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FINDINGS OF FACT AND DECISION
Case Number 95498
Student’s Name
Date of Birth
District
Hearing requested By Parents
Dates of Hearing April 28, 2016
May 20, 2016
May 26, 2016
September 29, 2016
November 18, 2016
Record Close December 29, 2106
Hearing Officer Sharyn Finkelstein Esq.
INTRODUCTION
I was appointed to hear the matter of (hereinafter referred to as “.” or “Student”) pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415 (f) (1). I held a pre hearing conference after the end of the resolution period. Hearings began in April and continued into
November. The Parents were represented by their attorney from the Law offices of and the District was represented by their attorney
The parties moved to extend the compliance date on various occasions in light of witness availability. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to explore their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint request for extension of the compliance dates were granted. (IHO Exhibits 1)[1] Parties submitted written briefs on December 29, 2016 and the record was closed. A list of persons who attended the hearing and evidence that was submitted is attached.
BACKGROUND AND FACTS
is an eleven year old student who has been classified by the School District CSE as a child with a . She had attended School in , a general education school, located in for two years.
The l School District created an Individualized Education Service Plan (“IESP”) for in order to improve her various reading, writing and math skills. (Exhibit L)
is a psychologist licensed in the State of New York (Tr 749) She has a full time private practice.
(Tr. 752) She saw in the summer of 2014 for an evaluation. Mother had several concerns about her lack of progress academically and also worried about her emotionally. (Tr 755) would not even look at books. The evaluation (Exhibit 13) consisted of three dates of testing and a date of feedback from the parent. She reviewed prior documents as part of standard practice and met with 's Mother to gather information about the child in terms of her development.
She gave an IQ test which is the Wechsler Intelligence Scale for Children-Fourth Edition
(WISC-4), the Gray Oral Reading Test, (“GORT”) and the WIAT which is also Wechsler Academic
Scale. She used the the W-DATA to assess fluencies which is another academic measure and a number of neuro-psychological assessments as well as social-emotional functioning. (Tr. 758)
Clinically presented as a child who was socially engaging, very sweet, and hyperactive.
She had a hard time focusing and was very self-conscious. She displayed a lot of anxiety. She made a lot of negative statements and second guessed herself. She had a difficult time with processing and recall.
In many areas above she was above average. Her working memory was in the superior range and her non verbal reasoning skills were above average in the high average range. In her academics she presented with clear severe deficits in her reading skills. Her phonics or decoding was below a first grade level and in one area as low as the fourth percentile. Her comprehension and fluency were poor.
She struggled in the areas of reading. In writing she had a hard time on more open ended tasks. She could put words together if they were provided to her but unable to use that in a sentence and her score was below average (Tr 761) Her ability to formulate a very brief essay was also below average (Tr 762
Mathematically had a lot of variability in her skill set . She had some areas in the average range but some below average and notably her math fluency was very poor. (Tr 762) meets the criteria for dyslexia. (Tr. 762) She has a severe language based learning disorder. (Tr. 763)
She used the classification of “severe” because had one or two impairments in the academic area. She had difficulty in reading and math. She met the criteria of ADHD She described as highly self conscious, showing a lot of anxiety, and as having low frustration level.
's sustained attention to tasks that she completed was in the clinical range. She explained that both in clinical presentation and on testing showed deficits in attention. In terms of diagnostic criteria she met all of the symptoms. She described 's dyslexia as quite severe.
Parents had unilaterally placed at the School located in for the 2014-15 academic year. 2There had been a prior due process request for involving a request for tuition reimbursement at during the 2014-15 school year. The matter was resolved (Exhibit K and Exhibit 35) ) by means of an interim order and ultimately by a settlement agreement.[3] The agreement was signed by the parents on June 21, 2015 (Tr. 1078) and ultimately approved by the Department.
s mother had completed and submitted registration materials on May 11, 2015 She filled out the necessary authorizations forms for release of student records on May 29, 2015. (Exhibit J)
On June 22, 2105 in accordance with the agreement, the District requested consent from the Parents for various evaluations which they promptly received. (Exhibit 22 Tr. 73)
Parents provided the District with a number of evaluations. (Exhibit 6-13) Among the documents received were an Audiological on June 10, (Exhibit 6) a psycho-educational evaluation by Dr. on June 4, (Exhibit 7) A Central auditory processing evaluation (Exhibit 8) a classroom observation from , (Exhibit 9 an occupational therapy evaluation completed by Hospital on June
10 (Exhibit 11) a Speech and language evaluation,(Exhibit 11) health report from the School (Exhibit 12) and a Neuro-psychological evaluation. (Exhibit 13) (Tr. 68-72)
Parents had advised the district that was going to camp for an extended seven to eight week summer camp. (Tr. 67)
2 The reasons for the placement is not relevant to this hearing.
Several evaluations were conducted by the District. On June 23, 2015 an educational evaluation was conducted by . (Ex 14) In the Kaufman Test of Academic Achievement S needed encouragement. She needed to have instructions and directions repeated. She scored in the average range in letter and word recognition. Her decoding fluency was below average. performed in the below average range in reading comprehension.
On June 24 a psychological evaluation was conducted by Dr. . (Ex. M) She administered the Woodcock-Johnson III test of Cognitive Abilities. She described it as a multi faceted cognitive instrument that involves a series of tasks designed to assess student's functioning in various aspects of cognitive ability as well as more specific narrow abilities within each index. The main takeaway from the tests is that demonstrated a lot of variability in her cognitive skills. She had some cognitive strengths in her visual spatial skills and her processing speed was where it should be for her age. Her relative weaknesses were related to general information (Tr 290)
She had the most difficulty on memory tasks and a little more difficulty with inferential reasoning. She had difficulties sustaining her attention and concentration. (Tr 290) She explained that 's ability to demonstrate her knowledge is likely highly dependent on her engagement in the tasks and her attention and concentration at the time. (Tr. 293) There was an error in the birth date and a final corrected version was provided after the August IEP meeting.
On June 24, a speech-language evaluation was conducted by (Ex 16) She found 's scored in the average range. As the directions became increasingly longer, her reaction time slowed.
She did not feel required any speech language services. There was no evidence of any kind of language impairment. They had been aware of previous diagnosis of central processing disorder and she did extensive testing. (Tr. 82)
A pre-CSE meeting took place and the evaluations were reviewed with the parent to ensure understanding and meaningful participation. Tr. (284)
On August 4, 2015 the CSE met and considered this information. They also had the evaluation done by Dr. (Ex. 13) They had the IESP that had been prepared by White Plains as well as report cards from 's prior school and Ms. , Director of Special Education and Support Services at the School District.. [4]
chaired the meeting. They reviewed the social history, the psychological evaluation, the educational evaluation, the speech and language evaluation, and report cards.
She reviewed the educational evaluation (Exhibit 14) which tests reading skills, writing skills and math skills, She noticed that many areas were in the average range. The nonsense word decoding and the decoding fluency were in the below average range. phonological awareness score was solidly average at the 47th percentile and letter and word recognition in the average range. She explained that these are real words as opposed to nonsense words. (Tr. 76) This showed them that S's specific difficulty was when she could not rely on context and meaning. (Tr76)
The team considered report cards from . There was no discussion about the difference of S receiving supports and accommodations in a specialized school as compared to a general education.
Parent pointed out at the meeting that the birth date in the psychological evaluation was incorrect.
They developed an IEP to include a consultant teacher support. They also recommended resource room (5 X 6 day cycle) They developed goals and provided modifications and testing accommodations. (Exhibit 4)
The parents were provided with the IEP three days later. On August 19, Parents, by their attorney, sent a letter and identified certain concerns (Exhibit 28) Among the concerns raised was that there was no classroom observation, no social history, an error in the birth date on the psychological evaluation, immeasurable goals and an inadequate level of services. (Tr 105) (Exhibit 28) The letter was responded to by Ms. on August 21, 2015. (Exhibit 29) Among other things, she explained that was closed and they would have an observation once school was back in session.
The parents disagreed with the program recommendations and remained at for her 4th grade.
Parents provided consent for an observation which took place at on October 14, 2015.
A second CSE meeting took place on November 23, 2015. There was a classroom observation that was done by Ms. , a revised psychological evaluation and there were participants from .
The IEP was modified to include integrated co-teaching support along with the previously recommended resource room program.[5] (Exhibit 13)
On January 28, 2016 Parents filed a due process complaint seeking tuition reimbursement with respect to the unilateral placement of in the School in the 15-16 school year. (Exhibit 1)
District responded to the due process complaint on February 8, 2106. (Exhibit 2)
PARENTS' POSITION
They argue that the District violated their child obligation and failed to offer a FAPE. They maintain that the agreement that had been entered into for the 2014-15 school year does not preclude the Parents from making this claim or any other claim that has to do with the 2015-16 school year.
They argue that an observation of at should have and could have been conducted prior to the CSE meeting. It is their position that the program recommendation was not appropriate. They argue that the team did not consider information which had been provided by the parent and neuropsychologist. They maintain that the IEP is both procedurally and substantively inappropriate. They argue that because of a mistake in 's birth date on the psychological evaluation the results should be invalidated. They argue that the IEP that was developed in November 2015, was done in order to cure the defects made by the District in the prior IEP. They maintain that the School provides and addresses 's academic and social-emotional needs. They maintain that there are no equitable considerations that would bar the Parents from full relief. In summary, it is their position that tuition reimbursement should be awarded in its entirety for the 2014-15 school year at
DISTRICT'S POSITION
They argue that the settlement agreement precludes the Parents from raising issues that occurred prior to the 2015-16 school year including earlier Child Find claims. They argue that the time line for the District to comply with the agreement and develop an IEP for the 2015-16 school year started as of June 22, 2016. They point out that the District staff began the process of conducting evaluations immediately after said agreement was signed. They argue that no observation could have taken place because School was closed. They argue that the follow up IEP meeting was the result of new information including an observation that had taken place in October, a change in the evaluation as a result of the correct birth date and new information from . They maintain that the IEP developed in August was appropriate and was based on information that they had at the time of the meeting. They maintain that the incorrect birth date on one of the evaluations would not have affected the recommendation. They maintain that is not appropriate and too restrictive. In summary it is their position that tuition reimbursement should be denied in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
STIPULATION OF SETTLEMENT
It is impossible to adequately discuss any findings and conclusions without first addressing the stipulation of settlement. (Exhibit 35) Initially Parents objected to it being put into evidence because it is confidential and had to do with a prior year. District argued that they are seeking to admit the stipulation because it relates to issues in this hearing. I allowed the document in because it became clear that there was a major difference among the parties as to when the district's obligations began for the 2015-16 school year which is year in question at this hearing.
The District takes the position that they conducted various evaluations in order to conduct the IEP meeting in accordance with the agreement. They argue that their obligation began as of June 22, 2016, which was the date of the agreement. District refers to the general release to the District through June 30, 2015. Parent points out that the agreement does not prohibit the Parents from using any factual evidence from the 2014-15 school year or any year prior in any future actions.(Tr. 119-135)
A repeated theme by the District is the very short time that they had to complete evaluations and gather information for the IEP meeting. Parent argues that the stipulation does not alter District's obligation or time frame in which to take necessary steps to provide a FAPE.
After reviewing the agreement and entertaining all arguments, I find that this agreement only precludes Parents from bringing claims up to and including the 2014-15 school year. I find that the Parents are entitled to make a claim for the 2015-16 school year and may bring up any facts that occurred prior to the June agreement in support of their claim. I find that this agreement does not remove the district's obligation to have taken all necessary steps to provide with a FAPE for the 2015-16 school year. I find that the fact that there was an ongoing dispute, or settlement talks about the prior year, does not remove District's obligations for the current school year.
In an email exchange between the D prior attorney and Parents' attorney during the course of the negotiations for the prior year, it is clearly stated that the Parents are seeking a FAPE for the 2015-16 school year. (Exhibit F) I find that the evidence clearly establishes that was seeking a FAPE for the 2015-16 school year prior to the signing of any agreement for the prior year. At the hearing, Ms. explained that she was not employed by the District at the time, however, it was her understanding that “...until the agreement was signed that we were not going to take any action” (Tr.
151) Ms. did not agree that the Parent seeking a FAPE should have triggered the evaluation.
Again, it was her understanding”until the agreement was signed they were not going to take any action” (Tr. 151)
I find that the District was certainly on notice that the Parents were seeking a FAPE for the 2015-16 school year. Certainly the District was aware of and had obligations under Child Find.
Parent attempts to discuss child find claims that go back to 2013. I agree with the District that these claims are precluded from this hearing and were already litigated in the prior agreement. However,
Child find claims that are relevant to this year are appropriate.
There is no dispute that after the signing of the agreement the District conducted evaluations, met with the Parent to discuss the evaluations and held an IEP meeting in a very expeditious manner.
They base and justify a lot of their positions on the fact that during the very short period of time between the agreement and going to camp they did everything possible to comply with the agreement. They explain that the timing of the agreement limited their ability to do certain things such as an observation at Windward. I find that this argument must fail because there is no legal justification for the Department to have waited for a signing of an agreement for the 2014-15 school year to take steps to ensure a FAPE for S for the 2015-16 school year.
Under the current amendments to the Individuals with Disabilities Education Act (IDEA) and corresponding State law and regulations, the party requesting an impartial due process hearing may not raise issues at the due process hearing that were not raised in the original due process request unless the original request is properly amended prior to the hearing (20 U.S.C. §1415[c][2][E]), or the other party agrees (20 U.S.C. §1415[f][3][B]). See also 8 NYCRR §200.5(j)(1)(ii).
It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dept of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).
One of the main purposes of the Individuals with Disabilities Education Act ( IDEA) (20 U.S.C.
§§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C.
§1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ.
v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal
12No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE.
The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No.
07-007.
A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).
The CSE has an obligation to involve petitioner meaningfully in the IEP development process.
Application of the Bd. Of Educ., Appeal No. 02-036: Application of a Child with a Disability, Appeal No. 98-26, and many not seriously infringe on the parent's participation in the creation or formulation of the IEP. See,e.g., Pascarella, 153 F. Supp.2d at 153; Brie, 948 F. Supp. At 1255; Application of a Child with a Disability, Appeal No. 02-015.
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S.
at 203-204.
Parents are entitled to a valid IEP as of the first day of the school year (see 20 U.S.C, §§
414(d)(1)(A)(i), 1414(d)(2)(A); 34. C.F.R. § 300.323(a) § 300.320[a][1]; 8 NYCRR 200.4[d][2][i[).
The weighing of sometimes conflicting information is an essential function of the CSE. The
District’s CSE’s determinations with respect to the appropriateness of the recommended programs and services in the challenged IEPs are entitled to deference. Moreover, “the mere fact that a separately hired expert has recommended different programming does nothing to change this, as deference is paid to the District, not a third party.” (Watson v. Kingston City Sch. Dist., 2004 U.S. Dist. Lexis 13093
[SDNY 2004], citing to Pascoe v. Washingtonville Cent. Sch. Dist., 1998 U.S. Dist. Lexis 15228
[SDNY, 1998]). “We must defer to educators’ decisions as long as the IEP provided the child ‘the basic floor of opportunity that access to special education and related services provides’” (Board of Education of Montgomery County v. Brett, 155 F.3d 557 [Table], 1998 WL 390553).
Parents points out that the Second Circuit rejected a claim by the DOE that it would rectify errors in the IEP after the school year commenced. (See Reyes ex re. R.P. V N.Y. City Dep't of Educ., 760 F.3d 211.220-21 (2d. Cir. 2014)
With respect to prong one, it is undisputed that there was no available classroom observation from at the August IEP meeting. District stresses the fact that was closed. Again, this is based on the fact that the District only had a small window of time starting from June 22, 2015. As discussed above, I do not agree with this premise. I find that the District should have begun the process of evaluating prior to any agreement for the prior year. The District had plenty of time prior to the summer to observe at . I find that in this case, where there is no participant from at the meeting, an observation was even more critical to understanding how functions in her then current setting. There were report cards from , however, as District points out they are not easily interpreted. District points out that they had a prior observation, however there was testimony that it was outdated and not considered. Several of District's witnesses stated that they would not have reached a different conclusion had there been an observation. The problem is that there was no observation and without knowing what may have been gleaned from that observation this is only speculation. Perhaps had there been an observation, this may have led to communication with 's teachers or other staff who were present. I find that the team needed to see and know how was functioning in her then present school in order to help them determine if a change to a general education school would be appropriate.
Parent attempts to bring up the issue of lack of staff as another example of failure on the part of the District. District argues that this was not specifically brought up in the due process complaint and should not be considered. District's explanation for the change in 's program as a result of the second IEP meeting, rests solely on information they obtained from the staff.
Obviously, their input was crucial to any program recommendation. District make reference in their response to the due process complaint that (“ was unable to appear at the August meeting”) (Exhibit 2 point 7) Ms. testified that it is their practice to contact and alert them of a CSE meeting and ask for their participation in the meeting during the regular school year. (Tr 215) There has been no suggestion that the change in the recommendation in the November IEP was caused by any change in in the first couple of months of school. Had staff participated in the initial IEP meeting there probably would not have been a need for a modified IEP. I find that their lack of participation was the result of the District failing to act in a timely manner.
There is no dispute that the incorrect birth date was on the psychological evaluation (Exhibit 15)
which was used at the August IEP meeting. This had been pointed out by the parent. Dr. believed that this was a typographical error and created another version. She had thought that it was just a typo in the heading of the report. (Tr 268) After she submitted version two she realized that was not the full extent of error. She had to manually enter the student's date of birth and then her raw scores from the test (Tr. 269-70) As soon as they were back at school she entered correct birthrate and received updated scores. (Tr. 270)(District 18)
She explained that in the incorrect version, was being compared to a population of students who were also nine years six months of age instead of a population of students who were ten yeas six months of age. This resulted in a slight increase in her standard scores in each of areas that were assessed on the updated corrected scores (Tr 272)
She believed that there were one or two scores that fell within one or two points of the confidence interval when comparing the scoring with the incorrect birth date with the scoring with the correct date of birth. (Tr. 272)[6]
Ms. acknowledged that the psychological evaluation (Exhibit 15) has 's incorrect birthday.
This resulted in incorrect scores. (Tr. 78) She explained that once the psychologist, Ms. , returned to work they would “just put the date correctly in and we would share those results.” (Tr.108)
There is disagreement about the impact of the incorrect birth date Dr. explained the importance of the correct birth date. She described the differences in the scores as “significantly significant.” (Tr 781) She explained that as a result of two different birth dates resulted in a different
IQ. She explained that they are describing a “very different child” in terms of cognitive potential and intellectual functioning. She explained that the IQ is the starting point for any IEP. They look at cognitive ability and performance. She explained that if a a cognitive ability is below then they may not expect as good a performance. The discrepancies would not be as large with an improper birthday.
(Tr. 784) District argues that in fact the correct birth date resulted in an increase in 's scores.
I find that the team relied on a document that was incorrect. I find that the change in document needed to have been done prior to making the recommendation.
Parents argue that the characterization of 's disability as “mild” resulted in a deficient and inappropriate plan. Ms. explained that “mild” is not a technical standardized testing term. She opined that there were more strength than difficulties and she looks at kids from a strength based perspective. had overwhelmingly strong speech and language skills, cognitively average skills, and many average skills in the academic testing. She had very discrete areas that had to be addressed. (Tr.
24) District points out that the educational program developed by the CSE at its August 4, 2015 meeting was not based upon the characterization of s disability that Ms. used in her communications with ’s mother. As Ms. testified, such term was used so as to communicate to S's mother that there were more strengths than difficulties. I do not find that the use of the word “mild” was a determining factor in the type of recommended program.
Parents argue that this was an initial evaluation and the District was obligated to conduct a social history. District argues that had already been classified and despite any type of labeling on the IEP this was not an initial evaluation. I agree with the District. had already been the subject of an initial individual evaluation by and been determined to be eligible for IDEA services. They had information about 's social history from the providers. They had reviewed in depth all the evaluations and reviewed the developmental history, family history and educational history. (Tr 87)
Mother was present at the IEP meeting and I have no doubt that she would have corrected any misinformation or related any additional relevant information. I find that the lack of a current social history does not in and of itself deprive of a FAPE.
Parents were provided with copies of the evaluation for review and a meeting was held with Mother to make sure she understood the results and to make sure she could fully participate at the meeting. (Tr 88) They had and listened to feedback from Mother (Tr. 90) Mother was “unsure” of the recommendation and wonders if needs a small setting all day like . They explained to the parent that a special class program all day or integrated co-teaching would be overly restrictive . (Tr. 98) They felt S had more strengths than weaknesses and there were very specific areas that that needed to be addressed by special education. (Tr. 91) I find that Parent was given every opportunity to participate in a meaningful way. The testimony establishes that the team did in fact listen to her concerns, explained their point of view, and had made sure that she understood all of the evaluations. The team discussed other programs with the Parent and explained why they believed it was too restrictive. I agree with the District that the fact that the team did not agree with the Parent does not mean she was not an active participant.
Ms. testified that she had reviewed s report prior to the meeting. She acknowledges that Dr. uses the words “severe” twice. She explained that they are obligated to review all evaluations but not necessarily agree. (Tr. 172) I agree with the District that they are only obligated to consider outside reports but not to necessarily agree and follow their recommendations
There was testimony from Ms. about the different documents that they had and reviewed. The fact that District did not adopt Dr. 's recommendations does not mean it was not given due consideration.
In their closing, Parents argue that the goals are vague and inadequate. There was testimony that all the goals were discussed and there was no disagreement. (Tr. 94, 297) The goals were based on all the information before them including report cards and standardized testing. They had a detailed conversation of each goal and identified area of need, looked at the weakness that were identified in the testing and had a conversation and developed appropriate goals for each area of need (Tr 297) I find that the goals were sufficient.
The program recommendation in the August IEP was the resource room program with consultant teacher services. This would deliver the specialized and supplemental instruction in the areas that showed weakness. The consultant teacher services would be with the special education teacher who was providing the resource room services. This would ensure generalized ability and transferability of the skills that was learning in the resource room in the general education setting
(Tr 96) Parents argue that would have missed valuable instruction when she was pulled out of class. There was testimony that would have been pulled out during an intervention and enrichment period when there would be no new instruction. (Tr.99) I find this argument has no basis. However, there was testimony that would only receive Resource Room 5 times per 6 day cycle. There is no explanation why they felt that did not need the resource room every day that she was attending school.
The team provided program modifications and testing accommodations. There was no disagreement with either. (Tr. 102, 301, 303) There was testimony that these accommodations could be implemented in a general education setting. However, there was no discussion about whether these modifications and accommodations would be sufficient for in a general education setting. There was no discussion about the difference of receiving supports and accommodations in a specialized school as compared to a general education.
There was no discussion about the fact that had been in a full time specialized program.
There was no discussion about her being ready to transition into a large school setting with large classrooms. It is undisputed that has difficulties with attention and there is no discussion about the additional distraction that would result from a larger class and school setting. There was no discussion about how a mainstream setting would effect her confidence or level of anxiety.. There was no information regarding how would perform in a mainstream class. had been unsuccessful in a prior mainstream setting. I find that the District failed to address 's individual needs.
Although the November IEP meeting is not in and of itself part of this hearing, it is important to inquire as to the purpose of the meeting. Parent argues that this was to rectify the inappropriate IEP that was the result of the August meeting. District argues that this was to consider additional information that was not available at the time of the meeting in August. I credit District's position that they met to consider new information. I agree that they were obligated to hold another meeting. The problem is that at least two of the additional pieces of information were the result of District's error or omission. I find that this goes back to the fact that District waited too long to begin their evaluations. Had the District began their evaluations prior to the signing of the agreement, there would have been ample time to correct any errors in the evaluation, to conduct an observation, and to speak with staff at , prior to the IEP meeting. would have had the opportunity to attend an IEP meeting that had been held prior to the summer. The explanation for the change to a more restrictive program was because of input from . The change was not due to any actual change in 's needs as opposed to information about 's needs. I find that had the information been available in August would have had an IEP with the recommendation of a more restrictive setting.
I find that the District did not provide with a FAPE for the 2015-16 school year. I find that the IEP was procedurally and substantively inappropriate. I find that the District did not have the appropriate documents in order to determine an appropriate recommendation. Among documents that they had were a psycho-educational educational with an incorrect birth date that resulted in incorrect scoring. What they did not have is even more important. There was no observation from and no participation from . I find that there was no information as to 's ability to function in a mainstream setting. I find that the evaluators from the District who had very little time to complete the evaluations had no input from . I find that there was no consideration given to the fact that had spent the prior year in a specialized school. I find that the Parents did not have a valid IEP at the beginning of the school year. I find that the District failed to meet their burden under prong one.
With respect to prong two, I will address the appropriateness of the unilateral placement. A unilateral private program is only appropriate if it provides “ instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115
(2nd Cir. 2007), quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 359 (2nd Cir. 2006), quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-189 (1982). While parents are not under the same requirements for placement of their child as the DOE, parents must demonstrate that the “services are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2nd Cir. 1988).
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S.
at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”)
The parents must show that the educational program met the student's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111.
Plaintiff's burden is to show that the program was properly designed for the student to progress and is not required to show that the student in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).
Courts consider the “totality of the circumstances” and parents “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.” Frank G., 459 F.3d at 364-65;
Dr. described as a full time special education school for children who are at least average to above-average intelligence with the goal of providing research based methodology for children with language based learning disabilities. Orton Gillingham, a multi sensory practice, is implemented throughout the curriculum. She opined that required full immersion in Orton
Gillinham and not just during after school. (Tr. 793)
She opined that it was crucial that be in a setting that could provide a very small ratio in terms of teacher support, direct instruction and remediation of her skill set. She opined that instruction should be part of a small language based special education school. (Tr 768) She felt strongly that S would not receive the individual attention she required in a larger setting. She opined that is appropriate because it is designed precisely for children with dyslexia and described it as exactly the type of instruction that needed. (Tr. 793)
Parent had attended workshops and researched and read information about prior to making a decision. (Tr. 1047) She learned about the teachers they hire, what kind of programs they use and how they help children with disabilities learn to read. (Tr 1049-150) (Exhibit X)
Parent was the class mother and visited the school on several occasions and communicated with 's teachers. She described the classroom with nothing on the walls, quiet, and free from distractions.
She opined that this was extremely important for but she is easily distracted. (Tr. 1050)
During the 2015-16 school year, had language arts three times a day. There were ten students in her class with one teacher and assistant teacher. The class gets broken down into smaller groups. They read and re-read the same stories and homework reinforces everything S learned in the classroom. She explained that this is good for in order for her to learn. Math class is run similar to language arts class. In both math and language was in the lower part of the class. She is learning how to scaffold and break things down. (Tr. 1059-61)
is now able to complete her homework, it is easier for her to form friendships, she is more confident, and her anxiety has decreased. She described 's progress as slow but steady. (Tr. 1063)
District points out there there were no witnesses from . In preparation for the hearing they did submits certain exhibits. Among the exhibits was general information and 's class schedule. Their priority is to re-mediate students' with language based disabilities. (Exhibit X) The record establishes that S falls under this category. There was testimony from Dr. , as to the appropriateness of
Windward.[7] There was testimony from the Parent describing why Windward is appropriate for .
There were several progress reports submitted by . District argues that there was no testimony as to the meaning of the terms “consistently,” “frequently,” “occasionally” or “infrequently” or what
. supposedly did to obtain the numerical scores in the progress reports. (Exhibit V) I find that the reports do establish progress. [8]
I do not necessarily agree that requires such a restrictive environment but that is not the criteria for parents to meet their burden. Parents did not have an appropriate IEP at the beginning of the 2015-16 school year. had already been at during the prior year and Parents had seen progress both academically and emotionally. The evidence establishes that provides small classes with the entire day set up for students with language based learning disabilities. (Tr. 1118) is provided with one to one attention, little distraction and multi-sensory approach throughout the curriculum. The program has enabled to have progressed academically and emotionally. I find that provides educational instruction specially designed to meet the unique needs of . I find that based on the totality of the circumstances the Parents have made their burden under prong two.
The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374. The third prong of the Burlington test requires the parent to demonstrate that the equities favor their claim for reimbursement.
The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1 (D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting). In many instances parents are required to sign a contract and give a deposit in order to make sure that the student has a school to attend in case the District does not offer an appropriate option.
In this case the evidence is undisputed that the Parents cooperated to the fullest extent with the District. They provided evaluations and made available for other evaluations. They attended all meetings and were active participants. Parent voiced her opinions and submitted a letter with their concerns. Parent testified that she would have forfeited any monies paid to if the program had been appropriate. I have no reason not to credit her testimony. I find that nothing in the equities would bar the parents from full relief.
In summary, I find that District did not meet their burden under prong one, the Parents met their burden under prong two and the equities would not bar full recovery.
ORDER
The District shall reimburse the tuition at for s attendance during the 2015-16 school year upon evidence of contract, payment and attendance.
Dated: Sharyn Finkelstein Esq.
IHO
EVIDENCE ENTERED INTO THE RECORD
SCHOOL DISTRICT
1 Due Process Complaint January 28, 2016 6 pages
2 Answer to Due Process Complaint February 8, 2016 6 pages
3 IEP January 31, 2014 11 pages
4 IEP August 4, 2015 12 pages
5 IEP November 23, 2015 13 pages
6 Audiological Evaluation April 15, 2013 2 pages
7 Psycho-educational Evaluation April 18, April 23
and May 1, 2013 14 pages
8 Central Auditory Processing Evaluation May 17, 2013 8 pages
9 Classroom Observation Report June 6, 2013 9 pages
10 Blythedale Children's Hospital
Occupational Therapy Evaluation October 28, 2013 5 pages
11 Speech-Language Evaluation December 2 and
December 3, 2013 4 pages
12 Health Record Multiple Dates 4 pages
13 Neuro-psychological Assessment Received by District
June 24, 2015 8 pages
14 Educational Evaluation June 23, 2015 8 pages
15 Psychological Assessment June 24, 2015 7 pages
16 Speech Language Evaluation June 24, 2015 4 pages 17 Private School Records for 2012-2013 and 2013-2014 18 pages
Solomon Schecter and Windward School 2014-2-15
18 Revised June 24, 2015
Psychological Assessment
with cover letter to parents October 7, 2015 8 pages
19 Classroom Observation October 14, 2015 2 pages
20 Authorization for release of
student records May 29, 2015 1 page
21 Authorization for release of Undated
student records 1 page
22 PWN Request for consent to
evaluate June 22, 2015 3 pages
23 Consent to evaluate June 22, 2015 1 page
24 Notice of August 2015
CSE meeting June 7, 2015 2 pages
25 Letter from Julie Snider to parents July 14, 2015 1 page
26 PWN Request for consent of initial
provision of Special Education
Services August 7, 2015 3 pages
27 Notice of Board of Education
Review August 13, 2015 1 page
28 Letter from Diana Gersten to
Julie Snider August 19, 2015 3 pages
29 Letter from Julie Snider to
parents August 21, 2015 3 pages
30 Consent of classroom observation September 1, 2015 1 page
31 Invitation to November 23, 2015
CSE Subcommittee meeting October 28, 2015 2 pages 32 Second request for consent for initial provision of Special Education
Services December 1, 2015 3 pages
33 2015 PWN December 1, 2015 2 pages
34 Refusal to consent to initial
provision of Special Education
Services January 25, 2014 1 page
35 Stipulation of Settlement June 21, 2015 8 pages
36 CELF-5 3 pages
37 Classroom Observation Timeline for S.N 1 page
38 Subpoena to Dr. Tagliareni 63 pages
39 Post Hearing Brief December 29, 2106 32 pages[9]
PARENTS EXHIBITS
A Out[10]
B Out
C Out[11]
D E-Mails Between SH and June 29, 2014 to
Michele S June 30, 2014 2 pages
E E-Mails between SH.N. And June 4, 2014-
Harrison CSE Personnel June 22, 2014 4 pages
F E-Mails between Parents and
District Counsel June 4, 2015 1 page
G E-Mails between SH and Julie January 26, 2106-
Snider January 27 2016- 2 pages
H Out
I Out
J New Student Registration Materials May 11, 2015 8 pages
K First Interim Order March 26, 2105 5 pages
L White Plains SD IESP January 31, 2014 10 pages
M Harrison CSE Psychological Assessment June 14, 2015 7 pages
N Harrison CSD Educational Evaluation June 23, 2015 8 pages
O Cover Letter from Windward to Mr. Lambert May 20, 2016 1 page
P Windward Enrollment Contract March 2, 2015 2 pages
Q Windward Payment Affidavit 2015-2016 school year 1 page
R Windward Attendance Record 2015-2016 school year 4 pages
S S.N. Windward Class Schedule 2015-2016 school year 1 page
T Windward Standardized Testing Report Various Dates 3 pages
U Windward Progress Report- Third Quarter 2015-2016 school year 9 pages
V Windward Progress Report Fourth Quarter 2014-2015 school year 12 pages
W Windward Progress report-Fourth Quarter 2015-16 school year 10 pages
X Windward Program Information Printed August 13, 2016 16 pages
Y Post Hearing Brief December 29, 2106 29 pages
IHO EXHIBITS
1 Extensions various 10 pages
2 Windward Subpoena May 12, 2016 2 pages
Footnotes
[1] On the last day of hearing I went over and had copies of all the extensions that had been requested and granted. I emailed the parties with the final extension that was granted after the final hearing in order to allow me the two weeks after the record close to submit a decision.
[3] This agreement will be further discussed in “prong one” section to the extent it is relevant to this proceeding
[4] She started at her position on July 1, 2015.
[5] This IEP is not challenged in this due process complaint
[6] “That's a range of scores where they recognize that the standard score that's provided on the report falls...we can with 95 percent confidence assume that her true score falls within this range of scores.” (Tr. 273)
[7] Mr. refers to Dr. as a hired advocate and suggests that her role was to aid the Parents in securing reimbursement for . There is no evidence to establish that Dr. did not base her recommendations on the evaluation that she conducted for S. and her knowledge of .
[8] If went from doing something frequently to doing it consistently this obviously indicates progress
[9] This includes cover sheet and table of contents
[10] Exhibits that were duplicates of Department were removed
[11] Removed as per objection