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School District CaseNo.-
The student on whose behalf this impartial hearing was conducted shall hereinafter for the sake of readability and confidentiality be referred to by the fictitious initial of G. At issue is G's eligibility to receive special educational services ('"special education") and, consequently, to be provided with an Individualized Education Program ("IEP"). The District's position is that G is not eligible for special education because G doesn't need it, inasmuch as, maintains the District, G's educational needs are being fully met by interventions not involving special education. [1] One of the District's witnesses put this most plainly: "1 don't see special education providing him with anything other or additional than what he already is receiving with (Tr. 472) The parent's position is that these interventions do not meet G's educational needs arising from G's disabilities, as most recently diagnosed,
(Exh. D-57, p. 4) s shall be discussed in more detail hereinafter, the District suggests that were G eligible for special education and have an IEP, the District would not be doing more, or doing otherwise, educationally for G than the District already is doing. For reasons that shall be discussed in more detail hereinafter, I shall find that the record discloses that services provided by the District have not addressed G's weakness in , which was known to the CSE, and which, accepting the logic of the District's argument, makes G eligible for special education, and accordingly, I shall remand the case to the CSE with instructions to formulate an IEP for G that classifies G as a student with and includes School District Case N o . -
to address G's weakness m , and otherwise shall leave the content of the IEP to the CSE's determination. G
G's teacher testified that G struggled with
In her comments for the first of School District CaseNo.-
three marking periods in the student's progress report, the teacher stated that the student was having difficulty . (Exh A) She testified that G might (Tr. 387) For the second marking period, the teacher commented on the progress report that G was inconsistent (Exh. A) She testified that by then and that G was having trouble i (Tr. 388) For the third and final marking period, the teacher commented on the progress report that G was still inconsistent in . . (Exh. A) She testified that he was still struggling to
·. (Tr. 389) The progress report reflects, and the teacher testified, that G needed improvement in numerous
(Exh. A, Tr. 389•390) He was
at level Bxh. A, Tr. 3 89), whereas a student is expected to be at level . (Tr. 390) The teacher testified, " He was progressing throughout the school year. It just wasn't at the pace I was expecting." (Tr. 390) All of this was despite G having received [2] to address the teacher's concerns regarding G's (Tr. 496) since early in the school year, according School District CaseNo.-
to the parent's testimony. (Tr. 731) So concerned had the teacher been about G struggling , despite the interventions, that she referred G to the CSE in November, after broaching the idea with the parent (Exh. 19, Tr. 391-392, 733) The teacher observed G having the same struggles when G worked with the teachers that she observed when G was working with her. (Tr. 407)
The CSE did not recommend special education for G (Exh. 26-27), based largely upon the recommendation of a , who after evaluating G recommended that G continue to receive [3] and that might also be considered in order to allow G more time to mature and develop readiness skills. (Exh. 28, p.3) was brought up with the parent at a conference in March (Tr. 400) and in May, when G was ,a completed an assessment on which G's score placed him as a good candidate for; (Exh. 64) Her report stated, "[G] has gone through academic testing and has been found to not have a Having intelligence and ability allows to be more successful. Currently [G] is functioning approximately a would allow for time and experience to close this academic gap.
to handle the academic work load." (Exh. 64) Somewhat at School District Case N o . - -~----------------~------------------------------------~ ------·----- odds with the teacher's comments about G's effort and hard work on G's progress report (Exh. A), the 's report further stated, "[G] also does not present as enthusiastic about learning or motivated to do school work. This behavior may change as he matures and becomes more developmentally ready for school." (Exh. 64) The retention recommendation was rejected by G's parents based on emotional and social considerations. (Tr_ 736)
During the summer , G attended the District's
program, in which skills were worked on for l
(Tr. 737-738) The parent believed he made sufficient progress to be ready for grade. CL 738) However, G's grade teacher testified that G continued to struggle with was taught in small groups and the other students in G's group were at the same
1evel as G. (Tr. 358) During grade, the parent volunteered in the classroom, being set up at a table and helping whichever student needed help. (Tr. 361, 738-739) In addition to instruction in the classroom from his grade teacher, G received instruction in a small group setting outside the classroom from an teacher for from an teacher (Tr. 59). G's parents also School District CaseNo.-
offered to heip G at home and always asked the grade teacher for extra homework. (Tr. 359) G's grade teacher testified that she believed that G was making slow and steady progress throughout the school year (Tr. 359) and the parent testified that although she observed that G's , with G still working on while a lot of the other kids were up to , she really wasn't too concerned. (Tr. 739) However, at the end of the school year, the teacher was reporting that despite G's improvements, G was at an, level (Exh. K, p.2) and now the grade teacher was recommending retention because she thought G needed more time to catch up in his skills. (Tr. 376) With mixed feelings (Tr. 754), the parent again declined consent. (Exh. 6)
Within a few days, the parent set up a meeting with the principal and the teachers, but she did not refer G to the CSE at that time. (Tr. 749) Rather, she consulted with a private , who reviewed the previous evaluation and told the parent that she "should go for testing because of the - - his level of intelligence and the piece and there was another piece in there ... That she felt I should look into that also 'cause that could be part of his that he was having that they didn't notice." (Tr. 751)4 Based on the 's School District recommendation (Tr. 754), the parent privately obtained an Evaluation, which diagnosed G with an in the areas of and stated that G showed a high number of qualifiers supporting that finding. (Exh. 59, p. 2) The report explained, "'A patient with problems will have Jecause they may be losing auditory information before it is accurately processed or understood." (Exh. 59, p. 2) Or, as the parent in her testimony paraphrased the explanation she was given, ''He would maybe hear the first two things but not the last, or sometimes he would hear the last two things and not the first, that they couldn't sometimes hold on to the beginning or a word and the end of a word. So when they'd see the word again, like a sight word, he wouldn't recognize it because the first time he recognized it, he had seen the beginning of it. The second time he seen it, he'd see the end ofit." (Tr. 756) Among other possible intervention options, the report recommended, as being one example. (Exh. 59, p 3) The parent testified that she-mailed the report to the principal and the school psychologist as soon as she received it. (Tr. 755) The evaluation is dated August 22, 2017 and the District's copy is stamped received on August 25, 2017 (Exh. 59) The parent engaged a private tutor for G during the summer of 2017, who worked with G for
(Tr, 753, pp. 19-21) G also again participated in the District's program. (Tr. 753, pp. 19-21) On August 25, 2017, the parent herself referred G to the CSE. (Exh. 7) School District CaseNo.-
Preparatory to the CSE meeting, the District again conducted a evaluation ofG. (Exh. 31) The report ofthe evaluating; noted that the
Evaluation privately obtained by the parent indicated an in the areas of· Based on the
's o,vn testing, she found G's to be (Exh. 31, p. 3) and elaborated, " tasks measures required [G] to
, and measures . On this task, [G] performed in the On this task, [G] struggled with required [G] to and measures On this task, [G] performed within the
Overall, [GJ's skills are as compacted to his peers )" (Exh. 31, p. Unlike the previous evaluation, this evaluation did not contain a recommendation concerning [G]' s eligibility for special education, but rather advised that "The educational team, including parents, should consider all evaluation data when detennining how best to support [GJ"
The CSE again found G ineligible for special education. (Exh. 14, 15) The meeting minutes reflect that the did advise the CSE that the G's was was his weakest area during testing and that G needed more than once during testing. (Exh. 13, p. 2) The meeting School District CaseNo.- ···-·-·-·•··•"--···--------------------- minutes further reflect that a discussed the Evaluation obtained by the parent but in apparent variance with its findings, advised the CSE that [G] that the testing consistent with was in the average range and that [G} was not displaying any weakness in related testing. (Exh. 13, p. 3) The CSE also heard from the student's e,rrade teacher, who reported that [G] was making progress but that [G]'s level was equivalent to level or grade. (Exh. 13, p. 1) The meeting minutes reflect (Exh. 13, p. 3) that in addition to the new evaluation and the 1 Evaluation, the CSE also considered Evaluation (Ex. 36) and an Evaluation (Exh. 37) that newly had been completed by the District.
Although the CSE found G ineligible for special education, it referred G to the District's Section 504 Committee. (Exh. 15) That referral resulted in the formulation of a Section 504 Accommodation Plan for G. (Exh. 17) The Section 504 Accommodation Plan described "the nature of the problem" as G having a diagnosis of and additionally presenting, among other things, with "
'' (Exh. 17, p. 1) It identified the "major life activity' impacted by G's as "" " (Exh. 17, p. 2) It set forth "minimal distractions" for all tests as a testing accommodation and "quiet work space," "visual/verbal cues," "clear and concise verbal information," prompting/cueing for attention," "frequent checks for understanding," "preferential seating," "chunk directions/tasks," "extended time," "access to a standing desk," ", monitor," "use color codes (e.g. spelling words on green paper)," "movement/sensory breaks," as "program JO School District CaseNo.-
modifications/accommodations/supplementary aids and services" throughout the school day, ''graph paper/highlighted lines as needed for legibility," "allow work to be completed while standing," and "allow use of fidgets" as "program modifications/accommodations/supplementary aids and services" as needed, and an "OT monitor" as a "program modification/accommodation/supplementary and service" twice a month. (Exh. 17, p. 2-3)5 G continued to receive AIS services. (Exhs. L, M)
On August 27, 2018, the parent filed an Amended Due Complaint Notice alleging that the District had failed to timely and appropriately refer G for evaluation and consideration as a student disability during the 2016-2017 school year, that the District had inappropriately denied G's eligibility as a student with a disability under IDEA and corresponding state law and regulations, that the District had failed to evaluate G in all areas of suspected need, and that the District had placed unlawful and unreasonable restrictions on an approved and necessary independent educational evaluation of G at public expense. It proposed as a solution that the District provide G with appropriate services to address his struggles in the area of ;, such as specialized instmction, that the District provide G with services at an appropriate frequency and duration, that the District provide G with services at an appropriate frequency and duration, that the District provide G with
services at an appropriate frequency and duration, that the District fully fund an of G obtained by the parent on January 30, 2018, that the District provide G with an independent , an independent 1l School District CaseNo.- ·-----~--~-----•~-~--------------------------
evaluation, and an independent evaluation by identified providers, that the District reimburse the parent she privately expended to obtain appropriate and individualized instruction for G by a trained and qualified private tutor, that the District provide G with additional services for its denial to G of a free appropriate public education and for its deprivation of G's rights, and that the District pay the parent's reasonable attorney's fees and costs relative to the prosecution of the due process proceeding. (Exh. 3) In the course of the hearing, the parties advised the undersigned that funding by the District of the independent of G obtained by the parent on January 30, 2018 was no longer an issue. (Tr. 681)
As concerns the crucial issue of G's eligibility for special education, I find the relevant facts in this matter to be neither as one-sided as those in Application of a Student Suspected of Having a Disability, Appeal No. 15-037, a case relied upon by the parent, or as those in Powers v. Woodstock Bd. of Educ., 572 F. Supp.2d 221 (D. Conn 2008), qff'd 370 F. App'x 202 (2d Cir. 2010), a case relied upon by the District. An abundance of testimonial and documentary evidence shows that G was making steady progress in under the aegis of the District's general education interventions. (Tr. 184, 187, 193-195, 359, 362-363, 426-427, 443, 450, 464-465, 54 l, and 618, Exhs. 13, 39, 40, 44, 45, 46, 47, 48, 49, 53, 54, 55, H, I, J, and K) An abundance of testimonial and documentary evidence also shows that despite the District's general education interventions, G's ski11s continually have been (Tr. 127, 152-154, 179, 217-218, 376,379, 387- 393,395, 398-399, 401, 476-478, 561-562, 576-578, 581-582, 583-585, 588-589, 611-614, School District CaseNo.-630,633, 732-734, 762-763, 840-841, 858-861, and 880-882, Exhs. 40, 44, 45, 47, 48, 49, 52, 53, 54, 65, A, K, and L)
What tips the balance in favor of the parent, in my opinion, is the amount of review and repetition the evidence shows that G has required in order to achieve and maintain his modest gains. A diagnostic report of an evaluation of G, dated December 4, 2017, stated, by way of background, "[G] spends several hours every evening completing his homework. [G] spends a small amount of time reading each evening or he is read to by one of his parents." (Exh. 58, p. l) The di.agnosis dates of the evaluation were October 28, 2017 and November 4, 2017. (Exh. 58, p. 1) G's grade teacher confirmed that G was in his class during the relevant dates (Tr. 346) and testified that reckoning by ten minutes per grade level, 20 minutes would be more enough time for a grade student to complete his homework, and that 'Tm fairly certain that it did not take [G] 20 minutes to complete his homework" (Tr. 347) He further testified that he remembered that the parent spent time with G on homework, and that he always encouraged students to read as part of their every day homework, but that he did not remember hearing about several hours. (Tr. 348) Asked by her attorney what G was doing for several hours during the evening, the parent testified, "We would just, I mean, go over old sight words he still hadn't accomplished. You know, it - - at whatever time, he needed work with whatever, whether it be ABCs, whether at that time, I don't think he still had his grade sight words. He didn't have all of them. So I'm sure I was - - at this point, like September, October, I think I was still doing a lot of sight word work with him, which would take a long time .... [I]t wasn't necessarily assigned, but ifl didn't do the extra work School District CaseNo.-
- - like they would send - - sometimes send packets home. So in like first grade, definitely, we had extra packets. We always - - I always asked, and we would do the extra packets. And they were like little reading. He'd draw a picture, you'd read the passage three times, you'd do some comprehension on it. And we would take two or those a night, and it would take him half an hour, each one, if not a little longer. A,nd depending on his mood. You know, as much as I could get out of him, I would.... [H]e needed the repetition. He needed the extra help. I didn't know what else to do." (Tr. 819-820) Based on the parent's testimony, cumulative with the other evidence discussed herein, I believe that the underlying facts in this case closely resemble those in Willington Bd. of Educ v. G. W., 65 IDELR 300, 115 LRP 31284 (D. Conn. 2015). Analogously to the decision of the court in that case, I shall order the CSE to classify G as a student with and to formulate an appropriate IEP for G that shall include to address G's weakness in , and I find that the CSE's failure to provide G with an lEP that included to address G's weakness in denied G a FAPE. However, I cannot find that G's educational issues at any time so escaped the District's notice such that the District was remiss in meeting it"> child find obligations and I similarly find that the District evaluated G in all suspected areas of disability. While I shall not preclude the CSE from including services, services, and services in the IEP, should the CSE determine such any or all of such services to be appropriate, based on the infonnation currently available to the CSE, I find that the infom1ation available to the CSE when it denied G special education did not support the need for such services. I also find that with School District CaseNo.-
respect to the independent evaluations requested by the parent other than the authorized independent • the parent has not folJowed the procedure for requesting an independent evaluation set forth in §200.5(g) of the Regulations of the Commissioner of Education. I cannot find any deficiency in the District's instruction of G to justify reimbursing the parent for the expenses of private tutoring and I do not find the District's denial of a FAPE to G has set G so far back as to warrant an award of compensatory services. Finally, an award of attorney's fees and costs is not within the jurisdiction of an impartial hearing officer.
Based on the foregoing, is hereby
ORDERED that the matter is remanded to the CSE; and it is further
ORDER£D that within 30 school days of the date of this decision, the CSE shall classify G as a student with and formulate an appropriate IBP for G that shall include to address G's weakness in ; and it is further
ORDERED that the parent's other outstanding requests for relief as set forth in the amended due process complaint notice are denied.
Dated: November 9, 2018
Aaron Turetsky
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parents and the board of education are hereby advised of the right of any party involved in the hearing to obtain a review of this decision by the State review officer in accordance with subdivision k of section 200.5 of the Regulations of the Commissioner of Education. School District CaseNo.-
EXHIBITS ENTERED .INTO RECORD JULY 23, 20186
l Due Process Complaint Notice 2/15/18 8 pp. 2 Response to Due Process Complaint Notice 2/26/18 2 pp. 3 Amended Due Process Complaint Notice 4/27/18 10 pp. [4] Response to Amended Due Process Complaint 5/7/18 2 pp. Notice [5] Report Card 2017-2018 Ip. [6] Form 6/20/17 1 p. 7 Request for Special Education Evaluation 8/25/17 1 p. 8 Consent for CSE Evaluation 9/10/17 2 pp, 9 Social History Questionnaire 9/10/17 4 pp. 10 CSE Meeting Notice 10/19/17 2pp. 11 Letter re attendance of parent advocate undated 1 p. 12 CSE Attendance Sheet 11/2/17 Ip. 13 CSE Meeting Minutes 11/2/17 1 p. 14 Letter re CSE recommendation 1l/3/17 1 p. 15 Prior Written Notice 1l/3/17 2 pp. 16 504 Plan Minutes 11/2/17 1 p. 17 Section 504 Accommodation Plan 11/6/17 3 pp. 18 Letter re Section 504 Accommodation Plan 11/6/17 1 p. 19 Letter re CSE referral 11/6/15 Ip. School District CaseNo.- ----·-·-· 20 Consent for CSE Evaluation 11/11/15 2 pp. 21 Social History Questionnaire l l/l l/15 4 pp. 22 Evaluation 12/11/15 4 pp. 23 CSE Meeting Notice 12/7/15 2pp. 24 CSE Attendance Sheet 12/17/15 1 p. 25 CSE Meeting Minutes 12/17/15 5 pp. 26 Letter re CSE recommendation 12/18/15 1 p. 27 Prior Written Notice l2/l 8/15 2 pp. 28 Evaluation 12/11/15 3 pp. 29 Subtest Score Summary 11/18/15 1 p. 30 Testing Results 12/4/15 2 pp, 31 Evaluation 10/23/17 7pp. 32 Score Report 10/2/17 1 p. 33 Teacher Questionnaire 9/20/17 9 pp. 34 Parent Questionnaire 9/29/17 9 pp. 35 Evaluation 10/12-13/17 3 pp. 36 Testing Results 10/23/17 4pp. 37 Letter re work with student I 1/3/17 1 p. 38 Parent Meeting Minutes 5/18/18 2 pp. 39 Evaluations vanous 3 pp. 40 Individual Benchmark Reports 2017-2018 3 pp. 52 Reports various 7pp. School District
.•,---~--~--,-·~,,~~--·· 53 Progress Reports various 2 pp. 55 Overview Report 2017-2018 2 pp. 57 1/30/l 8 5 pp. 58 Diagnostic Report 12/4/17 20 pp. 59 Evaluation 8/22/17 3 pp. 60 Evaluation 9/13/17 4pp. 61 Tests 1/3/18 4pp. 62 Curve undated l p. 64 Scale Report 5/9/16 1 p. A Progress Report 2015-2016 1 p. B Progress Report (Tl & T2) 2016-2017 I p. C Progress Report (Tl, T2, & T3) 2016-2017 1 p. D Progress Report (Tl) 2017=2018 1 p. E Progress Report (Tl & T2) 2017-2018 Ip.
F : Progress Report (T 1, T2, & T3) 2017-2018 1 p.
G Letter re 9/7/17 l p. H Letter re 10/4/16 2 pp. I Letter re 12/1/16 2pp. J Letter re. 3/16/17 2 pp. K Letter re 6/20/17 3 pp. L Letter re 10/16/17 2 pp. M Letter re 12/4/17 1 p. School District CaseNo.- •¥-,-~~••-~•-~-•"•
N Letter re 6/13/18 Ip. 0 Report re undated l p. p Report re Winter Data Day 2/17 2 pp. Q Current Assessment Data 4/11-12/18 Ip. R Letter re 12/15/17 2 pp. V Invoices/receipts vanous 6 pp.
EXHIBITS ENTERED INTO RECORD JULY 24, 2018
41 English Progress Monitoring Report vanous 3 pp. 43 Primary Spelling Inventory Feature Guide 4/12/18 2 pp. 44 Recording Form 4/11/18 7pp. 47 Recording Form 4/16/18 7pp. 48 Recording Form 4/16/18 5 pp. 49 Recording Form 4/17/18 6 pp. 50 Word List Assessment 4/11-5/25/18 5 pp. 65 Recording Form 5/29/18 7 pp. 66 Recording Form 5/31/18 7 pp.
EXHIBITS ENTERED INTO RECORD JULY 25, 2018
54 Overview Report 2017-2018 2 pp. School District CaseNo.-
EXHIBITS ENTERED INTO RECORD POST HEARING
IH0-1 Letter from IHO 3/21/18 l p. IHO-II Letter from IHO 3/22/18 Ip. IHO-III Letter from IHO 3/28/18 1 p. IHO-IV Letter from IHO 4/24/18 1 p. IHO-V Letter from fHO 6/5/18 1 p. IHO-VI Letter from IHO 6/7/18 1 p, IHO-VII Letter from IHO 6/13/18 2pp. IHO~VIII Letter from District's attorney 7/16/18 2 pp. IHO-IX Letter from parent's attorney 7/17/18 2 pp. IHO-X Letter from IHO 8/9/18 1 p, IHO-XI Letter from IHO 8/9/18 1 p. IHO-XII Letter from IHO 8/16/18 1 p. IHO-XIII Letter from IHO 9/27/18 l p. IHO-XIV District's Memorandum of Law l 0/26/18 7 31 pp. THO-XV Parent's Closing Brief 10/26/18 31 pp.
77 The record was closed on October 26, 2018, which was the date of electronic submission and receipt by the Impartial Hearing Officer of the District's Memorandum of Law and the Parent's Closing Brief
Footnotes
[1] In order to be considered a "student with a disability" under the IDEA, a student must have a qualtrying disability under one of the thirteen classifications listed in the IDEA, and need special education instruction and services as a result of that disability. See 34 C.F.R. §300.S(a) RECEIVED (lv NOV 1 9 2018 office of Special Education
[2] The term AIS may be used more or less interchangeably with the term Response to Intervention ("RtI"). See Appeal ofa ,.'-,'tudent Smpected of Having a Disability, Appeal No. 15 037, p. 3, fn. 2. "New York has defined in regulation the minimum components of an Rtl program but does not require a specific RtI model that must be uniformly used by all school districts. School districts have discretion to make specific decisions when designing the structure and components of their Rtl program." Re.sponse to Intervention: A Guidance for New York State School Districts, NYS Education Department (Oct. 2010}.
[3] For the sake of the , the District . It is not a special education service. (Testimony of teacher, Tr. 406)
[4] The parent testified at that during the last four days of school. That wouta have been a factually accurate statement. l don't believe the discrepancy m the testimonies reflects adversely on the credibility of either witness.
[5] These enumerated components of the Section 504 Accommodation Plan were not all necessarily or exclusively meant to address G's or"
[6] District exhibits are labeled by number, parents' exhibits by letter Impartial Hearing Officer exhibits are prefaced IHO.