXXXXXX noted that the student’s anxiety adversely affected various school and class related activities (Ex. 53-55) I note that it was observed that the student’s anxiety driven haste resulted in errors notwithstanding XXX knowing the material. (T. 369) I conclude that it is reasonable to believe that a reduction in in class anxiety would have a positive effect on performance. Further, I conclude that keeping up with 6th grade work indicates academic progress.
Ms. XXXXX opined that the 7th grade IEP was appropriate because XXX had progressed with similar accommodations and supports and the program provided an opportunity to be with typically developing peers. (T. 327-328) I find Ms. XXXXX testimony credible and that she was truthfully stating her opinions. Further, I find credible the testimony of the that although she worked with the student in preparing for tests and in the administration of them she did not provide test answers. (T. 1871)
Dr. XXXXXXXX reported that the student benefited from ongoing interaction and engagement with examiners and that XXX has cognitive strengths. Although the district permits special weighting in the determination of grades (Ex. VV), I conclude that the student at a minimum passed all his classes. Further with regard to this issue, I note that Dr. XXXXXXX in considering the student’s overall academic situation in SeptemberDecember 2016 did not question the likelihood that the student was “earning admirable grades with age appropriate tests and performed well during …[the neuropsychological] evaluation on academic achievement tests.” (Ex. 53-58)
However, it is undisputed that the student required substantial academic assistance to be able to keep up with XXX 6th grade class and the district acknowledged, without specifying the degree, that XXX was functioning below grade level in various areas including XXXXXXXXXX. (Ex. 8) The parent asserts that the district has failed to provide evidence of meaningful growth particularly in the area of independent reading. The parent notes that STAR assessment results showing
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX demonstrates that the district had no basis for a conclusion with regard to progress since XXX had already reached the XXXXX grade the year before. I note that there is nothing in the record discussing the comparability and/or the reliability of the assessments or the reliability of the STAR assessment indication of four months growth during that school year. However, both assessments are utilized by the district for the same purpose- to determine appropriate instructional materials-and I conclude that they are satisfactory for that. I note that the reading goals to be met in the 6th grade utilized teacher selected texts and in discussing why the goals were not the same as those for 5th grade, the 5th grade teacher explained that the materials would be at different levels. However, Ms. XXXXXXX did not provide information about the level of the texts that were used for goal measurement by the ELA teacher. I conclude that the circumstances here do not provide a basis for concluding that the student’s independent reading level had advanced in any significant degree in one year.
Accordingly, I must consider whether the record overall, notwithstanding the student’s apparent failure to meaningfully advance in the critical area of independent reading, supports the district’s claims as to the reasonableness at the time of the review of the CSE’s conclusions concerning the appropriateness of the same program going forward.
With regard to that I note that the I have found credible the claims that the student was with the support he received able to succeed with grade level content and that the student was advancing with regard to certain study skills and strategies which I conclude could mitigate the anxiety which inhibited XXX performance. Further I note that the STAR assessments indicated in 2016-2017 a growth of XXXX years in math, considered to have been an area of relative weakness by Dr. XXXXXXXX, and that the student was demonstrating increasing confidence in that area. (T. 328, Ex. W)
Based upon the foregoing, I conclude that the district has established that at the time of the review the program recommended in the May 30, 2017 IEP was reasonably calculated to enable meaningful progress in the student’s unique circumstances. [21]
ORDER
This matter is DISMISSED
Dated: December 19, 2018
_____/S/_____________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
DISTRICT
Due Process Complaint and Answer
1. 11/22/17 Due Process Complaint (12 pages)
2. 1/16/18 Answer to Due Process Complaint and Motion to Dismiss 2015-2016 Claims
(6 pages)
IEPs
3. 4/28/14 IEP (17 pages)
4. 4/10/15 IEP (18 pages)
5. 6/19/15 IEP (18 pages)
6. 11/18/15 IEP (17 pages)
7. 5/22/16 IEP (19 pages)
8. 5/30/17 IEP (19 pages)
Progress Reports on IEP Goals
9. 6/30/15 (8 pages)
10. 6/30/16 (7 pages)
11. 6/30/17 (7 pages)
12. 11/28/17 (7 pages)
Evaluations
13. 7/15 – 9/9/11 Neuropsychological Evaluation (15 pages)
14. 5/7/13 Educational Consultation (1 page)
15. 6/14/13 Auditory Processing Evaluation (11 pages)
16. 11/15/13 Assistive Technology Evaluation (4 pages)
17. 12/4/13 letter from to XXXXXXXX , with enclosure (5 pages)
18. 1/14/14 Pediatric Re-Evaluation (5 pages)
19. 2/25/14 Educational Observation (2 pages)
20. 3/4/14 letter from XXXXXXXX to Parents, with enclosures (4 pages)
21. 4/11/14 Fax to XXXXXXXX from with Assistive Technology Evaluation Team Initial Intake Form (5 pages)
22. 4/17/14 Annual Review: Occupational Therapy Progress Summary (3 pages)
23. 4/18/14 Speech Language Progress Summary (2 pages)
24. 4/11/14 Counseling Summary (1 page)
25. 4/22/14 Services Summary for Annual Review (3 pages)
26. 9/25/14 Physical Examination record, with 9/25/14 Immunization record (3 pages)
27. 3/6/15 Physical Therapy Progress Summary for Annual Review ( 2 pages)
28. 3/18/15 Information of Educational
Observation (1 page)
29. 3/9/15 , Inc. Examination report (1 page)
30. 3/27/15 Occupational Therapy Progress Summary for Annual Review (2 pages)
31. 3/31/15 Impaired Services Summary for Annual Review (3 pages)
32. 4/8/15 letter from , MD. of Progressive Neurology (1 page)
33. 2014-15 Speech and Language Annual Review Progress Summary (2 pages)
34. Mild Hearing Loss document provided by parents (3 pages)
35. Letter from , ., C CC/A re: 3/19/15 annual evaluation
(1 page)
36. April 2015 Counseling Summary (1 page)
37. 10/7/15 Updated Social History (2 pages)
38. 9/17/15 Physical Examination report with , LLP 9/17/15
Immunization record (4 pages)
39. 9/24, 25, 28/15 Educational Evaluation (4 pages)
40. 9/28/15, 9/30/15 Speech/Language Evaluation (5 pages)
41. 10/15/15 School Physical Therapy Re-Evaluation Report
(2 pages)
42. 10/22/15 Occupational Therapy Reevaluation (6 pages)
43. 10/14, 10/19/15 Psychological Evaluation (11 pages) IINCOMPLETE- SEE Ex. K
44. 10/19/15 Services Summary for Triennial Review (7 pages)
45. 9/24, 25, 28/15 Educational Evaluation (4 pages)
46. 3/1/16 Electronic report of , M.D. (1 page)
47. 3/17/16 report of , M.A., CCC/SLP (2 pages)
48. 4/7/16 Report (4 pages)
49. 4/16/16 Occupational Therapy Progress Report (2 pages)
50. 4/21/16 Physical Therapy Progress Summary for Annual Review (2 pages)
51. 5/3/16 Summary for Annual Review (3 pages)
52. May 2016 Cottage Lane Elementary School Counseling Summary (1 page)
53. 8/8, 8/3, 9/1, 9/8, 9/23, 9/27 and 10/7/16 Neuropsychological Evaluation (61 pages)
54. 8/31/16 BASC 3 (2 pages)
55. 1/26/17 Prescriptions with fax cover (2 pages)
56. 5/25/17 New York State Immunization Information (2 pages)
57. 8/30/16 District Form listing Health History (2 pages)
58. 11/8/16 Authorization for Administration of Medication (1 page)
59. 3/4/17 Level 1 Assessment (2 pages)
60. 3/7/17 Occupational Therapy Progress Summary for Annual Review (2 pages)
61. 4/26/17 Health Certificate/Appraisal Form (3 pages)
62. 5/1/17 Physical Therapy Progress Summary for Annual Review (2 pages)
63. May 2017
Observation (1 page)
64. 5/1/17 Speech and Language Progress Summary ( 1 page)
65. 5/10/17 Hearing Impaired Services Summary for Annual Review (3 pages)
66. 5/19/17 Addendum: Occupational Therapy Progress Report for Annual Review (3 pages)
67. 1/24/18 (3 pages)
Correspondence
68. 5/14/14 Prior Written Notice (2 pages)
69. 5/20/14 Notice of Board of Education Review for Special Education (1 page)
70. 8/15/14 email from Mother to XXXXXXXXXXX (1 page)
71. 8/15/14 email from Mother to (1 page)
72. 8/15 – 8/22/14 email exchange between Mother and XXXXXXXXXX (2 pages)
73. 9/5/14 letter from Mother to XXXXXXXXXXX with enclosure (2 pages)
74. 1/28 – 1/30/15 email exchange between XXXXXXXX and Mother (2 pages)
75. 1/30/15 email from XXXXXXXX to XXXXXXXXX (2 pages)
76. 2/24/15 Email from XXXXXXX to XXXXXXXXXXX(2 pages)
77. 3/16/15 CSE Meeting Notice (2 pages)
78. 3/25/15 letter from XXXXXX to Parents (1 page)
79. 4/20/15 email from XXXXXXXXX to XXXXXX2 pages)
80. 4/20/15 7:06AM email from Mother to XXXXXXX (1 page)
81. 4/20/15 11:04AM email from Mother to XXXXXXXXXX (2 pages)
82. 4/20/15 email from XXXXXXX to Mother (1 page)
83. 4/20/15 email from Mother to XXXXXXXX, with attachment (2 pages)
84. 4/20/15 letter from Mother to XXXXXXX, with attachment (2 pages)
85. 5/28/15 email from Mother to XXXXXXXXXX, with attachment (2 pages)
86. 5/29/15 CSE Meeting Notice (2 pages)
87. 5/28/15 letter from Mother to XXXXXXXXXX(1 page)
88. 6/1/15 email from to XXXXXXXXX forwarding 6/1/15 email from
XXXXXXXX (2 pages)
89. 6/8/15 CSE Meeting Notice (2 pages)
90. 6/18/15 letter from Mother to XXXXXXXX with Fax Transmittal (2 pages)
91. 6/29/15 email from XXXXXXXX to Mother (2 pages)
92. 7/17/15 email from XXXXXXXXX to Mother (3 pages)
93. 7/28/15 Prior Written Notice (2 pages)
94. 8/13/15 Notice of Board of Education Review for Special Education (1 page)
95. 8/24/15 Prior Written Notice (4 pages)
96. 9/1/15 email from XXXXXXXXXXX to Mother (2 pages)
97. 9/8/15 email from Mother to (1 page)
98. 9/15/15 email from Mother to XXXXXXXXX (1 page)
99. 9/18/15 letter from Mother to XXXXXXXXXX(3 pages)
100. 9/18/15 email from XXXXXXXXX to Mother (1 page)
101. 10/7/15 CSE Meeting Notice (2 pages)
102. 10/29/15 email from to XXXXXXXXXX forwarding 10/29/15 email from Mother to (1 page)
103. 10/30/15 letter from XXXXXXXXXXX to Parents (1 page)
104. 11/5/15 letter from XXXXXXX to Parents (1 page)
105. 11/6/15 CSE Meeting Notice (2 pages)
106. 11/17/15 email from Mother to XXXXXXXXXXX (4 pages)
107. 11/18/15 email from to XXXXXXXXX forwarding 10/19/15 email from Mother (1 page)
108. 11/23/15 letter from XXXXXXXXX to Parents, with enclosures (7 pages)
109. 11/24/15 Prior Written Notice (2 pages)
110. 11/25/15 email from Mother to XXXXXX (1 page)
111. 12/3/15 Notice of Board of Education Review for Special Education (1 page)
112. 1/29/16 email from Mother to XXXXXXXXXX (2 pages)
113. 1/29/16 email from XXXXXXXXXX to Mother (2 pages)
114. 2/1/16 email from XXXXXXXXXX to Mother (2 pages)
115. 4/8/16 CSE Meeting Notices to Mother and Father (4 pages)
116. 5/11/16 email from Mother to XXXXXXXX (1 page)
117. 5/4/16 email from Mother to XXXXXXXXX (5 pages)
118. 5/17/16 CSE Meeting Notices to Mother and Father (4 pages)
119. 5/18/16 email from Mother to (4 pages)
120. 5/24/16 email from Mother to XXXXXXXXXX (1 page)
121. 5/24/16 email from XXXXXXXX to Mother (1 page)
122. 6/2/16 letter from XXXXXXXX to , with enclosures (87 pages)
123. 6/2/16 letter from XXXXXX to , with enclosures (92 pages)
124. Description of “Tween” Program (3 pages)
125. 6/5/16 email from Mother to XXXXXXXXX, with attachment (2 pages)
126. 6/5/16 letter from Mother to XXXXXXXXX, with attachment (2 pages)
127. 6/8/16 letter from XXXXXXX to Parents, with enclosures (97 pages)
128. 6/8/16 Prior Written Notices to Mother and Father (6 pages)
129. 6/9/16 Prior Written Notices to Mother and Father (4 pages)
130. 6/16/16 email from Mother to XXXXXXXX (1 page)
131. 6/16/16 email from XXXXXXXXXXX to Mother (1 page)
132. 6/16/16 Notices of Board of Education Review for Special Education to Mother and Father (2 pages)
133. 6/28/16 email from XXXXXXXXXX to Mother (1 page)
134. 7/11/16 letter from XXXXXXXXX to Mother, with enclosures (4 pages)
135. 7/15/16 email from Mother to (1 page)
136. 8/7/16 email from Mother to XXXXXXXXX (1 page)
137. 8/16/16 email from Mother to (2 pages)
138. 8/17/16 email from XXXXXXXXX to Mother (1 page)
139. 8/18/16 email from Mother to (1 page)
140. 8/12/16 letter from XXXXXXXXX to Mother, with enclosure (2 pages)
141. 9/16/16 email from Mother to XXXXXXXX (1 page)
142. 9/16/16 letter from XXXXXXXX to Mother, with enclosure (2 pages)
143. 9/21/16 email from Mother to XXXXXXXXXX(1 page)
144. 9/22/16 email from XXXXXXXXXX to Mother (1 page)
145. 12/13/16 email from Mother to (1 page)
146. 12/14/16 email from to Mother (1 page)
147. 12/16/16 letter from XXXXXXXXX to Mother (1 page)
148. 12/22/16 email from XXXXXXXXXX to Mother (1 page)
149. 2/17/17 CSE Meeting Notices to Mother and Father (4 pages)
150. 3/6/17 email from Mother to XXXXXX (1 page)
151. 4/3/17 CSE Meeting Notices to Mother and Father (4 pages)
152. 4/4/17 Revised CSE Meeting Notices to Mother and Father (4 pages)
153. 5/8/17 email from Mother to XXXXXXXXXX (1 page)
154. 5/16/17 CSE Meeting Notices to Mother and Father (4 pages)
155. 5/31/17 letter from XXXXXXXXX to Mother (1 page)
156. 6/19/17 Prior Written Notices to Mother and Father (4 pages)
157. 7/6/17 Notice of Board of Education Review for Special Education to Mother and Father (2 pages)
158. 8/20/17 email from XXXXXXXXX to Mother (1 page)
Report Cards/Progress Reports
159. 2010-2017 Report Cards (17 pages)
160. 4/25/14 Teacher Progress Report (1 page)
161. 10/20/15 Classroom Observation Evaluation (2 pages)
162. 11/10/15 Teacher Progress Report (1 page)
163. 2015-2016 RTI Reading Progress Report (2 pages)
164. 2015-2016 Math Progress Report (1 page)
165. April 2016 Teacher Progress Report (1 page)
166. 2/28/17 Teacher Progress Report (1 page)
167. 3/1/17 Teacher Progress Report (1 page)
Attendance Records
168. 2014-2015 (1 page)
169. 2015-2016 (2 pages)
170. 2016-2017 (2 pages)
171. 2017-2018 (2 pages)
Miscellaneous
172. Initial Inquiry Form (1 page)
172A. Final Progress Report for 2016-2017 IEP Goals (6 pages)
173. Subsequent Contact Record (1 page)
173A. Final Attendance – 2016-2017 (1 page)
174. Student LC Test Administ. Form (9 pages)
175. Confidential Client History (4 pages)
176. Exam (22 pages)
177. Slosson Visual-Motor Perform. Test for Children and Adults (8 pages)
178. California Achievement Tests Answer Sheets (HLC) (2 pages)
179. Informal Reading Inventory (HLC) (7 pages)
180. Diagnostic Profile for Survey of Study Habits and Attitudes (HLC) (2 pages)
181. Writing Assessment (HLC) (1 page)
182. 3/16/16 XXXXXXXXXXX Notes (1 page)
183. E-mails Between Parent and XXXXXXXXXX (1 page)
184. 6/22/16 E-mail from Parent to XXXXXXXXX (1 page)
185. 6/16 E-mails (1 page)
186. 8/5/16 Cover Letter (1 page)
187. Registration Form (1 page)
188. Authorization for Release of Information (1 page)
189. E-mails Between Parent and XXXXXXXXX(5 pages)
190. 9/15/16 E-Mail from Parent to XXXXXXXX (1 page)
191. 9/26/16 E-Mail from Parent to XXXXXXXXX (1 page)
192. 9/26/16 XXXXXXXXXXX Notes (3 pages)
193. 9/16 E-Mails (5 pages)
194. 10/26/16 E-Mail (1 page)
195. Attachments to 10/6/16 E-Mail (6 pages)
196. Letter (2 pages)
197. 11/10/16 E-Mail from Parent to XXXXXXXXXXX (2 pages)
198. E-mails Between Parent and XXXXXXXX (2 pages)
199. 11/23/16 E-Mail from Parent to XXXXXXXXXXX (1 page)
200. 11/28/16 E-Mails Between and XXXXXXXXXX (4 pages)
201. E-Mails Between XXXXX and XXXXXXXXX (2 pages)
202. Neuropsychological Evaluation – Rough Draft (61 pages)
203. 1/24/17 Notes (1 page)
204. Section 504 Accommodation Checklist, Strategies for Managing ADHD-
related Stressors in School and Attention Deficit & Learning Disorders Forms (7 pages
PARENT
A Withdrawn B Withdrawn C Withdrawn D Withdrawn E Request for IEE, 8/18/15, 3 pages F Withdrawn G Physical Therapy Triennial Evaluation, 10/15/15, 2 pages H Services Summary for Triennial Review, 10/19/15, 10 pages I Withdrawn
J Withdrawn K Psychological Evaluation, 10/2015, 13 pages L 2015-2016 Progress Reports, 3/16/16, 9 pages M 2015-2016 Report Card, 6/2016, 2 pages N RTI Progress Report, 6/2016, 1 pgs. O Withdrawn P Withdrawn Q Withdrawn R Withdrawn S Progress Report for IEP Goals and Objectives, 6/21/16, 10 pages T Records Request, 12/8/16, 2 pages U Email from XXXXXXXXXXXX, 12/16/16, 1 page V Withdrawn W Level I Assessment, 3/4/17, 4 pages X Letter, 4/26/17, one page Y Letter, 4/26/17, 1 page Z Speech and Language Progress Summary, 5/1/17, 2 pgs. AA Withdrawn BB Withdrawn CC Updated Progress Goals, 5/31/17. 7 pages DD Withdrawn EE STAR Growth Report, Reading and Math, 6/23/17, 2 pages FF Progress Report for IEP Goals and Objectives, 6/20/17, 10 pages GG Records Request-Third Request, 6/23/17, 2 pages HH STAR Parent Report, Reading and Math, 6/23/17, 2 pages II Withdrawn JJ Assessment, 1/22/18, 8 pages KK Scoring Sheets, 1/2018, 12 pages
nd LL 2 Quarter Report Card, 2/1/18, 3 pages MM Progress Report for IEP goals and Objectives, 2/1/18, 3 pages NN Book Project Emails, 9/16/16, 2 pages OO Letter to Parent, 1/4/15, 1 page PP Work Samples, multiple, 59 pages QQ Microphone Emails, 2/27/18, 2 pages RR Withdrawn SS Video 1 (on Flash Drive) at school building, December 2016 TT Admission DENIED (Video 2 on Flash Drive-at Home)) UU Withdrawn VV 3rd Quarter Grades, 4/23/18, 15 pages WW Math Chapter 8 Review, undated, 4 pages
XX 2017-2018 Report Card, 6/22/18, 1 page YY Teacher Progress Reports, undated, 4 pages ZZ Student Diagnostic Report, 9/17/17, 1 page AAA Response to Intervention, 5/2018, 2 pages BBB F & P Reading Screener, 5/16/18, 2 pages CCC MD Letter, 4/23/18, 1 page
IMPARTIAL HEARING OFFICER
I Compliance date extension decisions II Subpoena/s III Emails concerning 2015-2016 SY claims including withdrawal of all claims IV District Closing V Parent Closing VI Emails re receipt of closing statement
Footnotes
[1] All references to “Ex.” or “Exs.” followed by a letter or letters refer to the exhibits submitted by the Parent and admitted into evidence at the due process impartial hearing. All references to “Ex.” or “Exs.” followed by a number or numbers refer to the exhibits submitted by the DOE and admitted into evidence at the due process impartial hearing. All references to “Ex.” or “Exs.” followed by Roman numbers refer to the exhibits placed in the record by the Impartial Hearing Officer. All references to “T.” followed by a number or numbers refer to a page or pages of the transcripts of the due process impartial hearing.
[6] XXXXXXXXXXXXXXXXXX goals in the prior IEP specified with “moderate assistance”. (Ex. 6) The 6th grade goals did not specify any assistance at all. (Ex. 7)
[7] This 15:1 special class was provided for all ICT students. (T. 332) The record indicates that this class was actually provided every day. (See note below)
[8] STAR’s IRL (Instructional Reading Level) is the grade level at which a student is at least 80% proficient in recognizing words and comprehending reading materials. (Ex. HH-1)
[9] Attendance/lateness information specified in the evidence provided is inconsistent and unexplained and that information is also at times inconsistent with the testimony of staff and the parent.(See for examples T. 330, 338, Exs. 170, 173A, 159-17, LL) However, it is undisputed that there were numerous absences and lateness in the first part of the 2016-2017 SY.
[10] The final Progress Report regarding goals reported achievement of all study skills hearing and (with use of a calculator) math goals, achievement of 4 of 5 of the speech language goals with satisfactory progress (expected to achieve) on the other and on the 4 writing and reading goals. The student had achieved or was progressing satisfactorily toward all motor goals but was reported to have not achieved any social/ emotional/behavior goal. (Ex. FF)
[11] The record is unclear as to whether there was an actual increase in special class services from the 2016- 2017 SY was provided. I note that the teacher of that class testified that it was daily during the 2016-2017 SY. (T. 270) Further, an increased level of service was not identified by any of the witnesses as a program change.
[12] There is nothing in the record with regard to STAR math testing, if any, conducted in September 2017 or thereafter.
[13] recommended a total of 529 hours of 1:1 tutoring at the rate of $87 per hour with a required $90 enrollment fee. (Ex. JJ at 1-3) The recommended Verbal Program- which included reading, splinter skills, and writing- totaled 364 hours and the recommended Math program totaled 165 hours. (Ex. JJ at 1-2) The recommended Verbal Program would commence with a grade 3 core reader. (Ex. JJ-3) In view of my findings in this matter, discussed below, I do not address the reliability of the HLC recommendations concerning remedial support required in the event its evaluation was accurate. The date of the test was not specified and no other specific information about that test is in the record.
[15] Ms. XXXXXX testified in response to a question asking for specification of progress during 7th grade that in April 2018 she had been informed that the student had completed STAR ELA testing. (T. 172) However, the date of testing was not specified. (T. 172) Record references not specified below are stated above.
[17] With regard to the XXXXXX evaluation I note, however, that Dr. XXXXXXX stated that that diagnosis did “little to edify…understanding” in view of past knowledge of the student’s various (Ex. 53-52), consistent with the CSE’s conclusion that it did not provide significant information that was not already known. (T. 108-109, 156, Ex. 46)
[18] In September 2015 the parent had requested that the district conduct the evaluation as part of its battery of triennial testing. The district did not act upon that request. An IEE was not requested at that time.
[19] With regard to the issue of meaningful participation, I do not consider STAR assessments conducted after the development of the May 30, 2017 IEP. I also note that it is unclear as to whether the complete STAR results for the 2016-2017 SY are in evidence. Although Ms. XXXXXX testified that the assessment was given twice a year, Ms. XXXXXXX testified that it was generated three times a year (T. 1922) and the May 2018 F & P evaluation referred to a “mid-year” report (Ex. BBB). Further, the date the district was aware of the May 2017 assessment result is unknown. Finally, as discussed below, the district maintains a system by which parents are notified of information concerning the student. The parent was aware of that system in September 2016 and reported difficulties using it at that time to Dr. XXXXXXX. (Ex. 53) There is no evidence in the record with regard to whether or not STAR results are put online. The district’s witnesses and documentary evidence did not address the student’s STAR assessments in the 2016-2017 and 2017-2018 SYs or to what extent if any such information is provided to parents. However, for the purpose of considering the parent’s denial of meaningful participation claim I am assuming that the district was aware at the time of the review of the 2016-2017 STAR results in evidence and that that information was not provided to the parent.
[20] The student’s 6th grade ICT classes had a total of 18 students (T. 278) and his 7th grade classes had 15-17 (T. 1909) There were approximately 6 students with IEPs in the classes and there were 6 students in the academic center in the 2016-2017 SY with a special education teacher..
[21] For the reasons discussed above I do not consider whether and when the district had reason to conclude otherwise as the student moved through the 2017-2018 SY. However, with regard to that I note that I find credible the parent’s testimony that the student’s increasing anxiety level regarding school work (T. 543) and his difficulties at times in entering school, also observed by his ELA teacher (T. 1928-1929), which appears to have affected his attendance and performance in his ELA class (T. 1905, Exs. LL, YY). I also note that his 7th grade ELA special education teacher, who was also his 8th grade ICT ELA teacher and a certified reading instructor (T. 1904), although testifying that she did not recall the student’s reading level acknowledged that there were XXX grade readers in the 7th grade ICT class. (T. 1927) The F&P screening conducted by the district in May 2018 pursuant to parent request determined that the student struggled at a XXX grade level (Ex. BBB) indicating no progress in independent reading for two school years.