NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
IHRS Case Number: 522526
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
[REDACTED], School Psychologist, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
[REDACTED], Speech and Language Pathologist, [REDACTED]
[REDACTED], Special Education Teacher, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
[REDACTED], Special Education Teacher, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
[REDACTED], Pediatric Language and Literacy Specialist/Program Consultant
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
[REDACTED], Pediatric Language and Literacy Specialist/Program Consultant
[REDACTED], Social Thinking Consultant
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 26, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2020
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
For the District:
[REDACTED], Attorney
[REDACTED], Attorney
[REDACTED], Director of Pupil Personnel Services & Special Education, [REDACTED]
[REDACTED], Assistant Superintendent for Pupil Personnel Services, [REDACTED]
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the parents of the student in a due process complaint notice dated January 14, 2019. The complaint, as amended, alleges a denial of a free appropriate public education (“FAPE”) for the 2016/17, 2017/18, 2018/19 and 2019/20 school years. As remedies, the parents seek reimbursement for private evaluations and services, provision of compensatory additional services and public funding of an independent educational evaluation (Exs. SD-1, IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law
§ 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.
§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR
§ 200.5(k).
II. PROCEDURAL HISTORY
On January 22, 2019, the Board of Education of the [REDACTED] School District (the “District”) appointed the undersigned to serve as the IHO in this matter (Ex. IHO-II). See
8 NYCRR § 200.5(j)(3)(i). In a due process response dated September 27, 2019, the District denied each and every allegation contained in the compliant (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4)-(5). The parties initially attempted to resolve the dispute via a negotiated settlement. Prehearing conferences with the parties were held on February 27, 2019, April 3, 2019, and May 9, 2019 to clarify the hearing issues and monitor the parties’ progress toward a negotiated settlement of the hearing. See 8 NYCRR § 200.5(j)(3)(xi). At the May 9, 2019 prehearing conference, the parties advised the undersigned that their negotiations had reached an impasse. The parents requested permission to file an amended due process complaint, on consent of the District, which was granted.
On August 15, 2019, the parents filed an amended due process complaint (Ex. SD-1). See 8 NYCRR § 200.5(i)(7)(1). Shortly before the first scheduled hearing, counsel for the student and parents advised the undersigned that they no longer represented the parents in matters concerning the education of their daughter (R. 4). Thereafter, the parents proceeded with the matter pro se. Hearings on the merits of this matter were held on: February 7, 2020; February 14, 2020; April 16, 2020; April 17, 2020; May 15, 2020; May 26, 2020; June 19, 2020; and July 20, 2020 (R. 1, 338, 595, 832, 1131, 1402, 1653, 1746; Exs. IHO-VIII, IHO-IX, IHO-XII, IHO-XIII).[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the August 15, 2019 amended due process complaint, the student was [REDACTED] years old and entering the [REDACTED] grade at [REDACTED] High School (Ex. SD-1 at 2). The student has a longstanding history of medical issues, including Medium-chain acyl-CoA dehydrogenase deficiency (“MCADD”), a condition that can be associated with brain injury, developmental delays and language disorders (Exs. P-B, P-C, P-O, P-P, P-Q at 1, SD-1 at 2, SD-12 at 1, SD-14 at 1, SD-18 at 1, 8, IHO-I at 2). The student has also been diagnosed with a learning disorder in mathematics and an Attention Deficit Hyperactivity Disorder (“ADHD”), inattentive type (Exs. P-Q at 1, P-R at 1, SD-1 at 2, SD-18 at 1). The student’s eligibility for special education and related services as a student with another health impairment is not in dispute in this hearing (Exs. P-D at 1, SD-1 at 2, SD-7 at 1, SD-14 at 1-2, SD-15 at 1, SD-19 at 1, SD-20 at 1, SD-24 at 1, SD-25 at 1, SD-29 at 1, IHO-I at 2).[3] See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(10).
From kindergarten through seventh grade, the student was a resident of the City of New Rochelle and was parentally placed at [REDACTED], a private school in [REDACTED] (Exs. SD-1 at 2, SD-2 at 1, SD-3 at 3, SD-14 at 2). For the 2016/17 school year, the student’s eighth grade, the District’s CSE developed an Individualized Education Services Program (“IESP”) which recommended a resource room, two (2) times per week for ninety (90) minutes; group (3:1) speech and language therapy, once per week for thirty (30) minutes; and group social skills, once weekly for sixty (60) minutes (Exs. SD-1 at 2, SD-2 at 1, SD-7 at 1).[4] As the student was attending a nonpublic school, the District provided her with recommended speech and language therapy services using a private provider, i.e., Dramatic Pragmatics (Exs. SD-1 at 2, SD-2 at 1).
In eighth grade, the student moved into the District and attended the [REDACTED] Middle School. The CSE convened on October 5, 2016 to develop an IEP for the student for the 2016/17 school year. The CSE recommended that the student’s general education instruction be supported daily by integrated co-teacher (“ICT”) services in Language Arts and daily support in a resource room (5:1).[5] The CSE also recommended that the student receive related services of small group (5:1) speech and language therapy, once weekly for forty (40) minutes, and small group (5:1) social skills services, once weekly for forty (40) minutes (Exs. P-D at 1, 9-10, SD-1 at 2-3, SD-2 at 1-2). The parents expressed a desire for the student to continue receiving recommended speech and language therapy services from [REDACTED] after school, rather than as a pull-out service during the school day. The assigned speech and language pathologist responded that receiving the service in school would benefit her transition but agreed to not pull the student out of academic periods for therapy services (R. 355; Ex. P-D at 2).
In November and December 2016, the CSE conducted a reevaluation of the student to determine the student’s then-current educational needs and continuing eligibility for special education services (Ex. SD-14 at 1).[6]
On November 10, 2016, the student participated in an educational evaluation during which she was administered the Wechsler Individual Achievement Test – III (“WIAT-III”) and a writing fluency subtest of the Woodcock Johnson Test of Achievement – III (“WJ-III”). The student’s overall composite scores fell in the below average to above average ranges. In general, it appeared that the student’s reading skills were an area of relative strength for her, while her mathematical skills were not as developed. Within the area of reading, the student’s ability to read sight words was more developed then her ability to respond to comprehension questions. No discrepancy was found between her pseudoword decoding and word reading skills. In the area of math, the student’s ability to calculate operations appeared to be a greater strength than her problem-solving skills. In the area of writing, the student’s spelling skills were seen as a relative strength when assessed by writing words in isolation. Her ability to generate an essay to describe her favorite game was seen as a relative strength as well. The student’s overall performance in writing was not impacted by deficits in mechanics, theme or organization (Exs. SD-10 at 1, 4, SD-11)
During a psychological evaluation, conducted over several days in November 2016, the student was administered the Wechsler Intelligence Scale for Children – Fifth Edition (“WISC-V’) which is an individually administered measure of intellectual ability for children 6 to 16 years old. The WISC-V generates a Full-Scale IQ which represents a child’s general intellectual ability as well as five primary index scores that indicate functioning within cognitive domains. The five cognitive domains include Verbal Comprehension, Visual-Spatial, Fluid Reasoning, Working Memory, and Processing Speed. Standard scores on cognitive domains ranging from 90-110 are considered within the Average range. Overall, the student’s Full-Scale IQ of 105 was within the Average range indicating that her cognitive abilities were well developed and similar to that of her same age peers (Ex. SD-14 at 3). The student’s Verbal Comprehension (106), or language-based reasoning abilities, was within the Average range. The student’s Visual-Spatial (102) and Fluid Reasoning (106) abilities were within the Average range, indicating that she was able to perceive and determine underlying conceptual relationships when information was presented visually. The student’s Working Memory (117) was in the High Average range and an overall strength within her cognitive profile. The student’s performance on Processing Speed (92) was also within the Average range (Exs. SD-14 at 5-6, SD-18 at 3).
Information regarding the student’s social, emotional, and behavioral functioning was gathered through the Behavior Assessment System for Children – Third Edition (“BASC-3”), which was completed by the student and her mother. For the clinical scales, scores between 60 and 69 are in the “at-risk” range, while scores of 70 or higher are in the “clinically significant” range. For the adaptive scales, scores between 31 and 40 are in the “at risk” range, while scores 30 or lower are in the “clinically significant” range (Ex. SD-14 at 4). Responses on a self-report and parent report rating scale indicate that the student’s level of Depression, Withdrawal, Attention Problems, Leadership, Functional Communication, Locus of Control, and Interpersonal Relationships were within the At-Risk classification range. Specifically, the student and parent reported that the student felt things go wrong for her when she tries hard, that she gets blamed for things she does not do, that at times she can feel sad and lonely, that she has a hard time making friends, and that she often feels uncomfortable around others. The student’s Somatization and Self-Esteem were in the Clinically Significant range. Specifically, the student reported that she wishes she were different, that her looks bother her, and that she often experiences stomach aches (Ex. SD-14 at 6).
The student also participated in a speech and language reevaluation, on November 30, 2016 and December 2, 2016, during which she was administered the Comprehensive Assessment of Spoken Language (“CASL”), the Test of Adolescent/Adult Word Finding – Second Edition (“TAWF-2”) Brief Test, and the Social Language Development Test – Adolescent. Results of the CASL indicated high average skills in the areas of: understanding the meaning of spoken messages independent of the literal interpretation of the surface structure, knowledge of the meaning of spoken words in a linguistically decontextualized environment, and judgement of, and ability to, correct the grammar of sentences. The student demonstrated average skills in the auditory comprehension of words that refer to basis perceptual and conceptual relations, derivation of the mearing of words from their oral linguistic context, and knowledge and use of pragmatic language rules and judgment of their appropriate application. Word finding abilities, as evaluated by the TAWF-2, were also found to be within the average range (Word Finding Index – 90). All subtest scores of the Social Language Development Test – Adolescent, administered to evaluate the student’s ability to take someone else’s perspective, make correct inferences, solve problems with peers, interpret social language, and understand idioms, irony and sarcasm, were in the average to above average ranges (Exs. SD-13 1, 3-4, SD-18 at 3-4).
On February 6, 2017, the CSE reconvened to review the results of the reevaluation and develop an IEP for the student for the 2017/18 school year (Ex. SD-15). By that point, the student had ceased participating in recommended related services (R. 354-355). The student’s mother informed the CSE that the student did not want to participate in related services on a pull-out basis (Exs. SD-15 at 2, SD-17 at 3-4). The student, instead, continued to participate in private after-school speech and language therapy with [REDACTED] at parental expense (Ex. P-K at 1). The parents also objected to the composition of the recommended social skills group, which they understood consisted of two boys with low functioning autism (R. 981, 1284-1285, 1357; Ex. P-PP at 15).
The February 2017 CSE recommended that the student’s general education instruction continue to be supported by daily ICT services in Language Arts and daily support in a (5:1) resource room. The CSE added individual counseling, two (2) times monthly, to the student’s IEP to address self-esteem and social and emotional issues during the student’s first year of high school (Ex. SD-2 at 2, SD-15 at 1, 9, SD-18 at 3). Speech and language therapy and social skills were discontinued, both due to improvement relative to the student’s speech and language abilities from when she was last assessed, and her unwillingness to access those services at school (Exs. SD-4, SD-13, SD-15 at 1-2, SD-17 at 3-4, SD-18 at 3).
At the conclusion of the 2016/17 school year (eighth grade), the student earned the following grades: Art (half-year) 93, Drama (half-yar) 93, Health (half year) 97, P.E. - 93, Social Studies - 72, Algebra - 86, Resource Room - 97, Physical Science - 70, and English – 76. The student’s final exam grades for full year courses were: Social Studies – 55, Algebra – 88, Physical Science – 60, and English 65 (Ex. SD-16). The student’s end-of-year IEP progress report indicated that she achieved her reading goal, achieved one of two writing goals, and achieved both of her math goals. The student did not achieve either of her study skills goals and one of two of her writing goals (Ex. SD-17). The student scored a Level 1 on her New York State English Language Arts Assessment administered in the spring of 2017. Students performing at that level are well below proficient in standards for their grade (Ex. P-I).
In September 2017, the student began attending the ninth grade at [REDACTED] High School. On November 28, 2017, the student participated in a neuropsychological evaluation conducted by [REDACTED]. Overall, testing results indicated that the student has intact intellectual, memory and motor functioning. However, the student’s neurocognitive profile was notable for weaker processing speed relative to her other skills, and learning issues in the areas of mathematics. She also exhibited attentional difficulties, as well as difficulties with executive functioning. Her lack of attention to detail, difficulty focusing, and skipping over important information all impact her academics. The student also demonstrated weaknesses in comprehension of information and verbal fluency, which could impact her ability to keep up with the classroom pace as well as with conversations (Ex. SD-18 at 7).
On March 16, 2018, the CSE reconvened to develop an IEP for the student for the 2018/19 school year. The CSE recommended that the student’s general education instruction be supported by daily ICT services in Language Arts and math and daily support in a small group learning center. The CSE also recommended that the student receive small group (5:1) counseling, once weekly for forty (40) minutes (Ex. SD-19 at 1, 9). During the March 2018 meeting, the student’s special education teacher reported that she observed the student to “zone out” at times: “When she’s reading and listening, she comprehends, but there are times in class and resource room that she will stare blankly” (Ex. SD-19 at 2).
In response to the special education teacher’s report, the parents had the student evaluated by her geneticist, [REDACTED], a neurologist, [REDACTED], and her neuropsychologist, [REDACTED] (Exs. P-O, P-P, P-Q, P-R). [REDACTED] ruled out the presence of seizures and determined that the student’s episodes “emanate from a high level of distractibility” consistent with ADHD (Exs. P-R at 1, SD-20 at 1).
On March 22, 2018, the CSE reconvened for a program review. After considering [REDACTED] evaluations, the student’s special education teacher agreed that the student’s attention was inconsistent, with a tendency to be more focused on material which interested her. The school psychologist recommended developing the student’s metacognition and executive functioning skills by learning to use a self-monitoring checklist in her learning center. The CSE recommended the addition of individual counseling, twice monthly for fifteen minutes, to the student’s program for the 2018/19 school year. The parents requested that the CSE provide services to address the student’s language difficulties, but their request was denied on account that the 2016 speech and language reevaluation reflected average general and social language abilities. The parents disagreed with the CSE’s analysis and requested an independent educational evaluation (“IEE”) (R. 1780; Ex. SD-20 at 1-2).
The District ultimately agreed to fund an independent language evaluation of the student at public expense. On several dates in July 2018, the student was evaluated by [REDACTED], a speech language pathologist affiliated with [REDACTED], who administered a number of standardized language assessments to the student. [REDACTED] findings indicated that the student’s daily and academic functioning were impacted by her language weaknesses and deficits in attentional regulation and executive functioning. [REDACTED] diagnosed the student as having a Mixed Expressive-Receptive Language Disorder and recommended that she continue to participate in individual language therapy to develop strategies for improving language skills (Ex. SD-23 at 10-11).
The CSE reconvened on October 15, 2018 to review the results of the independent language evaluation conducted by [REDACTED]. [REDACTED] commented that the student’s attention regulation and executive functioning deficits were evident throughout the testing (Ex. SD-23 at2). School members of the committee expressed concern that the evaluation was administered to the student after her tennis practice, which may have exacerbated attentional regulation deficits and executive functioning difficulties. [REDACTED] report noted weaknesses in spoken analogy, multiple meaning words, word retrieval, language flexibility and word derivations (R. 399; Ex. SD-23). The school psychologist on the committee reported that she was working with the student on social skills and that the student’s anxiety, rather than a language deficit, was impacting her social interactions. The speech pathologist on the committee commented that the deficits noted in the evaluation would be better addressed within the context of the school curriculum, rather than as an outside service. The student’s teachers reported that she was succeeding academically in school up to that point, with a 100 average in Chemistry and a 91 average in Global Studies (Ex. SD-24 at 1-2).
At the October 15, 2018 CSE meeting, the parents requested that the student receive individual speech and language therapy, two-to-three times per week from [REDACTED], or someone “trained in metacognition,” at public expense. The committee’s chairperson stated that the student did not require speech services, and, even if she did, it would be provided to the student at the high school during the day and not through [REDACTED] after school. The CSE, instead, added goals to the student’s IEP regarding question analysis, annotating text, and previewing vocabulary (Ex. SD-24 at 2).
The CSE reconvened on April 4, 2019 to memorialize an IEP amendment agreement, made between the parents and the District, to include a one-to-one aide for school sanctioned after-school activities to monitor the student for dehydration (Ex. SD-25 at 1).
On June 10, 2019, the CSE reconvened to develop an IEP for the student for the 2019/20 school year. The CSE recommended that the student’s general education instruction be supported by daily ICT services in Language Arts and math and daily attendance in a special education support class. The CSE also recommended that the student receive small group (5:1) counseling, once weekly for forty (40) minutes and a one-to-one aide for school-sanctioned, after-school activities (Ex. SD-29 at 1, 14-15).[7]
At the June 10, 2019 CSE meeting, the parents again requested that the CSE fund the student’s receipt of private language therapy after-school. The committee chairperson proposed that the student’s speech and language needs be reevaluated. The parents, in turn, requested an independent evaluation. The chairperson explained that once the District’s testing was completed and reviewed, the parents could request an independent evaluation if they disagreed with the District’s testing (Ex. SD-29 at 3). The District asserts that the parents refused several requests for consent to conduct a reevaluation of the student’s speech and language needs (Exs. SD-37 at 7). The parents later secured (in August 2019) a social thinking dynamic assessment conducted by [REDACTED] (Ex. P-DD).
IV. POSITIONS OF THE PARTIES
A. The District The parents’ claims concerning the 2016/17 school year are barred by the relevant statute of limitations. The District offered the student a FAPE for the 2017/18, 2018/19 and 2019/20 school years. The District provided the student with academic and social skills supports from which she derived meaningful educational benefit over multiple school years. All of the parents’ claims for relief should be denied (R. 48-61; Exs. SD-2, SD-37).
B. The Parents The District denied the student a FAPE during the 2016/17, 2017/18, 2018/19 and 2019/20 school years. The District’s CSE failed to appropriately evaluate the student, failed to provide the student with measurable annual goals, failed to offer the student with appropriate programming and failed to implement its recommended IEPs. The District should be directed to reimburse the parents for private evaluations and services; provide the student with compensatory additional services; and fund an independent educational evaluation at public expense (R. 843-851; Exs. P-PP, SD-1, IHO-I).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[8]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471
F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203.
The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
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 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).[9]
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Statute of Limitations The District asserts that the parents’ claims concerning the 2016/17 school year are barred by the relevant statute of limitations (Exs. SD-2, SD-37).
The IDEA provides that a claim accrues on the date that a party knew or should have known of the alleged action that forms the basis of the complaint and requires that, unless a state establishes a different limitations period, the party must request a due process hearing within two years of that date. See 20 U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)(B); N.Y. Educ. Law § 4404(1)(a); 34 C.F.R. §§ 300.507(a)(2), 300.511(e); 8 NYCRR § 200.5(j)(1)(i); Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 747 (2d Cir. 2018); Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008); M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 (2d Cir. 2003).[10] The IDEA’s two-year statute of limitations is intended to ensure the timely and fair resolution of disputes arising under the statute. See R.B. v. New York City Dep’t of Educ., 2011 WL 4375694, at *7 (S.D.N.Y. Sept. 16, 2011).
Because an IDEA claim accrues when the parent knew or should have known about the claim, "determining whether a particular claim is time-barred is necessarily a fact-specific inquiry." See K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014); see also K.C. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at *14 (S.D.N.Y. Sept. 30, 2018). Generally, claims related to the conduct of a CSE meeting or the contents of an IEP accrue at the time of the CSE meeting, or at the latest, upon the parent’s receipt of the IEP. See F.L. v. Board of Educ. of Great Neck Union Free Sch. Dist., 274 F. Supp. 3d 94, 113-114 (E.D.N.Y. 2017), aff’d 735 Fed. App’x 38 (2d Cir. 2018); Board of Educ. of North Rockland Cent. Sch. Dist. v. C.M., 2017 WL 2656253, at *7-*9 (S.D.N.Y. June 20, 2017), aff’d 744 Fed. App’x 7 (2d Cir. 2018).
Two exceptions to the statute of limitations may apply to the timelines for requesting impartial hearings. The first exception applies if a parent was prevented from filing a due process complaint notice due to the school district withholding information from the parent that the district was required to provide under the IDEA. See 20 U.S.C. § 1415(f)(3)(D)(ii); 34 C.F.R.
§ 300.511(f)(2); 8 NYCRR § 200.5(j)(1)(i). A second exception may apply if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the school district that it had resolved the issues forming the basis for the due process complaint notice. See 20 U.S.C. § 1415(f)(3)(D); 34 C.F.R. § 300.511(f); 8 NYCRR § 200.5(j)(1)(i).
Based on the evidence contained in the hearing record, I find that the parents’ claims concerning the 2016/17 school year are barred by the relevant statute of limitations. In this case, the parents’ due process complaint challenges, among other things, the contents of an October 5, 2016 IEP which established the student’s educational program for the 2016/17 school year. The summary of the October 5, 2016 IEP entered into the hearing record indicates that the student’s mother was present at the October 2016 meeting and understood the recommendations made by the CSE at that time (Ex. P-D at 1-2). Accordingly, the parents knew or should have known of any concerns that the October 5, 2016 IEP did not offer the student a FAPE at the time of the CSE meeting. The parents’ claims with respect to the IEP thus accrued on October 5, 2016, expired on October 5, 2018, and were time-barred at the time the original due process complaint was filed on January 14, 2019 (Ex. IHO-I). See G.W. v. Rye City Sch. Dist., 11 Civ. 8208, 2013 WL 1286154, at *17 (S.D.N.Y. Mar. 29, 2013), aff’d, 62 IDELR 254 (2d Cir. Feb. 11, 2014).
Neither of the exceptions to the IDEA’s two-year statute of limitations are applicable here. No specific misrepresentation or withholding of information by school personnel has been alleged or established though evidence entered into the hearing record, which prevented the parents from filing their due process complaint earlier than January 14, 2019 or would otherwise toll the statute of limitations. See 34 C.F.R. § 300.511(f)(2); R.B. v. New York City Dep’t of Educ., 2011 WL 4375694, at *7 (S.D.N.Y. Sept. 16, 2011).
C. Sufficiency of Evaluations The parents assert that the District did not evaluate the student thoroughly in all areas of suspected disability and failed to identify all of her needs (Ex. SD-1 at 12).
Under federal and State regulation, a school district is responsible to conduct a "full and individual initial evaluation" before the initial provision of special education and related services to a student with a disability. See 34 C.F.R. § 300.301(a); 8 NYCRR § 200.5(b)(1). Under Federal regulation an evaluation must assess the student "in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities." 34 C.F.R. § 300.304(c)(4). Under State regulation, an initial evaluation must include at least: a physical examination; an individual psychological evaluation; a social history; an observation of the student; and other appropriate assessments or evaluation, including a functional behavioral assessment (“FBA”) for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities. See 8 NYCRR § 200.4(b)(1).[11] A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
Under federal and State regulation, a reevaluation of a student with a disability "must occur at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary." 34 C.F.R. § 300.303(b)(2); see 8 NYCRR § 200.4(b)(4). With respect to reevaluations, a school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4).
Federal and state evaluation procedures require that any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii); 8 NYCRR § 200.4(b)(1); Letter to Clarke, 48 IDELR 77 (OSEP 2007).
In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
Based the evidence entered into the hearing record, as discussed below, I find that the CSE had sufficient evaluative information to develop the student’s IEPs for the 2017/18, 2018/19 and 2019/20 school years. The District’s evaluations were sufficiently comprehensive, using a variety of assessment tools and technically sound instruments.
1. 2017/18 School Year The hearing record shows that the February 2017 CSE used the following information to develop the student’s IEP for the 2017/18 school year: teachers’ (anecdotal) progress summaries; a November 30, 2016 psychological evaluation, a November 30, 2016 social history, a November 30, 2016 speech and language evaluation, a November 10, 2016 classroom observation, a November 10, 2016 educational evaluation, and an August 30, 2016 physical evaluation (Exs. SD-9, SD-10, SD-11, SD-12, SD-13, SD-14, SD-15 at 3).
The psychological evaluation conducted in the fall of 2016 indicated that the student’s cognitive skills were intact. The student performed in the average range in all categories of cognition except working memory, which measured in the high average range (R. 97-98; Ex. SD-14). The student’s general fund of word knowledge and ability to think abstractly about information presented verbally measured within the average range (R. 376).
The student also scored in the average range on all assessments administered during the 2016 speech and language evaluation (Ex. SD-13 at 1). The student’s scores on the CASL, an assessment of the student’s spoken language, indicated average receptive and expressive language scores; an improvement from a 2014 administration of the same assessment (R. 368, 496; Exs. SD-4 at 2-3, SD-13). The speech and language assessments administered in 2016 targeted areas of concern, such as word retrieval and social language, on which the student scored in the average range (R. 368, 373, 450; Ex. SD-13). While I have considered [REDACTED] critiques of the CASL, and of the 2016 speech and language evaluation as a whole, which she stated relied too heavily on test administration and score reporting (R. 886-887, 903-904, 916), [REDACTED] August 2019 social thinking dynamic assessment did not offer the undersigned a credible alternative to the District’s evaluation, given the absence of any assessment tools or technically sound instruments from her assessment report (Ex. P-DD).
On the 2016 educational evaluation, the student demonstrated average reading skills in the areas of decoding, comprehension and oral fluency (R. 545; Exs. SD-10, SD-11). In the domain of writing, the student’s grammar, mechanics and essay composition skills all measured in the average range; with spelling skills falling in the above average range (Ex. SD-10). In mathematics, the student scored in the average range in numerical operations, but below average in problem solving (R. 545; Ex. SD-10).
The student’s social and emotional needs were assessed through both administration of a BASC-3 (as part of the 2016 psychological evaluation) and a social history. Results from the BASC-3 showed concerns with self-esteem and depression (Ex. SD-14 at 4-5). In the social history, the student’s mother reported that the student displayed low self-confidence, difficulty paying attention, difficulty staying on task and difficulty with transitions (R. 94; Ex. SD-12).
2. 2018/19 School Year
State and federal regulations provide that either an IEE or a private evaluation obtained at private expense "[m]ust be considered by the school district, if it meets the school district's criteria, in any decision made with respect to the provision of a [FAPE] for the student."
8 NYCRR § 200.5(g)(1)(vi)(a); see 34 C.F.R. § 300.502(c)(1).
In addition to the aforementioned evaluations, the March 2018 CSE reviewed the results of a private neuropsychological evaluation of student, conducted by [REDACTED] in November 2017, when it developed the student’s IEP for the 2018/19 school year (Exs. SD-18, SD-19 at 1). The November 2017 neuropsychological evaluation confirmed that the student’s continuing difficulties with executive functioning and inattention (Ex. SD-18 at 6). On a re-administration of the WIAT-III, the student’s reading skills measured in the high average range, but her ability to quickly do simple addition, subtraction and multiplication problems was variable (Ex. SD-18 at 4). Results of an administration of the Grey Oral Reading Test, 5th Edition (“GORT-5”) indicated that her reading comprehension, fluency, accuracy and rate had improved from a 2014 administration of the same assessment and were now in the average range (R. 120; Exs. SD-6 at 4, SD-18 at 5). Her performance on the Test of Written Language, 4th Edition (“TOWL-4’) was also in the average range (R. 120; Ex. SD-18 at 5).[12]
Following a special education teacher’s report of the student “zoning out at times” (Ex. SD-19 at 2), the parents consulted with [REDACTED] (a neurologist), [REDACTED] (the student’s MCADD specialist), and [REDACTED] (a neuropsychologist). Their written reports were considered at a program review CSE meeting held on May 22, 2018 (Exs. SD-20 at 1-2, P-O, P-P, P-Q, P-R). [REDACTED] determined that the student’s “zoning out” behavior was attributable to attentional issues, and not seizures (Exs. P-P, P-R). [REDACTED] again recommended speech and language therapy for the student, which the CSE declined (Exs. SD-20 at 1-2, P-Q). The parents then requested an independent language evaluation, which was granted.
The CSE reconvened on October 15, 2018 to review the results of the independent language evaluation conducted by [REDACTED] of [REDACTED]. [REDACTED] commented that the student’s attention regulation and executive functioning deficits were evident throughout the testing (Ex. SD-23 at 2), which the school members of the committee attributed to the evaluation being administered to the student after her tennis practice (Ex. SD-24 at 1-2). [REDACTED] report noted weaknesses in spoken analogy, multiple meaning words, word retrieval, language flexibility and word derivations and recommended individual language therapy (R. 399; Ex. SD-23 at 11). Another speech pathologist in attendance at the October 2018 meeting challenged that recommendation and asserted that those deficits would be better addressed within the context of the school curriculum, rather than as an outside service (Ex. SD-24 at 1-2). Again, while the October 2018 CSE did not ultimately adopt [REDACTED] recommendation for private language therapy, it fulfilled its regulatory obligation to consider the private evaluation’s results and recommendations.
3. 2019/20 School Year
On June 10, 2019, the CSE reconvened to develop an IEP for the student for the 2019/20 school year. At the meeting, the parents shared with the other committee members a June 6, 2019 letter from [REDACTED], who stated that the student struggles with social connections (Exs. P-W, SD-29 at 2). [REDACTED] stated that the student can misread social cues and responds to language literally (Ex. P-W). The parents reported that the student has social anxiety, that she is never invited to socialize with peers and that she sits alone on the bus (Ex. SD-29 at 2). The school psychologist countered that the student made significant growth socially, that she had expressed that she was feeling better about school and was learning to manage her anxiety, and that she had peers to sit with during the lunch period (Ex. SD-29 at 2).
In addition to the June 6, 2019 letter from the social worker, the CSE also reviewed the student’s transition plan. Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including postsecondary education, employment, and independent living. See 20 U.S.C. § 1401(34); see also 34 C.F.R. § 300.43; N.Y. Educ. Law § 4401(9); 8 NYCRR § 200.1(fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations), or younger if determined appropriate by the CSE, must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(i)(VIII); 34 C.F.R. § 300.320(b); 8 NYCRR § 200.4(d)(2)(ix). State regulations additionally require school districts to conduct vocational assessments of students starting at age 12 to determine their "vocational skills, aptitudes and interests." See 8 NYCRR § 200.4(b)(6)(viii).
In the case, the District offered no evidence of any transition or vocational assessments of the student, who, at the time of the June 10, 2019 meeting, was 16.2 years old (Ex. SD-29 at 1). This omission if of concern, as the parents shared at the June 2019 meeting that the student “is not able to work and that college is being discussed,” as was a “gap year, to get ready for college to include social communication” (Ex. SD-29 at 3). Without any evidence of the transition or vocational assessments which the District may have conducted, I cannot evaluate the sufficiency of those assessments or the adequacy of recommended transition services for the student. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 10-13 (SRO Feb. 15, 2014).
While the absence of transition and vocational assessments of the student constitutes a procedural violation, see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6, *9 (S.D.N.Y. Mar. 21, 2013), I find that it did not impede the student's right to a FAPE or cause a deprivation of educational benefits, see 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii). Nevertheless, the District will be directed to conduct transition and vocational assessment of the student for review by the CSE upon their completion.
E. Independent Educational Evaluation (IEE)
In their amended complaint, the parents allege that following their request for “an IEE in the area of neuropsychology,” the District failed to either authorize the IEE or commence due process proceedings to demonstrate that its evaluation of the student were appropriate (Ex. SD-1 at 12).
The IDEA provides parents with a number of procedural safeguards. Among them is the "right... to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. §§ 300.502(a)(1), (3)(i). Parents who express a disagreement with an evaluation conducted by the school district also have the right to seek an IEE conducted at public expense in some circumstances. See 34 C.F.R. § 300.502(b); 8 NYCRR §§ 200.5(g)(1), 200.16(d)(3); see also K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012) (noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"); M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 (S.D.N.Y. Mar. 5, 2012); M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 (N.D.N.Y. Mar. 8, 2013); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information). “The IDEA does not provide a statute of limitations for a parent’s right to disagree with an evaluation for the purpose of obtaining an IEE at public expense.” D.S. v. Trumbull Bd. of Educ., 19-644, 120 LRP 28133 (2d Cir. Sept. 17, 2020).
If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either: (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); 8 NYCRR §§ 200.5(g)(1)(iv), 200.16(d). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the school district will not be required to provide it at public expense. See 34 CFR § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). An IEE must use the same criteria as the public agency's criteria. See Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 (5th Cir. 2016). Informal guidance from the United States Department of Education's Office of Special Education Programs (“OSEP”) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area, see Letter to Baus, 65 IDELR 81 (OSEP 2015).
The parents here are not entitled to an IEE at public expense. In an email dated May 30, 2019, the student’s mother requested the District’s list of qualified providers for psycho-educational evaluations and speech and language evaluations (Ex. P-OO). At the June 10, 2019 CSE meeting, the parents asked for an independent evaluation in response to the chairperson’s proposal to complete a speech and language evaluation of the student (Ex. SD-29 at 3). In a June 26, 2019 email to [REDACTED], the District’s then-Director of Pupil Personnel Services, the student’s mother clarified that she was requesting a psychoeducational evaluation (as distinguished from a neuropsychological evaluation). Later that same day, [REDACTED], on behalf of the District, denied the parent’s IEE request via email (R. 1793; Ex. P-NN at 1).[13] As the parents here never expressed a disagreement with an evaluation conducted by the District as the basis for their IEE request, I find that they are not entitled to either an independent neuropsychological or psychoeducational evaluation at public expense.
F. Sufficiency of Annual Goals & Progress Reporting The parents assert that the District’s IEPs did not include measurable annual goals designed to meet the student’s needs that result from her disability (Ex. SD-1 at 13).
An IEP must include a written statement of measurable annual goals, including academic and functional goals, designed to: (1) meet the student's needs that result from the student's disability so as to enable the student to be involved in and make progress in the general education curriculum; and (2) meet each of the student's other educational needs that result from the student's disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3); 8 NYCRR § 200.4(d)(2)(iii)(b).
The student's progress towards her annual goals cannot be assessed in a vacuum outside of her progress in the general education curriculum. A student's progress under a prior IEP is to varying degrees a relevant area of inquiry for purposes of determining whether a subsequent IEP is appropriate, particularly if the parents express concern with respect to the student's rate of progress under the prior IEP. See H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. App'x 64, 66 (2d Cir. Jun. 24, 2013); Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F. Supp. 2d 361, 368 (S.D.N.Y. 2010); M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *14-*16 (S.D.N.Y. Sept. 29, 2008).
The carryover of annual goals from a student's IEP in the prior school year to the next school year's IEP has been found to be appropriate "[w]here a student's needs and objectives remain substantially the same; '[i]t is especially sensible that [an IEP] would reflect continuity with [a student's] needs and objectives as of [previous years,]'". P.C. v. Rye City Sch. Dist., 232 F. Supp. 3d 394, 413-15 (S.D.N.Y. 2017) quoting L.B. v. New York City Dep't of Educ., 2016 WL 5404654, at *11 (S.D.N.Y. Sept. 27, 2016); see J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at * 12 (S.D.N.Y. Feb. 7, 2018) (a subsequent IEP during the same school year is not inappropriate "simply because it did not change significantly" compared to its predecessor IEP).
The evidence contained in the hearing record demonstrates that for the 2017/18, 2018/19 and 2019/20 school years, the CSE developed and modified the student’s annual goals consistent with her progress towards achieving those goals and according to discussions held during the meetings, such that the District did not deny the student a FAPE on that basis.
1. 2017/18 School Year
On February 6, 2017, the CSE convened to review the results of a fall 2016 reevaluation of the student and develop an IEP for the student for the 2017/18 school year. From the results of the reevaluation, the February 2017 CSE determined that the student’s inattention, executive functioning deficits and anxiety were impacting both her academically and socially (Ex. SD-15 at 1-2). The CSE developed annual goals for the student in reading, writing, math, study skills and social/emotional/behavioral functioning which addressed the student’s needs as identified the evaluation process and which could reasonably be accomplished in one year’s time (Ex. SD-15 at 5-6, 8).
Given the student’s reported shyness, the CSE recommended a goal for the student to seek assistance from staff and to identify and apply strategies to complete assignments on time (R. 106). To address the student’s executive functioning needs, the CSE recommended a goal for the student to use a planner to track her assignments (R. 106-107). Goals were recommended to help the student organize her writing and to identify perspectives of others through character analysis. To address reports of low self-esteem, the CSE recommended a social skills goal for the student to identify her personal qualities and strengths and how those strengths impact interactions with others (R. 539; Ex. SD-15).
When the CSE reconvened on March 16, 2018, the student’s teachers reported that she was working hard and participating in class (Ex. SD-19 at 1-2). At the conclusion of the 2017/18 school year (ninth grade), the student earned the following grades (final averages): Living Environment – 74; P.E. – 100; Fundamentals of Math – 87; English – 86; Studio Art (fall) 98; Studio Art (spring) 97; Global History – 85; and Composition (half-year) 86. The student also passed her Living Environment Regents (78) and made the Honor Roll (Ex. SD-21). The student’s end-of-year IEP progress report indicated that she was progressing satisfactorily on most of her IEP goals in study skills, reading, writing, math and social/emotional/behavioral skills (Ex. SD-22).
2. 2018/19 School Year
On March 16, 2018 CSE reviewed the results of a [REDACTED] November 2017 neuropsychological evaluation and developed the student’s IEP for the 2018/19 school year (Exs. SD-18, SD-19 at 1). The March 2018 CSE developed annual goals for the student in reading, writing, math, and social/emotional/behavioral functioning which addressed the student’s needs as identified the evaluation process and which could reasonably be accomplished in one year’s time (Exs. SD-19 at 8, SD-20 at 8).
On October 15, 2018, the CSE reconvened to review the results of an independent language evaluation conducted by [REDACTED] of [REDACTED] (Ex. SD-24). [REDACTED] report noted weaknesses in spoken analogy, multiple meaning words, word retrieval, language flexibility and word derivations and recommended individual language therapy (R. 399; Ex. SD-23 at 11). In response, the October 2018 CSE added goals to the student’s IEP regarding question analysis, annotating text, and previewing vocabulary (R. 412-414; Exs. SD-23 at 11, SD-24 at 2, 11-12). The school psychologist who attended the October 2018 meeting, [REDACTED], testified that the social and emotional goals included in the IEP were intended to held the student identify triggers for her anxiety, identify positive qualities to improve her self-esteem, and learn social problem solving strategies (R. 127-128).
At the conclusion of the 2018/19 school year (tenth grade), the student earned the following grades (final averages): Chemistry – 92; Advanced Studio Art – 97; Global History – 86; Algebra – 93; P.E. – 100; Health (half-year) 100; American Sign Language – 93; English – 91. The student passed both her Global History Regents (75) and her Algebra Regents (79) and made the High Honor Roll (Ex. SD-26). The student’s end-of-year IEP progress report indicated that she achieved her two study skills goals, two out of five reading goals, one out of two writing goals, all three of her social/emotional/behavioral goals and her sole career/vocational/transition goal. The student was reportedly progressing satisfactorily on her remaining IEP goals (Ex. SD-27).
3. 2019/20 School Year
On June 10, 2019, the CSE reconvened to develop an IEP for the student for the 2019/20 school year. The June 2019 CSE developed annual goals for the student in study skills, reading, writing, math, and social/emotional/behavioral functioning which addressed the student’s needs as identified the evaluation process and which could reasonably be accomplished in one year’s time (Ex. SD-29 at 3, 12-13).
The student’s teachers reported that the student exhibited strong organizational skills and was able to stay on track of her assignments. The student was also able to read critically and determine relevant themes but had difficulty with nonfiction texts. The student responded well to scaffolding for writing assignments and did well in math (R. 416; Ex. SD-29 at 2).
Based on the teachers’ reports, the CSE continued goals for active reading strategies for comprehension and drawing inferences. The CSE recommended that the student use a graphic organizer for writing assignments. The CSE also recommended goals for the student to use coping strategies to manage her anxiety and identify personal qualities to improve her self-esteem (R. 157-158; Ex. SD-29 at 12-13).
Alternatively, while I have considered [REDACTED] and [REDACTED] critiques of the student’s IEP annual goals, including that they lack goals for social pragmatics (R. 962, 1287-1288, 1290-1291), an IEP does not need to identify annual goals for every one of a student’s deficits in order to offer a FAPE, see R.B. v. New York City Dep’t of Educ., 2013 WL 5438605, at *14 (S.D.N.Y. Sept. 27, 2013), aff’d, 589 Fed. App’x 572 (2d Cir. Oct. 29, 2014), and the issue when assessing whether a FAPE has been offered to a student is not whether an IEP is perfect but whether, as a whole, it is reasonably calculated to enable the student to receive educational benefits, see Rowley, 458 U.S. at 206-207; Karl v. Board of Educ., 736 F.2d 873, 877 (2d Cir. 1984); P.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 109 (E.D.N.Y. 2011) (noting reluctance to find a denial of FAPE based on failures in IEPs to identify annual goals or methods of measuring progress), aff’d, 526 Fed. Appx. 135 (2d Cir. May 21, 2013). Here, the student’s annual goals were adequate to address the student’s needs and provided for an appropriate method of measurement or evaluative procedure.
G. Parents’ Substantive Concerns The parents allege that the District did not provide the student with sufficient special education programming and related services to address her social/pragmatic language needs or her mental health needs during the disputed school years (Ex. SD-1 at 13).
"Although past progress is not dispositive, it does 'strongly suggest that' an IEP modeled on a prior one that generated some progress was 'reasonably calculated to continue that trend.'"
S.H. v. Eastchester Union Free Sch. Dist., 10-CV-3927, 2011 WL 6108523, at *10 (S.D.N.Y. Dec. 8, 2011), citing Thompson R2–J Sch. Dist. v. Luke P., 540 F.3d 1143, 1153 (10th Cir. 2008); see also C.S. v. Yorktown Cent. Sch. Dist., 2018 WL 1627262, at *18 (S.D.N.Y. Mar. 30, 2018); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. Appx. 64, 67 (upholding district court’s conclusion that because the student made progress in previous years, the later, similar IEPs were reasonably calculated to enable progress); D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *12 (E.D.N.Y. Sept. 2, 2011) (determining that evidence of likely progress was "the fact that the [challenged IEP] was similar to a prior IEP that generated some progress"); J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 650 (S.D.N.Y. 2011) (finding that when the student made some progress under a previous IEP, it was not unreasonable for the CSE to propose an IEP "virtually identical to" the previous one); M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *16 (S.D.N.Y. Sept. 29, 2008) (determining that when the IEP at issue mirrored a past IEP under which the student "demonstrated significant progress," the IEP at issue was reasonably calculated to afford the student educational benefit).[14]
In light of the credible testimony of the student’s progress during the 2017/18, 2018/19 and 2019/20 school years, I find that the ICT, resource room and counseling services provided to the student during those school years was reasonably calculated to enable the student to receive educational benefits.
1. 2017/18 School Year Recommended ICT and resource room services provided the student an opportunity to work on her attentional and organizational skills and provided her with support to help decrease her anxiety. The February 2017 CSE also recommended the student’s use of a planner to track long- and short-term assignments given her executive functioning needs (R. 107; Ex. SD-15 at 1, 9-10). [REDACTED] testified that she had numerous conferences with the student’s teachers, and they all reported she was doing well, with the exception of her Living Environment class (R. 112-116).
At the beginning of the year, the student exhibited some sadness and reported difficulty finding friends to sit with at lunch (R. 116-117). [REDACTED] stated that the student’s feelings of inadequacy and low self-esteem affected her social interactions (R. 190, 280). [REDACTED] testified that the student made progress in her individual counseling sessions, during which [REDACTED] applied different methodologies, including CBT and DBT (R. 108-110). Together with [REDACTED], the student watched videos of adolescents socializing in correct and incorrect ways, to model skills needed for interpersonal effectiveness, social problem solving and managing anxiety (R. 142-143). [REDACTED] taught the student to read body language and social cues, participate in reciprocal exchanges, and show engagement (R. 194). With metacognitive and mindfulness training, the student grew more comfortable and confident in school and made better choices in selecting peers to sit with at lunch (R. 111-112, 116, 181).
[REDACTED] credibly testified that the student did not have language deficits that were impacting her performance in the classroom and, therefore, did not require language therapy. [REDACTED] testified that anxiety, inattention and executive functioning needs could have impacted the student’s social relationships (R. 425).
[REDACTED] testified that she provided ICT services to the student and worked with her in the learning center on study skills goals, including prioritizing assignments and seeking adult support to complete assignments (R. 531, 533-534). [REDACTED] used guided questions during small group instruction to help the student attend to, and comprehend, what she was reading (R. 536-637). [REDACTED] used the TEXAS format (Topic, Explain, Example, Analysis, Summary) to help the student organize her writing at both the paragraph and essay level (R. 537-538). [REDACTED] observed the student acting out plays with enthusiasm and working well with peers in class (R. 541-542).
2. 2018/19 School Year The March 2018 CSE recommended ICT and learning center services for the student to work on academic and organizational skills (R. 130, 518-520; Exs. SD-19 at 1, 9, SD-20 at 1, 9). Small group counseling was recommended to support the student’s social skills and help her reduce her level of anxiety (R. 131; Exs. SD-19 at 1, 9, SD-20 at 1, 9). The student’s IEP also included the following program modifications to address the student’s difficulty with attention and executive functioning: wait time for oral responses, refocus and redirection, preferential seating, assignments broken down, check of understanding, directions repeated, visual prompts and graphic organizers (R. 131-133; Exs. SD-19 at 9-10, SD-20 at 9-10).
[REDACTED] testified that the student displayed a more positive affect at school (R. 151-152; Ex. SD-29 at 2). Teachers reported that the student often chatted with peers at school and that she ate her lunch with a group of girls from study hall (R. 147, 195). [REDACTED] stated that the student was an active participant during group counseling sessions where they worked on engaging in conversation, social problem solving and coping skills (R. 137-139, 195-196). The student participated in several extracurricular activities including tennis, golf, [REDACTED] and [REDACTED] (R. 146).
3. 2019/20 School Year The CSE again recommended that the student receive ICT service in English/Language Arts and math, as well as support in an educational support class. The CSE also included a program modification of an editing checklist in the student’s IEP to address her executive functioning needs. Group counseling was also continued (R. 260; Ex. SD-29 at 1, 14-16). [REDACTED] credibly testified that the student did not require speech and language therapy as a pull-out service during the 2019/20 school year (R. 289, 423-424).
Alternatively, while the parents have asserted that the student’s language deficits were so severe that could only be addressed by specially trained speech therapists outside of the school setting (R. 242, 245, 261; Exs. SD-14 at 7, SD-18 at 8, SD-23 at 11, P-O, P-Q, P-S, P-W), I found the testimony of [REDACTED] more credible that than of [REDACTED], that the data obtained of the student’s language functioning during the school years at issue did not demonstrate an educational need for such a service (R. 289, 423-424, 465-466, 480-481, 1253, 1258, 1286; Exs. SD-8, P-DD at 2). Similarly, while the parents have asserted that the District did not adequately provide service for the student’s social-emotional needs (R. 203-204; Ex. P-PP at 9), the evidence contained in the hearing record, including the credible testimony of [REDACTED], does not portray a student experiencing clinically significant levels of social isolation, emotional distress or depression in school (R. 207, 266-268, 293; Ex. SD-30).
VI. CONCLUSION
I have considered the parents’ remaining contentions and find that I need not address them in light of the determinations made herein. Having found that the parents’ 2016/17 school year claims are time barred, and that the District offered the student a FAPE for the 2017/18, 2018/19 and 2019/20 school years, the necessary inquiry is at an end and I need not analyze the appropriateness of private language services provided to the student by [REDACTED] or whether equitable considerations support the parents’ reimbursement or compensatory education claims. See School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 370 (1985); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000).
VII. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The parents’ claims that the student was denied a free appropriate public education (FAPE) for the 2016/17, 2017/18, 2018/19 and 2019/20 school years are hereby DENIED and the parents’ due process complaint, as amended, is DISMISSED; however,
Within thirty (30) days of the date of this Order, the District shall conduct transition and vocational assessments of the student for review by its CSE upon their completion.
Dated: September 29, 2020
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 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 either party plan to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. [Reserved]
B. Genetics Education Materials for School Success - Education Supports, undated, 2 pgs.
C. Neuropsychological Outcomes in Fatty Acid Oxidation Disorders, 8/19/14, 22 pgs.
D. Individualized Education Program (IEP) 2016/17 SY, 10/5/16, 13 pgs.
E. Email exchange b/w [REDACTED] and parent, 10/17/16, 2 pgs.
F. Email exchange b/w parent and [REDACTED], 11/17/16, 1 pg.
G. Email exchange b/w [REDACTED] and parent, 12/7/16, 2 pgs.
H. [Reserved]
I. English Language Arts 2016/17 Grade 8 Test Results, spring 2017, 2 pgs.
J. Individualized Education Program (IEP) Progress Report (2016/17), 6/21/17, 4 pgs.
K. Dramatic Pragmatics – Pragmatic Language Update/Goals, 8/2017, 2 pgs.
L. Email exchange b/w parent and [REDACTED], 9/6/17, 1 pg.
M. [Reserved]
N. [Reserved]
O. Letter of [REDACTED], 3/22/18, 1 pg.
P. Letter of [REDACTED], 4/6/18, 3 pgs.
Q. Letter of [REDACTED], 5/14/18, 3 pgs.
R. Letter of [REDACTED], 5/16/18, 2 pgs.
S. Letter of [REDACTED], 5/17/18, 1 pg.
T. Email exchange b/w [REDACTED] and parent, 6/29/18, 1 pg.
U. [Reserved]
V. [Reserved]
W. Letter of [REDACTED], 6/6/19, 1 pg.
X. Audio Recording of CSE Meeting, 6/10/19, approx. 2 hrs.
Y. [Reserved]
Z. Grade Analysis Spreadsheet, 6/10/19, 1 pg.
AA. Attachments to Email of [REDACTED], 6/17/19, 3 pgs.
BB. Email exchange b/w [REDACTED], [REDACTED] and parent, 6/19/19, 2 pgs.
CC. Invoice of [REDACTED], 6/25/19, 1 pg.
DD. Social Thinking Dynamic Assessment by [REDACTED], 8/5/19, 2 pgs.
EE. Invoice of [REDACTED], 8/23/19, 1 pg.
FF. [Reserved]
GG. [Reserved]
HH. Student Writing Samples, 2019/20 SY, 16 pgs.
II. Social Pragmatic Language Progress Note by [REDACTED], 3/8/20, 3 pgs.
JJ. Language Progress Note by [REDACTED], 4/1/20, 3 pgs.
KK. [Reserved]
LL. [Reserved]
MM. Social Thinking Social Learning Tree, undated, 1 pg.
NN. Email exchange b/w [REDACTED], 6/26/18, 1 pg.
OO. Email exchange b/w [REDACTED] and parent, 5/20/18, 1 pg.
PP. Parents’ Written Closing Statement, 8/31/20, 32 pgs.
SCHOOL DISTRICT
1. Amended Due Process Complaint Notice/Impartial Hearing Request, 8/15/19, 15 pgs.
2. School District’s Due Process Response, 9/27/19, 7 pgs.
3. Neuropsychological Evaluation, 3/14/14, 26 pgs.
4. Speech/Language Therapy Evaluation, 3/31/14, 7 pgs.
5. WIAT-III Clinician Report, 4/23/14, 5 pgs.
6. Neuropsychological Assessment, 6/16/14, 12 pgs.
7. Individualized Education Program (IEP) 2015/16 SY, 1/11/6, 13 pgs.
8. Speech/Language Annual Review, 3/8/16, 3 pgs.
9. Classroom Observation, 11/10/16, 2 pgs.
10. Educational Evaluation, 11/10/16, 4 pgs.
11. WIAT-III Clinician and Parent Reports, 11/22/16, 9 pgs.
12. Social History, 11/30/16, 7 pgs.
13. Speech/Language Reevaluation, 12/2/16, 4 pgs.
14. Psychological Evaluation, 12/14/16, 9 pgs.
15. Individualized Education Program (IEP) 2017/18 SY, 2/6/17, 13 pgs.
16. Final Report Card, 2016/17 SY, 1 pg.
17. Individualized Education Program (IEP) Progress Report (2016/17 SY), 6/21/17, 4 pgs.
18. Neuropsychological Assessment, 11/28/17, 13 pgs.
19. Individualized Education Program (IEP) 2018/19 SY, 3/16/18, 13 pgs.
20. Individualized Education Program (IEP) 2018/19 SY, 5/22/18, 14 pgs.
21. Final Report Card, 2017/18 SY, 1 pg.
22. Individualized Education Program (IEP) Progress Report (2017/18 SY), 6/20/18, 6 pgs.
23. Dramatic Pragmatics Language Evaluation, 7/27/18, 14 pgs.
24. Individualized Education Program (IEP) 2018/19 SY, 10/15/18, 17 pgs.
25. Individualized Education Program (IEP) 2018/19 SY, 4/4/19, 18 pgs.
26. Final Report Card, 2018/19 SY, 1 pg.
27. Individualized Education Program (IEP) Progress Report (2018/19 SY), undated, 7 pgs.
28. [Reserved]
29. Individualized Education Program (IEP) 2019/20 SY, 6/10/19, 20 pgs.
30. End of Year Reflection, 6/13/19, 1 pg.
31. Writing Samples (2019/20 SY), 9/12/19 – 1/22/20, 26 pgs.
32. First Quarter Report Card, 2019/20 SY, 1 pg.
33. [Reserved]
34. Regents Exam in Global History and Geography II (Grade 10) Conversion Chart, 6/3/19,
2 pgs.
35. Regents Examination in Living Environment – June 2018 & Regents Examination in
Algebra I – June 2019 Conversion Charts, 2 pgs.
36. Social Thinking Dynamic Assessment Protocol, 8/5/19, 14 pgs.
37. Memorandum of Law on behalf of Rye City Sch. Dist., 8/31/20, 30 pgs.
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 1/14/19, 12 pgs. (double sided)
II. Appointment Letter to IHO Jeffrey J. Schiro from [REDACTED] (District Clerk), 1/22/19
III. Confirmation of Extension, 4/16/19, 1 pg.
IV. Confirmation of Extension, 5/9/19, 1 pg.
V. Confirmation of Extension, 6/18/19, 1 pg.
VI. Confirmation of Extension, 7/3/19, 1 pg.
VII. Confirmation of Extension, 11/27/19, 1 pg.
VIII. Confirmation of Extension, 12/26/19, 1 pg.
IX. Confirmation of Extension, 1/22/20, 1 pg.
X. Confirmation of Extension, 2/25/20, 1 pg.
XI. Confirmation of Extension, 3/25/20, 1 pg.
XII. Letter to parties from IHO, 3/28/20, 1 pg.
XIII. Confirmation of Extension, 4/20/20, 1 pg.
XIV. Confirmation of Extension, 6/22/20, 1 pg.
XV. Confirmation of Extension, 8/28/20, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 567, 1729-1731; Exs. IHO-IV – IHO-XI, IHO-XIII – IHO-XV). As a result of school closures across New York State due to Novel Coronavirus (COVID-19), all hearings in this matter held on and after April 16, 2020 were conducted on an electronic video conference platform (i.e., Google Meet) (Ex. IHO-XII). See Louise DeCandia, Novel Coronavirus Impact on Special Education Due Process Timelines (Office of Special Educ. Mar. 16, 2020) (“At this point, it is not expected that in-person hearings would continue to be conducted. Current regulations provide other methods for hearings to be conducted without meeting in person.”).
[3] Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10).
[4] Under State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational "services" for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See N.Y. Educ. Law § 3602-c(2). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." See N.Y. Educ. Law § 3602- c(2)(b)(1).
[5] State regulations define ICT services as "the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students." 8 NYCRR § 200.6(g). The number of students with disabilities receiving ICT services within a class may not exceed 12. See 8 NYCRR § 200.6(g)(1). In addition, State regulations require that an ICT class must be staffed, at a minimum, with a special education teacher and a regular education teacher. See 8 NYCRR § 200.6(g)(2).
[6] The student received a neuropsychological evaluation through the District in March 2014. Results indicated average intellectual functioning, with a strength in visual cognitive functioning. Her executive functioning skills were found to be in the average range and her verbal learning ability superior. However, it was also indicated that her ability to learn appeared to be negatively impacted by her attention difficulties (Exs. SD-3, SD-6 at 2, SD-18 at 3).
[7] The comments to the June 10, 2019 meeting state, however, that “the Committee agreed that the student does not need the Integrated Co-Teach Class for Math.” (Ex. SD-29 at 3).
[8] The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[9] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." See Endrew F., 137 S. Ct. at 1000.
[10] New York State has not explicitly established a different statute of limitations period; rather, it has affirmatively adopted the two-year period found in the IDEA. See N.Y. Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j)(1)(i).
[11] Federal requirements do not prescribe specific types of assessments that must be conducted as part of an initial evaluation except that a classroom observation is a federal requirement for students with specific learning disabilities. The terms psychological evaluation, social history and FBA are not defined in federal law or regulation.
[12] While the parents take issue with the March 2018 CSE’s rejection of [REDACTED] recommendation, that the student receive speech and language services to work on pragmatic language (Exs. SD-18 at 8, SD-19 at 1-2), consideration of a privately obtained evaluation does not require a CSE to adopt the recommendations. See J.D. v. New York City Dep’t of Educ., 2015 WL 7288647, at *14 (S.D.N.Y. Nov. 17, 2015); T.G. v. New York City Dep’t of Educ., 973 F. Supp. 2d 320, 340 (S.D.N.Y. 2013) (stating that "although a CSE is required to consider reports from private experts, it is not required to follow all of their recommendations”); J.C.S. v. Blink Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *11 (S.D.N.Y. Aug. 13, 2013) (holding that "the law does not require an IEP to adopt the particular recommendation of an expert; it only requires that that recommendation be considered in developing the IEP"); G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *19 (S.D.N.Y. Mar. 29, 2013); T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 2013 WL 1187479, at *15 (S.D.N.Y. Mar. 21, 2013); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (holding that a CSE’s recommendation is not necessarily rendered inappropriate by “the mere fact that a separately hired expert has recommended different programming”), aff'd, 142 Fed. App’x 9 (2d Cir. July 25, 2005).
[13] The District is reminded that prior written notice, on the form prescribed by the Commissioner of Education, must given to parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the of the student or the provision of a free appropriate public education to the student. See 8 NYCRR § 200.5(a)
[14] In contrast, where "a student had failed to make any progress under an IEP in one year," at least one court was "hard pressed" to understand how a subsequent IEP could be appropriate if it was simply a copy of the IEP which failed to produce any gains in a prior year. See Carlisle Area Sch. v. Scott P., 62 F.3d 520, 534 (3d Cir. 1995).