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FINDINGS OF FACT AND DECISION
Case No.: 183241
Student’s Name:
(hereinafter referred to as “Student”)
Date of Birth:
District:
Hearing Request by:
(hereinafter referred to as “Parent”)
Hearing Dates: November 22, 2019
December 9, 2019
December 16, 2019
Actual Record Close Date: February 7, 2020
Hearing Officer: Vanessa M. Gronbach, Esq. Hearing Officer’s Findings of Fact and Decision
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 22, 2019
Attorney — Student
Parents
Psychologist — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 9, 2019
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 16, 2019
Attorney — Student
District Representative - NONE — DOE
Hearing Officer’s Findings of Fact and Decision — DOE
ISSUES
This matter comes before the undersigned Impartial Hearing Officer (“IHO”)
through the Parent’s Due Process Complaint (“DPC”) filed on or about May 28, 2019 (P- Ex. A). In the DPC the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2017/18 and 2018/19 school years for failure to provide an appropriate program by not classifying the Student (P-Ex. A)1. The
Parent requested relief in the form of 1:1 reading instruction and/or Orton Gillingham academic services; for the District to conduct an Assistive Technology evaluation; and for the District to create an IEP for the Student with 1:1 SETSS push-in one period per day to address reading, writing and math deficits, counseling, as well as classroom and testing accommodations (P-Ex. A; T. 20, 127). At the time of the hearing, the Parent withdrew all compensatory claims.
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed to the above matter on
September10, 2019. The hearing began on November 22, 2019 and concluded in three days (See, Transcript).[2] The District presented one witness through affidavit as well as exhibits, which were admitted into the record. The Parent presented two witnesses and exhibits, which were admitted into the record.[3] The record closed on February 7, 2020.
There were seven extensions of the timelines to accommodate witnesses.
1 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s
FINDINGS OF FACT
The Student was an grade student attending one of the District’s schools during the 2018/19 school year (P-Ex. A; T. 94). The Student has a diagnosis of a Specific Learning Disorder with impairment n reading, Convergence, and a recent diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) (P-Ex. B; O; T. 71).
The Student is not classified (P-Ex. A).
In November 2016, when the Student was in 3rd grade, the Parent requested that the Student be evaluated for special education services (D-Ex. 2; T. 79-80). The Parent was concerned that the Student had difficulty with decoding and fluency and had characteristics of dyslexia (D-Ex. 2; 12-1). The Student was being privately tutored using Orton-Gillingham instruction twice a week for reading and once a week for math, during that school year (T. 81-82). On February 3, 2017, the District’s Committee on Special Education (“CSE”) held a meeting to review the Student’s need for services (D-Ex. 11; 12; 31-3). Cognitively, the Student was in the average range, with verbal comprehension well above average; and academically, her scores in reading, writing and math all ranged in the average to above average range, with the exception of oral reading fluency which was in the low average range (D-Ex. 6; 31-3; P-Ex. B-17). It was explained that the Student’s cognitive profile was cohesive with her academic performance and there was no discrepancy (D-Ex. 31-3).
The classroom observation revealed that the Student was paying attention in class and participated in the lesson (D-Ex. 7). When asked to work independently it took her longer to complete the work and required prompting, and although she did not always follow the teacher’s specific instructions, she was able to answer questions correctly (DEx. 7). The teacher informed the evaluator that the Student could complete tests independently and typically scored in the 80’s (D-Ex. 7). The teacher’s progress report indicated that the Student was on grade level for math, but had weaknesses with multiple step word problems, reversed words, and her fluency would sometimes impact her comprehension (D-Ex. 9). It also noted that the Student was able to identify important story elements and prompting helped improve her performance (D-Ex. 9). The teacher report recommended AIS services (D-Ex. 9). The CSE found that the Student was performing on grade level in math, made progress in reading and was also on grade level, although there were times when she would reverse words (D-Ex. 12-2). Her report card at that time showed that the Student had received “3’s” and “4’s” in all areas, which meant she was proficient to exceeding standards (D-Ex. 27). The CSE explained the various special education classifications, the spectrum of services and discussed the Parent’s concerns (D-Ex. 31-4). The CSE found that the Student was able to access the general education curriculum with proficiency, was performing on her academic grade-level expectations, and did not find her to be eligible for special education services (D-Ex. 11;
12-3; 14; 31-3; T. 142). Based on the Parent’s concerns, the CSE developed strategies, which were included in the Present Levels of Performance document generated at the meeting (D-Ex. 12; 31-4).
On May 18, 2017, the Parent again requested that the Student be referred for special education services and provided the District with a copy of the private neuropsychological evaluation conducted in April 2017 and reiterated the Student’s deficits with decoding, fluency, comprehension, writing and focusing (D-Ex. 15; P-Ex. B;
T. 83-84). On June 27, 2017, the CSE met to review the Student’s eligibility for special education services (D-Ex. 19; 21; 31-5; T. 85-86). The CSE reviewed the neuropsychological evaluation, a social history update and classroom observation (D-Ex.
21; 31-5). The evaluation relied on the Student’s previous cognitive functioning, which was in the average range, with her verbal comprehension in the high average range (P-Ex.
B-4; T. 29). Academically, her scores for reading, writing and math were all in the average range, with some scores in the lower end of average, but still average (P-Ex. B).
She performed below average when her reading rate and fluency were tested (P-Ex. B).
The Student also had deficits in her visual perceptual abilities and auditory attention problems and trouble expressing herself in an organized way (T. 29). The Student was diagnosed with a Specific Learning Disorder in reading, as well as having attentional/executive difficulties, but did not meet the criteria for ADHD at that time (P- Ex. B-13; T. 30). Based on the results of the evaluation, the report recommended classroom modifications, testing accommodations, continued work with an Orton- Gillingham trained tutor and 1:1 instruction in school (P-Ex. 13-14; T. 31).
The classroom observation of the Student completed in June 2017, revealed that the Student worked well independently, without distraction and followed directions (D-
Ex. 18). She was able to complete a writing assignment and only veered away from the assignment when the teacher took a phone call and then went back to work once she was done (D-Ex. 18). Her grades at the end of the 2016/17 school year continued to be “3’s” and “4’s”, with five “3’s” out of nine classes (D-Ex. 28). The CSE found that the Student had made steady academic progress (D-Ex. 31-5). Again, the CSE found that the Student was able to access the general education curriculum with proficiency and was not eligible for special education services (D-Ex. 21-3; 31-6). Based on the Parent’s concerns, the CSE recommended academic intervention services (“AIS”), strategies to assist the Student in the classroom, a reading program for the home, and discussed the option of 504 accommodations (D-Ex. 21-3; 31-6; T. 89-90, 92, 157). The CSE also discussed placing the Student in an ICT class for the 2017/18 school year so she would have the benefit of two teachers in the classroom, which was provided (T. 90-91, 157).
On September 15, 2017, the Parent submitted a request for 504 accommodations
(D-Ex. 31-6; P-Ex. J; T. 92). On September 29, 2017, the 504 team met and considered the evaluative data from the CSE meetings and determined that the Student was eligible for 504 accommodations (D-Ex. 31-6; P-Ex. K). Specifically, the accommodations included extended time for tests and in-class assignments, directions read and re-read as needed on exams, state and local exams read aloud, preferential seating, use of graphic organizers, reduced homework when needed, separate testing location and the Learning
Ally reading program (D-Ex. 31-6; P-Ex. K). Although AIS was not listed in the 504 accommodations provided, the Student did receive AIS in the form of pull out services once or twice per week (T. 93, 95, 168)
At the end of the 2017/18 school year, the Student’s grades were again in the 3 and 4 range, with four “3’s” out of eleven classes (D-Ex. 29). The Parent also testified that the Student had more success being in the smaller group instruction (T. 94, 116).
In September 2018, the Parent again requested a continuation of the 504 plan which was approved and included the same program and testing accommodations as well as the Ally reading program (D-Ex. 24; 31-7; P-Ex. P; T. 94). The Student again received
AIS services during that school year, although inconsistently according to the Parent (T.
95, 117). At the end of the 2018/19 school year, the Student’s grades remained in the 3 to 4 range, with only two “3’s” out of ten classes (D-Ex. 30).
The Parent had the same psychologist who conducted the private evaluation in 2017 draft a letter reiterating her results of her testing (P-Ex. C; T. 34; 95). However, according to the District’s witness, who participated in the 504 meeting, the District was not provided a copy of the letter (D-Ex. 31-7; P-Ex. C). The District’s witness also never received the letter from the Student’s reading tutor from December 2018 (D-Ex. 31-7; P-
Ex. D). In October 2019, the psychologist reevaluated the Student (P-Ex. O; T. 35). The testing revealed that her functioning was very similar, demonstrating attentional and executive difficulties that met the criteria for ADHD (P-Ex. O; T. 37). The Parent testified that she provided the District with a copy o
CONCLUSIONS OF LAW
The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick
Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
Two purposes of the IDEA (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 (20 U.S.C. § 1400[d][1][A]-[B]; see, Forest Grove v. T.A., 129 S. Ct. 2484[2009]; Rowley, at 206-07).
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and
6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.
A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his 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.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.
Under the IDEA, a procedural inadequacy results in the denial of a FAPE only if it “(I) impeded the child's right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Perricelli v. Carmel Cent. Sch. Dist., No. 06 Civ.
2114, 2007 WL 465211, *10 (S.D.N.Y. Feb. 9, 2007) (noting that, although the procedural inquiry is not a formality, not every procedural error renders an IEP inadequate under the IDEA) (citations omitted). The Second Circuit has described the procedural side of the inquiry as “focus[ed] on whether the [student’s parents] had an adequate opportunity to participate in the development of [the] IEP.” Cerra, 427 F.3d at 192. Parental participation requires an opportunity to examine records, to participate in meetings, and to obtain an independent evaluation. Id. (quoting 20 U.S.C. § 1415(b)(1)).
Here, I find that the CSE’s determination that the Student was not eligible for special education services was reasonable and supported by the information reviewed by the District’s CSE both on February 3, 2017 and June 27, 2017.
An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other “appropriate assessments or evaluations,” as necessary to determine factors contributing to the student’s disability (8 NYCRR 200.4[b][1]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). In this case, at the February 2017 CSE meeting, the CSE had and reviewed it’s own psycho-educational evaluation, social history, teacher progress report and observation (D-Ex. 12). Additionally, the CSE members included the Student’s current teacher, who could speak regarding the Student’s strengths, weaknesses and needs. At the June 2017 CSE meeting, the team again reviewed the evaluations conducted as well as an updated social history, an updated observation and a neuropsychological provided by the Parent (D-Ex. 21). Based on the evidence presented I find that the CSE had the proper information before it in order to make an appropriate determination.
The IDEA defines a “child with a disability” as a child with specific physical, mental, or emotional conditions, including a learning disability, “who, by reason thereof, needs special education and related services” (20 U.S.C. § 1401[3][A]; Educ. Law §
4401[1]). One must consider whether a student’s condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA. See, Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 297-98 (S.D.N.Y. 2010); Application of the Dep't of Educ., Appeal No. 11-152.
Although the Student had a diagnosis of a Specific Learning Disorder, the diagnosis alone did not impact her ability to learn and did not adversely affect her performance in school. Although, the Student had some deficits and required some prompting, those deficits did not affect her ability to perform in the classroom. The Student’s grades were in the proficient range in school, and she scored in the average range both cognitively and academically. This was the information before the CSEs when they determined that the Student was not eligible for special education services and I find the decisions appropriate regarding the 2017/18 school year. Moreover, with the 504 supports and AIS supports provided, the Student made progress that year (D-Ex. 21; 28;
29; 31; T. 94, 116).
Regarding the 2018/19 school year, there is no evidence in the record that shows that the Parent requested special education services during that school year. The Parent requested 504 accommodations, which was provided, but did not request that the IEP team reconvene (D-Ex. 24). The Parent testified that she submitted a letter from the private psychologist in September 2018 and then a letter from the Student’s private tutor in December 2018, but there was no letter from the Parent requesting a referral to the CSE or further evaluations, as the Parent had done twice previously (D-Ex. 2; 15; P-Ex.
C; D). Since the Student continued to make progress in her grades during the 2018/19 school year, and there is nothing in the record to demonstrate that the Student was struggling to the point where she was adversely affected and could not access the curriculum, I do not find that the District failed to make a referral, evaluate or hold a CSE meeting, and therefore did not fail to provide the Student with FAPE during the 2018/19
school year.
Regarding the Parent’s request for an assistive technology (“AT”) evaluation, there is no evidence in the record that the Parent requested an AT evaluation from the District or that the District denied the request. The recommendation for an AT evaluation came from the private psychologist’s reevaluation in October 2019, which is not clear from the record, whether that report was provided to the District yet, for review.
Regardless, that report was completed during the 2019/20 school year, and not presently before me.
DECISION
Based on a review of the entire record and the details in the findings of fact, as mentioned above, I find that the District appropriately evaluated the Student and correctly found the Student ineligible for special education services at the time of the CSE meetings for the 2017/18 school year. I further find that the District did not fail to provide the Student with FAPE during the 2018/19 school year.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
1). ORDER THAT, the Parents/Student is not entitled to the relief requested.
DATED: April 23, 2020
Vanessa M. Gronbach
Vanessa M. Gronbach
Impartial Hearing Officer Hearing Officer’s Findings of Fact and Decision
NOTICE OF RIGHT TO APPEAL
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 plans 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. Hearing Officer’s Findings of Fact and Decision
District Evidence List Ex. Description Date Pages 1 Due process response 11/18/19 4 pages 2 Parent Letter 11/7/16 1 page 3 Consent for Initial Evaluation 12/16 1 page 4 Home language identification survey 12/1/16 2 pages 5 Social History evaluation 12/1/16 2 pages 6 Psychoeducational evaluation 1/19/17 10 pages 7 Classroom observation 1/20/17 1 page 8 Letter from OT/OG tutor 10/15/15 3 pages 9 Teacher progress report 2/6/17 1 page 10 Notice of IEP meeting 1/27/17 3 pages 11 DOE Letter regarding ineligibility 2/3/17 1 page 12 Present levels of performance 2/3/17 five pages 14 Prior written notice 2/15/17 three pages 15 Parent's request for evaluation 5/18/17 1 page 16 Consent for evaluation 5/25/17 1 page 17 Social history update 5/25/17 2 pages 18 Classroom observation 6/13/17 1 page 19 Notice of IEP meeting 6/19/17 3 pages 20 DOE Letter regarding ineligibility 6/27/17 1 page 21 Present levels of performance 6/27/17 5 pages 22 Prior written notice 7/24/17 3 pages 24 504 combinations plan 9/26/18 1 page 25 Email correspondence 2/5/18 1 page 26 invoice 11/12/18 1 page 27 Grades from marking periods 1 and 2 4/30/17 2 pages 28 Final grades '16/'17 1 page 29 Final grades 17/'18 2 pages 30 Final grades '18/'19 2 pages 31 Affidavit of School Psychologist 12/11/19 7 pages
Parent Evidence List Ex. Description Date Pages A Due process complaint 5/24/19 10 pages B Neuropsychological evaluation 5/7/17 19 pages C Referral letter from Doctor 9/6/18 5 pages D Referral letter from Private teacher 12/20/18 2 pages I Referral letter from Private teacher 10/15/15 2 pages J Section 504 request for '17/'18 9/15/17 3 pages K Letter from 9/29/17 1 page O Psychoeducational reevaluation 10/29/19 20 pages P Section 504 request for ‘18/’19 9/4/18 2 pages
Footnotes
[2] Reference to the Transcript shall be referred to as “T”.
[3] The list of exhibits is attached.