NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
STATE EDUCATION DEPARTMENT OF NEW YORK
In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding, STUDENT[1], a minor, by and through his/her Parent(s), -against- REDACTED CENTRAL SCHOOL DISTRICT | Case No.: 527619 HEARING OFFICER DETERMINATION AND ORDER |
INTRODUCTION AND PROCEDURAL BACKGROUND
On or about August 15, 2019, the REDACTED CENTRAL SCHOOL DISTRICT (hereinafter, “DOE” or “DISTRICT”) appointed the undersigned to act as the impartial hearing officer (hereinafter, “IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (hereinafter, “IDEA”) and the applicable provisions of the Regulations of the Commissioner of Education [8 NYCRR 200.5] (hereinafter, “Regulations”) by the parent(s) of STUDENT.
A substantive fact-finding hearing was conducted in the instant matter wherein testimony and evidence was collected[2].
It is important to note that this matter has been pending beyond the original compliance timeline set forth by the Regulations. As was necessary and upon the application of the parties, the compliance deadline was extended to allow sufficient time for the parties to investigate the possibility of settlement and prepare for hearings. As was described on the record, these extensions were made only after careful consideration of the cumulative impact of the criteria set forth within the regulations (8 NYCRR § 200.5(j)(5)(ii)).
CONCLUSIONS OF LAW AND LEGAL FRAMEWORK
The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” (Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982)) Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)
Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:
Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).
In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” (P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008)).
The IEP is “the centerpiece of the statute’s education delivery system for disabled children” (Honig v. Doe, 484 U.S. 305, 311 (1988)). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services (see 34 C.F.R. §300.320 (a)) For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)).
Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. (Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006)).
The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.
In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general education curriculum (See 34 C.F.R. § 300.116).
When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of law, an independent education evaluation (IEE) at public expense (34 CFR § 300.502)
Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place” (Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” (Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).
Pursuant to New York Education Law §4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence (Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)).
Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose (Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994)).
FINDINGS OF FACT AND DISCUSSION
The Student is a REDACTED-year-old REDACTED student who attended public schools in the REDACTED Central School District from kindergarten until the middle of tenth grade, school year 2015-2016 (Exs. G at 1-2, V, X). She is diagnosed with reading disorder (dyslexia) and disorder of written expression (dysgraphia) (Exs. H, G). The Student began receiving special education services as early as preschool, through the Committee on Special Education Services (“CPSE”) (Ex. G at 1-2). She continued to receive special education and Academic Intervention Services (“AIS”) in grammar school (Ex. G-2). The Student received varying Section 504 accommodations and/or special education services to address her Dyslexia diagnosis while at the District. (See, generally, Exs. 8, 9, 12, 15, 18, 21, 26, 31, 36, 41, 44, 47).
The Student was classified with a Learning Disability when she was in seventh grade in August 2012 due to the Parents’ concerns and the private evaluation they submitted to the District. In eighth grade, the Student continued to receive resource room and also direct consultant teacher services in math two times in a six-day cycle (Exhibit 15, at 7). In ninth grade, the Student received co-taught special education support in her general education English and math courses in addition to a special class study hall (Exhibit 18, at 8). Throughout the Student’s time in the District, the majority of her support was provided in the form of accommodations, such as assistive technology, extended time for academic tasks, advanced notice of tests and long-term assignments, and copies of class notes (Exhibits 9-5; 12(5-6); 15- (7-9); 18-(8-9)).
The District’s CSE declassified the Student at the end of ninth grade and immediately provided her with a Section 504 Plan (Exhibits 45; 46). The Student’s Section 504 Plan was updated in November 2015 to include the Student’s most recent evaluation results and to address the Parent’s concerns related to the District’s implementation of the Section 504 Plan (Exhibits 47; 48; 71).
The Student and the District have engaged in litigation for prior academic school years not before the undersigned. Specifically, part of the Student’s tenth and eleventh grade years were a subject of a due process complaint that was litigated. The decision was rendered (Exhibit 77) wherein the Parent prevailed. On appeal, the state review officer disagreed with the IHO and reversed the findings made by the District (Exhibit 78). As of the time of the last update before this IHO, the matter was pending for review on the federal district court level.
ISSUES RELATING TO RES JUDICATA AND THE
DISTRICT’S OBLIGATION FOR FAPE 2017-2018 SCHOOL YEAR
The District raises the point that the parent should not be permitted to re-litigate issues that have been raised previously, citing the well-settled legal principle of res judicata. The undersigned agrees fully that the Parent cannot raise issues previously filed in other due process complaints[3]. The 2015-2016 and 2016-2017 academic school years were the subject of a due process complaint. The parties had a full and complete hearing and a determination was rendered. That determination has received appellate scrutiny and that scrutiny continues at the federal level as of the writing of this decision.
The undersigned does not sit in appellate authority of the previous IHO, certainly not the SRO, or Honorable Judge of the Federal Court[4]. The outcome of the litigation in the 2015-2016 and 2016-2017 academic school years are, in the view of this IHO, immaterial or settled[5].
The District argument however takes the principle of res judicata and wishes to apply it to the District’s responsibilities for the subject year. The District argues that since the district has ostensibly prevailed regarding the 2016-2017 declassification, then the District obligation is somehow different than any other student of the District. (See generally, District summation IHO Exhibit II, Page 8) The IDEA and by extension the regulations of the commissioner of education are crafted in such a way that every year stands on its own. A denial of FAPE in year one does not immediately mean that a denial occurred in the subsequent year. Similarly, if a FAPE was provided in year one it does not immediately follow that a FAPE was provided in the subsequent year.
The previous IHO decision (Exhibit 77) dated December 28, 2017 found that the Student was eligible for services. The SRO decision (Exhibit 78) dated April 11, 2018 reversed that decision stating the declassification that occurred during the 2015-2016 school year (for the 2016/2017 school year) was appropriate.
The instant complaint, however, involves the 2017/2018 academic school year. Specifically, the obligations of the District during that time period. The District argues that the analysis for this IHO is if anything had changed after the previous review to cause her to be eligible for an IEP in the twelfth grade. This argument, however, would place those students who have been previously classified in a unique subset not envisioned in the regulations. The case must be viewed within the context of a District’s obligation to all unclassified students.
DISTRICT’S OBLIGATION TO UNCLASSIFIED STUDENTS
For the purposes of this review, unclassified Students become known to the District through two processes relevant to this review either through the District’s “child find” obligations or through an initial referral process codified in 8 NYCRR 200.4. The initial referral process and the child find obligations are perhaps not as distinct as this decision is attempting to parse them. Certainly, to aid the reader, I have tried to separate the issues however these issues are highly fact specific with shades of “grey” between them.
CHILD FIND OBLIGATIONS
Addressing Child Find first, the IDEA requires school districts to proactively identify, locate, and evaluate children with disabilities to determine whether they need special education and related services.20 U.S.C. § 1412(a)(3)(A). The IDEA and its implementing regulations establish a “child find” obligation, which requires each state to develop policies and procedures for identifying and evaluating children with disabilities for special education services.[6] This obligation extends to all children suspected of having a disability requiring special education.[7] To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children.[8] “[C]ourts have held that a state’s child find duty is triggered when it has a reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.”[9]
Upon declassification, the Student was provided with a 504 plan. Within the obligations of a 504 plan are that the student must have periodic reviews to ensure that the plan is appropriate. No information was provided to the undersigned to indicate that from 2015 through 2018 that the student had a 504 review. To be clear, appropriateness of the 504 plan is not the subject of this dispute but the student’s service plan as it relates to the District’s IDEA obligations do not exist in the vacuum nor can the District assert that the Student’s 504 plan is appropriate to serve this Student’s needs without, at least some scrutiny applied to that 504 plan.
While certain pendency entitlements may prevent the District from implementing changes to a student’s plan during litigation (without mutual contest), the IDEA and regulations do not toll the District responsibility as it relates to the other aspects of the process. Specifically, the District must still conduct meetings, review data, and make recommendations.
On or about August 16, 2017 the Parent wrote a letter notifying the District of their intent to unilaterally place the student for the 2017-2018 school year. (Exhibit 75). This letter is ostensibly what is typically described as a “Ten Day Notice”. While the merits of the letter as an “initial referral” will be discussed later. This letter for the purposes of Child Find illustrates the Parent’s intent to seek services for the Student beyond that of the 504 plan for the 2017/2018 school year.
Given the contested nature of the litigation it is perplexing that this, in it of itself, did not trigger a District response to review the Student’s needs and functioning for the 2017/2018 school year. If for no other reason than to ensure that the Student’s functioning was unchanged from their determination in 2015.
Regarding Child Find however, defensive practice is not the threshold criterion for consideration. The issue is whether or not the Student, while known to the district, was suspected of having a disability that could be served through special education services.
It is here where the Parent’s argument that the District failed in its Child Find obligation is untenable. While it is clear from the record that the Parent and District were engaged in litigation based upon their disagreement, no new information was offered to the District regarding the Student’s needs during the 2017/2018 that would have otherwise triggered a good faith reasonable belief that the Student required an evaluation.
It is for that reason that I find that based upon the record established, the District has met its child find obligations.
EVALUATION BY INITIAL REFERRAL
The only relevant correspondence is the Parent’s letter that could be construed as an initial referral is exhibit 75. For context, 8 NYCRR 200.4(1)(1) provides that a student's parent can make a referral for an initial evaluation. The written request shall:
- state the reasons for the referral and include any test results, records or reports upon which the referral is based that may be in the possession of the person submitting the referral;
- describe in writing, intervention services, programs or instructional methodologies used to remediate the student's performance prior to referral, including any supplementary aids or support services provided for this purpose, or state the reasons why no such attempts were made; and
- describe the extent of parental contact or involvement prior to the referral.[10]
In the instant matter the parties have been in litigation during the relevant period. On or about August 16, 2017[11] the Parent provided a “Ten Day Notice”. The letter states that they were doing so because the “District’s proposed placement and program for [the student] is not designed to meaningfully address her very serious and deep rooted learning problems … we have longed believed that [the student’s] reading needs were not being addressed by the District…The [unilateral placement] provides [the Student] with the structure, intensive interventions, staff [who are] knowledgeable and experienced in working with children like [the Student]”. (Id.)
The IDEA, the Regulations, and relevant case law do not require the Parent to use the right sequence of words to constitute an initial referral. The only criteria enumerated regarding the contents of the initial referral is what was quoted above. When the correspondence fails to state explicitly that an initial referral is requested, the context of the document and the nature of the relationship among and between the parties is essential[12]. Again, here, the parties were engaged in litigation. The District believed that the student was appropriately declassified[13]. Then, in 2017 the Parent expressed their continued objection and seeking funding for a unilateral placement, a remedy that could only be provided if the District did not provide a FAPE.
It is clear and unambiguous to the undersigned that as of the date of the letter, the Student was seeking special education services for the 2017/2018 and the plain reading of the letter and the District response (Exhibit 76) clearly show that the parties understood that special education services were sought for the 2017/2018. The District’s reliance on a previous determination of declassification, is in my opinion, is misguided as upon the receipt of the initial referral, a student must be evaluated[14]. While not alleged here, the undersigned can envision a scenario where the District could rightfully decline to provide an evaluation, if an evaluation had recently occurred this would be a “change in circumstance” type of argument that District raised. Here the last review of this student was in 2015 and even within the context of the 504 plan or this initial referral, the District should have convened a meeting.
Therefore, I find that the District should have provided an evaluation of the Student upon the receipt of the letter dated August 13, 2017. As the body of the letter along with the contextual basis of the letter clearly suggests that the Parents were seeking special education services for the 2017/2018 academic school year.
PROCEDURAL VIOLATIONS AND THE ABILITY TO PROVIDE A FAPE AND THE STUDENT’S NEEDS
It is codified that not every technical violation of the regulations and statute give rise to a per se denial of FAPE. When issues of procedure arise the statute and regulations specify that the procedural inadequacy is a denial of FAPE when (1) it impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or (3) caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); 24 C.F.R. § 300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).
The language of the statute while considered by some to be a little circular codifies the premise that not every procedural violation is a denial of FAPE and the violation itself must have given rise to something else that either infringed on the Parental right to participate in the crafting of a FAPE or as a consequence of the violation resulted in a substantive interference with the District’s ability to provision a FAPE to the student.
For the reasons stated elsewhere in this decision, I have found that the meeting should have been triggered. However, the record established at the hearing does not establish that the Student suffered from a disability that required special education support. Indeed, a student may have a disability, but does not require special education services, when there is no evidence that the student’s disability impacts his or her ability to progress in the general education curriculum (Doe v. Cape Elizabeth School District, 68 IDELR 61 (1st Cir. 2016)).
The Student was determined to be ineligible for an IEP at the end of her eleventh-grade year, she would only become eligible for an IEP in twelfth grade if her needs related to her disability changed after eleventh grade. The record demonstrates that her needs did not change. Rather, the placement’s own assessment data demonstrate that there was no meaningful change in the Student’s needs or progress between the eleventh and twelfth grades.
While at the placement, the Student took some annual progress monitoring and standardized achievement measures, and all of those demonstrate that the Student’s ability was consistent across each year. An examination of the data from eleventh to twelfth grade indicates that the Student’s twelfth grade scores across all domains were substantially similar to her performance in eleventh grade. Specifically, the Student’s reading decoding ability, as measured by the Placement’s Nonword test, was solidly within the average range in eleventh grade (in which she received 84 percent correct) and twelfth grade (in which she received 78 percent correct). Similarly, her spelling ability in both the eleventh and twelfth grades was in the average range (See Exhibit FF, at 4; Tr. 131-132; 288-289).
The Student’s performance was consistent on the Gray Oral Reading Testing (GORT) between eleventh and twelfth grades. Her reading rate, which measured the number of words she read per minute, was at a standard score of a seven (16th percentile) in eleventh grade and a standard score of a nine (37th percentile) in the twelfth grade (See Exhibit FF, at 5; Tr. 133-136; Tr. 135-136). Both of these scores are solidly within the average range for both grades (Tr. 136). The Student’s accuracy on the GORT, which measures the number of errors the student exhibits while reading, was at a standard score of an eight (25th percentile) in eleventh grade and standard score of a six (9th percentile) in twelfth grade (Exhibit FF, at 5; Tr. 133-136). Although her accuracy was in the average range in eleventh grade and the low average range in twelfth grade, these scores are very similar and reflect the trend of the Student’s accuracy throughout her time at the placement as she was consistently in the low average to average range on that subtest every time she took the GORT (Exhibit FF, at 5; Tr. 133-137). The Student’s reading fluency, which represents a combination of the rate and accuracy scores, was at a standard score of a seven (16th percentile) in eleventh grade and an eight (25th percentile) in twelfth grade (Id.) These scores are solidly in the average range.
The Student’s reading comprehension on the GORT, which measures her ability to understand was at a standard score of nine (37th percentile) in the eleventh grade and a standard score of 11 (63rd percentile) in the twelfth grade (Id.). Both of these scores are solidly within the average range (Id.).
As a twelfth-grade student, the Student also took the Stanford Online Test, which is a standardized academic achievement measured (Exhibit FF, at 6). The Stanford measured the Student’s performance in reading, including vocabulary and comprehension, in addition to math and language. This is a norm-referenced test that compares the Student’s performance with other students across the country who are in the same grade as the student (Tr. 140). This test is not limited to students with disabilities, but rather compares student performance across all students regardless of disability or special education status (Tr. 140-141; 293). The Student’s reading comprehension skills were at the 93.8th percentile when compared with other students across the country (Exhibit FF, at 6; Tr. 296). This is important because it demonstrates that her ability to understand what she read was higher than the vast majority of other students in her grade – including general education students (Tr. 141-142). Indeed, the Student’s performance on every subtest of the Stanford was in the average to above average range for her grade (Tr. 142-143). This is consistent with all measures of the Student’s ability and provides further evidence that the Student was able to perform at least within the average range when compared with her general education peers on all major areas of academic performance.
The Student’s report card grades at the placement were also consistently high and similar to her grades when she was attending the District (Exhibit FF, at 1). The Student’s grades were based on her superior performance, were higher than the average students, and represented the highest level of achievement at the placement (Tr. 226-232, 328-329). Indeed, the Student’s superior performance grouped her in the higher-level group for her reconstructive language class, which is the placement’s reading instruction class (Tr. 232-233.). Further, the Student earned these high grades while taking honors level courses at the placement (Tr. 237-238). A comparison of the Student’s grades at the placement with her grades within the District demonstrates that they are substantially similar – indeed, the Student has always been an exemplary student regardless of the setting (Exhibits 61; 62; 63; 64; 65; R; T; U; FF; GG) .
None of the performance measures provided by the placement, whether in the form of progress monitoring, standardized testing, or academic grades, suggested that the Student’s needs had changed, thus requiring a referral to the CSE prior to or during twelfth grade (Tr. 132-133; 138-139; 143-144). This is because the Student’s performance was consistent across grades and did not demonstrate any significant deficits (Tr. 132-133; 138-139; 143-144). Indeed, the Student’s reading performance, when taken as a whole, is at least within the average range compared with other nondisabled students her age (Tr. 176-177).
The Student’s profile related to her disability consistently manifests itself through minor difficulties with timed tasks, and especially in reading fluency, such as the rate subtest on the GORT (Exhibits I, at 400-401, 419; 71, at 3l Tr. 170-171). This has remained the same while she was at the placement (Tr. 136-139). Students with learning disabilities – including those with reading fluency difficulties – do not qualify for special education classification when their academic performance “counteracts the (relative) negative results of specific reading fluency assessments” (Doe v. Cape Elizabeth School District, 68 IDELR 61 (1st Cir. 2016)).
A strong measure of determining whether a student’s academic performance is able to counteract reading fluency deficits is a student’s academic grades and progress in the general education curriculum (Id.). This analysis provides the crux of the District’s position: although it is true that the Student has dyslexia that causes her to read slightly slower than typical peers, her superior academic performance demonstrates that she is able to counteract those skill deficits, especially when provided with her Section 504 accommodations.
It would not be appropriate for a CSE to make a determination of a student’s needs based on one single score, such as her low average accuracy scores on the GORT in twelfth grade (8 NYCRR 200.4(j)(1).). Rather, the student’s performance as a whole across multiple measures needs to be compared to determine whether a student has needs that arise to the level of requiring special education (Tr. 168-169; 175-177.).
The Student consistently demonstrated that she is not only able to access and progress in the general education curriculum without special education support, but she actually exceeded expectations in the general education curriculum when compared with her nondisabled peers (Doe v. Cape Elizabeth School District, 68 IDELR 61 (1st Cir. 2016)). There is no indication from the Student’s performance data from the placement to suggest that the Student’s performance between eleventh and twelfth grade became more severe and qualified the Student for an IEP. Similarly, the Parents did not provide any evidence to demonstrate that the Student’s needs changed between eleventh and twelfth grade or that the Student required an IEP in twelfth grade.
APPROPRIATENESS OF THE UNILATERAL PLACEMENT
While it is the determination of this IHO that this student was not eligible for special education services based on the weight of the credible evidence presented. The second prong of Burlington/Carter is not necessary. However, it is included here as an element for the consideration of the reader and any appellate scrutiny. As explained here, it is undeniable that the Student’s needs were met at the placement. The Student found success within its programs and small specialized instruction clearly benefited the Student. The placement can be arguably considered an optimal placement for the Student, however, that is neither the standard nor the requirement for within the context of the IDEA.
With respect to the relief of tuition reimbursement, the regulations and case law are quite clear, the parent’s shoulder the burden of proving that the unilateral placement for the Student is appropriate. The case law that has developed is equally clear that this appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s however must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. Taking this one step further, the unilateral placement must not be a “one size fits all” approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student.
Parents need not show that the placement provides every special service necessary to maximize the student's potential. (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receive educational benefits." (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115).
The testimony and documentary evidence provided by the Parents establish that the placement was an appropriate placement for the Student. As a result of the 2012 evaluation, Dr. REDACTED diagnosed the Student with Disorder of Reading, Disorder of Written Expression, and Disorder of Math (Tr. 247; Ex. G at 11). Dr. REDACTED. next evaluated the Student in December 2015 as part of the Student’s screening for admission to the placement (Tr. 247; Ex. I). She testified that her impressions and conclusions based on the 2015 screening were consistent with her findings in 2012 (upon which the District’s initial eligibility determination was based): the Student was still dyslexic and still needed remediation via the delivery of specialized reading instruction (Tr. 248). Furthermore, the Student’s pattern of difficulties fit the profile of the placement’s student, and Dr. REDACTED felt that the placement would be appropriate for the Student (Tr. 248-249). Specifically, the Student demonstrated weaknesses in phonological processing (phonetic decoding of non-words and unfamiliar words), spelling, and reading fluency (Tr. 249; Ex. I). Testing administered over the school year 2016-2017, leading up to the school year at issue, indicated that, while the Student was making progress at the placement, she was still dyslexic and still required appropriate support and remediation of her learning weaknesses (Exs. R, S, FF). She received such support at the placement.
Over the school year 2017-2018, the Student was enrolled in six classes including Reconstructive Language. Several of the Student’s classes were honors courses “geared for … top performing students”: honors advanced writing, honors economics, and honors precalculus (Tr. 213). The designation “honors,” however, did not necessarily mean that there were regular or non-honors counterparts; rather, at the placement, “honors” simply designates courses of a certain academic rigor which students may take in order to earn the placement’s honors diploma (Tr. 237, 238).
Regarding the small class setting, the witness testified that it is “very, very difficult for a student to hide” (Tr. 209). If a student is not taking notes or is struggling with the material, the teacher is able to notice that and to do something about it (Tr. 210). Second, he said, it is “much more realistic” for a teacher to differentiate or individualize instruction to suit the needs of each student, in a class of six than a class of 25, 20, or even 15 (Tr. 210). Finally, he said, being in a small class with other students with similar disabilities and with similar backgrounds of having struggled in traditional school settings helps the students to embrace their learning issues to gain confidence, become less self-conscious and take more risks (Tr. 210-211)
Mr. REDACTED testified further that the Reconstructive Language Program, specifically, was appropriate and effective for the Student given her weaknesses in phonemics, spelling, reading fluency, and reading comprehension (Tr. 217, 226). Mr. REDACTED cited the gains she made in these areas over that time according to her annual assessments, stating further: “these are things that are attacked or addressed directly in the Reconstructive Language class. So, I would say that a lot of the work she did in those classes led directly to the improvements that we saw in those testing scores” (Tr. 217-218, 226). Thus, the Parents demonstrated that the Student benefited from the intensive instructional and emotional supports she received at the placement, as well as the small class sizes—all of which she needed in order to make progress in her areas of need given her ongoing dyslexia and other learning disabilities.
So, while the placement is certainly appropriate under the more relaxed context of Prong 2 analysis. The District having prevailed on the first prong renders such determination dicta.
EQUITY CONSIDERATIONS
With respect to the relief of tuition reimbursement an assessment must be made as to equitable determinations. This determination, in essence, is whether or not the parent’s acted in good faith with the district. Much like the District is required to not “pre-determine” a plan or placement before the IEP meeting, so too are the parents required not to “pre-determine” a particular placement of their child. This requirement embodies the idea that the CSE meeting is meant to be a collaborative approach where all parties are participating meaningfully.
Prior to hearing, the District conceded its Prong III burden under the Burlington-Carter analysis, admitting that “[t]he Parents have cooperated with the District” (Ex. 74 at 2). At hearing, the District raised an argument that the existence of a psychoeducational evaluation administered to the Student by Dr. [REDACTED]. at some time during the school year 2016-2017, and not offered into evidence by the Parent, nullified the District’s pre-hearing concession of Prong III/equities (Tr. 274-275).
That being said, the District did not argue the merits of a Prong III analysis in their written summation. Moreover, equitable behavior must be viewed within the context of the IDEA hearing process, however, the District did not hold meetings and therefore to raise issues regarding the availability of data, to the undersigned appears disingenuous.
BASED ON THE FOREGOING, IT IS,
ORDERED that the District failed to hold a meeting consistent with the IDEA, however, said failure did not constitute a denial of FAPE, the Student was ineligible for services based on the evidence presented.
Dated: September 23, 2020
Garden City, New York
Jeffrey Guerra, Esq.
Impartial Hearing Officer
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.
STATE EDUCATION DEPARTMENT OF NEW YORK
In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding, STUDENT, a minor, by and through his/her Parent(s), -against- REDACTED CENTRAL SCHOOL DISTRICT | Case No.: 527619 APPENDIX A LIST OF EXHIBITS CONSIDERED |
District Exhibits:
Exhibit | Description | Date | Pages |
1 | Due Process Complaint and Notice to Request an Impartial Hearing | November 18, 2016 | 6 |
2 | Initial Appearance Letter and Procedural Safeguards Notice from REDACTED to REDACTED | November 22, 2016 | 2 |
3 | Letter from REDACTED to, REDACTED (formal response to hearing request) | November 28, 2016 | 2 |
4 | Letter from REDACTED and REDACTED to REDACTED (tuition reimbursement claim) | August 18, 2016 | 1 |
5 | Letter from REDACTED to REDACTED (denying tuition reimbursement claim) | August 20, 2016 | 1 |
6 | Letter from REDACTED to REDACTED (tuition reimbursement claim), including The REDACTED School Admissions Assessment dated December 1, 2015. | December 17, 2015 | 4 |
7 | Letter from REDACTED to REDACTED (denying tuition reimbursement claim) | December 23, 2015 | 1 |
8 | 504 Accommodation Plan | June 11, 2012 to June 8, 2013 | 2 |
9 | IEP (New Referral) | August 20, 2012 | 7 |
10 | Minutes for CSE Meeting | August 20, 2012 | 2 |
11 | Prior Written Notice (Initial eligibility recommendation) | August 30, 2012 | 2 |
12 | IEP (Program Review) | September 26, 2012 | 9 |
13 | Minutes for CSE Meeting | September 26, 2012 | 3 |
14 | Prior Written Notice (Program Review) | October 29, 2012 | 2 |
15 | IEP (Annual Review) | March 7, 2013 | 12 |
16 | Minutes for CSE Meeting | March 7, 2013 | 3 |
17 | Prior Written Notice (Annual Review) | April 18, 2013 | 2 |
18 | IEP (Annual Review) | January 14, 2014 | 12 |
19 | Minutes for CSE Meeting | January 14, 2014 | 3 |
20 | Prior Written Notice (Annual Review) | January 23, 2014 | 2 |
21 | IEP (Amendment with No Meeting Held) | February 6, 2014 | 11 |
22 | IEP Addendum | February 6, 2014 | 1 |
23 | Request for IEP Amendment | February 3, 2014 | 1 |
24 | Letter to Parents (Amend IEP) | February 6, 2014 | 1 |
25 | Prior Written Notice (Amend IEP) | February 6, 2014 | 2 |
26 | IEP (Amendment with No Meeting Held) | March 3, 2014 | 12 |
27 | IEP Addendum | March 3, 2014 | 1 |
28 | Request for IEP Amendment | February 26, 2014 | 1 |
29 | Letter to Parents (Amend IEP) | March 3, 2014 | 1 |
30 | Prior Written Notice (Amend IEP) | April 9, 2014 | 2 |
31 | IEP dated (Amendment with No Meeting Held) | September 4, 2014 | 12 |
32 | IEP Addendum | September 4, 2014 | 1 |
33 | Request for IEP Amendment | September 2, 2014 | 1 |
34 | Letter to Parents (Amend IEP) | September 4, 2014 | 1 |
35 | Prior Written Notice (Amend IEP) | September 4, 2014 | 2 |
36 | IEP (Amendment with No Meeting Held) | October 21,2014 | 12 |
37 | IEP Addendum (3rd Request for Consent) | October 21, 2014 | 1 |
38 | IEP Amendment | September 24, 2014 | 1 |
39 | Letter to Parents (Amend IEP) | October 22, 2014 | 1 |
40 | Prior Written Notice (Amend IEP) | October 22, 2014 | 2 |
41 | IEP (Annual Review) | December 8, 2014 | 12 |
42 | Minutes for CSE Meeting | December 8, 2014 | 2 |
43 | Prior Written Notice (Annual Review) | December 15, 2014 | 2 |
44 | 504 Accommodation Plan | May 22, 2015 | 2 |
45 | Minutes for Section 504 Meeting (Program Review to Declassification/New Referral to 504) | May 22, 2015 | 2 |
46 | Prior Written Notice (Declassification Recommendation) | June 8, 2015 | 2 |
47 | 504 Accommodation Plan | November 19, 2015 | 3 |
48 | Meeting Minutes for Section 504 Meeting (Program Review) | November 19, 2015 | 3 |
49 | AIMSweb Data (Reading - Standard Progress Monitor Passages) | October 17, 2011 to June 22, 2012 | 2 |
50 | AIMSweb Data (MAZE - Comprehension) | October 17, 2011 to June 22, 2012 | 2 |
51 | AIMSweb Data (Reading - Curriculum Based Measurement) | 2011-2012 | 2 |
52 | AIMSweb Data (MAZE- Comprehension) | 2011-2012 | 2 |
53 | AIMSweb Data (MAZE - Comprehension) | January 15, 2013 to June 21, 2013 | 2 |
54 | AIMSweb Data (Reading- Standard Progress Monitor Passages) | January 15, 2013 to June 21. 2013 | 2 |
55 | AIMSweb Data (Reading - Standard Progress Monitor Passages) | October 4, 2013 to February 21, 2014 | 2 |
56 | AIMSweb Data (Reading Improvement Report) | 2013-2014 | 2 |
57 | AIMSweb Data (Mathematics Improvement Report) | 2013-2014 | 2 |
58 | Student's IEP Goals Progress Report | 2012-13 | 2 |
59 | Student's IEP Goals Progress Report | 2013-14 | 1 |
60 | Student's IEP Goals Progress Report | 2014-15 | 1 |
61 | Report Card (Grade 6) | 2011-2012 | 1 |
62 | Report Card (Grade 7) | 2012-2013 | 1 |
63 | Report Card (Grade 8) | 2013-2014 | 1 |
64 | Report Card (Grade 9) | 2014-2015 | 1 |
65 | Report Card (Grade 10) | 2015-2016 | 1 |
66 | Progress Report | November 16, 2015 to December 18, 2015 | 2 |
67 | Student Transcript | December 18, 2015 | 1 |
68 | Student Sign-Out Sheet | December 14, 2015 | 1 |
69 | Report regarding Psychoeducational Evaluation | July 2, 3, 6, & 9, 2012 | 20 |
70 | Report regarding Assistive Technology Evaluation | February 1, 2013 | 4 |
71 | Report regarding Psycho-Educational Evaluation | September 17 & 25, 2015 | 5 |
72 | Due Process Complaint and Notice to Request an Impartial Hearing | August 7, 2019 | 7 |
73 | Initial Appearance Letter and Procedural Safeguards Notice from REDACTED to REDACTED | August 15, 2019 | 2 |
74 | Letter from REDACTED to REDACTED (formal response to hearing request) | August 22, 2019 | 3 |
75 | Letter from REDACTED to REDACTED (tuition reimbursement claim) | August 16, 2017 | 1 |
76 | Letter from REDACTED to REDACTED (denying tuition reimbursement claim) | August 17, 2017 | 1 |
77 | IHO Decision | December 28, 2017 | 56 |
78 | SRO Decision No. 18-009 | April 11, 2018 | 24 |
79 | District Policy 7650 - Identification and Register of Children with Disabilities (Child Find) | Undated | 2 |
Parent Exhibits:
Exhibit | Description | Date | Pages |
|---|---|---|---|
A | Impartial Due Process Hearing Request | 11/18/2016 | 6 |
B | District Due Process Response | 11/28/2016 | 2 |
C | IEP | 12/18/2014 | 12 |
D | IEP | 10/21/2014 | 11 |
E | IEP | 3/7/2014 | 11 |
F | IEP | 9/26/2012 | 8 |
G | REDACTED School Psychoeducational Evaluation | 7/2012 | 20 |
H | REDACTED Neuropsychological Evaluation | 7/2006 & 8/2006 | 8 |
I | REDACTED School Admissions Assessment | 12/1/15 | 3 |
J | Letter from District | 6/11/15 | 2 |
K | 504 Accommodation Plan | 5/22/15 | 2 |
L | 504 Accommodation Plan | 11/19/15 | 3 |
M | 504 Consent Form | 5/22/15 | 1 |
N | Letter from District re IEP | 9/11/14 | 1 |
O | Prior Written Notice, | 10/22/14 | 2 |
P | Prior Written Notice, | 12/15/14 | 2 |
Q | Prior Written Notice, | 6/8/15 | 2 |
R | REDACTED School 2016-2017 Academic Reports | 2016/2017 | 12 |
S | REDACTED School Testing Record | 4/27/17 | 2 |
T | REDACTED School 2016-2017 4th Marking Period | undated | 5 |
U | REDACTED School 2015-2016 Academic Reports | undated | 6 |
V | Notice Letter from Parent | 12/17/15 | 1 |
W | Notice Letter from Parent, | 8/18/16 | 1 |
X | Letter from District to Parent | 12/23/15 | 1 |
Y | Letter from District to Parent | 8/20/16 | 1 |
Z | CSE Minutes | 3/7/13 | 2 |
AA | CSE Meeting Log | 3/7/13 | 1 |
BB | 2013-2014 Aims Web (Reading) | 2013-2014 | 2 |
CC | Correspondence between Parties | Misc. | 6 |
DD | CV of Dr. REDACTED | undated | 6 |
EE | CV of REDACTED | undated | 9 |
FF | Academic Report/Progress Reporting and Student Testing Record | Misc. | 6 |
GG | REDACTED Advisor Report | 4/24/18 | 2 |
HH | Affidavit of REDACTED | 6/7/20 | 6 |
IHO EXHIBITS:
Exhibit | Description | Date | Pages |
|---|---|---|---|
I | Transcripts relating to 501743 | January 22, 2020 | 810[15] |
II | Post Hearing Brief (District) | July 31, 2020 | 27 |
III | Post Hearing Brief (Parent) | July 31, 2020 | 29 |
STATE EDUCATION DEPARTMENT OF NEW YORK
In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding, STUDENT, a minor, by and through his/her Parent(s), -against- REDACTED CENTRAL SCHOOL DISTRICT | Case No.: 527619 APPENDIX B PERSONALLY IDENTIFIABLE INFORMATION |
PLEASE TAKE NOTICE that this appendix should be removed prior to public distribution of this decision.
Student’s Name | REDACTED |
Date of Birth | REDACTED |
Parent(s) / Guardian(s) | REDACTED |
Witness 1 / Ms. REDACTED | REDACTED |
Witness 2 / Ms. REDACTED | REDACTED |
Witness 3 / Mr. REDACTED | REDACTED |
Witness 4 / Ms. REDACTED | REDACTED |
Witness 5 / Mr. REDACTED | REDACTED |
Witness 6 / REDACTED | REDACTED |
Witness 7 / Mr. REDACTED | REDACTED |
Witness 8 / Ms. REDACTED | REDACTED |
The Placement | REDACTED School |
Footnotes
[1] Personally identifiable information is attached as an appendix to this decision and must be removed prior to public distribution.
[2] Attached as an appendix is a list of all evidence collected with regard to this matter that was entered into the record. District evidence is denoted by numbered exhibits (i.e. Exhibit 1, 2, etc.) Parent evidence is denoted by lettered exhibits (i.e. Exhibit A, B, etc.). Evidence of the IHO are denoted by roman numerals (i.e. Exhibit I, II, etc.). Within this decision, page numbers are listed for the convenience of the reader (i.e. Exhibit 1-2, A-2, or I-2 where “2” is the page number).
[3] Neither the Parent nor the District raise the thorny issue relating to unraised issues occurring during the previously litigated school years but not raised in the Due Process Complaint.
[4] Even if at the time of this the decision the Parties had fully exhausted their appellate remedies that final decision would relate more to the Student’s pendency entitlements for the subject year and not necessarily the issue of FAPE before me for the Student’s twelfth grade year (2017-2018).
[5] On the mutual consent of the Parent and the District the Decision of the previous IHO, the decision of the SRO, and the hearing transcript of the previous hearing before the previous IHO was entered onto this record. While the undersigned ultimately allowed the admission of this onto the record, it is of limited utility because as already mentioned what transpired does not relate to the issue at hand.
[6] W.A. v. Hendrick Hudson Cent. Sch. Dist., 927 F.3d 126, 144 (2d Cir. 2019) (citing Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 749 (2d Cir. 2018)); 34 C.F.R. § 300.111(a)(1)(i)-(ii).
[7] 34 C.F.R. § 300.111(c)(1).
[8] See, e.g., Application of a Student with a Disability, Appeal No. 12-138.
[9] R.E. v. Brewster Cent. Sch. Dist., 180 F.Supp.3d 262, 270, 2016 WL 2606535, at 5 (S.D.N.Y. Mar. 30, 2016); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 660 (S.D.N.Y. 2011).
[10] See 8 NYCRR 200.4(a)(2)(iii)(a-c)
[11] Again, for context, the date of this letter was during the contested litigation of the parent neither previous IHO nor the SRO had opined on the merits of the case.
[12] District cites Application of the Bd. of Educ. of the Mt. Vernon city School Dist., Appeal No. 17-042, this appeal demonstrates that context is critical in the examination of whether or not an action of the Parent can be deemed a referral.
[13] A position that can be currently considered the law of the case
[14] The regulations provide for a meeting with the parents and the parent’s withdrawal of a request but nowhere in the reading of the regulations can the District decline to provide an initial evaluation based upon their belief that services are not warranted, the CSE can only arrive at that conclusion after holding the meeting.
[15] Plus, applicable indices included with the transcripts but not in the page count.