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State of New York: County of Nassau In the Matter of the impartial Hearing by [redacted] &
[redacted] for [redacted] Represented by [redacted], Esq
Law Offices of [redacted] & Associates, LLP
Petitioner
Against
[redacted] Central School District
County of Nassau
Represented by [redacted], Esq.
& [redacted], Esq.
[redacted] LLP
Respondent,
Before,
George Kandilakis,
Impartial Hearing Officer
Date: May 30, 2021
Preliminary Statement
An impartial hearing was brought by the Parent’s [redacted] [hereinafter, “Mother, “Father and/or “Parents”] on behalf of [redacted] [hereinafter “Student”] against the [redacted] School District.
Hearings were held on December 2, 2020, December 3, 2020, December 10, 2020, December 14, 2020, January 4, 2021, January 7, 2021, January 15, 2021, January 29, 2021, February 1, 2021, February 12, 2021, and March 3, 2021.
Two thousand and seventy-eight pages of testimony were received on the record. The Parties each submitted eighty-nine documents and forty-four documents, respectively. Not all documents were received into evidence, some were withdrawn, previously marked or unduly repetitious.
Witness called by the District were: [redacted], psychologist & CSE Chairperson. C. [redacted], psychologist, [redacted] & [redacted], speech & language therapists, [redacted], psychologist, [redacted], special education teacher, [redacted], occupational therapist and P. [redacted], former director of special education.
Witnesses called by the Parent were: [redacted], Private School principal, [redacted] Private School therapist, Dr. [redacted], private therapist, Dr. [redacted], private psychiatrist, Dr. [redacted] neuropsychologist, and the Parent.
The respective Representatives submitted Briefs in this matter and were received on April 21, 2021, which is the record close date.
Statement of the Issues The Parents of a student with a disability, residing in the [redacted] School District, are challenging the District’s Committee on Special Education’s [CSE] recommendations for part of the 2019-2020 school year and for the 2020-2021 school year. The Parents seek tuition reimbursement for their out of pocket costs for the [redacted] School located in New York City.
The sum and substance of the issues stated in the Due Process Complaint dated October 7, 2020, and amended on December 2, 2020, are as follows:
[1] The CSE failed to evaluate the student nor had sufficient evaluative data to develop an appropriate individual educational program [IEP];
[2] The CSE failed to provide the Parent the audiological evaluation prior to the May 18, 2020 CSE meeting, so that she could review, digest and be prepared to discuss the evaluation at the meeting;
[3] The CSE failed to include crucial members at the May 18, 2020 CSE meeting, including the Student’s teacher [redacted] [School];
[4] The CSE failed to recommend an appropriate program for the Student;
[5] The CSE failed to recommend a program with appropriate reading and math interventions to address the Student’s learning disability;
[6] The CSE failed to develop appropriate present levels of performance;
[7] The IEP failed to address the Student’s anxiety and skin picking disorder and failed to develop an individual plan to decrease her skin-picking and anxiety;
[8] The IEP failed to include a behavioral plan;
[9] The IEP failed to recommend assistive technology;
[10] The annual goals and objectives recommended in the IEP are vague, failed to address every areas of deficits and were not measurable;
[11] Overall, the programs recommended for the student were not consistent with or supported by the weight of the information provided and available to the ‘Team’;
[12] The CSE failed to address the issues regarding remote learning at the CSE meeting.
The Parents remain concerned that the programs, services, and supports in the IEPs created for the student were insufficient to provide the student with a free and appropriate public education [FAPE].
The District for its part, denies the allegations set forth in the Complaint, denies and opposes any relief sought in connection therewith, and refers the Impartial Hearing Officer to all documents, evaluation, reports and observations referenced in the Complaint for the full content and meaning thereof; leaves all questions of law and legal conclusions to the Hearing Officer. The sum and substance of the District’s response to the Parents’ request for an impartial hearing:
[1] The District and/or CSE offered and made available to the Student a free and appropriate public education for the time periods relevant to the Complaint;
[2] The CSE recommended appropriate IEPs for the Student for the 2019-2020 and 2020-2021 school years that were procedurally and substantively appropriate;
[3] The CSE developed IEPs that appropriately and adequately list the Student’s present levels of performance and …describe the Student’s strengths and weakness, the results of evaluations/tests, and…noted the concerns of the Parents.
[4] The CSE appropriately, timely and adequately conducted, reviewed, discussed and considered evaluations and input from the Student’s teachers and doctors including the 2019 neuropsychological;
[5] At every CSE...the Student’s goals and progress were reviewed, discussed and adequately designed to be clear, measurable, promote progress and address the Student’s strengths and weakness;
[6] The Parents are not entitled to the relief requested tuition reimbursement and the costs and expenses of the unilateral placement and/or related services and or transportation;
[7] The Parents did not provide appropriate notice of their unilateral placement of the Student in the [redacted] School for the 2019-2020 school year;
[8] The District and/or the CSE complied with all applicable Executive Orders of the Governor of New York, State and federal guidance regarding the mandatory COVID-19 school closures;
[9] The Parents were provided a meaningful opportunity to participate in the development of the Student’s IEP….and address the Parent’s concerns;
[10] The Parents failed to cooperate in good faith with the District and with the CSE and equities do not support an award of reimbursement;
[11] The Parents never intended to accept a FAPE from the District, …the Parents continued to have conversations with District personnel….regarding special class recommendations, remote learning program and services. At no time during such conversations did the Parent indicate that the Student would not be participating in the recommended program for 2019-2020 school year.
[12] Despite the efforts of the District personnel to set up the remote learning program and services, the Student did not participate in any of those offerings during the 2019-2020 school year.
[13] The District, the CSE ……and/or the independent contractors acted appropriately in accordance with federal and state law and regulations;
[14] The CSEs were properly constituted;
[15] The CSE offered FAPE for the years in question, the IEPs addressed the Student’s needs. The Parents are not entitled to funding the parental placement at the [redacted] School for those years,
[16] The unilateral placement is not appropriate and is not in the least restrictive environment;
[17] The District is not required to include a particular instruction methodology on an IEP for the Student to receive FAPE;
[18] At no point during the time period relevant to the Complaint, did the District violate the IDEA by offering to provide special education and related services via remote learning without a convening a CSE.
The District requests that the sought-after relief be denied, and the Complaint be dismissed in its entirety.
Background
At a very early age, the Parents observed developmental delays in their child. She was not crawling at the age of nine or ten months.
Their daughter was subsequently evaluated and found to be within the range at the low end of normal. She was again evaluated at the age of two for speech and language delays. Subsequently, as a preschooler, she was identified as a child with a disability and placed in a self-contained special education program at the [redacted] Institute. In this program, she received occupational therapy, physical therapy, play therapy in addition to parental training. She had made improvements but continued to lag behind her peer group. [T pp 2255-2259]
At age five, she no longer qualified for special education programs or services by her home District CSE [redacted] [T p 2437]
At the age of five, the Student attended kindergarten at the [redacted] School, a small private school in the [redacted] School District. [T 2260-2261]
It was either in the first or second grade, the student began to become overwhelmed by her classwork and reacted somatically [vomiting]. Her teachers at [redacted] School also observed the student having difficulty attending to tasks presented to her. A neuropsychological evaluation was conducted by Dr. [redacted] in 2016 and diagnosed her with Attention Deficit Hyperactivity Disorder [ADHD]. Around that time, the Student was also diagnosed with a chromosomal deletion [15q23] at the [redacted] at [redacted] Hospital. This abnormality is closely linked to a mathematic deficit. Also, in 2016, the student received a speech and language evaluation in response to observed weaknesses in auditory comprehension. The speech and language results indicated a low average profile of overall linguistic abilities in both receptive and expressive abilities. Following that evaluation, the Student’s speech and language therapist reevaluated her and identified significant language processing and pragmatic deficiencies that encompassed impoverished word retrieval, conversations skills, storytelling and expository language along with difficulties processing language at increasing levels of complexity. [D-1] In 2017, the [redacted] School staff recommended Dr. [redacted] to the Parents to conduct an additional evaluation. [D-1]
Dr.[redacted] states in his neuropsychological evaluation that the reason for the referral was an”enduring and persistent weaknesses in receptive, expressive and pragmatic language, immature numeracy and mathematical operations, impoverished grasp of spatial concepts and relationships; and multi-faceted expression of anxiety”. [D-1]
On April 17, 2019, a CSE meeting was held to develop an IESP for the student who was parentally placed in a private school within the [redacted] School District. The meeting was chaired by [redacted] and included the Parent, staff members from the [redacted] School and the Student’s tutor. In the comment section of the IESP, it states “based on the latest evaluations, teacher reports, classroom functioning, Parent information and committee discussion, the student is recommended to be classified as Other Health Impaired [OHI] and would receive resource room, occupational therapy, speech language therapy, program modifications and testing accommodations”. The service dates for the IESP were 9/4/19 to 6/26/20.
The IESP is not an issue at this hearing, however, it must be pointed out that listing the reason for referral as an annual review, implies that other CSE meetings were held. [redacted] testified that she had known the Student since the end 2nd grade and provided services in 3rd grade at the [redacted] School. In the section in which evaluations and reports are listed the classroom teacher report, home tutoring report and Parent report were all verbal and not in a written format. It is misleading to the reader that those reports were incorrectly labeled and the creator of the IESP should have been more precise as to the form they were presented at the CSE meeting. Absent from the evaluations were a classroom observation, physical examination, an educational evaluation and a social history. [ T pp 123, 177-179, [CR Part 200.4 [b] [i-v]] The CSE developed goals to address the Student’s individual needs. [1] the student will maintain her attention on task during class lessons and assignments in order to complete assignments on time on a daily basis across all academic settings; [2] when presented with narrative or informational text at a 5th grade level, will summarize the test using 7 sentences; [3] when presented with narrative and informational text on a 5th grade level, will state the main idea or theme using 3 key details;
[4] will read and write 10 decimals to the thousands using base ten numerals; [5] will use place value to round 10 decimals to a given place;
[6] will multiply 10 multi-digit whole numbers; [7] will add 10 fractions and mixed numbers with unlike denominators; [8] will subtract 10 fractions and mixed numbers with unlike denominators; [9] will demonstrate appropriate turn taking, maintain eye contact and engage in 10 appropriate verbal exchanges; [10] will state conclusions and make 3 inferences based on a written text read aloud or from information in diverse media/formats;
[11] will formulate 5 cohesive and grammatically correct sentences to describe a sequence of 3 events; [12] will demonstrate topic maintenance during conversational speech; [13] will use 10 vocabulary words related through association; [14] will use a graphic organizer independently in order to organize her ideas and opinions effectively; [15] will use proper line orientation and letter size during handwriting assignments; [16] will use sensory motor break strategies to improve attention to tasks. [D-6, D-7] The family became domiciled in the [redacted] School District on or about [redacted]. [D-56, T pp 179, 2634]
During a period in September 2019, at the suggestion of the [redacted] School staff, a third neuropsychological evaluation was conducted. The purpose of this evaluation was to provide the family with information that would allow them to make informed decisions regarding their Child’s ongoing educational and therapeutic interventions.
At the time of the evaluation, the Student was attending the [redacted] School in the 5th grade. The Student was receiving special education, which included resource room, speech and language therapy, occupational therapy and counseling services. [T pp 198, 203-205] In his background information, Dr.[redacted] notes that the Student “exhibited persistent expressions of anxiety that initially manifested as discomfort about unknown or unfamiliar situations and progressed to include somatic complaints that coincided with perceived academic challenges [i.e., vomiting while working with her mathematics tutor”]. The family tried a number of other treatments such as vision therapy, working memory training, occupational therapy, soy-free diet, speech and language therapy, supplements, psychological therapy, neurofeedback, and anti-anxiety medication. [D-1, D-9] With all the family’s efforts, the Student’s academic and social/emotional delays continued, especially mathematics, difficulty with flexibility, unremitting delays in receptive and pragmatic communication and accurate identification of social cues. She continued to display persistent anxiety, reassurance seeking and engaged in compulsive skin picking to a point of bleeding. The Student was also participating in outpatient therapy to address her anxiety and social development.
On or about October 2019, Dr. [redacted] contacted the [redacted] School to obtain updated progress information. The resource teacher reported that her number skills were inconsistent; her math teacher described her work as “highly inconsistent and requiring breaks from the lesson on hand; required abundant reassurance and her worries overtake the lesson”. She was also preoccupied with the performance of her peers. Her literacy teacher described her reading comprehension as one of being unable to recalibrate her reading into her own words; her counselor described her as one who perseverates on tasks, was concrete in her thinking and struggled with peer relationships.
During the testing, Dr. [redacted] observed that the Student “exhibited pronounced verbosity, aspects of which involved perseveration inquiries”. He also noted, “that aspects of her perseveration had an anxiety related quality”, yet at other times her persistent questioning appeared unrelated to anxiety. He reasoned that her “persistent inquiries and attention seeking behaviors posed a formidable distraction to sustained engagement and… productivity”. He observed that, the Student had band-aids wrapped around both of her thumbs to both treat and prevent compulsive skin picking. He also noted that her “anxiety and persistent demeanor also detracted from pragmatics” and could be formidable issue with peers.
Neuropsychological Summary and Impressions The results of the September 2019 evaluation indicated the Student functioning was within the very low range of cognitive ability. Relative strengths were in verbal comprehension, but were less developed in spatial analysis, nonverbal reasoning, pattern identification, working memory and processing speed.
He noted declines from the previous neuropsychological evaluation in the nonverbal and with processing speed. These declines resulted in “apparent declines in overall intellectual abilities”.
Reading mechanics were stable, but there were significant declines in reading comprehension. Mathematically, she exhibited average computation skill though she struggled with numeration, algebraic concepts and problem solving.
Relative to her peer group, the Student evidenced strengths in visual motor integration and immediate verbal recall. She declined in her flexibility, short- and long-term memory, attention span, impulse control, with “marked discrepancy between her organization and production of verbal output and was dependent on the structure of the activity she was presented”. She exhibited “pronounced” difficulty with higher order language linear analysis, activities requiring motor planning and perspective skills.
Emotionally, the Student exhibited “thought” problems as well as defiance and aggressive behavior. She exhibited “pronounced” expression of anxiety and worries.
Diagnostically, he validated the Attention Deficit Hyperactivity Disorder [ADHD]; clinically significant manifestation of anxiety including generalized worries, fears and incessant need for reassurance, all leading to a diagnosis of Generalized Anxiety Disorder [GAD]. Also evident was a compulsive excoriation [skin picking] that resulted in bleeding and meets the criteria for Skin Excoriation Disorder.
Academically, he noted significant delays in mathematical skill development and reading comprehension, inferential aspects of reading, spheres of executive functioning, nonverbal memory and perspective taking, all of which are consistent with a Nonverbal Learning Disability.
The Student presents multitude of educational impediments including clinically significant expressions of anxiety and inattention with delays in academic skill development. Her assurance seeking and insecurity pose an impediment to successful development and maintenance of social relationships.
These many challengers confronted her in the then educational setting at [redacted] School, even though the School’s staff were described as supportive and nurturing. The Student continued to receive a special education program and services. The gaps between her academic abilities and her peer relationships had widened. As the curriculum demands increased, her social emotional readiness and her deficits in executive functioning were ever more prevalent, she would be at great risk to successfully transitioning to the next grade [middle school]. [ T p 228]
He concluded that the Student required a specialized education program, a supportive emotional academic placement with a group of peers with similar challengers. [redacted] made a number of specific evaluation recommendations including an FBA, audiological examination and an assistive technology evaluation. [D-9]
On December 6, 2019, an occupational report was developed which identified the Student’s needs as being in the visual processing with visual inattention areas. The therapist believed that the inability to attend and focus “most likely” comes from an overload of visual stimulation, poor working memory, below average executive functioning skills and a decreased core/body strength. She required sensory breaks to improve her attention and concentration to the tasks on hand. [D-10]
A speech and language reevaluation was conducted on December 6, 2019. The evaluator concluded that the Student’s core language skills [expressive and receptive] were within the “marginal range”. She tested below average in the areas of semantics and pragmatics. Lexical skills relating to multiple meanings and ambiguous interpretations were not well developed. Though she could recall facts and details, she was unable to use that information to ascertain the main idea, infer meaning or make predictions. The Student presented a significant expressive language skill deficit with forming “pragmatically appropriate, grammatically acceptable and semantically meaningful sentences in various contexts”. She had difficulty with language organization and made errors in the correct use of verb tense. She was functioning in the below average range in semantics and pragmatics. [D-11]
An occupational therapy evaluation was conducted on December 16 & 17, 2019 and noted difficulty with tracing activities, spacing and copying letter/words, short attention span and was unable to understand what she read. [D-12]
At the time of the impartial hearing, the child was attending the [redacted] School, a private school in New York, New York, where she had been in attendance since January 2020. The Commissioner of Education has not approved the [redacted] School as a school with which districts may contract to instruct students with disabilities.
At issue is the 2019-2020 & 2020-2021 IEPs that the District’s CSE recommended for the student.
The Petitioner seeks an award of tuition reimbursement and related expenses for the [redacted] School. [ 8 NYCRR 200.1 [d]] To resolve the issues presented at the hearing, an impartial hearing officer must first review the basic requirements of IDEA, the means by which New York State endeavors to comply with these requirements and the sum and substance of the individual education program [IEP] proposed for the Student by the District.
IDEA, the federal Act, amended the Education for All Handicapped Children Act, which required states to develop plans to assure “all children with disabilities the right to a free appropriate public education” [FAPE]. FAPE must include “special education and related services” tailored to meet the unique needs of a particular child and be “reasonably calculated to enable the child to receive educational benefits”. The IEP must be in conformity with a FAPE. [ 34 CFR 300.17 [d], Board of Educ. of the Hendrick Hudson CSD v. Rowley, 458 U.S. 102 S.Ct. [1982]]
Turning to the party’s contentions regarding the appropriateness of the child’s IEPs and the District’s recommended special education programs for the 2019-2020 & 2020-2021, I will take first the two IEPs that were developed for the 2019-2020 school year.
2019-2020 School Year The Student had been previously classified as Other Health Impaired [OHI] and received special education and services through an IESP at the beginning of the 2019-2020 school year. The IESP is not an issue in this hearing, nor is the classification of OHI. [T pp 198, 2634] The family was a resident of the [redacted] School District, at the time of the January 13, 2020 CSE meeting, which met to conduct its “reevaluation review”. [T pp 2545, 2548, 2556-2557, 2568, 2576-2577] The Committee attendance included: [redacted], chairperson,
[redacted], psychologist, [redacted] School psychologist, [redacted], School general education teacher, [redacted], special education teacher, [redacted], occupational therapist and the Parent.
[D-56, T pp 241-242, 374]
Because the student never attended public school, the CSE relied primarily on the information it received from the [redacted] School staff and that provided by the Parent.
The IEP incorrectly lists the Student placement as the [redacted] School in 5th grade and unilaterally placed at the [redacted] School, The Student, however, was enrolled in the [redacted] School at the time of the CSE meeting. The IEP comments acknowledge as such in the Meeting Information section, it was noted that the “Parent requested transportation and the CSE agreed to provide transportation to the Parent’s selection of the interim parentally placed school” [School].
[T pp 250-25, 255-256, 259, 2564, 2577] The IEP projected the start date for the [redacted] School placement/program would be February 3, 2020 and would end June 26, 2020. The CSE obtained Parental written consent for the District to observe the Student at the [redacted] School as well as for other additional updated evaluations.
The evaluations and reports the CSE relied upon are divided into two categories; actual written evaluations and reports and verbal reports presented by the attendees at the CSE. Again, it is misleading to list verbal presentations at the CSE in the evaluation/report section of the IEP. The verbal presentations at the meeting were not verbatim written statements of what was reported by the attendees present therefore incomplete.
The written evaluations and reports available to the CSE included the Speech/Language Progress Report [4/8/19], the Occupational Progress Summary [3/1/19], CELF-5 [12/6/19, 12/12/19], Neuropsychological Evaluation [9/16/2019], CELF-5 [5/24/18], Developmental Test of Visual Perception-3rd [10/24/17], WISC-V [12/20/16] and the WASI [9/1/16]. It is clear from the IEP comments that the Parent provided the CSE with the neuropsychological evaluation for the meeting and was used as the “District’s Cognitive Evaluation”. Other than what was included in the neuropsychological evaluation, no additional educational or psychological evaluations were conducted by the District, nor were a physical examination, a social history or an observation of the Student in the current educational setting. [ CR Part 200.4 [b] [i-v], T pp 261-262]
Academic Achievement, Functional Performance and Learning Characteristic, [pgs. 3-5]
Academic Achievement
Mathematical strengths were her awareness of the language and vocabulary used to identify the operation needed to solve the problem. She had difficulty with identifying the correct operation to use.
Her reading abilities indicated the ability to recall details from her reading and summarize the text in an organized way. Additionally, she was able to answer text based and inferential questions based on her reading from the text. She was able to answer comprehension questions from textbook, etc. She demonstrated good recall for facts and details of spoken information. Reading comprehension was a weakness when it required higher level comprehension involving inferencing. The Student had difficulty with language organization when answering questions requiring explanations. She also made errors using the correct verb tense. She demonstrated difficulty using language skills required to ascertain main idea, infer meaning and make predictions. She was inconsistent attending to class instruction and teacher directions. She could become anxious with her performance. She tends to struggle with maintaining her focus and she was distracted by the work of her classmates.
Social Development The Student gets along with peers and adults. She struggled with anxiety. She was concerned with the way her peers and adults feel towards her. When with her peer group, she had difficulty reading social cues.
Physical Development The Student had difficulty finding visual similarities and differences. She had difficulty with line orientation and letter size with her handwriting. She had difficulty attending to classroom instruction and was easily distracted by auditory and visual stimuli, as a result would miss key information to complete classroom assignments.
Management Needs The student demonstrated attentional and anxiety issues. Required support in the regular education setting. The Student “did not like to transition [e.g. pullout]”. [T p 207] The IEP stated that the Student does not require a behavioral intervention plan, nor does she require a particular device to address her communication needs or an assistive technology device. [ T pp 215-225]
Measurable Annual Goals [ Paraphrased, [pgs. 6-7]
[1] will maintain her attention on tasks…; will state the main idea or theme of the text from content at a fifth grade level; [2] will summarize the content in a fifth grade text; [3] will read and write 10 decimals to the thousands; [4] will round off 10 decimals to a given place; [5] will multiply 10 multi digit numbers will add 10 fractions and mixed numbers with unlike denominators; [6] will subtract 10 fractions and missed numbers with unlike denominators; [7] will demonstrate appropriate turn taking; [8] will state conclusions and make inferences from her written text; [9] will formulate cohesive and grammatically correct sentences to describe a sequence of 3 events; [10] will organize her ideas and opinions for handwriting assignments. [11] will use proper line orientation and proper letter size during handwriting assignments; [12] will improve attention through the use of sensory breaks. [D-13] The IEP recommended program and services were as follows:
On or about February 3, 2020, the Student’s placement was to begin at Bayville Intermediate School in a special class [12:1+2], receive occupational therapy [ind.] 3-45 minutes per wk., speech and language therapy 2-30 min. per wk. and counseling 1-30 min. per wk. Modifications and accommodations were also included. The Student would not participate in general education classes, extracurricular and other nonacademic activities. The reason for the latter was that the Student “requires special instruction in an environment with a smaller student to teacher ratios and minimal distractions in order to progress in achieving the learning standards”. [D-13, T p 327]
A reevaluation shall include a variety of assessment tools and strategies, including information provided by the parent, to gather functional, developmental and academic information about the student, that may assist in determining whether the student with a disability and the content of the student’s IEP…related to enabling the student to participate and progress in the general education curriculum. A committee on special education shall arrange for an appropriate reevaluation of each student with a disability that addresses the educational or related service’s needs. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. The reevaluation should be sufficient to determine the student’s individual needs, educational progress and achievement….the results of any reevaluation must be addressed by the CSE in a meeting to review and as appropriate revise the student’s IEP. [ CR Part 200.4 [b] [5], T p 374-375, 384] The student is assessed in all areas related to the suspected disability, including….health, vision, hearing, social emotional status, general intelligence, academic performance,…motor skills; the evaluation is sufficiently comprehensive to identify all of the student’s special education needs…; technically sound instruments are used that may assess the relative contribution of cogent and behavioral factors, in addition to physical or developmental factors. Determining the educational needs of the student, the CSE…must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations as well as information about the student’s physical condition, social or cultural background and adaptive behavior and ensure that information obtained from all those sources is documented and carefully considered. [ CR Part 200.4 [b] [4] [6] [vii, ix, x] [c]]
[redacted] was assigned to oversee all out of District students’ special education programs located in the [redacted] School District [District]. [redacted] School, a private school, was located within the District’s boundaries and was the district of location. [T p 123] The Student was attending [redacted] School at the time and received an IESP [4/17/2019] from the District. [redacted] also served as the psychologist at the reevaluation CSE meeting on 1/13/2020 in which a number of evaluations were presented including the neuropsychological evaluation conducted by Dr. [redacted]. The contents of that evaluation, as well as the other evaluations and reports would form the basis of the Student’s IEP.
[T pp 191-192, 198] [ CFR Part 300.305 [a] [1] [i-iii]]
I believe the neuropsychological provided the CSE with extensive background information, including the student’s “persistent expression of anxiety that initially [appears] as discomfort about unknown or unfamiliar situations and progresses to include somatic complaints that coincided with perceived challengers” [vomiting]. The evaluation also provided the CSE with the Student’s extensive psychosocial history of the various examinations, therapies, consultation as well as the Student’s pharmacological treatment.
The background history is clear on the extent the family had invested in their child in an attempt to understand her multifaceted and unique needs. Also noted in the evaluation was her persistent anxiety and compulsive skin picking…to a point of bleeding.
The measurements administered addressed cognitive, developmental, executive function, academic, behavioral and attentional assessments.
What is essential in the information Dr. [redacted] provided the CSE is the various diagnoses and how each manifest themselves in the IEP and manner they are addressed in the placement, program and related services. The goals would direct the various providers as to the remediation of the Student’s unique needs. He stated that the Student had global development delays, Attention Deficit Hyperactivity Disorder [ADHD], and Auditory Processing Disorder, a learning disability in mathematics and an “unspecified Anxiety Disorder”. Cognitively, she functioned within the very low range of cognitive ability, with a mark discrepancy between organization and production of verbal output.
Her teacher had observed an elevated level of generalized anxiety, defiance and aggressive behaviors. Dr. [redacted] also observed evidence of compulsive excoriation [skin picking] that resulted in bleeding. At the same time, the Student also presented a multitude of educational impediments including clinically significant expression of anxiety and inattention. Her persistent assurance seeking, and insecurity pose an impediment to successful development and maintenance of social relationships. He noted that the Student possessed strengths in her well-developed verbal ability, reading mechanics, basic computational aptitude and a congenial and engaging disposition. The gap between her scholastic aptitude and that of her peers had widened. [ T pp 228, 2077-2079] The student would benefit from specialized education and an emotionally supportive academic milieu with a low student teacher ratio with a group of peers with similar challenges. By being in such a setting, she will have an opportunity to be a more accessible learner and target her education as well as her social emotions needs.
Dr.[redacted]’s placement recommendations clearly described the environment the Student can receive an “appropriate education”.
[1] the peer group would have to be of similar needs and well matched regarding intellectual, behavioral and social emotional functioning.
[2] participation in a social skill group as well as individual counseling to address expression of anxiety that emerges within the academic setting.
[3] speech/language therapy to address complex semantic language relationships and non-literal expression and pragmatic communications.
[4] undergo an FBA to address her assurance seeking, perseverative inquiry and compulsive skin excoriation. The BIP would be implemented uniformly across all instruction and be closely monitored during less structured interaction with peers.
[5] undergo a comprehensive assistive technology evaluation to identify method to improve the quality and fluency of her academic production.
[6] further evaluation of the Autism Spectrum Disorder.
[7] continue pharmacological treatment.
[8] participate in individual psychotherapy.
[9] makes himself available for consultation with the stake holders. [D-9, T pp 241-242]
Though some of Dr. [redacted]’s recommendations are targeted to the family, there were a number of specific recommendation that apply to the CSE Team, namely, conducting additional evaluations such as an assistive technology evaluation, an audiological examination, a FBA and BIP, a classroom observation at the [redacted] School, classroom grouping of students who have similar intellectual, behavioral and social emotional needs as well as providing individual and group counseling.
At the 1/13/2020 CSE meeting, the members agreed to conduct an observation at the [redacted] School. CR Part 200.4 [b] [iv] requires an observation of the student in their learning environment…to document the students’ academic performance and behavior in the areas of her disability.
My review of the previous IESP dated 4/17/19, there was no record of a classroom observation being conducted at that time. The Parent granted permission at the CSE meeting to conduct its observation at the [redacted] School. [D-16, T pp 340, 425-247]
A Functional Behavioral Assessment [FBA] was also recommended at the CSE meeting. An FBA is the process of determine why a student engages in challenging behavior and how that student’s behavior relates to the environment. The assessment describes the relationship between a skill or performance problem and the variables that contribute to its occurrence.
Irrespective of [redacted]’s testimony, that an FBA, when conducted, would address the Student’s skin picking behavior, no arrangements were made to conduct such an assessment. [T p 414] A State Education Field Memo, 98-05 [July 1998] provides guidance on conducting a FBA. A variety of techniques are available to conduct a FBA, namely, an indirect assessment [e.g. structured interview, review of existing evaluations]; direct assessment [e.g. standard assessment or checklist or observing and recording situational factors surrounding the behavior], data analysis [e.g. a comparison and analysis of data to determine whether or not there are patterns with the behavior]. The IEP content where the behavior impedes the student’s learning or that of others; considers when appropriate strategies should be used, including positive behavior intervention and strategies and supports to address that behavior. The Student’s behavior clearly affects her ability to learn. [ Sec 614 [d] [3] [b] [i], T pp 315-321, 330-331] The 1/13/20 IEP provided for counseling services in a small group, but it did not provide for individual counseling that would focus on addressing the skin picking nor her perseverative behavior. [T pp 144-146, 38] Finally, the IEP failed to include any counseling goals to address the Student’s behavior in the group counseling session, leaving no direction to the provider on how to proceed in addressing her unique counseling needs.
The CSE recommended that an assistive technology evaluation be completed prior to the next meeting. [T pp 375. 384] In a State Education Advisory memorandum [9/95], it is noted that the school district’s responsibility to make available assistive technology devices and services to ……school age students with disabilities consistent with Federal regulations under the IDEA and the Code of Federal regulations Sec 300.6. An assistive technology devise is defined as ‘any item, piece of equipment or product system…that is used to increase, maintain or improve the functional capabilities of children with disabilities [34 CFR 300.5]. An evaluation to determine the individual’s needs for an assistive technology devise and/or services may require an observation the student in her customary environment. Consideration would be given to the student’s goals; the tasks the student needs to perform as required in her IEP; in what environment. [redacted] noted in his evaluation that an assistive technology evaluation was needed to “identify methods to improve the quality and fluency of her academic productivity”. [D-9]
Dr. [redacted]’s detailed in his evaluation the type of grouping that was necessary for the student to benefit from her special education program. He outlined how the Student’s anxiety and inattentiveness, perseveration rumination and delays in her academic skill development would be affected in an incompatible grouping within her special education class. The Student’s persistent assurance seeking, and insecurity would pose an impediment to a successful development of social relationships in a class grouping that was not compatible to her needs. The Parent asked the CSE for information of the composition of the class; observe the special education class and tour the [redacted] School facility. Given this information, the Parent had not made a decision on the recommended IEP, despite the IEP indicating that the Parent had ‘agreed to the plan’.
Finding of Facts
During 2019-2020 school year, there were two CSE meetings held. One was held on 1/13/2020 and the other on 3/4/2020. There were conflicting messages that came out of the 1/13/2020 CSE meeting. The 1/13/2020 CSE made a recommended placement [redacted] School and described the program and services that would be provided, but recommended that there be a continuation of the evaluative process, namely the classroom observation in the student’s environment; conduct a FBA; complete an audiological and FM evaluation; conduct an assistive technology evaluation and a social history. The Parent agreed to conduct the ADOS evaluation privately. [D-28, T pp 353-4, 362, 375, 386]
[redacted] testified that upon completion of the recommended evaluations and assessments another CSE would be reconvened.
[T pp 330-331]
Therefore, the 1/13/2020 CSE placement at the [redacted] School was predetermined, premature and incorrectly finalized since additional evaluations and assessments were to be conducted. In my view, these evaluations would provide relevant, reliable, material as well as “the most recent information” of the functional, developmental and academic needs of the Student. [see CR Part 200.4 [b], Application of the Dep’t of Educ., Appeal 07-018] Predetermination occurs when “the state makes educational decisions too early in the planning process, in the way that deprives the parents of a meaningful opportunity to fully participate as an equal member of the IEP Team”. The prohibition on predetermination arises out of the IDEA implementing regulations which maintain that a child’s placement must be “based on the child’s IEP”. [ R. L. v. Miami-Dade County School Bd., 757 F 3d 1173 [2014], 34 CRF 300.116 [b]]
Furthermore, [redacted]’s testified at the conclusion of the 1/13/2020 CSE meeting, that another CSE meeting would be held with the [redacted] School Team participating at the meeting; that reports and evaluations would be reviewed; that necessary changes would be made to the IEP and the Parent would have an opportunity to view the program. The Student’s placement had already been made by the District’s CSE. The Parent’s request to observe the special education class was subsequently denied by the CSE due to “confidentiality requirements”. [T pp 271-272, 330-331, 360, 362, 407, 429-430, 2579]
I believe the IEP that was developed at the 3/4/2020 CSE meeting, was the final IEP for the 2019-2020 school year, whereby Dr.[redacted] would be in attendance and personally present his findings.
The purpose of the 3/4/2020 was a “requested review”. During the time of the review, the Student continued to attend the [redacted] School.
Attending the 3/4/2020 CSE meeting were: [redacted], Chairperson,
[redacted], psychologist, [redacted], psychologist, [redacted], speech and language therapist, [redacted], special education teacher, [redacted], principal, [redacted], occupational therapist, [redacted] neuropsychologist, [redacted], [redacted] special education teacher and the Parent. The attendees at the meeting who had direct knowledge of the Student were Dr. [redacted], [redacted], special education teacher, the Parent, [redacted], occupational therapist and [redacted].
The CSE had available to it, the Speech and Language reevaluation [12/17/19], Special Education Progress report [4/17/19], Speech and Language Progress report [4/8/2019], CELF-5 [12/12/19], CELF-5 [6/6/19],
Neuropsychological evaluation [9/27/2019] and the CELF-5 [9/20/2019]. Other evaluations listed on the IEP were conducted in 2016, 2017, and 2018 were considered not to be ‘current’ evaluations and reports, so I did not include them in the list of documents available to the CSE.
In the comment section of the IEP, the Student’s strengths were listed as in her “verbal cognitive areas…., visual motor integration, motivation to participate and engage with teachers and peers as well as presenting a consistent academic profile. Her difficulties were listed as social anxiety, perspective taking, cognitive flexibility, working memory, nonverbal learning skills, inferential comprehension, motor and organizational planning, semantic relationships, mathematic reasoning and inconsistent performance in functional mathematics. [D-26, T p 368]
Options considered were all within the District’s special education programs. The CSE recommended a 12:1:2 special education class at the [redacted] School. The class contained 5 students and according to the CSE members had a ‘similar profile’ [to the Student]. [T p 362] The Parent requested specific information about the proposed special education class but was again denied. A tour of the School facility and an observation of the class never occurred. [T pp 260, 271-2, 330-331, 479-480, 481, 483]
[redacted], who has served as both chairperson and school psychologist of the CSE, testified that the Student’s goals would be based on the four criteria in the IEP namely, Academic Achievement, Functional Performance and Learning Characteristics, Social Development, Physical Development and Management needs. [T p 226]
Given that the District did not conduct its own updated psychological or educational evaluations, Dr.[redacted]’s neuropsychological evaluation in essence became the District’s psychological and educational evaluation for the purpose of the reevaluation process. The District received the neuropsychological evaluation in 11/2019. [T pp 246-267] To ensure that qualifying children receive a free appropriate public education [FAPE] as required by the IDEA, a school district must create an “individualized education program [IEP]” for each such child, which is a written statement that sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance and describes specially designed instruction and services that will enable the child to meet those objectives. [ IDEA 614 [d], 20 U.S.A, 1414 [d]]
Present levels of Performance [summarized]
Academic Achievement et al
Mathematic grade level was estimated to be between 4.0-4.5. The Student was aware of the language and vocabulary needed to solve word problems of all 4 operations using whole numbers; fractions and numbers with decimals. She could be inconsistent in identifying the correct operation to use to solve the problem. She benefited from the use of manipulative and post lesson reinforcement.
ELA [reading, writing, speech/language] the Student’s reading grade level was estimated to be between 3.0-3.5. She had improved with her comprehension of the text; she was able to recall details from her reading and summarize the text in an organized way; able to answer text based/inferential questions; able to answer reading comprehension questions from the content related to text books as well as other material and able to make connections from a variety of sources. Her difficulty was in her inability to answer higher level comprehension questions involving inferencing. She had difficulty with organizing her ideas in her writing; using language skills required to ascertain the main idea, infer meaning and make predictions. She had difficulty with language organization, errors in the correct use of the verb tense. She was inconsistent in maintaining eye contact. She had demonstrated good recall of facts and details of spoken information. She required repetition and addition time to process spoken information.
Study Skills the Student was inconsistent in maintaining her attention span; could be anxious with her performance; struggled to maintain her focus when distracted by her classmates’ performance. Improvement was needed to improve skills in the area of daily living.
Social Development The Student demonstrated social anxiety; needed to improve social skills and reading social cues.
Physical Development The Student was diagnosed with ADHD; required the opportunity to take breaks when needed; struggled with Visual Closure, Figure Ground, Form Constancy, which affected her overall Visual Perception. She had difficulty with proper line orientation, handwriting assignment, need for reassurance; attending in the classroom. She was easily distracted; could be preoccupied with the peers in her class, with visual and auditory stimuli. She missed key information to complete classroom assignments, which related to her distractibility.
Management Needs The Student required special education support in a regular education setting. Attention and anxiety were areas of need.
She did not require behavioral intervention strategies to address behaviors that impeded her learning. She did not need a BIP. She did not require an assistive technology devise.
Goals [summarized pg. 11]
Study Skills
[1] will maintain her attention to tasks [lessons, assignments]
Reading
[2] will state the main idea or theme from a 5th grade text and use three key details; will summarize the text using 7 sentences
Math
[3] will read/write 10 decimals to the thousands using base 10;
[4] will use place value to round 10 decimals to a given place;
[5] will multiply 10 multi digit whole numbers; will add 10 fractions and mixed numbers with unlike denominators
Speaking/Listening
[6] will demonstrate appropriate turn taking, maintain eye contact while engaging in 10 verbal exchanges;
[7] will state conclusion and make 3 inferences based on information
Speech and Language
[8] will demonstrate topic maintenance during conversational speech; will formulate 5 cohesive and grammatically correct sentences;
[9] will use 10 vocabulary words related through association
Social/Emotional/Behavioral
[10] will display knowledge of social customs/mores and apply them to daily life situations;
Motor Skills
[11] will organize her ideas, express her opinions for handwriting assignments; will use proper line orientation and proper letter size in her written assignments;
[12] will improve attention to tasks by using sensory motor breaks
Classification continued as Other Health Impaired Placement was the Bayville Intermediate School
Program
2 English special education classes 40 min. daily
2 math special education classes 40 min. daily
1 life skills class 40 min. daily
Services occupational therapy [ind.] 3-45 min. sessions per wk. occupational therapy [ind.] 1-30 min. sessions per wk. occupational therapy [grp.] 1-30 min. sessions per wk. speech/language therapy [grp.] 2-30 min. sessions wkly.
Modifications/accommodations/testing allowances mainstream for science/social studies in 5th grade with a teaching assistant, 3:1, 1-40 min class daily [3/5/20]
ESY-will not participate in this program
State and District wide assessments-will participate in all.
Note: Many of the goals and services were carried over from the 4/17/2019 IESP and 1/13/20 IEP.
The significant evaluations/reports before the Committee were the neuropsychological evaluation [9/27/19], speech and language progress report [4/8/19], speech and language evaluation [12/17/19] and the occupational progress summary [3/4/20].
Neuropsychological Evaluation and Teacher report The contents of [redacted]’s evaluation are worth repeating because it provides valuable information related the Student’s “chronological history of global developmental delay”. The Student displayed persistent anxiety and reassurance seeking. She engaged in “compulsive skin picking [on her fingers] to a point of bleeding”.
Her teacher stated that the Student’s behavioral, social emotional function was problematic in the areas of anxiety, inattentiveness, hyperactivity, learning problems, defiant and aggressive behaviors. The Student’s persistent “inquiries and attention seeking behavior posed a formidable distraction to sustained engagement” and productivity.
[T pp 2103, 2105, 2018]
Keeping in mind that Dr. [redacted] conducted two neuropsychological evaluations over a two year period, he noted a decrease in the Student’s verbal comprehension, fund reasoning [knowing inductive and quantitative reasoning as well as abstract thinking]; working memory [ability to hold and manipulate information, speed and accuracy of visual identification, decision making and implementation] The academic areas that the Student had decreased were in reading comprehension; foundation of math problem solving; applied problem solving and her application of knowledge and operation to solve math problems. He further indicated that she struggled with “numeration, algebraic concepts and arithmetic reasoning assessed in a manner requiring deeper conceptual analysis”. This may be due to her deficits in higher order language such as her grasp of semantic relationships and nonliteral expression. Reading comprehension declined [inferential analysis].
Her work habits exhibited poor impulse control, attentional variability, response to change in tasks demands and distractibility. Her planning speed and proficiency were impaired. Her motor planning, complex visual motor abilities were also impaired.
He concluded that the Student had a multitude of strengths at the same time she manifested a multitude of education impediments [anxiety, inattention, perseverative behavior] as well as delayed academic skill development. The increased demands involving academic and executive function skills as well as her emotional social readiness required a “specialized education and an emotionally supportive academic milieu with low student teacher ratio with a group of peers with similar challengers”.
The peer grouping [classmates] should be well matched with the Student in intellectual, behavioral and social emotional functioning. [T p 2129] The classroom should be designed to meet the “educational and social emotional needs of youth anxiety, inattentive symptoms and learning disorders”. The classroom environment should be “slow paced”; the use hands on multi-sensory learning methods; abundant repetition and provide for a short term, long term reinforcement.
Individual and peer social skills training should also be part of her special education program. Speech and language should focus on her spontaneous flexibility of her use of language; ability to grasp complex semantic relationships; nonliteral expression and pragmatic communications.
Dr.[redacted] also recommenced a functional behavioral assessment [FBA] and a behavioral intervention plan [BIP] to address her assurance seeking perseveration inquires and compulsive skin excoriation. The behavioral plan should be implemented uniformly across all instruction. [T p 2133]
He also recommended an assistive technology evaluation, so as to identify methods to improve the Student’s efficiency and productivity.
[D-28, T p 3134]
Occupational Progress Report and Speech and Language Evaluation
Now, I turn to the occupational progress report and the speech and language evaluation conducted while the Student was attending the [redacted] School. Both reported behavioral observations similar to those noted in Dr.[redacted]’s evaluation, namely, the Student’s short attention span and focus; inadequate social pragmatics as it relates to peer relationships; processing skills and her ability to use language in an organized and adequate meaningful manner. [D-3, D-4, D-5, D-10, D-11, D-12, T pp 2098, 2099-2100]
Discussion and Decision
During the first part of the 2019-2020 school year, while the Student was attending the [redacted] School, the Parents concluded that their daughter was struggling both academically, emotionally and socially. Her anxiety manifested itself in a somatic manner. A change to her current school placement was needed. [T pp 2274-2277, 2287-2289] The change of their daughter’s placement to the [redacted] School was in their minds an emergency, interim placement, surmising that the District’s CSE’s process of developing an ‘appropriate’ program for their daughter would take time.
[P-G, T pp 2287-2289] In preparation for the January 13, 2020, a CSE meeting, as earlier stated, the District did not conduct its own psychological evaluation, but relied on Dr.[redacted]’s evaluation. The CSE did not conduct an updated educational evaluation, or a physical examination, a social history nor an observation of the Student in her learning environment.
Because the District elected not to enter into the hearing record any evaluative information or assessments from the Student’s record, it effectively abandoned its foremost opportunity to put forth its own viewpoint of the Student’s educational needs. Furthermore, a school district must evaluate a child within a reasonable time once they suspect a disability [ T p 2155, R.E. v. Brewster Cent. Sch. Dist. 219, 130 F. Supp 3d 262, 270 [S.D. N.Y. 2016] [Application of a Student with a Disability, Appeal No. 20-195] [ CR Part 200.4 [b] [i-v]] The recommendations of the 1/13/20 CSE meeting were to continue the evaluative process. The CSE was to arrange for an FBA, an assistive technology evaluation, an audiological examination and a classroom observation of the Student at the [redacted] School. [CR Part 200.4 [b] [4] [6] [vii], [ix] [x], T pp 2293-2295]
What appears to have been administrative laps and follow through, none of the CSE recommended evaluations and assessments were conducted during the period between January 13, 2020, and March 4, 2020. The CSE meeting proceeded to meet on March 4, 2020 despite not having these essential evaluations.
In attendance at the CSE meeting were District personnel, Dr.[redacted], neuropsychologist, Ms. [redacted] Special Education teacher and the Parent. An IEP was developed; a placement was made to the District’s [redacted] School and a special education program was recommended for a special education class [12:1:2] with support services.
In order to determine if the nature and unique needs of the Student were incorporated into the IEP, I reviewed the record and the information the CSE had available. I determined that the overwhelming, dominant disability that was inhibiting this Student’s progress was the social emotional component. I acknowledge that her learning disability and executive function needs were also part of her disability, but, in my view, they were not the primary cause of her not benefiting from her special education program and services at the [redacted] School.
The various evaluations and reports all agree that her anxiety, reassurance seeking, skin picking somatic behavior, inability to transition readily, the preoccupation of her classmate’s performance and her self-regulating inability were all a manifestation of her social emotional disability. [T p 207, 391-392, 395-396, 2148, 2165-2166] The IEP shall reflect all social emotional and learning disabilities in the present levels of performance, with measurable goals and short-term instructional objectives and benchmarks, placement, program and support services [ CR Part 200.4 [8] [2] [i-v]]
As I view the four present levels of performance on the IEP, I see no evidence that identifies some of the predominant behaviors that interfere with her ability to successfully access and benefit from her special education program, namely her anxiety, her skin picking behavior [compulsive excoriation], her internal ambivalence and conflict resulting in distress and self-doubt. [T pp 2103-2104] In fact, [redacted] testified that the CSE was waiting for the FBA so the [Student’s] behavior could be “understood better”. The IEP is a prospective document, not retrospective one. [T pp 395-397, 417-417] The Student was in a state of regression both academically and emotionally in her previous School, so transition planning for her must take into account her current state of being. Both her former school and her current placement had a population of less than 100 students. Any transition to a new and larger school facility would need to be carefully planned and in great detail, since the Student had difficulties with transitions. [T pp 207, 2165-2166] The Parent having no prior experience with the public-school system, requested information about the District’s [redacted] School and the particular class her daughter was to be assigned. [redacted] testified that due to privacy concerns, the specific information about the proposed class was privileged and not available to parents. The Parent never was given a tour of the recommended placement. T pp 481-482]
Given the Parent is an equal member of the CSE, she should have at least been provided some general information of the recommended special education class that existed at that time. This general information would have included the number of students, age range of the students, the range of reading, mathematic and writing levels, their physical and management needs as well as their social emotional needs. This general information does not reveal the identity of the students nor intrude on their confidentiality. Unfortunately, some of that information was brought out during the course of the hearing and was not available at the time of the CSE meeting. [ Holdzclaw v. District of Columbia, 524 F. Supp. 2d 43, 49 IDELR 71 [D. D. C. 2007] [H. B. by Penny B. v. Las Vergenes Unified Sch. Dist., No. 04-cv-08572-FMC, 52 IDELR 163 [C.D. Cal. 2008]
[ CR Part 200.1 [ww] [3] [i] [a-d] [ii], 200.6 [a] [3] [i-iv]]
Dr. [redacted]’s, neuropsychologist placed strong emphasis on the class grouping because of the multitude of her disabilities and the effect other students have on her. He indicated that the grouping be similar to the Student in intellectual, social emotional, behavioral and learning needs. His conclusion was based on her elevated levels of generalized anxiety and tensions which lead to her skin picking somatic behavior along with her perception of herself and others, all which affect her ability to benefit from her education. [T pp 406, 2081, 2145]
Her placement at the District’s [redacted] School also included her being mainstreamed for science, social studies, participate in electives and lunch and recess. She would have available to her a teacher assistant [TA] to accompany her to those activities. The IEP does not reflect any specific transition planning or goals for the Student’s orientation to the school, visit to the program, to the mainstream classes, electives and lunch and recess in the hopes of sensitizing her to her new surroundings. In person visitation was available over the summer, yet that opportunity was not taken advantage of. It is essential that the Student, with her level of anxiety, not ever having attended a public school, be given a specific plan to acclimate her to her new surroundings. I believe without that detailed plan; she would not succeed and would have regressed.
Recommended evaluations and assessment and their relevance
Functional behavioral assessment FBA was not completed.
[ CR Part 200.1 [r], 200.5 [b] [v]] The significance and importance of this assessment is described by Dr. [redacted] in his evaluation, wrote the Student “was reported to exhibit persistent expressions of anxiety that initially manifest as discomfort about unknown or unfamiliar situations and progressed to include somatic complaints that coincided with perceived academic challenges [i.e., vomiting]”. During the testing, he noted that the Student “exhibited pronounced verbosity, aspects of which involved perseveration inquiries about upcoming activities”, which could have an attention seeking quality. These “behaviors posed a formidable distraction to sustained engagement and …productivity”. He observed her thumbs were band aids wrapped “to treat and prevent compulsive skin picking” as well as attention variability and impulse control. He recommended the Student undergo an FBA to address those behaviors, develop a BIP and have it communicated uniformly across all instructors and that her “targets closely monitored during less structured interactions with peers”.
[ T p 363, 448, 2089]
Assistive technology evaluation is a functional evaluation of a student in the student’s customary environment. Dr. [redacted] recommended that the Student undergo “a comprehensive assistive technology evaluation to identify methods to improve the quality and fluency of her academic productivity”. The assistive technology would be used to increase, maintain or improve the functional capabilities of a student with a disability.
[CR Part 200.1 [e] [f] [1-6], D-9]
Classroom observation in the student’s learning environment [including the regular classroom setting], whose purpose would be “to document the student’s academic performance and behavior in the areas of difficulty” had not been completed. [D-13, CR Part 200.5 [b] [iv],
T pp 2095-2096]
Audiological examination includes a series of tests doctors use to determine the type, degree and configuration of a hearing loss.
Dr. [redacted] noted that the Student scored borderline on semantic relationships on the CELF-5. [D-9] This examination was completed on May 9, 2020, and indicated her hearing was within the range of normal limits, but the audiological examination did not address the auditory processing disorder. The recommendations were for the use of assistant technology and preferential seating. [D-28]
Conclusion
Given the District’s CSE failed to provide the Student with an IEP that would provide FAPE by failing to fulfill its own recommendations to provide for additional evaluations and assessments such as; failure to conduct a physical examination as required [Sec 903, 904, 905]; failure to conduct a social history; failure to conduct a classroom observation; failure to conduct a FBA and BIP; failure to include social emotional goals; significantly impede the parents opportunity to participate in the decision making process regarding the provisions of a FAPE to the student; failure to provide for an appropriate transition to the [redacted] School and failure to engage with the Parent to obtain the input of the private professionals, who possessed invaluable information. In fact, Dr. [redacted] stated in his evaluation that he was willing to work with the CSE to address the Student individual needs. All this renders the District’s IEP as inadequate and procedurally insufficient to meet the unique needs of the Student for the 2019-2020 school year.
School districts must be able to offer a ‘cogent and responsive’ explanation for their decision that shows the IEP is reasonably calculated to enable the student to make progress appropriate in light of her circumstances. I have concluded the District did not.
The Parent sent [redacted] notice on 4/15/19 of her intent to continue her daughter’s placement at the [redacted] Private School for the remainder of the school year and would seeking public funding for the tuition and services. [P-H pgs. 1-2]
Applicable Standards
IDEA, the federal Act, amended the Education for All Handicapped Children Act, which required states to develop plans to assure “all children with disabilities the right to a free appropriate public education” [FAPE]. FAPE must include “special education and related services” tailored to meet the unique needs of a particular child and be “reasonably calculated to enable the child to receive educational benefits.” The IEP must be in conformity with a FAPE. [ 34 CFR 300.17 [d], Board of Educ. of the Hendrick Hudson CSD v. Rowley, 458 U.S. 102 S.Ct. [1982]].
The law expresses a strong preference for children with disabilities to be educated, to the maximum extent appropriate, together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child’s needs. Only when the nature or severity of a child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily should a child be segregated. In such cases, instruction may be provided not only in special classrooms, but also in the home, in hospitals and institutions and in other settings. Indeed, a school board may be required to place a child in a residential institution if such a placement is necessary to provide an appropriate education. Also, it should be noted that parents are not held to the same mainstream requirements as districts [holding that …“the test for the parents’ private placement is that it is appropriate, and not that it is perfect”. [ Warren G. v. Cumberland County Sch. Dist., 190 F. 3d [3d Cir. 1999]]
While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under IDEA [ Grim v. Rhinebeck Cent. Sch. Dist. 346 F. 3d [2d Cir. 2003]]
Under the IDEA, if a procedural violation is 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 impede the parents opportunity to participate in the decision making process regarding the provisions of a FAPE to the student or [c] caused a deprivation of educational benefits. [Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp, 2d [S.D. N.Y. 2007] The IDEA directs that, in general an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 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], the “IDEA 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]. The statue ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” [Walczak, 142 Fd at 132]. Additionally, school districts are not required to “maximize” the potential of students with disabilities. [see Rowley at 189, 199, Grim at 379 and Walczak 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” [Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d at 195, Walczak at 130]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”. [see Rowley at 192], since amended to be “meaningful educational benefit” [Endrew F. v. Douglas Cnty. Sch. Dist. 137 S.. Ct. 743, 89 IDELR 174 [U.S. 2017].
Since New York State [State] receives federal funds under IDEA, it is obligated to comply with the requirements of IDEA. To meet these obligations and to implement its own policies regarding the education of disabled children, the State has assigned responsibility for developing appropriate IEPs to local Committees on Special Education [CSE], the members of which are appointed by school boards or the trustees of school districts. In developing an appropriate IEP, it must reflect the results of the initial or most recent information from evaluations to identify the student’s strengths, needs, establishes annual goals related to those needs, and provides for the use of appropriate special educational services [Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059]. A CSE is also required to consider four factors: [1] academic achievement and learning characteristics, [2] social development, [3] physical development, and [4] managerial or behavioral needs. [ CR Part 200.1 [mm or zz]]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a child by his or her parents, if the services offered by the board of education were inadequate or inappropriate; the services selected by the parents were appropriate, and equitable considerations support the parents’ claim [Sch. Comm. of Burlington. Dep’t of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA [see Burlington at 370-371] “Reimbursement merely requires a district to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it offered the student FAPE [Burlington at 370-371]; [Application of a Student with a Disability., Appeal No. 08-085]; Application of a Student with a Disability, Appeal No. 08-025]
A private school placement must be “proper under the Act”, the private school offered an educational program that met the student’s special education needs. The private school need not employ certified special education teachers or have its own IEP for the student. The private school need not show that the placement provides every special service necessary to maximize the student’s potential. When determining whether the parent’s unilateral placement is appropriate depends if the child is receiving educational benefit. While progress at a private school is relevant, it does not itself establish that a private placement is appropriate to meet a child’s unique special education needs. Grades, test scores and regular advancement may constitute in part, evidence that a child is receiving educational benefit. Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the child. [see Carter at 7, 12, 15; Burlington at 370, Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d at 112, 115, 364-365]
Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. It is improper to assume that every IEP is invalid until the school district demonstrates that it is not. [ Weast v. Shaffer, 126 S. Ct. 528, U.S. Sup. Ct. [2005] In 2007, the New York State Legislature amended the Education Law to place the burden of persuasion and production upon the school district during an impartial hearing regarding the appropriateness of such placement [Educ. Law 4404 [1] [c], as amended by Ch. 583 of the Laws of 2007]. The amended statue took effect for impartial hearing commenced on or after October 14, 2007, [see Application of a Student with a Disability, Appeal No. 08-016].
Moreover, while parents are not held as strictly to the standard of placement in the LRE as school districts are, courts have routinely and repeatedly considered the restrictiveness of the unilateral placement as a relevant factor in assessing whether the “totality of the circumstances” demonstrates that the “placement reasonably serves a child’s individual needs” [Gagliardo, 489 F.3d at 112; see C.L. v. Scardale Union Free Sch. Dist., 346 F. 3d 377, 379 [2d Cir. 2003], Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003, noting the IDEA’s preference for educating students with disabilities alongside their non-disabled peers when appropriate; Weaver v. Millbrook Cent. Sch. Dist., 812 F. Sup. 2d 514, 523-24 [S.D.N.Y. 2011]; Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F. Supp. 2d 361, 367 [S.D. N.Y. 2010], indicating that the “level of restrictiveness may be considered in determining whether tuition reimbursement should be ordered”, W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 138 [S.D. N.Y. 2006]; Pinn v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 482 [S.D. N.Y. 2007]
Discussion
Unilateral Placement
B. [redacted], principal of the [redacted] School [School] testified that for the 2019-2020 school year, the population was about 119 students in grades K-7 with eleven classes. Each class has two teachers [a head teacher and an assistant]. Related services include speech and language therapists, counselors and occupational therapists. The School specializes in working with students who have learning disabilities, speech and language needs, executive function needs, anxiety disability, sensory processing needs, dyslexia and ADHD. The School does not accept students who are emotional disturbed, autistic or nonverbal. Its students tend to have cognitive levels that range from average to above average. The Student’s classmates are described as having similar needs. The school uses a collaborative team approach, whose responsibility it is to review the students’ evaluations, reports and other documents.
[redacted], school counselor testified that she collaborates with the Parents and the private clinicians.[P-K 1-10, T pp 1705, 1707, 1725, 1728] The Student attends a classroom that has a 12:1:1, student/teacher/assistant ratio. Reading and mathematics are taught in homogeneous groups of four to six students. For reading the Wilson Foundations reading programs was used. Mathematics used the enVision Math curriculum. The writing curriculum uses the Freneer program with a Thinking Map, which focuses on brainstorming and organizing the Student’s thoughts. For penmanship, Handwriting Without Tears is used. For social skills development, the Michele Garcia Winters curriculum is used, which focuses on perspective taking and conflict resolution. Social skills development focuses on leadership, empathy, awareness and diversity.
[P-EE, P-K 1-10, T pp 1665, 1674-1675] The Student’s reading instruction focused primarily on reading comprehension since does not require decoding instruction. She was in the enVision Mathematics curriculum. Science and social studies follow the New York State standards. Social skills instruction was taught by a speech and language therapist and is in her homeroom class of ten students. The school environment was described as one that is “not overwhelming”. The special education teachers teach all academic subjects. [T p 1585]
When the COVID school restrictions were put in place, the [redacted] School went to a remote model around March 13th. The remote instruction day was from 9:00 AM to 2:00 PM with reading and math taught 45 minutes daily; therapies were 1.5 hours weekly and electives were 1 period per week. [P-II, T pp 1542-1543] The Student entered the [redacted] School on January 6, 2020.
[P-G-1] The Parents viewed this “emergency “interim placement until the District’s CSE developed its IEP recommendations. [T p 1611] The Students initial adjustment was challenging, but she soon moved to a more accepting transitional behavior. The Student’s academic profile while at [redacted] School indicated that she was at Wilson reading level 3. The focus of her program was in the reading comprehension. Need areas where abstract thinking, making connections and understanding visualization. These areas were the basis of her reading program with a list of some not all of her specific goals: [1] to determine the meaning of unknown words or phrases using context clues; [2] to use word recognition skills and comprehension strategies to acquire vocabulary; [3] to construct meaning from the text at her instructional level; [4] to use knowledge of conventions to read fluently at instructional or independent reading level; [5] to identify basic literary elements in the text such as idioms; [6] to think critically and analyze the authors use of language, style, purpose and perspective in informational and literary text. Many of her goals were listed as satisfactory or emerging. Her instruction level starting point for the all 2020 would be Wilson 4.
The Student’s mathematic profile had her in the range of 4.0-4.5 level. She tended to be “easily distracted, often guesses and rushes to be the first one done”. She knew her multiplication and division facts; could divide 2-3-digit numbers with 1-digit divisors; could multiply 2, 3 and 4 digits with regrouping; could perform mental computation. Specific goals were:
[1] to identify/know the value of coins; [2] to apply multiplication and division in word problems; [3] to identify key words in word problems; [4] to add and subtract decimal; [5] to identify and classify geometry figures. Her end of year assessment mathematics level was 4.
Her program included handwriting, social studies [civics and Colonial America], science [life and physical] and language arts [literature], where she would be working on structured essays. Most common triggers were general anxiety, skin picking, seeking reassurance and staying focused on her activities. The Students program also included classes in health and human development, technology, art, music, library and physical education. [D-67, P-K 1-10, P-P 1, T pp 1522-1525, 1579, 1679-1680] In the May 2020 counseling progress report, the Student participated in counseling 1-30-minute session per week as well as a weekly social skills group in her classroom. During the remote period during the School’s closure, counseling sessions were provided via Google Meet. The Student was exposed to various therapeutic exercises and problem-solving techniques. These have helped her utilize them appropriately and effectively in moments when needed. She continued to increase her frequency of positive and prosocial behaviors. She had made a lot of progress during her counseling sessions, which have help her respond to stressful social situations. She had been working on more accurately perceiving feelings within herself and others. She has made many improvements in her social emotional development. Her skin picking tended to occur in the academic area rather than in her social interaction. The social emotional goal was to get her to reach a point when she can generalize these skills across her environment and be better equipped to solve her social emotional problems. [P-J 1-4, T p 1681, 1683, 1736, 1737-1738]
Occupational therapy was provided remotely for two weekly group sessions via Google Meet and addressed physical sensory strategies. The occupational therapist worked with other team members to ensure there is continuity across all disciplines. Occupational therapy goals include:
[1] improvement in fine motor coordination and graphomotor skills;
[2] sensory processing and regulation; [3] improvement of gross motor functioning skills and life skills. [P-M 1-5]
Speech and Language therapy met once a week for 30 minutes individually. This changed after March 13, 2020, when the [redacted] School moved to a remote delivery program for its students. The Student exhibited challenges in the areas of pragmatic language, receptive and expressive language. The therapy focus was to promote the development and generalization of language skills. [P-N 1-3] The Student has developed many friends and was well liked by her [redacted] School classmates. This in contrast to her experience at the previous [redacted] School. [P-J-1-4, T pp 1693, 1694]
Attendance from January to June 2020 showed 3 days absent out of 96 days. [P-I]
I am satisfied from the reports and testimony placed on the record, that the Student’s program at the [redacted] School meets all the requirements of a partial tuition reimbursement for the remainder of the 2019-2020 school year. The Parent fully participated in the CSE meetings, provided the District with Dr. [redacted] evaluation and communicated with the CSE her concerns. She notified the District via email on April 16, 2020, with an attachment letter addressed to [redacted]. The correspondence provided timely notice to the District of her rejection of the proposed placement. [P-H 1 & 2] As stated in her correspondence, the CSE did not reconvene until May 18, 2020, to address the Parents concerns.
SO ORDERED
2020-2021 IEP
On May 18, 2020, the CSE met to conduct its annual review for the 2020-2021 school year. As stated in the previous IEP meeting, the Parent’s concerns would be addressed. [T pp 2578, 2587] The Parent also informed the District that her Daughter continued to attend the [redacted] School. With the exception of the Cogmed program, the Student had not participated in any of the programs or services that were offered by the District. [T pp 2236, 2339-2340] The subcommittee on special education meeting was held remotely due to COVID-19. In attendance was [redacted], chairperson,
[redacted], occupational therapist, [redacted], psychologist, [redacted], special education teacher, [redacted], general education teacher, [redacted], speech and language therapist, [redacted], guidance counselor, the Parent, [redacted], principal, [redacted], assistant principal. [34 CFR 300.328]
IDEA, the federal Act, amended the Education for All Handicapped Children Act, which required states to develop plans to assure “all children with disabilities the right to a free appropriate public education” [FAPE]. FAPE must include “special education and related services” tailored to meet the unique needs of a particular child, and be “reasonably calculated to enable the child to receive educational benefits” The IEP must be in conformity with a FAPE. [ 34 CFR 300.17 [d], Board of Educ. of the Hendrick Hudson CSD v. Rowley, 458 U.S. 102 S.Ct. [1982]].
The law expresses a strong preference for children with disabilities to be educated, to the maximum extent appropriate, together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child’s needs. Only when the nature or severity of a child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily should a child be segregated. In such cases, instruction may be provided not only in special classrooms, but also in the home, in hospitals and institutions and in other settings. Indeed, a school
IDEA, the federal Act, amended the Education for All Handicapped Children Act, which required states to develop plans to assure “all children with disabilities the right to a free appropriate public education” [FAPE]. FAPE must include “special education and related services” tailored to meet the unique needs of a particular child, and be “reasonably calculated to enable the child to receive educational benefits” The IEP must be in conformity with a FAPE. [ 34 CFR 300.17 [d], Board of Educ. of the Hendrick Hudson CSD v. Rowley, 458 U.S. 102 S.Ct. [1982]].
The law expresses a strong preference for children with disabilities to be educated, to the maximum extent appropriate, together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child’s needs. Only when the nature or severity of a child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily should a child be segregated. In such cases, instruction may be provided not only in special classrooms, but also in the home, in hospitals and institutions and in other settings. Indeed, a school The IEP noted that the District’s [redacted] and [redacted] School teams would be present and would review the Student’s recent evaluation, teacher reports, progress reports, occupational therapy report as well as input from the Parent. [T pp 575-576, 577-578] The documents the Committee considered and reviewed were the IEP dated 3/4/20, occupational therapy progress summary dated 3/3/20, speech and language re-evaluation dated 12/17/19, audiological examination dated 3/15/20 and the neurological evaluation dated 9/27/19. Detailed verbal statements by the attendees at the meeting and noted on the previous IEP, were not available to the Committee.
The Academic Achievement, Functional, Performance and Learning Characteristics for mathematics, ELA [reading, writing, speech and language and study skills] were all carried over from the 3/4/20 IEP.
The Student’s Social Development and Management Needs were also carried over from the 3/4/20 IEP.
In the Social Development section, the Cogmed program was added, which focused on improving the Student’s memory and would “need to be reinforced and generalized into her classroom routines”. The remainder of this section was carried over from the 3/4/20 IEP.
Goals [1-13] for study skills, reading, math, speaking/listening and speech and language were identical to the ones listed in the 3/4/20 IEP.
New goals in the social/emotional/behavioral section were: [1] will identify and use the appropriate coping skill to maintain school behavior;
[2] will use positive strategies to resolve a social conflict; [3] will display knowledge of social custom/mores and apply them to 3-day life situations. New motor skills were added: [1] will use strategies to organize and plan multi step activities with minimum assistance; [2] will select the word processing function to complete assignments and [3] will build and duplicate, reproduce designs from a visual model across academic settings.
Also noted on the IEP was that the Student would not require “positive behavior interventions, support or other strategies to address behaviors that impede her learning or that of others. However, the CSE agreed to provide assistive technology devices and or service.
The Student’s classification remained the same, but her special education program was changed to a special class that would provide all four academic subjects. A daily resource room was also added. The combined special education programs would total 210 minutes of instruction or support. A teaching assistant would accompany the Student to her electives, lunch and recess. Counseling services would be provided individually, 2-30. min. sessions monthly; in a small group, 1-30 min. session weekly; speech and language therapy would be provided in a group, 1-42 min. session every other day; occupational therapy would be provided individually for 2-42 min. sessions weekly. Also provided was a monthly occupational therapy consultation for 1-60 min. session.
Another change in the IEP was a 12-month special education program and services [ESY]. The ESY included a resource program for 2-60 min. periods per week, speech and language therapy for 2-30 min. sessions peer week and occupational therapy for 2-30 min. sessions per week. [D-41] In developing an appropriate IEP, it must reflect the results of the initial or most recent information from evaluations to identify the student’s strengths, needs, establishes annual goals related to those needs, and provides for the use of appropriate special educational services [Application of a Student with a Disability., Appeal No. 07-018; Application of a Student with a Disability, Appeal No. 06-059]. A CSE is also required to consider four factors: [1] academic achievement and learning characteristics, [2] social development, [3] physical development, and [4] managerial or behavioral needs. [ CR Part 200.1 [mm or zz], 34 CFR 300.320 [a] [1]]
IDEA, the federal Act, amended the Education for All Handicapped Children Act, which required states to develop plans to assure “all children with disabilities the right to a free appropriate public education” [FAPE]. FAPE must include “special education and related services” tailored to meet the unique needs of a particular child and be “reasonably calculated to enable the child to receive educational benefits.” The IEP must be in conformity with a FAPE. [ 34 CFR 300.17 [d], Board of Educ. of the Hendrick Hudson CSD v. Rowley, 458 U.S. 102 S.Ct. [1982]].
In order to develop an IEP that is appropriate to the student’s needs, an individual evaluation is completed with parental consent; is valid and reliable; is administered by trained and knowledgeable professionals; the evaluation is tailored to assess the specific areas of educational need, not a single measure or assessment is used as the sole criterion for a disability or program determination and is made by a multi-disciplinary team that assesses all areas related to the suspected disability. [ CR Part 200.4 [6] [i] [a-d] [iii] [vi] [ix]] The Supreme Court has indicated that “the 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 indicated that “multiple procedural violations may cumulatively result int the denial of a FAPE even if the violations considered individually do not” [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. A.C. v. Bd. of Educ. of the Chappaqua Cent. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]
Discussion
I have reviewed the action of the CSE as detailed above. The Petitioner raises number of issues in the Complaint concerning the appropriateness of the 2020-2021 IEP. I will focus on the main issues in the Complaint and the process the CSE used to arrive at its recommendations.
The Petitioner claims [1] the CSE failed to evaluate the student nor had sufficient evaluative data to develop an appropriate IEP; [2] the CSE failed to include crucial members at the May 2020 CSE meeting, including the Student’s teacher; [3] the IEP failed to address the Student’s anxiety and skin disorder, failed to develop an individual plan to decrease her skin picking and anxiety; [4] The IEP failed to include a behavioral plan;
[5] the IEP failed to recommend assistive technology; [6] the annual goals…are vague, failed to address every areas of deficits and were not measurable; [7] the CSE failed to develop appropriate present levels of performance.
Concerning the issue raised in the Complaint, of the appropriate reading and math interventions to address the Student’s learning disability, though an IEP may consider a particular methodology, it is long established that the method of instruction is left up to the teacher and there is no obligation to use a parent’s referred educational methodology in order to maximize a student’s educational benefit. [Kathryn F. v. West Chester Area Sch. Dist., 62 IDELR 177 [E.D. Pa. 2013], Y.S. and J.E.K. ex rel. J.S. v. New York City Dep’t of Educ., 62 IDELR 56 [S.D.N.Y. 2013] The CSE process used in its development of the Student’s 2020-2021 IEP was not based on current or new information but was based on the information provided in previous IEP. The following staff members attended both the 3/4/20 and the 5/18/20 CSE meetings. The following is a snapshot of their testimony:
[redacted], psychologist, testified that she “looked at the program she was currently in”. [T p 523] She also testified that she reviewed Dr. [redacted] neuropsychological evaluation for information as well as to obtained permission to contact the private school or [redacted] but did neither. [redacted] never met the Student. [T pp 503, 518, 564, 581-582, 948]
[redacted], special education teacher testified that she did not know the Student “personally” or worked with her or had knowledge of the Student. [T pp 715-716, 770] She did, however, provide the Parent with an informal academic assessment, which the Student completed for her.
[T p 742]
[redacted], speech therapist testified that she made no effort to contact the [redacted] speech and language therapist, because she did not need to reach out to her [the Student’s] therapist. She relied on the previous testing to develop goals. She did not add any new goals, because she never met the Student. She was unable to give a summary of her speech needs because of her “limited interaction with the [Student]”.
[T pp 825, 829, 831]
[redacted] provided speech and language therapy to the Student during the summer of 2021. This ESY service is not an issue at this hearing. The purpose of the service was “to prevent regression”. She testified that there were 9 session of 45 min. duration, working on attention span, eye contact and inferencing skills. She believed it was a very productive experience for the Student. She also commented that the Parent provided her with [redacted] School’s end of year speech and language report, which she found to be insightful in understanding the Student’s speech and language needs. [T pp 854, 860, 867,869, 871] The Petitioner contends that the CSE failed to evaluate the Student or have sufficient evaluative data. As previously stated, the CSE did not conduct a classroom observation, an assistive technology assessment, an FBA and a BIP, all recommended in the neuropsychological evaluation and in the 1/13/20 and the 3/4/20 CSEs. [redacted], psychologist testified that the observation, FBA and the assistive technology evaluation would be completed in September, when the School District would be open for in person instruction. She believed that the assistive technology evaluation should be conducted in person as opposed to it being conducted remotely. She also testified that the reports and evaluations listed in the IEP are within the recent timeframe for the student and need not be reviewed individually at every single meeting. She also testified that it was her practice [as chairperson] to invite the student’s current school staff to the CSE meeting to help develop the “appropriate program or placement for that student within their new setting”. [34 CFR 300.305 [a] [i-iii], T pp 991-992, 969, 976, 1035]
Given that the CSE failed to conduct the evaluations the previous CSEs had recommended; updating its own evaluations or conduct any of those evaluation at the [redacted] School or remotely, it failed to have the most up to date information on the Student. The [redacted] School began a hybrid program beginning September 2020 and the recommended evaluations and assessments could have been completed at the School. Given this information, I deem these omissions to be a procedural violation.
Previous compositions of the CSEs, included representatives of the schools the Student attended, namely, the [redacted] School and [redacted] School. The CSE did not include the [redacted] School staff to participate in the development of the 5/18/20 IEP. The CSE did not reconvene the CSE meeting in order to ensure the required members were present or to make sure that current reports were available to its members. The previous CSE meeting was held on March 13, 2020, so there was no urgency to conduct the CSE meeting on May 18, 2020. [R. B. v. Napa Valley Unified Sch. Dist., 48 IDELR 60 [9th Cir. 2007] [redacted] believed it was the Parent’s responsibility to invite the [redacted] School to the CSE meetings. [redacted], psychologist testified that it was the exception to have a private school attend a CSE meeting. She added that the [redacted] school “would have given us the same information they gave us on 3/4/20”. She also testified that at the time of the meeting, she did not have any reports or records from the Student’s School placement. It is my opinion, that it is the school District’s, not the Parent’s responsibility, to ensure participation by representatives of the Student’s private school to ensure updated information is available to the CSE. The school district must make efforts to include the child’s teacher in the process otherwise there is a denial of FAPE. By not having the Student’s classroom teacher, the District denied FAPE to the Student. [T pp 574-575, 829, 1051-1052, 1053, 1062, Appeal of a Student with a Disability, 09-083, 34 CFR 300.344 [2] [5], R.G. v. Bd. of Trustees of Target Range Sch. Dist. No.23 960 F 2d 1479 [9th Cir. 1992]] The Petitioner contends the IEP does not address the Student’s anxiety nor her skin picking behavior. A review of the IEP, there is references to social anxiety, and the reading of social cues. Goals to address her anxiety were: [1] by identifying and applying the appropriate coping skill; [2] resolving any social conflict by using positive strategies; and [3] by displaying knowledge of social customs/mores and applying them. Goals should correspond for each identified need as listed in the evaluation or in the IEP. The goals should be sufficient to determine an accurate baseline of the behavior affecting the Student’s disability.
[Bend-Lagune Sch. Dist. v. K. H., 43 IDELR 191 [2005], [Anchorage Sch. Dist., IDELR 230 [SEA AK 2008], C.F. v. New York City Dep’t of Educ., 746 F 3d 68 72, IDELR 281 [2d Cir. 2014] In his neuropsychological evaluation, Dr. [redacted] refers to the Student’s clinically significant manifestations of anxiety that include generalized worries, performance fears, incessant reassurance seeking and compulsive excoriation that has resulted in bleeding. The present level of performance in the social development section of the IEP does not list those areas of her extreme social emotion disability, nor adequately prescribe ways to address the specific behavior in its goals. Without an FBA one does not know when, how and the frequency of the behavior and under what conditions the behavior impedes her learning. Not conducting an FBA prevented the CSE from obtaining necessary information, therefore this omission is another procedural violation and a denial of FAPE. [ C.F. ex rel R.F. v New York City Dept. of Educ., 746 F. 3d 68, 72 [2d Cir. 2014], M.C. v Bd of Dep’t of Educ., 725 F. 3d 131 [2013], M.W. v. New York City Dep’t of educ., 725 F3d 131 [2013], CR Part 200.1 [r], 200.4 [b] [i] [v], 20 U.S.C. A. 1414 [d] 3] [B] [1]] The CSE made a change in the Student’s IEP when it added an extended school year [ESY] for the 2020-2021 school year. This change was made without conducting an evaluation to determine the need for the ESY. The Committee on Special Education must determine whether a student requires an ESY special education program and services in order to prevent substantial regression. Substantial regression would be indicated by a student’s inability to maintain developmental levels due to a loss of a skill, set of skill competences or knowledge during the months of July and August. In accordance with Section 200.6 [k] [i-v] [2] of the Commissioner’s Regulations, students must be considered for twelve-month special services/or programs to prevent substantial regression if they are:
[1] students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention and who are placed in special classes;
[2] students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes;
[3] students who are recommended for home and hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention and intervention or who have severe multiple disabilities and require primarily habilitation and treatment; students whose needs are so severe that they can be met only in a seven day residential program; and [4] students receiving other special education services who, because if their disabilities, exhibit the need for a twelve-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression.
In my review of the record, I cannot find that quantitative and qualitative information that was reviewed by the Committee to substantiate the need for providing an ESY. A student is eligible for a twelve-month program or service or when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year. The typical period of review or reteaching ranges between 20 and 40 days. As a guideline for the purpose of determining eligibility for an extended school year program, a review period of eight weeks or more would indicate that substantial regression has occurred. The CSE recommended a resource room, speech and language therapy and occupational therapy. With the exception of the latter, there was no testimony related to the need for an ESY. The Committee therefore had no evaluative basis to make such a provision for special education and related services in the 2020-2021 IEP. [ 34 FR 300. 305 [e], CR Part 200.1 [aaa] [eee] 200.6 [k], 200.16 [i] [3] [v]]
Based on all of the foregoing, there is sufficient evidence that the CSE failed to offer the Student a FAPE for the 2020-2021 school year.
Unilateral Placement
A private school placement must be “proper under the Act” [Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370] i.e., the private school offered an educational program which met the Student’s special educational needs [see Gagliardo, 489 F. 3d at 112, 115; Walczak. 142 F. 3d at 129]. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student [20 U.S.C. 1401 [29]; Educ. Law 4401 [1]; 34CFR 300.39 [a] [1]; CR Part 200.1 [ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372,386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F. 3d 826, 836 [2dCir. 2014]; Gagliardo, 489 F. 3d at 114-115; Frank G., 459 F. 3d at 356].
The second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in deterring whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. [Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F. 3d at 364-365] The [redacted] School The [redacted] School is a special education school, which housed 95 students in grades K-7 during the 2020-2021 school year. The Student attended a special education class with a 12:1:1 student/teacher/assistant ratio, which was equipped with a Phonic Ear FM system. The school provided speech and language therapy, counseling, nursing services, occupational therapy and educational therapies as related services. [P-DD1, V 1-11]
[redacted], principal, testified that the population is made up of students who have learning disabilities, executive function, anxiety, sensory processing, dyslexia and attention deficits. The student’s cognitive levels range from normal to above average. They do not accept students who are nonverbal or emotionally disturbed.
The teaching staff hold Masters of Science degrees in special education with their assistants moving towards that level. Instruction was provided through a variety of curriculums, e.g. reading used the Orton Gillingham or Wilson programs; mathematics used the enVision or Savvas Mathematics; written expression used the Frenerr Writing; handwriting used the Handwriting Without Tears; social skill training used the Michele Garcia Winters Curriculum.
During the 2020-2021 school year, the [redacted] School went on a hybrid model with 2 days in person instruction and 3 days remote instruction. The school day was from 9 AM to 2 PM. Related services were provided 1.5 hrs. weekly and electives were provided 1 day per week.
[P-JJ, V, T p 1772]
[redacted], classroom teacher, testified, when the Student first arrived, she was at Wilson level 3 and is now receiving remedial instruction in reading Wilson level 4. The focus of her instructions center on abstract comprehension skills such as making inferences, understanding the point of view and understanding the author’s purpose and meaning.
The Student’s mathematics instruction is at level 5 using the Savvas curriculum. She was part of a group of 6 students. They were grouped homogeneously by skill level and met for 1-45 min. session daily. The focus of the instruction was to add and subtract numbers in decimal form; multiply 2- and 3-digit numbers with regrouping; divide 2 and 3 digit numbers with 1 digit divisors; recall multiplication facts from 0-12; identify geometric shapes. [P-K-2, T pp 1811, 1814, 1830-1831] The Student’s writing program focuses on the organization, planning and editing of her writing. The curriculum uses Thinking Maps as wells Framing Your thoughts. Her goal is to improve base line sentence structure and advance to paragraph writing. [P K-4, T pp 1819-1920] The science curriculum introduced a range of physical science, properties of matter, life science, and the living environment, following the 6th grade State standards. The Student was a successful science Student, who has strong ideas that allows her to engage in various scientific topics. She frequently participates and asks question relating to each topic introduced and benefits from repetition and review of the material taught. [P K-6, P V-4, T pp 1832, 1862] The social studies curriculum focuses on geography, world history, ancient cultures and civilizations. The Student’s goals are: will learn map skills; locate seven continents and oceans and learn about ancient Egypt.
The social study goals are based on the 6th grade curriculum. She had been an active participant in the class. [P V-5, T pp 1830-1831, 1834]
Electives included art, music, technology, Health and Human Development and physical education. [P-V, T pp 1796, 1797, 1811, 1814, 1830-31, 1857]
[redacted], the Student’s counselor, provided counseling 1-30 min. session per week. She also provided a therapeutic support group which met 1-45 min session per week. The goal was to work with her on reframing her negative thoughts. She used the feedback provided and was willing to learn. Part of the counseling program also focused on the impact of the pandemic had had on her life, on how to be “present in the moment” and not think too much into things she cannot control. Another focus of the counseling was helping her cope with her anxiety; social problem solving; strategies to use when feeling anxious or worried and being aware of the perspectives of others. [P-EE-1, P-J-1-4, V-10, T pp 1689, 1697-1699]
Another program to help the Student address her social emotional needs was the Alliance Club, where she worked with other students collaboratively on community service projects. The Student’s goals were to work productively and cooperatively with a shared purpose in a group setting; to foster a sense of connection and responsibility within her community. [P-V 11]
Social emotional support continued to be required a “couple times a day” because of inconsistencies in applying the strategies when feeling anxious or nervous. Sensory tools are used to reduce her skin picking behavior. Coordination with the Student’s out patient therapist was ongoing to address these issues. [P-V, T pp 1681, 1683, 1707-1708, 1726-1727, 1736-1730, 1762]
Socially, the friends she developed in 5th grade have continued into 6th grade. [redacted]observation of the Student had been spontaneous and informal. She had observed that the Student smiling, happy, social, more related and comfortable in her environment. [T pp 1644-1645,1691, 1693] The Student’s progress was monitored through projects, informal assessments, quizzes, tests and reported in the fall progress report. [P-V]
I believe, the [redacted] School provided for the Student’s academic needs, offered small classes in the areas of her disabilities; was grouped with students with similar social emotional and educational needs; included teachers and support staff who specialized in addressing the Student’s unique needs. These unique needs included, but were not limited to, her social emotional and social pragmatic needs as well as her executive functioning and organizational issues. Testimony at the hearing demonstrated that the [redacted] School had the capacity to address this Student’s unique needs to ensure she would progress in those areas that are pronounced in her disability. I, therefore, find that the [redacted] School is an appropriate placement for the Student.
Equitable Considerations
Administrative review officers and courts are required to evaluate the equities in considering a tuition reimbursement claim. This includes whether the parents cooperated with the CSE [e.g. providing reports, attending meetings, participating in meetings]; whether the parents timely notified the school district of their intent to place their child in a private school; whether the parents intended to genuinely consider a proposed public placement, or whether they could have kept their child in private school regardless of the proposed public placement.
I hold that the equities support the Parent. There is no evidence that the Parent did not cooperate with the CSE in the development of two IEPs in question. The Parent actively engaged and participated in the process. She provided the CSE with Dr. [redacted] neuropsychological evaluation. The Parent, however, was denied information about the recommended special education classes and the schools her Daughter was to attend. Keeping in mind that the Parents initial placement in the [redacted] School was an “interim placement”, while the CSE process proceeded. It wasn’t until after the 3/4/20 IEP was developed, that the Parent rejected the recommended placement and program for the 2019-2020 school year. As to the 2020-2021 school year, the Parent waited until the CSE developed the IEP on May 18, 2020, reviewed it, then determined it was inappropriate for her Daughter. The District was notified on August 16, 2020 via email and postal mail. The signing of the agreement with the [redacted] school only ensured that their Child had place to attend during the emergency and subsequent placement. [P-CC] The Parent signed a contract with the [redacted] School on 6/5/20. [P Q] For the reasons stated in the preceding paragraphs, the Parent’s tuition claim is granted for the 2020-2021 school year.
So Ordered
George Kandilakis, IHO
May 30, 2021
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.
George Kandilakis, IHO
May 30, 2021