Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

_______________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF A PARENT CONCERNING THEIR CHILD

AGAINST

Decision and Order

______________________________________________

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as “District,” the parents as “Parents,” and the student will be referred to as “Student.” The Parents filed a complaint notice dated January 7, 2016 (IHO Ex. 1) and a second complaint notice on April 14, 2016 (IHO Ex. 3). Following arguments (IHO Ex. 4, 5) the case was consolidated on April 18, 2016 (IHO Ex. 6). The Parents are seeking tuition reimbursement and related costs for the unilateral placement of the Student at a non-state approved private school for the 2014 – 2015 and 2015 – 2016 school years.

Parents’ Position In this consolidated action, the Parents allege that the District denied the Student a free appropriate public education (FAPE) for the 2014 – 2015 and 2015 – 2016 school years.

In summary, the Parents allege the following violations: ^[1]. The 2014 – 2015 and 2015 – 2016 IEPs do not include specialized instruction in reading or writing despite the District’s testing showing the Student’s deficits in those areas. ^[2]. The 2014 – 2015 and 2015 – 2016 IEPs do not provide for a behavior intervention plan to address the Student’s refusal to attend school; they do not recommend counseling, or provide any annual goals related to the Student’s social, emotional, or behavioral needs. 3. The 2014 – 2015 IEP recommended an assistive technology evaluation but the evaluation was never conducted, and assistive technology was not offered on the IEP for either the 2014 – 2015 or 2015 – 2016 school year. 4. The Student exhibits deficits in pragmatic language, but the District discontinued speech and language services for the 2013 – 2014 school year, and it did not provide speech and language services for the 2014 – 2015, or 2015 – 2016 school years. 5. The annual goals are not measurable, do not have baselines and endpoints and do not appropriately address the Student’s special needs. They do not address all areas of need, including academic, social/emotional/behavioral needs. 6. The 2015 – 2016 IEP recommended a 15:1 special class for five periods per week, which reduced the Student’s level of support. 7. The District failed to provide an appropriately intensive classroom placement. The recommendation of an Integrated Co-Teaching class (ICT) for English language arts (ELA)

and math and resource room (2014 – 2015) and the recommendation for a 15:1 academic class (2015 – 2016) did not provide adequate support to address the Student’s special needs. 8. The District failed to evaluate the student appropriately in academic areas.

District’s Position In their responses to the complaint notices dated January 14, 2016 and April 16, 2016 respectively (IHO Ex. 2 & 4), the District sets forth their position that they did provide the Student with a FAPE in the relevant time period.

Procedural History In August 2014, the Student’s Parents notified the district by letter (Ex. D11) that they would be unilaterally placing the Student at Private School for the 2014-15 school year. In August 2015, the Parents wrote the District again (Ex. D19), notifying them that they were placing the Student at Private School for the 2015-16 school year. The Complaint Notice (IHO Ex. 1) is dated January 7, 2016, and the second Complaint Notice (IHO Ex. 3) is dated April 14, 2016. The two requests were consolidated on April 18, 2016 (IHO Ex. 6). A hearing was held on April 7, 2016; April 22, 2016; May 16, 2016; June 13, 2016; June 24, 2016; and August 3, 2016.

Student History At the time the first Complaint Notice was filed, the Student was 13 years old and attending a Private School. In the psycho-educational evaluation, dated April 21, 2012, the Student was diagnosed with (EX A.).1

At the June 13, 2016 hearing date the Parent testified that the Student’s problems with school began in nursery school and continued to grow worse through the years. She said he started saying he hated school in third grade (TRP 600), and by fourth grade, the student was several grades behind in reading (TRP 604). At that time the student began having panic attacks in the morning that prevented him from going to school (TRP 606–607). The student was referred for a 504 plan in third grade, and in fourth grade he received an IEP (TRP 611). In sixth grade the Parents unilaterally placed the Student at the Private School. The seventh and eighth grade years are at issue in this proceeding. Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).2

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. 20 U.S.C. § 615(g). New York has elected to employ the two-tier approach. N.Y. Educ. Law § 4404 (McKinney Supp. 2005); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992). Under the New York scheme a parent who wishes to challenge his or her child’s IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005). A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer’s decision to a State Review Officer (“SRO”). N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005). After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under § 615(i)(2) of the IDEA. 20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004).

Reimbursement Analysis A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents where 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. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). This framework may be referred to as the three-prong Burlington/Carter Test. The first prong of this test, whether the services offered by the board of education were inadequate or inappropriate, is the proper heading under which to consider the alleged violations in this case.

Prong I A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92- 7; Application of a Handicapped Child, 22 Ed. Dep’t Rep 487 (1983). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Board of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. 300.550(b); 8 NYCRR 200.6(a)(1).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep’t. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch.

Regarding Prong I, the District has presented a prima facie case for each year for all issues except school avoidance and to that they simply do not view this to be their responsibility. Witnesses and exhibits indicate that the programming choices were developed according to proper procedures and that the District met its burden substantively. In the paragraphs that follow I dismiss many of the Parents’ complaints, namely, those numbered, as listed above, 1, 3, 4, 6, 7, and 8. I then turn my attention to the Parents’ remaining issues (2 and 5) and find that in these concerns the Parents have raised an issue central to the case – namely, the Student’s significant problem with refusals. I will find, as discussed below, that in failing to adequately address the Student’s refusals the District failed to offer the Student a FAPE.

1. The 2014 – 2015 and 2015 – 2016 IEPs do not include specialized instruction in reading or writing despite the District’s testing showing the Student’s deficits in those areas.

An examination of the IEPs and the record shows that the Student was offered instruction by a certified special education teacher in an ICT classroom and in either a resource room (for the 2014-2015 school year) or academic support class (for the 2015-2016 school year). (Ex. D-3, 12; D-5, 13; Tr. 526-527). I find that this provision of service meets the basic definition of having instruction be specialized.

The Parents may have intended by their use of the word “specialized” to have the IEPs include particular methodology, but I rely ono G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *11 [S.D.N.Y. Sept. 19, 2016 [affirming the SRO's rejection of the parents' contention that a particular teaching methodology was required). and dismiss this, the first of the Parents’ claims.

[2 shall be addressed later.]

3. The 2014 – 2015 IEP recommended an assistive technology evaluation, but the evaluation was never conducted, and assistive technology was not offered on either IEP.

The District holds that they would have evaluated the Student for assistive technology, had he returned to school. Moreover, at the hearing, District representatives testified that the assistive technology evaluation was better completed at the school. As far as providing for assistive technology on the IEP, I find that both the 2014-2015 and the 2015-2016 IEPs reflect due consideration of technologies that might reasonably be expected to assist the Student. Specifically named are use of a keyboard and computer (Ex. D-3, 9, 13; D-5, 10, 15) as well as a calculator (Ex. D-3, 14). Finding adequate attention to the Student’s assistive technology needs, given his absence that prevented an assistive technology evaluation, I dismiss this claim.

4. The Student exhibits deficits in pragmatic language, but the District discontinued speech and language services for the 2013 – 2014 school year, and it did not provide speech and language services for the 2014 – 2015, or 2015 – 2016 school years.

The Parents here are concerned about speech services for the Student. The District is responsible for testing the Student in all areas of suspected deficit, and in their testing of the Student, the District found no pragmatic or other speech-language problems in the Student (TRP 132-133), and no problems were reported in the relevant discussion with the Student’s teacher at Private School (Tr. 135). The Special Education co-teacher had no recollection of any concerns about speech or language skills being discussed at any of the CSE meetings (TRP 331-333, 530-531). I find that the record reflects that speech language services had been provided and were discontinued on recommendation of the speech language therapist at the end of the 2012-2013. As the record fails to indicate a reversal of this decision of the speech language therapist, I dismiss this claim.

[5 shall be addressed later.]

6. The 2015 – 2016 IEP recommended a 15:1 special class for five periods per week, which reduced the Student’s level of support.

The Parents note their concern that in the resource room the Student was in a class with a ratio of 5:1, and that the ratio in the special class, 15:1, necessitates that all its students receive less individual instructor attention than any class with a 5:1 ratio. While the Parents’ reasoning is compelling, the Parents failed to otherwise show in the record why that change in ratio denied the Student a FAPE. The Parents have referred to this as a reduction in the Student’s level of support, but I also note that the Parents were told the actual number of students was expected to be six or seven students (Ex. D-26, p. 6, 8). I find that this change in class is primarily a procedural change and that it didn’t impact the Parents’ right to participate or keep the Student from receiving his educational benefits; nor did it result in denial of FAPE. I therefore dismiss this claim.

7. The District failed to provide an appropriately intensive classroom placement. The recommendation of an Integrated Co-Teaching class (ICT) for English language arts (ELA) and math and resource room (2014 – 2015) and the recommendation for a 15:1 academic class (2015 – 2016) did not provide adequate support to address the Student’s special needs.

The District provided an ICT class for the Student to address his special needs.3 The Parents argue here that this placement was inadequate support for the Student, but I find that this perspective was not heard at the CSE meetings and that the CSE did not have adequate reason to suspect that an ICT class would not work. Any testimony given to the contrary is therefore unpersuasive. What’s more, I find that the District’s recommended placement in The School Psychologist explained that she recommended an ICT class because it was the least restrictive placement where the Student would have enough support (TRP 179). The programs the District offered for seventh grade students during the 2014–2015 were ICT, resource room, and 12:1:1 (which was a multi grade class) (TRP 380). The School Psychologist said that during the June 17, 2014 CSE meeting there was no discussion of placing the Student in anything other than an ICT class for

ELA (TRP 386 – 387).

an ICT class for ELA and math was consistent with the recommendations of the School Psychologist (Ex. D-2, 9; Tr. 178-179). I thereby dismiss this claim.

8. The District failed to evaluate the student appropriately in academic areas.

The Reading Specialist testified that she tested the Student in reading when he was referred to the CSCE (TRP 33) and that the Principal asked her to test the Student and told her what tests to use (TRP 81, page 107)). She also testified that she did not know whether the Principal had any expertise as a reading specialist, a school psychologist, or experience with the tests (TRP 81-82). While this course of action for testing the Student does seem unusual, I don’t find that there is sufficient evidence in the record for questioning the motives of the District or making a finding about their evaluation of the Student being inadequate.

Two significant issues were raised by the Parents that remain outstanding: 1) Did the District fail to address the Student’s refusal to attend school? 2) Are the goals as listed in the IEP measurable, and do they address the Student’s particular needs?

2. The IEPs do not provide for a behavior intervention plan to address the Student’s refusal to attend school, do not recommend counseling, or provide any annual goals related to the Student’s social, emotional, or behavioral needs.

I find overall that this issue raised by the Parents is supported by the record. The School Psychologist testified that the Student’s past refusals to go to school were discussed at the 2014–2015 CSE meeting (TRP 417). Despite awareness of the problem, the District never got to the bottom of it: they failed to offer solutions to enable the Student to return to school, and with that failure, they failed to provide the Student with a FAPE. I will unpack this finding further.

First of all, the record contains transcripts from three of the relevant CSE meetings. Analysis of these transcripts indicates that the District was aware of the Student’s refusals. The first of these meetings we have transcripts for (Sept 3, 2014) included descriptions from the Parents of the extent of the Student’s struggle: the Parent told the CSE that the Student does not want to drive past the school, does not want to hear about the school from his friends, and that the thought of returning to the school brings on a panic attack (Ex. D 25, p. 30). When pressed about how the District would manage the Student if he came to school and faced this degree of anxiety, the District representatives said the Student would be given “check in opportunities” to calm down (Ex. D 25, p. 35). The District responded to these concerns generally with a recommendation for counseling, but the Student’s Co-teacher testified that the recommendation for counseling was changed to a counseling assessment at the request of the parent on the IEP (TRP 320). The Director of Pupil Personnel told the Parents “…until he comes back into a program that we set up for him with the supports we set up, we won’t know if he can be back here” (Ex. D 25, pp. 32).

The perspectives illustrated by these statements are worth characterizing here, since they seem to hold firm not only in this meeting but in the other two meetings we have documented in the record. Specifically, the Parents maintain the position that the Student’s anxiety is too considerable for him to be able to return to the school4, and the District maintains the position that they have plans for the Student upon his return but that they have not been given a chance to implement these plans, since the Student has not returned.

Moving to the next CSE meeting we have transcripts for (June 17, 2015), we have observations from the Parents that the Student refuses to go to school even for social events5. The Parent asked what the District would do to help the Student transition back, and the District proposed easing the Student back to the school through social events and establishing a point-person at the school for the Student to be able to turn to. While these efforts are a decent start toward helping the Student back to school, I find them inadequate in light of the considerable nature of the Student’s school anxieties.

The Parent said during the hearing that she feels the Student’s attitude is because of his history of failure at the school (TRP 1138). The Parent testified about the Student’s fear of the District school. She said the Student will not even go to the District school for events his sister participates in, and added that the parents continually tried to get him to attend community events at the school but the student refuses to go (TRP 656, 659).

At the Sept 10, 2015 CSE meeting, the Parent explained that even just asking the Student to show his sibling around the school resulted in the Student having a panic attack (Ex. D 27, p. 3-4). The Director of Pupil Personnel also recommended that the Student be part of a small group for students who experience school anxiety (Ex. D 26) and proposed a possible alternate placement for the Student at a private technological high school once he was of age for high school (Ex. D 26, p. 35; D 27 Pp 18-19, 22-24, 27-28).6 I find these measures to go even further still toward enabling the Student to return to school, but still they are inadequate. The first measure proposed sounds like a reasonable approach for the Student; the second measure there is prospective – based on a hopeful placement at a future date; but neither one manages to physically return the Student to the present school. Perhaps some at-home services need to be provided to promote a transition to school. Perhaps an FBA and BIP are warranted. Perhaps further psychological evaluations are justified to make sure no PTSD or similar conditions are present.

Under New York law, the [District] is required to conduct an FBA "for a student whose behavior impedes his or her learning or that of others." N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(b)(1)(v); see also R.E., 694 F.3d at 190. An FBA includes "the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior[,] . . . and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(r). The "purpose of an FBA is to ensure that the IEP's drafters have sufficient

Of course, hope of a future placement does not have bearing on whether the Student was provided a FAPE in the relevant time period; I note this just to show the District’s eagerness to find an agreeable solution.

information about the student's behaviors to craft a plan that will appropriately address those behaviors." R.E., 694 F.3d at 190. Further, . . . [when] "a student's behavior impedes his learning, a BIP must be developed with strategies to deal with the problem behavior(s)." Id. (citing N.Y. Comp. Codes R. & Regs. tit. 8, § 200.22(b)). A BIP must be "based on the results of a[n] [FBA] and, at a minimum, include[] a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior." N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(mmm). L.O. v. N.Y.C. Dep't of Educ., Docket No. 15-1019, (2nd Cir., 2016)

Based upon the record in total, I find that the failure of the District to conduct FBAs and BIPs during the relevant time periods were serious procedural violations which resulted in a denial of FAPE.

In considering this complaint of the Parents, I find I also must consider whether the Parents cooperated with the District sufficiently to allow them to address the Student’s refusals. I will address this issue in Prong III. I find there, in sum, that the Parents did not fully cooperate with the District.

5. The annual goals are not measurable, do not have baselines and endpoints and do not appropriately address the Student’s special needs. They do not address all areas of need, including academic, social/emotional/behavioral needs. Specifically, the 2014-

15 IEP includes a single writing goal, which concerns organization of ideas but does not address mechanics, including spelling.

In fact, a look at the IEPs shows awareness of many of the Student’s academic needs and an offering of goals in math, writing, reading, and spelling. I find the goals to be reasonably measurable (see Tr. 306-317) and to generally match the Student’s areas of academic need (Ex. D-3,11-12) except for one obvious omission: they failed to address the Student’s significant refusals issue. Insomuch as school refusal is a social/emotional/behavioral need, I find that the Parents prevail in this one part of Issue 5.7

Thus, school refusals remain the central issue of Prong I. The Parents testified that school refusals is the symptom that initially caused the unilateral placement the year prior to the years in question. When the CSE met to discuss the refusals, they were informed by the Psychological Evaluation reported on April 12, 2012 that indicated as early as the 2011- 2012 school year the Student had “become more introverted at school” and “has expressed a greater reluctance to go to school” (Ex. A p. 2). In fact, he responded to the clinician that he “hates school” (Ex. A p.5). While the clinician’s diagnoses were a reading disorder and a Disorder of Written Expression, one of the recommendations was that “[The Student’s] mood and affective state should be closely monitored. He may benefit from counseling to address his emotional reactions to learning difficulties” (Ex. A @ P.11).

I note that the District did not observe any behavioral or anxiety issues or note any interfering behaviors in their June 2014 testing (Tr. 34-36).

I find that the Parents’ concerns about the Student’s refusals to attend school are established in the record and that the Parents brought these concerns before the CSE. In fact, the School Psychologist said she recommended a shared aid at the suggestion of the CSE Chair to help the Student with his issues of feeling uncomfortable at the school (TRP 194). In her report (Ex. 2) the School Psychologist recommended “if there are ongoing concerns regarding anxiety a social emotional assessment can be conducted including the Behavior Assessment Scale for Children” (Ex. 2). Clearly both the Parents and the District had concern over the Student’s refusals.

As noted, the District has countered this complaint of the Parents with their assurance that, had the Student returned to school, they could and would then have administered a behavior assessment and taken other measures to help the Student overcome his refusal issues. I believe the intentions of the District are good here, but their reasoning is circular. To wait for a Student’s returned attendance to address issues of refusal to attend is problematic. 8 I sympathize with the District’s struggle to instruct an absent student but nonetheless find that they should have taken more active measures to return the Student to activity in school.9 They failed to offer solutions to enable the Student to return to school, and with that failure, they failed to provide the Student with a FAPE.

The Parents (the mother) testified that she understood that if the Student returned to the District school they would collect data for an FBA and BIP, but she said the Parents’ concern was about getting the student to the school if he had anxiety and panic attacks based on his previous experiences there (TRP 765). The mother testified that she and her husband assume the student would have panic attacks if he returned to school based on their experiences with him whenever they suggest that he go to the school property (TRP 767). Specifically, New York regulations describe a functional behavioral assessment as “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment.” 8 NYCRR § 200.1(r). Surely refusal to attend school constitutes a behavior that impedes learning, and yet no FBA or BIP were created. The District maintains the position that the Student was not exhibiting any interfering behaviors in the classroom setting and that they would complete a formal FBA and Prong II I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 (S.D.N.Y. 2010). The Second Circuit has clearly stated:

“… [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir.

2007) quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

Moreover, parents “may not be subject to the same mainstreaming requirements as a school board.” Frank G. v. Bd. of Ed. of Hyde Park (2d Cir. 2006) quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000) citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that “the test for the parents’ private placement is that it is appropriate, and not that it is perfect”).

The Parent bears the burden of proof with regard to the appropriateness of the educational program in which the Student was enrolled. M.S., 231 F.3d at 104; Application of a Child

BIP if needed when the Student returned to school if he exhibited interfering behaviors. I just find that in this case, the decision to defer implementation of behavioral intervention strategies may have caused the District to miss the mark in finding solutions to getting the Student back to school.

with a Disability, Appeal No. 02-027. In order to meet that burden, the Parent must show that the Private School offered an educational program that met the Student’s special education needs. Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining entitlement to an award of tuition reimbursement. M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002).

Before addressing the central issue at hand in Prong II, I find it needful to note that the record supports the District’s objection here: that is, the Parents do not seem to have made their decision of rejecting the District’s program offering for the 2014-2015 and 2015-2016 school years based on the merit of the District’s own program but rather when compared against the program and integrated services offered at the Private School. In the transcript of the September 3, 2014 CSE meeting (Ex. D-25), one of the Parents directly said, “…in comparison of this choice and the [Private School] choice, I would have to go with [Private School]” (Ex. D-25, p. 32). This line of reasoning leads to the mistaken impression that the District might be faulted here for simply not being the Parents’ first choice. However, as outlined in Prong I, regardless of the Parents’ own motives for their placement of the Student, the District is here at fault not because of their relatively large class sizes or their inability to otherwise compete with a private school but because of their failure to address school refusals. Thus, the issue of why the Parents chose one school over another becomes irrelevant in this case.

In considering whether the Parents met their burden here, I find I cannot say quantitatively that the Student’s academic experience improved because of the curriculum, programming, and specially trained instructors at the Private School10, but even in the Student’s willingness to attend school alone, we surely see an improvement in the Student’s academic experience qualitatively because of this change in venue. Thus a benefit. I am not saying the District could not have provided an adequate environment that the Student was willing to attend; I say only that they did not provide such an environment for the Student and that the Private School did. Because the primary issue in this case is this Student’s unique refusal to attend school, a school that solves this problem resolves this issue. I therefore find that the Parents, showing that the Student consistently attended and benefited from the

The student’s oral reading fluency has stayed the same (TRP 1014) or declined (TRP 1015), since he began attending the Private School. However, The Reading Instructor from the Private School noted that the Student has a reading disability (TRP 1020) and that it will take more than three years for a student like the Student to score well on an oral reading fluency test (TRP 1022). The director of language training at the Private School testified that the Private School is dedicated to teaching students with dyslexia and all students receive 1:1 or two – Orton-Gillingham tutoring five days a week, the classes utilize inquiry–based, hands–on project-based learning, and have less emphasis on reading and writing. There are also other classes in art, music, and writing. (TRP 826 – 827). The Parents testified that the Private School is for students with learning disabilities it uses a multisensory approach for every class (TRP 640). The Head of the Private School testified and described the school as a college preparatory program, accredited to issue high school diplomas, and said that 100% of the graduates are accepted by four-year colleges and universities (TRP 1151). There are 85 students in the school and 27 teachers (TRP 1152–1153 the school includes grades two through 12 (TRP 1153) Individual classes are usually between seven–12 students (TRP 1154, 1158). The Reading Instructor at the Private School said he still has anxiety that school and social emotional development TRP 1036 – 1037. She said the private school addresses these issues by working on the Student’s reading and writing skills, asking him to verbalize as he solves math problems, but “also nurturing his strengths” for example, his talent with the video. Also, at this time, the Student still does not ask for help if he does not understand something and does not volunteer to participate in class (TRP 1037 – 1039).

Private School11, met their burden of showing that the School was an appropriate placement for the Student.12 Prong III A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student 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. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70 (1985); R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252. In Burlington, the Court found that Congress intended retroactive reimbursement The parent said that the student did not miss any school in six grade at the private school and was never late (TRP 641). She added that he never had any panic attacks and regained his curiosity, desire to learn and create (TRP 642). The Parent testified that they sent the Student back to the private school for seventh grade because “[the Student] was excelling academically, emotionally, and physically at the [the private school]… He went to school every day… When reviewing what the District had to offer, it was more of the same. There was nothing that stood out that would remotely help him with the needs that he had, where [the private school] was meeting all of these needs” (TRP 655). I additionally note that the School Psychologist (EAE) testified for the District that she administered the Student’s psychological testing for his annual review in June 2014 (TRP 118) (after one full school year of being unilaterally placed in Private School). When she interviewed the Student’s teacher for her report, the teacher told her that the Student was making “excellent progress” in reading and comprehension; he was more confident, and his skills were progressing in science and social studies (TRP 135). The classes are small at the private school; its largest class size has 10 students (TRP 908). The Reading Instructor at the Private School said the Student needs a small class because otherwise, he would never participate or say that he doesn’t understand and would become anxious (TRP 908). She said that at the end of the 2014–2015 school year, the student was not ready for public school because of his difficulties with the writing process and reading comprehension (TRP 922–923). At the end of the 2013–2014 school year, he had just improved in decoding and never participate in in class (TRP 923). She said that the student is still not ready to attend a public school because he is “not socially/emotionally ready” because he does not participate on his own (TRP 918) I also note that when asked if the Student needs a specialized reading methodology such as a multisensory approach, the School Psychologist said yes, and that it should be from a reading specialist or special education teacher (TRP 193–194).

to parents by school officials as an available remedy in a proper case under the IDEA. 471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192. “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 a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at 7 (S.D.N.Y. Aug. 27, 2010).

Thus far the Parent has prevailed on Prongs I and II. Now in consideration of Prong III I examine what the Parent might have done better and weigh whether this should have bearing on their reimbursement award. After examination of the record, I find the Parents attended the CSEs and gave the District due notice of their unilateral placement of the Student.

There is one area in which I find fault with the Parents and that is to the extent that they were not forthcoming about the basis for their removal of the Student from Public School. Particularly, the Parents take issue with many of the CSE’s recommendations in their complaint notice but largely do not seem to have raised these issues during CSE meetings. The intention of the tenants of IDEA is for parents and CSEs to have communication that is open and conducive of collaborative solutions. The Parents met the minimum requirements for notifying the District of their unilateral placement of the Student, but this time table did not allow for the kind of collaboration that is desirable and necessary for IDEA to work.13

For example, the Director of Pupil Personnel Services said that after receiving the Parents’ letter stating they did not agree with the District program and placement for the 2014–2015 school year, he scheduled a CSE program review meeting to discuss the Parents’ concerns (TRP 502 – 504). The meeting was held on September 3, 2014 (TRP 505–506), and a new IEP was developed, following the meeting, but the only change in the IEP was the removal of a shared aid at the request of the Parents (TRP 508, 510 – 511).

Serving as an additional example I note that about a year later, the Principal scheduled a program review CSE meeting (on September 10, 2015) to learn the Parents’ specific concerns and to see if the CSE could address them (TRP 523). The Principal testified that he attended the meeting and the Parents did not request that any aspect of the IEP be changed and no changes were made (TRP 525). At the end of the meeting, he said the Parents indicated that the Student will go to the Private School for the 2015–2016 school year (TRP 525). He said the Parents did not bring up specialized writing instruction or anything specific about annual goals (TRP 527).

The Special Education Co-Teacher said she did not recall the Parent bringing up any objections or concerns regarding the IEP goals (TRP 331). She also said that no one at the meeting, including the Parents, raised any concerns about the Student’s speech and language needs (TRP 332). She added that no one at the meeting, including the Parents, raised any concerns about the recommendations for the ICT classroom (TRP 333). The Parents (the mother) said that one of the reasons she did not agree with the District program was related to the goals, but not did not recall mentioning concerns about the goals at either CSE meeting (TRP 725 – 726). She said that the Parents asked about the goals but did not think they asked for any to be added, removed, or modified (TRP 727).

I also point anecdotally to the testimony of the Student’s Co-teacher, who testified that the recommendation for counseling was changed to a counseling assessment at the request of the parent on the IEP (TRP 320). The Parents for some time were paying for counseling but testified that “it didn’t make anything better” (Tr. 624, the mother speaking). I understand that after an experience with counseling that did not seem to improve things the Parents might be reluctant to pursue more counseling, but I also find this to be a case of the Parents denying the District a possible opportunity to help coach the Student back to school.

I find it telling that two issues in the record raised by the Parents at the CSE meetings were requests by the parents to remove services (counseling and a shared aide), and both requests were granted by the District. Perhaps if better communication had prevailed, more issues might have been resolved to mutual satisfaction.

On this subject of the issues raised by the Parents at CSE meetings, I also note that it is worrisome for me that the Parents can disagree with and disband District recommendations and then get away with claiming the District did not effectively remediate their child into returning to school. I find that the Parents, in not raising their concerns at the CSE meetings, hamstringed the District and contributed toward not allowing the CSE to effectively operate. One could argue that this degree of negligence on the part of the Parents warrants a substantial reduction of their reimbursement award. I find that it does indeed warrant a reduction, but as I have made significant findings against the District in Prongs I and II, I still make a finding that the District must largely reimburse the Parents for the years in question.

Based on all accounts it seems that, despite good intentions, communication and collaboration between the Parents and the District broke down in the case of this Student. I find that insomuch as the Parents could have anticipated their complaints before filing for an impartial hearing, they should have shared these things with the CSE and given them a further chance to accommodate the Student. Because of this failing, the reimbursement requested shall be reduced by ten percent. Conclusion

It is therefore ORDERED

That the District Reimburse the Parents for ninety percent of tuition at the Private School for the school years 2014 – 2015 and 2015 – 2016 upon the presentation of invoices for same.

Dated: February 10, 2017

___________________

Martin J. Kehoe III, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before the service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be viewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing to the 25- for 35-day period.” 8 NYCRR §279.2(b). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Footnotes

[1] The Reading Specialist testified that she tested the Student in reading when he was referred to the CSCE (TRP 33) and in her assessment of the Student, she found that he had good literal comprehension on all levels, but had difficulty with inferential and critical thinking skills. (TRP 46.) She testified that the Principal asked her to test the Student and told her what tests to use (TRP 81, page 107)). The Student used a computer to take the Test of Written Language. She testified that she did not know whether the test was normed for the use of the computer (TRP 87). She assumed spellcheck was off because the Student had misspelled words in his response (TRP 88). She stated she was told the Student could use the computer for the test based on his IEP (TRP 89). The School Psychologist (EAE) stated that she assessed the Student with the Cognitive Assessment System, the EPSY, and some subtests from the Woodcock Johnson Test of Cognitive Ability, and also reviewed the Student’s records, interviewed his teacher, and observed the Student in his private school classroom. (TRP 119) (Ex. 2 Psychological report 6/5/14)). Based on the test results, she concluded that the Student “has relative strength in simultaneous processing and nonverbal reasoning. He has good working memory… He had some difficulty with learning… Visual – verbal association should be learned because it’s a bit of a weakness. And then he had difficulty on time to paper and pencil tasks that have to do with visual search, speed of mental processing, cognitive flexibility.” (TRP 174 – 175). She added that his cognitive efficiency and his cognitive processing speed are areas of weakness (TRP 175). 4

[2] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). 5