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UNIVERSITY OF THE STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
_______________________________________________
IN THE MATTER OF THE IMPARTIAL
HEARING BROUGHT UPON THE REQUEST
OF PARENTS CONCERNING THEIR CHILD
AGAINST
Decision and Order
REDACTED CENTRAL SCHOOL DISTRICT
______________________________________________
Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The school district will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student. A hearing was held on December 13, 2018; December 17, 2018; January 14, 2019; and February 11, 2019.
Witnesses at the Hearing On December 13, 2018 the Elementary School Principal (ESP) testified via affidavit (IHO #1) and was presented for cross-examination. Likewise, on the same day, the Junior/Senior School Principal (J/SSP) testified by affidavit (IHO #2) and was presented for cross-examination. On December 17, 2018 the J/SSP concluded his testimony. On that same day the District’s Reading Teacher testified. On January 14, 2019 testimony continued with The Sixth Grade Teacher for the District, The Director of Pupil Personnel Service and the Parent (Mother). On February 11, 2019 the Mother’s testimony concluded. The last witness, The Psychologist, testified by affidavit (IHO #3) and was available for cross examination. The parties submitted closing arguments on April 1,2019, which I include in the record (IHO #’s 10 & 11) and this decision follows.
Parents’ Position In the complaint notice, dated September 7, 2018, the Parents allege that the Student was denied a free appropriate public education (FAPE) for the 2011-2012; 2012-2013; 2013-2014; 2014-2015; 2015-2016; 2016-2017; 2017-2018; and 2018-2019 school years. The Parents are is seeking an appropriate IEP with specific services (see P #1), compensatory education and reimbursement for the costs incurred by the Parents, including reading tutoring, cognitive behavior therapy, Kindle devices/software, evaluation expenses.
District’s position The District denied all the allegations in the Parents’ complaint notice and stated that any claims for more than two years prior to the date they received the complaint notice are barred by the statute of limitations contained within the IDEA.
Scope of the Hearing The Parents have raised multiple claims that span seven school years, citing a variety of statutory provisions. However, the scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Disst., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the Complaint Notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.
Given these constraints, I have taken jurisdiction of the familiar claims under Article 89 of the New York State Educational Law, the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq. (IDEA) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 706 (Section 504 claims).
I strike the Parents’ claims under The Americans with Disabilities Act (ADA), The Family Educational Rights Privacy Act 20 U.S.C. 1232g (FERPA) Civil Rights Act 42 U.S.C 1983 and claims under the fourteenth Amendment to the constitution. In an apparent effort to exhaust administrative remedies, counsel has made blanket demand for a determination under these various provisions of law. Further, counsel has provided little authority for the broad scope of the complaint notice and scarce guidance as to my specific authority under the cited provisions of law. It is my belief that I do not have jurisdiction over these claims and in any event, the proof at the hearing was such that I deem these claims either outside of my jurisdiction, abandoned or without merit.
As a threshold issue, I have decided that the two-year statute of limitations was tolled on or about September 2013, at the time when the parties agreed to begin evaluations of the Student. Because the Parent was not properly informed of her rights pursuant to the IDEA and that information regarding her rights should have been disclosed, I make the finding that the Statute of Limitation was tolled as of September 2013. Accordingly, all of the Parents’ claims from 2011-2012 to 2018- 2019 school years shall be considered. (See discussion below).
Overview In the pages that follow I will review the Individualized Education Program (IEP) and the recommendations of the Committee on Special Education (CSE) for the 2018-2019 school year. This is the only existing IEP, as it has been the District’s position that the Student was properly supported with general education, Academic Intervention Services (AIS) and Response to Intervention (RTI) since she entered school in September 2011. In short, with respect to this IEP, I find that the District’s CSE has complied with its procedures and the District has made a prima facie case relative to the substantive standards of appropriate programming. However, a comprehensive view of the record, led by the Parents’ expert, persuaded me that the Student is in need of a “systemic, intensive multisensory reading intervention” (IHO #9, p.2). The failure to include what is central to the Student’s disability amounts to a denial of FAPE. I therefore remand this matter to the CSE to make the appropriate programming adjustments through the implementation of a specialized methodology and the accompanying goals.
Following that discussion, I will review the Parents’ claims pursuant to the Child Find laws and determine the historic deficits of the District’s evaluation practices concerning this Student. I ultimately find that the District was remiss in allowing for an environment that did not adequately ensure proper and timely evaluations and follow-up. As a result, I find the Student was denied a Free Appropriate Public Education (FAPE) from the beginning of the 2013-2014 school year, or the Student’s second grade year.
As a part of the historical discussion, I address the issue of the statute of limitations to determine if the Parents should be precluded from raising any claims. Typically, this would be a two-year look-back from the filing date of the complaint notice. In this case, the Parents claim there were exceptions to this limit. 1) withholding information from the Parents and/or 2) not providing the Parents with proper notice of their rights. In this regard, I find that the Parent and the District maintained a relatively cooperative relationship during the Student’s kindergarten and first grade years at school. As time passed and issues of the Student’s negative behavior became mixed with her academic struggles. At this time the District failed to follow the formalized procedures that are required by the IDEA. Notice was not given at the time of the 2013 (second grade) evaluations and it should have been. This essentially stopped the clock (tolled the statute) and I deny the District’s application to preclude claims beyond the standard two-year rule. But lack of notice also impeded the Parents’ right to participate in the education of the Student. The result is a denial of FAPE for years and that denial gives rise to a compensatory education award.
I next turn to the Parents’ 504 claims and here, where the burden of proof is on the Parents, I dismiss the claims. Essentially, finding that the nexus between District inaction and District responsibility was not demonstrated clearly in this record. One might suggest that I am “covering” for the District or somehow apologizing for years of failures to the Student. That is not my intent. While I clearly find a denial of FAPE for the interactions with the Parents, when I objectively view the District’s activities over the years, I see the logic of their reticence to classify an intelligent young lady whose disability profile was somewhat masked (coping strategies) and always changing. At the same time I can appreciate the plight of the Parents who did not know how to navigate their child’s disabilities in a school setting and they were not given the tools (notice) to do anything about it.
Finally, I address the remedy of compensatory education. There is a large and evolving body of case-law in this regard and the record in this case supports significant services for the Student.
Student History
2011-2012 - 2015/2016 Before the 2016-2017 school year, the Student had a long history of behavioral problems including multiple reports from incidents that took place on the school bus and at school (IHO #8). The
Student had struggled academically throughout the years and had been evaluated by a speech pathologist, an ophthalmologist, and a psychologist to determine what the underlining issues were (IHO #8). Even though multiple doctors and teachers discussed potential diagnoses with the Parent including ADHD, Asperger Syndrome and Autism, the Student was not diagnosed with any of these disorders and her behavioral and academic issues continued (IHO #8). Eventually, the Student was recommended to receive Academic Intervention Services (AIS) support for reading and the Parent opted to pay for an Orton-Gillingham trained tutor out-of-pocket to help with the Student’s reading abilities (IHO #8).
The 2016-2017 School year (fifth grade year) Fast forward to the 2016-2017 school year when the Student was receiving additional academic help at school through Response to Intervention (RTI) programming and/or Academic Intervention Services (AIS) (which seem to be utilized interchangeably) at the District. The Elementary Principal testified that in the fall of 2016, the Student was identified as a student in need of additional services in language arts and received instruction in ELA by a reading teacher (IHO #1). The District sent a notice to the Parents of the need for RTI services for the Student based on Fountas & Pinnell Benchmark Assessment and Teacher Recommendation (D #3).
Halfway through the 2016-2017 school year, the Student achieved grade-level standards determined by the Fountas & Pinnell Benchmark Assessment. By January 2017, the Student was released from RTI based on the testing and recommendation of the classroom teacher and the AIS support teacher (T. 105). The Reading Teacher testified the Student was released from RTI because she was meeting grade level expectations according to the Fountas and Pinnell assessment, her classroom performance, and progress monitoring record (T. 327). The Elementary Principal testified “at no time during [the 2016-2017] school year did any professional staff members have reason to suspect that the Student was in need of special education services…” (IHO #1, p. 3).
The 2017-2018 School Year During the summer of 2017, the District received the Student’s scores on the New York State fifth-grade assessment in ELA and math, which were below proficiency, and notified the Student’s parents. [1] In January 2018, the Parent hired a Psychologist to evaluate the Student. On April 3, 2018, the Parent informed the Student’s Teacher about the evaluation results; the Teacher provided her with the contact information for the CSE office (IHO # 6). The Parent also had the Student evaluated by a speech and language hearing clinic (IHO #6). She said the District informed her that the District had to conduct their own evaluation of the Student and the Student would not receive services until September 2018 (IHO #6). “…[T]he Student was first evaluated for eligibility for special education services in May 2018, following the District’s receipt of the … [P]arents consent to evaluate the Student for special education services…” (IHO #1, p. 2). On May 4, 2018, the Parent met with the Director of Pupil Services and signed consent for the District to evaluate the student (IHO #6)
2018-2019 At the time that the complaint notice was filed on September 7, 2018, the Student was 12 years old and attended public school in district. (P #4). Before the 2018-2019 school year, and the IEP meeting held on June 20, 2018, the Parent provided the District an independently obtained psychoeducational evaluation of the Student that diagnosed her with dyslexia (P #7) and an evaluation that diagnosed an auditory processing disorder at the decoding level (P #12). At the meeting that followed, the CSE classified the Student has having a learning disability (P #4). I shall review the resultant IEP below. In the District’s psychoeducational evaluation (D #18), the Student’s Comprehensive Test of Phonological Processing revealed that the Student was below average in Phonological Memory and Rapid Symbolic Naming (D #18). The Student scored either average or above average on the subtests of the June 2018 administration of the Wechsler Intelligence Scale for Children, 5th edition, and average on all the subtests of the June 2018 administration of the Woodstock-Johnson Tests of Achievement, 4th Edition (P #4).
Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
- (A) have been provided at public expense, under public supervision and direction, and without charge,
- (B) meet the standards of the state educational agency,
- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[2]
A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.[3]d 478, 482 (2nd Cir. 2002).
Analysis 2018-2019 IEP The Parent ultimately referred the Student to the CSE after she had been diagnosed with dyslexia. (IHO #6, p. 6-7). The District argues that the IEP that the Student was given for the 2018-2019 school year provided a FAPE for the Student giving her the classification of learning disability and having an annual goal that addressed her difficulties with inferential thinking and writing (IHO #11). It is the District’s opinion that the recommendations in the IEP (P #4) are similar to the recommendation by the psychologist who conducted the psychoeducational evaluation (P #7), with the exception of the recommendation for the reading intervention, that the Student’s reading teacher does not consider appropriate. (Tr. pp. 363, 390).
Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).
This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).
On June 20, 2018, the CSE convened and classified the Student as a student with a learning disability (D #4). An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.[4][d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). On the surface this seemingly was established, but through the advocacy of the Parent and the Psychologist, the IEP was demonstrated to be lacking in goals relative to the Student’s primary disability- Dyslexia.
Oddly, the Student was not provided with any reading instruction, (P #’s 4 &18). Moreover, the Board of Education letter showed that the Student was only approved for 30 minutes of audiology sessions rather than the one-hour sessions that were recommended by the CSE (P #5). The Parent claimed that very little of the Psychologist’s evaluation results were included in the IEP and that the IEP stated the Student did not need assistive technology, although she said talk-to-text software was discussed at the CSE meeting (IHO #6)3. The Parent said she disagreed with the District’s recommendations (IHO #6). The Psychologist participated at the CSE meeting and her opinion is that the recommended services “are inadequate for the [the Student].” (IHO #3). She disagreed with the IEP for the same reasons as the Parent (IHO #3, pp. 5-6)4. The Psychologist addressed the issue of delaying services for the Student because of the District evaluation. “In my professional opinion, [the Student] required immediate supports and services and it would be of disservice to her if the school delayed the services and accommodations she needed, especially since they had failed to identify her previously.” (IHO #3)
I side with the Parent on this issue and remand to the CSE for inclusion of goals and programming consistent with the psychoeducational report of the Parents’ expert.
Issue: Child Find
The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate those students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 436 F.3d 52, 65 [2d Cir. 2006] [holding that the purpose behind the "child find" provisions is to locate children with disabilities who are eligible for special education services who might otherwise go undetected]).
The Parents have detailed many circumstances which, in their perspective, would trigger a “Child Find” responsibility on the part of the District. The complaint notice (D #1) recounts a history since 2012 which implicates behavioral, social and academic concerns for the Student.
Kindergarten 2011-2012 For example, when the Student was in Kindergarten in 2012 it is alleged that the Student was having problems on the bus that required school district interventions, calls to the Parents, and documentation of the problems. (P #1, p.3)
The records, however, indicate that in Kindergarten the Student was meeting or exceeding grade level standards (D #31, Kindergarten Report Card). Moreover, the ESP testified credibly that the Student had never called attention to herself as being a problem (Tr. p.54). While he admitted that he was not in charge of behavior issues (Tr. p.62), I will credit his role as “teacher of teachers” (Tr. p. 66) and presume that the District has the discretion to administer the disciplinary policy side by side with their educational responsibilities.
I find that the allegations regarding the 2012 inappropriate behaviors are supported by the records produced by the Parent (P #21, #22, #23, #24, #25, #26, #27, #29, #30) but, even so, I do not find that the records support a need to further evaluate the Student. The Principal managing the incidents at the time, minimized the impact that the Student’s behavior was having at the time. He was also the Director of Special Education at the elementary school (Tr. p. 67). Additionally, I look to the Parent’s own testimony (IHO #6, p.2) and I conclude that the Parent and District were working cooperatively to manage the aberrant behaviors of the Student as she transitioned into public school while managing issues at home (P #23, P #29 & P #30).
As the Student progressed into the 1st grade (2012-2013), she continued with some behavior issues (shouting, pushing others on bus, etc. P #90) but, also began with extra help at school (See Parent’s recollection @ IHO #6, para 20). Nevertheless, she continued to meet grade level standards (D #32 & Tr. p.70). To this, the Parent argues that the belated diagnoses from 2018, that determined the Student carried the diagnosis of dyslexia since birth, should automatically qualify the Student for services, now for then. This, however, is not the standard for a disability classification under the IDEA. It must also be established that the Student “. . . needs special education and related services.” 20 U.S.C.1404(3)(A). Despite the Parents’ allegations, the District carried their burden by demonstrating that the Student was progressing without the need for special education and related services. Same conclusion as above.
In the second grade (2013-2014) the Student fell below grade level standards. (D #33). The IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz, 307 F. Supp. 2d at 400, n.13). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41).
On the one hand, with the emergence of the new academic and social issues, the District responded and advised the Parent (P #34). It was decided the District would conduct a speech and language evaluation (P #35). Services were then authorized and implemented through the District’s Response to Intervention (RTI) program beginning in early 2014. This seems like a reasonable response to assist a young student with signs of slowing progress. No problem, standing alone.
On the other hand, the District actions above were not taken in isolation. The, then, Director of Pupil Personnel Services, had an ongoing dialogue with the Parent in the fall of 2013 which included a suspicion the Student may have Asperger’s Syndrome. The Parent was instructed to formalize this suspicion by completing an inventory. In fact, the Parent did submit to the evaluation, but nothing came of it. This is objective evidence that the District was on notice that a problem may have existed and despite their professional insights, the evaluative process failed. In conclusion, as the Student was aging, the signs of a need for special education services were emerging, but the District failed to capture the data. At this time, September 2013, there is a violation on the part of the District and this violation continued until the Parents finally made a referral for services in 2018.
Statute of Limitations There is a second consequence to the District based upon my finding above. The email correspondence and testimony regarding this time period (September 2013 to January 2014) and the evaluative procedures employed, while informal, were evocative of the protections of the IDEA (P #34, IHO #6, p.3). Specifically, the notice of rights.
For context, federal and state law and regulations require that a party must request a due process hearing within two years of the date the party "knew or should have known about the alleged action that forms the basis of the complaint" (20 U.S.C. § 1415[b][6][B], [f][3][C]; Educ. Law § 4404[1][a]; 34 CFR 300.511[e]; 8 NYCRR 200.[5][j][1][i]). SRO 19-004. Under the statutory framework of the IDEA, a parent cannot raise a claim that occurred more than two years before the date of accrual, absent any tolling exceptions. 20 U.S.C. § 1415(b)(6). Tolling exceptions include (i). . . (ii) where the local educational agency’s withholding of information from the parent that was required to be provided to the parent. 20 U.S.C. § 1415(f)(3)(d)5. In this case I find that the tolling provision in 20 U.S.C. § 1415(f)(3)(D) does apply. There are two exceptions that are arguably applicable. SRO 18-106 summarizes the bases for the exceptions and collects the current authority:
The "specific misrepresentations" exception to the timeline to request an impartial hearing applies "if the parent was prevented from requesting the hearing due to . . .
specific misrepresentations by the [district] that it had resolved the problem forming the basis of the complaint" (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]; Bd. of Educ. of N. Rockland Cent. Sch.
Dist. v. C.M., 2018 WL 3650185, at *3 [2d Cir. 2018][noting that the district's refusal to accede to the parents requests formed the basis of the complaint and that the district did not misrepresent that it had resolved the problem]; R.B. v. Dept. of Educ. of City of New York, 2011 WL 4375694, at *4, *[6] [S.D.N.Y. Sept. 16, 2011]; see D.K. v. Abington Sch. Dist., 696 F.3d 233, 245-46 [3d Cir. 2012]; Sch. Dist. of
Philadelphia v. Deborah A., 2009 WL 778321, at *4 [E.D. Pa. Mar. 24, 2009], aff'd
422 Fed. App'x 76 [3d Cir. Apr. 6, 2011]; Coleman v. Pottstown Sch. Dist., 983 F.
Supp. 2d 543, 569 [E.D. Pa. 2013] [holding that negligent misrepresentations will not trigger application of the exception]; Evan H. v. UnionvilleChadds Ford Sch.
Dist., 2008 WL 4791634, at *6 [E.D. Pa. Nov. 4, 2008]; C.H. v. Northwest Ind.
Sch. Dist., 815 F. Supp. 2d 997, 985 [E.D. Tex. 2011] [identifying that the parent, with the benefits of hindsight, "might consider the district's assessment of the [student] to be wrong, but that does not rise to a specific misrepresentation triggering" the exception, and that if "inadequate assessments were sufficient to warrant application of the statutory exception, the exception would swallow the rule"]; [see also Application of a Student with a Disability, Appeal No. 13-215). On appeal, the parent asserts that the district's "misreporting of [the student's] progress was a deception that calls for accountability" (Pet. ¶¶ 1, 2).
The second exception:
2. Withholding of Information The "withholding of information" exception to the timeline to request an impartial hearing applies "if the parent was prevented from filing a due process complaint notice due to . . . the [district's] withholding of information from the parent that was required . . . to be provided to the parent (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR
200.5[j][1][i]. Case law interpreting the "withholding of information" exception to the limitations period has found that the exception almost always applies to the requirement that parents be provided with the written notice of procedural safeguards required under the IDEA (Bd. of Educ. of N. Rockland Cent. Sch. Dist.
2018 WL 3650185, at *3; R.B. 2011 WL 4375694, at *4, *6; see D.K. 696 F. 3d at
246; C.H., 815 F. Supp. 2d at 986; Tindell v. Evansville-Vanderburgh Sch. Corp., 805 F. Supp. 2d 630, 644-45 [S.D. Ind. 2011]; El Paso Indep. Sch. Dist. v. Richard
R., 567 F. Supp. 2d 918, 943-45 [W.D. Tex. 2008]; Evan H., 2008 WL 4791634, at
*7]). Such safeguards include the requirement to provide parents with a procedural safeguards notice containing, among other things, information about requesting an impartial hearing (see 20 U.S.C. § 1415[d]; 34 CFR 300.504; 8 NYCRR 200.5[f]).
Under the IDEA and federal and State regulations, a district must provide parents with a copy of a procedural safeguards notice annually (20 U.S.C. § 1415[d][1][A]; 34 CFR 300.504[a]; 8 NYCRR 200.5[f][3]). However, if a parent is otherwise aware of his or her procedural due process rights, the district's failure to provide the procedural safeguards notice will not necessarily prevent the parent from requesting an impartial hearing (see D.K., 696 F.3d at 24647; R.B., 2011 WL 4375694, at *7; Richard R., 567 F. Supp. 2d at 944-45).
At this point I find the statute of limitations was tolled because of the second exception. Procedural Safeguards notice should have been provided in September 2013. There is no indication in the record that this was done.
The shorthand invitation to the Parents found in the body of the RtI forms, from the Fall of 2015: “If at any time, you think that your child may have a disability, you should make a written request to the school to have your child evaluated for special education services.” (P #49), and September 2017: “. . . you have the right to request an evaluation for special education services at any time.” (D #6) is not enough for this Parent who had been ignored after seeking assistance for years. The Parent testified, “Had I been timely apprised of my rights, I would have requested a publicly funded independent educational evaluation from the District (IHO #6). I believe her. The family should not be blamed for lack of expertise about special education. (See, Draper v. Atlanta,518 F.3d 1275 @ 1288 (11th Cir., 2008)).
The Withholding of Information Exception applies "if the parent was prevented from requesting the hearing due to . . . the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent." 20 U.S.C. § 1415(f)(3)(D)(ii). Similar to the holding in Bd. Of Educ. v. C.M., 744 Fed. Appx. &, 11
2018, where the Court declared that the Parents should have known at the point that they retained an advocate, here, there is no indication in this record that the Parents actually knew what their rights were. They did not hire an educational advocate, nor did they file a complaint notice until 2018. Only after they took the financial initiative to acquire an evaluator and retain a private attorney did they begin to excersise their procedural prerogatives pursuant to the IDEA. The fact that they engaged the services of a therapist and a tutor for the Student without having ever received a proper notice of their due process rights further supports my conclusion that the Statute of Limitations was tolled in September 2013.
The District effectively ignored the Parents’ numerous requests for supports and services, (P #23, pp. 1-3 (concerns expressed in e-mail to District personnel, 2012), P #30 (follow-up inquiry regarding Student, 2013), P #33 p2 (e-mail request for more testing, 2013), P #88 (Set up meeting regarding Student - October, 2013), P #89 ( e-mail concerning eye doctor, etc. - February, 2014), P #34 (on-line intake for ADHD and Autism - November, 2013), P #38 (e-mail to District raising concerns about reading 2014). P #40 ( need for possible vision services, 2014), P #42 (Student status at school, May, 2014), P #57 (email discussion concerning reading tutor- Student failing four classes, October 2017). Under these circumstances, the failure to provide providing appropriate notices violates 34 CFR § 300.504(a), 34 CFR § 300.507, 8 NYCRR § 200.5(i) and § 200.5(j).
Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y.
1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.
For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176.
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
As applied to this case, relative to the specific issue of tolling of the statute of limitations, I find that lack of notice, coupled with the longstanding relationship the Parent had with the District resulted in significant impedance of the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education. As detailed throughout this record, the Parent had ongoing correspondence, telephone calls, and meetings with District personnel. Given this informal relationship, I point to the startling advice offered by the District as related in the Parent’s testimony: “[During the meeting with the Director of Pupil Services], I asked her for help in understanding how to help [the Student]. She instructed me to find a parent who had already been through the CSE process for help”. (IHO #6). The failure to provide the notice was not only a technical violation, but here, the Parent was actually disadvantaged in this case, even if by inadvertence. As a result of this procedural violation, I find that a FAPE was denied during the 2013-2014 school year and the subsequent years until the end of the 2017-2018. This issue was not corrected but even worsened over the next four years (see history above) when academically the struggles became more apparent. Still no comprehensive evaluation, nor was there any notice of procedural rights.
Aside from the September 2013 “notice failure”, I am not convinced that there was actual harm to the Student. Her grades appear to be on track (P #44 & D #33, D # 34)By the fifth grade however the reliance on the RTI protocols was misplaced. The grades fell consistently throughout the year (D # 35) An RTI process does not replace the need for a comprehensive evaluation. See, Greenwich Bd. Of Educ. v. G.M. 2016 WL 3512120 @ 8 (D. Conn., June 22, 2016); Letter to Zirkel, 47 IDELR 268 (OSEP 2007).
504 Claims To recover under Section 504, the pleading must allege facts that, if true, establish that: (1) the student is disabled; (2) the student is otherwise qualified to participate in school activities; (3) the school or the board receives federal financial assistance; and (4) the student was excluded from participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability (See Gabel ex rel. L.G. v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, at 334 (S.D.N.Y. 2005); see also Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, at 483 (S.D.N.Y. 2007) (noting that a plaintiff bringing a § 504 claim must demonstrate that she is disabled and that she has been excluded from federal benefits “because of his or her disability” (citing Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990)). A student is ‘otherwise qualified’ if he meets all of a program’s other essential requirements; that is, he is functionally able to participate in school activities (See Sch. Bd. Of Nassau County v. Arline, 480 U.S. 273, 288 n. 17 (1987); 7 C.F.R. § 15b.3(n)(4); 34 C.F.R. § 104.3(l)(4) (describing ‘otherwise qualified’ in the employment context)).
In this case, I find that the measures regarding the Student discipline (P #21, P #22, P #24, P #25, P #26, P #27, P #28, P #29, and P #30) were taken in the ordinary course as a response to the behavior displayed by the Student at that time. There is no proof of discrimination toward the Student based on any potential disability. Specifically, no disability was known at that time.
The fourth element of a Section 504 claim, that such discrimination on the basis of disability, requires more than proof of a mere violation of the IDEA (i.e., more than a faulty IEP). Gabel, 368 F. Supp. 2d at 334. To be successful on a Section 504 claim, a plaintiff must put forth evidence that she was “denied a federal benefit because of h[er] disability." Pinn, 473 F. Supp. 2d at 484 (emphasis in original); see also Gavrity v. New Lebanon Cent. Sch. Dist., Nos. 05-CV-1024, 06- CV-317, 2009 U.S. Dist. LEXIS 90190, 2009 WL 3164435, (N.D.N.Y. Sept. 29, 2009), at *37 (noting that a § 504 claim requires a plaintiff to show that “he has been denied the benefit by reason of his disability”). Furthermore, it must be the product of deliberate or reckless indifference to the student’s federally protected rights, i.e. the school district must act with “bad faith or gross misjudgment” (See Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998) (noting that intentional discrimination under the Rehabilitation Act may be inferred from “at least deliberate indifference to the strong likelihood that a violation of federally protected rights will" occur), vacated on other grounds, 527 U.S. 1031, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999); Pinn, 473 F. Supp. 2d at 483 (“Where a plaintiff asserts denial of a free appropriate public education . . . , plaintiff must demonstrate bad faith or gross misjudgment.”); Gabel, 368 F. Supp. 2d at 334 (noting that a Rehabilitation Act claim may be brought if “a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE”).
To be clear, my findings show that there was a denial of FAPE since September 2013. However, in this case there is no evidence that proves that the Student was denied a federal benefit because of her disabilities. In reviewing the record in this case, despite the allegations and despite the characterization of the proof, I cannot make a finding that there was any intentional link or causation between the actions/inactions regarding the Student and the knowledge of any disability.
To take the perspective of the District, it is arguable that there was no basis to refer the Student to the CSE prior to May 20, 2018. For example, according to the District, during the 2016-2017 school year, the Student was released from RTI in January 2017 based on her Fountas and Pinnell scores, progress monitoring and data from the classroom teacher (T. 349). They argue that the reason the Student had failing grades in the beginning of the 2017-2018 school year was because she did not turn in all of her homework assignments and the required skills in reading changed, making reading more difficult for all the students at the beginning of 6th grade. They maintained that after the Student resumed RTI and adjusted to middle school, her grades improved and there was no reason to refer the Student for evaluation as a student with a disability. They claim that performance on the New York state assessments did not determine eligibility for either special education services or RTI services. Therefore, any 504 claims by the plaintiff is without any substantive grounds in this litigation. The District arguments go on like this (IHO #11). Although I do not endorse this viewpoint, neither can I say that the Parents have proven otherwise.
As I turn my attention to the remedy, I want to be clear that the finding relative to 504 is not inconsistent with the multiple findings regarding IDEA. The former requires the Parent to come forward and prove their allegations that the District is essentially, worthy of sanction. This was not done. True, over a great number of years there were isolated mistakes by professional teachers and administrators, at times there were some unfortunate comments and the protocols were violated, but, even so, I do not find the malfeasance or recklessness that the statute requires. On the other hand, with respect to the long-term violations of FAPE, it was the District’s burden of proof. Even if I accept the reasonable explanations of District’s counsel why the District’s actions mitigated or in fact prevented educational deprivation, there was not serious rebuttal to the facts that demonstrated exclusion, or impedance of, the Parents’ opportunity to participate in the IDEA procedures. Further, there was little development of the record regarding alternate remedies than what were proffered by the Parents. Ultimately it is the District’s burden to negate the IDEA claims and there are simply too many unanswered questions in the record for me to decide in their favor. With these last thoughts, I turn to the bullying allegations.
Bullying Here, I frame the issue as whether the Student has improperly been subjected to bullying such that the District shall become responsible for the denial of a FAPE. The short answer is not on this record, and before getting to my reasoning I shall set forth the existing legal standard which I adopt:
The applicable standard should take into account administrative advice that has long been given to schools in how to apply the IDEA and other child protective legislation. By giving weight to this guidance, the expectations of the parties are not upset, and precise notice of expected conduct is provided. To that end, under IDEA the question to be asked is whether school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.
This standard does not impose a new obligation on schools. For at least ten years the Department of Education has informed schools that they are legally obligated to comply with it. A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment. Earlier, the Department of Education had advised schools that “[w]hen disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively. Where the institution learns that disability harassment may have occurred, the institution must investigate the incident promptly and respond appropriately.” Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. (citation omitted). Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. (citation omitted).
The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination. It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability. In its October 2010 Bullying and Harassment letter, the Department of Education provides an illustration of when a school is required to act, and what type of response is required. It is useful in applying the above test. A hypothetical student with a disability is verbally teased by other students and on one occasion is tackled, hit with a binder, and has his personal affects thrown in the garbage. DOE Bullying and Harassment Letter at 8-9. The student approaches teachers and guidance counselors who suggest counseling, but they do nothing to punish the bullies. Id.
The bullying then continues and the student, who was once doing well, begins showing the signs of victimization at the hands of other children. Id. at 9. The school in this hypothetical responded in part to the bullying, in offering the student counseling to deal with what he was going through. But it did not respond adequately. It did not fully investigate the bullying or punish those who were perpetrating the harassment. In this example, the school deprived the student of his educational benefit. T.K. v. NEW YORK CITY DEPARTMENT OF EDUCATION
(E.D.N.Y. 4-25-2011), 779 F. Supp.2d 289 (internal citations omitted).
Here, the District was confronted with a complaint notice that alleged bullying and very little was made of the allegations. The Parents assert that Cognitive Behavior Therapy was employed to deal with the aftermath of the bullying (P’s #13 & 14, IHO #6 p.4 & P #42; Tr. pp. 146-147). There was only a passing mention of this in the Parents’ brief and very little tie -in to the need for therapy. The District did not pursue this claim either.
Going forward, I presume the parties will be conscious of the responsibilities as noted above. In any event, taken at face value, the situation at school actually did “affect the opportunity of the student for an appropriate education” (supra). Payment for the past remedial services is in order as an equitable matter, even though I find that the matter was essentially abandoned during the hearing. I will limit the reimbursement to 15 sessions.
Compensatory Education Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . .
mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].
The Student in the instant case has been presented by the District witnesses as alternately needing extra help through AIS and having the potential to perform very well (see WISCV scores). There is a suggestion that the Student has learned to compensate for her disabilities at times and at other times performs less well because of issues of homework completion. The fact that the parties failed to invoke the CSE process before 2018 leaves many gaps in the record. (At one point the District candidly explained that they destroyed records to save space (Tr. p.107). Because there is no significant baseline data, it is speculative to predict the progress that should have, or could have been made by the Student, if all were as it should be. Thus, a qualitative analysis is guesswork at best.
Notwithstanding the difficulty with the above, certain aspects of the remedy are readily quantifiable, i.e., the cost of the evaluation that the Parents procured in 2018 leading up to the CSE referral: the private auditory processing evaluation; the cost of Cognitive Behavior Therapy: the cost of tutoring sessions, etc. (SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13- 236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 &13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).)
In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; The problem in this case is the specific denial of FAPE was the interference with the Parents’ participation from 2013 through 2018. Not necessarily the deprivation of educational benefits. (Although I do make the remand for the CSE to include a multisensory reading program which is a direct result of the faulty 2018-2019 IEP).
So, my intent then, is to fashion a remedy that will refund to the Parents the out of pocket costs they incurred in educating their daughter since December 2013 when, if there were failures in the educational benefits afforded to the Student, they would have been exposed, to give the Parents a reprieve from the uncertainty of the litigation process and afford them an opportunity to meaningfully participate in their daughter’s education going forward. First, by receiving parent counseling and training, but also, to encourage them to continue to participate in parent teacher conferences, dialogue with teachers and administrators engagement with the CSE and other opportunities as they go forward. This order seeks to correct the miscommunication between the Parties and focus the remedy on the Student to offer an opportunity to make meaningful progress toward her educational potential. As time moves forward, new teachers will forge new relationships with the Student, and hopefully, the Parents as well. The CSE is an organic body that seemingly has a new roster every time they meet. I will proceed by reviewing the recommendations in the record and finally make some comments and the order in this case.
Student’s Needs Reading
The Psychologist stated: “. . . my evaluation determined that based on [the Student’s] significant difficulties in reading accuracy and fluency, decoding and underlying reading processes of phonological awareness and orthographic processing, she meets diagnostic criteria as a student with Dyslexia, a language – based reading disability”. (IHO #3)
Attention Deficit Hyperactivity Disorder The Psychologist stated that the results of the parent and teacher ratings and the neuropsychological assessment indicated that the Student meets diagnostic criteria for attention deficit hyperactivity disorder, combined presentation. She said that the Student’s ADHD diagnosis should be noted on her IEP, accommodations should be provided and that teachers should be aware of the Student’s executive functioning deficits and provide scaffolds/supports as needed (IHO #3).
Auditory Processing Disorder The Student was diagnosed with a central auditory processing disorder on June 15, 2018 (P #12) and services were recommended including classroom modifications and a Hearing Assistance Technology device and remediation for decoding difficulties.
Emotional The Student receives cognitive behavioral therapy for anxiety (P #7). The Parent has described the Student as socially awkward and said, “she doesn’t fit in anywhere.” (T. 635). The Student’s Parent testified that the District did not provide the Student with counseling services (T. 483). The Student did not receive social skills training (T. 482, 636), and the Parents did not receive parent counseling and training. (T. 636).
Recommendations In her affidavit, the Psychologist made the following recommendations: 1. An appropriate IEP with reading instruction to address the Student’s dyslexia; speech therapy; cognitive behavior therapy; social skills training; and parent counseling and training. 2. Further assessment by an independent evaluator to address the Student’s visual verbal memory. 3. Remediation by an independent provider to address the Student’s functional memory.
4. An educational account funded by the District to provide compensatory supports and services to the Student. 5. Reimbursement for costs incurred by the Student’s Parent including reading tutoring, cognitive behavioral therapy, Kindle devices, software, and evaluation expenses (IHO #3) (Also see P #7).
I have adopted the spirit of the Psychologist’s recommendation, having relaxed the intensity of the delivery of this new program and the remaining requests for compensatory education for three reasons. One, I am confident in the CSE and their ability, guided by the private evaluation (P #7) and the other evaluations developed over time, to make good decisions about the Student’s needs and related services going forward. Two, I am persuaded by testimony that the Student’s placement in the proper learning environment, called for in this order, will enable the Student to make progress. Three, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, counseling, related services, etc., may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order. In conclusion, I issue the following orders:
- A remand to the CSE6 with the following directive: The 2018-2019 IEP shall be modified to include goals and programming utilizing specialized reading instruction
Implementation shall be effectuated within sixty (60) days of this order.
- The District shall provide reimbursement for costs incurred by the Parents subsequent to December 2013, including reading tutoring, cognitive behavioral therapy 15 sessions), Kindle devices, software, and evaluation expenses upon presentation of the invoices for same . - The District shall provide for a bank of two hundred and fifty (250) tutoring hours to be available to the Student over the next five (5) years for the subjects of reading, writing and math. The use of the hours toward particular subjects and the timing of such services is left to the discretion of the provider and Parents. Any unused hours at the end of the five (5)-year period shall be forfeited. - The District shall provide for a bank of fifty (50) hours of parent counseling and training to be available to the Parents over the next five years. Any unused hours at the end of the five-year period shall be forfeited.
The District shall provide for a bank of fifteen (15) hours of therapy ( such as CBT)
to assist with the transition into the programming contemplated in this order. Any unused hours at the end of a one (1)-year period shall be forfeited. - Additional evaluations in the areas of functional behavior, speech-language, occupational therapy, physical therapy, and assistive technology are to be performed at the discretion of the CSE as there mandate requires. - Parents may obtain updated Independent Educational Evaluations at District expense for the Student one time every two years in each area of ongoing disability for the next six (6) years to be paid upon submission of the evaluation to the CSE and presentation of a market rate invoice.
Dated: August 3, 2019
So Ordered, __________________
Martin J. Kehoe III, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before the 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. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be viewed. 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 to the 25- for 35-day period.” 8 NYCRR §279.2(b). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
Footnotes
[1] In September 2017, the Student was failing four subjects, which led to her placement in RTI again. (D. #6, D. #7, T. 89). The JSSP testified about the Student’s services starting in the fall. He said that in September 2017, the District notified the Student’s Parents that she was recommended for Tier 2 based on her testing results. She was recommended to receive Tier 2 intervention in the strategic learning center, Tier 2 math intervention, and Tier 3 intense intervention. In October 2017, the District informed the Parents of the need for Tier 2 RTI services (IHO #2). The Parent testified that the Student continued to receive tutoring from the Private tutor that school year (IHO #6). The Parent stated that she contacted the Student’s teacher on October 4, 2017 requesting a meeting about the Student’s problems with homework. She said the Student continually forgot to do her homework or to bring it to school. (Exp. IHO #6). The Parent stated that on October 23, 2017, she requested a meeting with the Student’s teacher because the Student was failing four classes (IHO #6). The Parent stated that she emailed the School Counselor on November 2, 2017, expressing her concerns about the Student’s grades and asking to have the Student evaluated. She said that the School Counselor recommended that she send the evaluation results to the Director of Special Education and the Co – Chair of the CSE and then she could request a CSE meeting to determine appropriate services. (IHO #6) The Director of Pupil Services conducted a psychological educational evaluation of the Student on June 1, 2018 (IHO #6)) 8
[2] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). 10
[3] The Parent stated that she had the Student evaluated again by the Psychologist in September 2018 because of attentional issues (P #6).
[4] In an email to the Parent, dated August 17, 2018, the Psychologist stated that she objected to the District not including her testing on the IEP and that there should be goals addressing reading, notation of the Student’s reading disability, and direct intervention in reading, and that the IEP should remove the statement that the Student’s reading fluency was average as it was not average in her testing (P #10) 13
[5] (d) PROCEDURAL SAFEGUARDS NOTICE (1) IN GENERAL (A) Copy to parents A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only 1 time a year, except that a copy also shall be given to the parents— (i) upon initial referral or parental request for evaluation; (ii) upon the first occurrence of the filing of a complaint under subsection (b)(6); and (iii) upon request by a parent 18
[6] I respect the CSE as an independent, deliberative body with unique experience in education. In this case, however, I am using this order to effectuate the equitable remedy to implement a specific methodology with concomitant goals. 34