Elmont Union Free School District, Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the Parent and Guardian of {}., Petitioner,

Hearing Officer: Michael Lazan

v. Case #

SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case filed on behalf of a nine-year-old student (“the Student”) who is eligible for services as a student with Other Health Impairment. A Due Process Complaint (“Complaint”) was received by Elmont Union Free School District (“District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on March 7, 2016 in regard to the Student. The Complaint alleges numerous FAPE violations relating to the IEP dated January 6, 2016 and requests, as a remedy, reimbursement and/or tuition at Vincent Smith School for a portion of the 2015-2016 school year.

Six hearing dates followed. After the hearings, the parties took time and prepared briefs. (IHO Exhs. 1, 2) Because of the extensiveness of the testimony and issues in this case, to allow the parties to write briefs and to allow this IHO to write this decision, two timelines extensions were granted here. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 3)

FINDINGS OF FACT

The Student has been diagnosed with {}.

He entered the school district in or about 2013, as a kindergartner. He was then placed in a general education class with related services of speech and language therapy, twice a week in a group of five students. (Exh. 32) The placement was Covert Elementary School.

A teacher’s report from April 8, 2014 indicated that {}. At the time, he performed best in a small group with teacher/aide support. It was indicated that the Student has a tendency to {}.

A subsequent occupational therapy evaluation found {}

For the 2014-2015 school year, the Student attended Covert Elementary School in a general education classroom. The Student received related services of occupational and physical therapy but no services to address other deficits. (Exh. 20) Additional evaluations were then conducted in November, 2014. A psychological evaluation from November 7, 2014 found that the Student had a {}.

Initially during the 2014-2015 school year, the Student received {}. The Student’s teacher and AIS teacher then met with the parent and indicated to her that the Student needed more help. (Tr. @ 352-353)

A teacher report dated March 31, 2015 by teacher {}

At the next IEP meeting, on April 29, 2015, the Student’s program was changed again. For second grade, the District recommended an Integrated co-teaching classroom (“ICT”) for the Student, with speech and language therapy, 2 x 30 minutes, group, and occupational therapy, 1 x 30 minutes, group, and 1 x 30 minutes, individually. (Exh. 7) At this time, the parent was also informally offered a self-contained special education classroom for the Student with fifteen children and two aides, at the {} school. The parent refused to look at this placement and wanted the Student to stay in the {} School. (Tr. @ 398, 411)

For the 2014-2015 school year, the Student continued to receive “1” and “2” grades in all academic areas. The teacher commented that the Student was a hard worker and responded very well to positive reinforcement, and has grown in “so many ways.” (Exh. O) The report card indicated that he gained both confidence and skills. The progress report from June 30, 2015 found that the Student achieved all three of his reading goals, progressed satisfactorily on three of his speech and language goals, progressed inconsistently on {}. (Exh. 26) Testing through the NWEA measure found that the Student made progress in math and reading. (Tr. @ 134)

A second IEP meeting was held at the parent’s request on June 9, 2015, where the parents asked for a more restrictive setting. (Tr. @ 354) Occupational therapy was increased to three times a week, twice individually, once in a small group, but the CSE kept the ICT recommendation. (Tr. @ 35-36) This IEP repeats information that was contained in the April, 2015 IEP. It indicated that the Student requires {}. The IEP reported that “slow progress” was seen in math with addition requiring regrouping. “Slow progress” was seen in speech. He was considered {}. Goals related to study skills (1 goal), reading (1 goal), writing (1 goal), mathematics (2 goals), speech and language (5 goals), and motor skills (4 goals). The writing goal was the first writing goal that the Student had in the District. The IEP included testing accommodations and requires {}.

For the 2015-2016 school year, the Student started by attending the ICT class at {}, which contained twenty-five students and five special education students. (Tr. @ 80) The class worked in whole group sessions and also broke into small centers, with the teacher rotating from group to group. (Tr. @ 83) The Student also came for {} before school and after class ended. (Tr. @ 81) The Student was working on {} skills at the time. (Tr. @ 358, 437)

The Student’s teacher indicated that he has been learning, that his reading comprehension and fluency had improved and that his distractibility had been reduced. (Tr. @ 36-37, 416-417) Progress was reported in speech and language therapy. (Tr. @ 154-160) Still, the Student was having difficulty with {}. (Tr. @ 292, 303)

On November 12. 2015, the school held a parent-teacher conference evening. At this meeting, the parent indicated that the Student’s attitude about school is positive and that he enjoys going to school day. She reported progress in reading and speech and language, but concerns in {}. (Exh. 46)

A teacher report was written on November 21, 2015 by {}, the special education teacher, and {}, the general education teacher. They reported that a teacher had to {}. (Exh. 4)

In the first marking period for the 2015-2016 school year, the Student received {}. The report card indicated that the Student is a kind and polite boy who is always willing and eager to participate in classroom discussions but {}. It indicated that decoding skills have improved, but that the Student still has {}.

The parent requested another CSE meeting during the year, and the District scheduled it for January 6, 2016. The meeting included the parent and Ms. Connolly, her consultant, as well as five school district employees including the Student’s special education teacher. The parent reported that the Student {}. The Principal indicated that they needed more time before it could be determined whether the Student was progressing. (Exh. D) It was reported that he had almost reached two goals and was progressing according to the NWEA testing. He was considered at the {}. The District characterized this as “slow, steady” progress. The District did not change its recommendation for an ICT classroom, expressing a reluctance to change the Student’s placement mid-year. Occupational therapy was increased to three times a week, twice individually, once in a group. Other that the meeting information section, the rest of the IEP remained the same as the prior IEPS.

A teacher’s report from March 5, 2016 found that the Student made improvements according to NWEA testing and is now approaching {}. Teacher observations also reported progress in reading fluency, in decoding, and in addition and subtraction. It indicated that he benefits from small group and individualized instruction and reinforcement to complete assignments. However, he continued to struggle with {}. (Exhs. 38, 39)

The parent then sought out a new placement for the Student and settled on the {}, a non-public school. The Student began at {}in March, 2016, where he was placed in a small class setting with multi-sensory curriculum. (Tr. @ 258-260)

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law of this Hearing Officer are as follows:

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The central purpose of the IDEA is to ensure that all children with disabilities have available to them special education and related services designed to meet their unique needs and provided in conformance with a written IEP (i.e., free, appropriate public education, or “FAPE”). 20 U.S.C. Sects. 1400(d)(1(A), 1401(9)(D), 1414(d); 34 C.F.R. Sects. 300.17(d), 300.320; Shaffer v. Weast, 546 U.S. 49, 51 (2005). Pursuant to the Supreme Court's decision in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, (1982), the standard in determining whether a child is receiving a FAPE, or the “basic floor of opportunity,” is whether the child has “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Rowley, 458 U.S. at 201. The IDEA, according to Rowley, imposes “no additional requirement that the services so provided be sufficient to maximize each child's potential commensurate with the opportunity provided other children.” Id. at 198.

The IEP must be evaluated prospectively as of the time of its drafting and therefore hold that retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered. Further, parents who end up placing their children in public school cannot later use evidence that their child did not make progress under the IEP to show that it was deficient from the outset. Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the IEP creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) 1. IEP Meeting

Petitioner contended that the meeting was invalid because their point of view was ignored, assessments were ignored, and that the results of the review were predetermined. In particular, the parent felt that the classification and program (and therefore the student’s place on the educational continuum) were decided by the school district without the parent’s participation.

Courts require that Districts have an Aopen mind@ so that parents may actively and meaningfully participate in the IEP meetings. T.P. and S.P. v. Mamaroneck Union Free School Dist., 554 F.3d 247 (2d Cir. 2009). Citing the Sixth Circuit case of Deal v. Hamilton County Board of Educ., 392 F.3d 840 (6th Cir. 2004), the Circuit explained that a key to this inquiry is determining whether the Apowers that be@ have indicated that a particular program cannot be implemented in a particular District. See also J.G. v. Kiryas Joel Union Free School Dist., 777 F. Supp.2d 606 (S.D.N.Y. 2011); Application of a Student with a Disability, Appeal No.08-035; Compare E.G. and M.G. v. City School Dist. Of New Rochelle, 606 F. Supp.2d 384 (S.D.N.Y. 2009)(finding no Apredetermination@ because no Apolicy@ implemented).

Regarding classification, the contention is that {}. The parent did not argue this point in her brief, and there is nothing in the record to indicate that the parent sought to discuss this change during the meeting or that the classification of “Other Health Impaired” is somehow inappropriate for the Student, who has been diagnosed with {}.

The allegations regarding discussion of the Student’s program are also without merit. The transcript of the IEP meeting is in the record, and it shows that the District allowed the parent and her representative to speak a fair amount at the meeting. The parent claims she did not receive enough information about the self-contained placement or other options. However, cases findings violations on predetermination claims tend to focus on the authenticity of the deliberation, not on the extent to which information is shared. Kalliope R. v. New York State Department of Educ., 54 IDELR 253 (E.D.N.Y. 2010)(12:2:2 classes)(refusing to consider certain programs). The parent also contended that the school district did not consider doctor’s letters, but the letters were brief and rather conclusory. (Exhs. J, K) The parent suggests that the District’s offer of a self-contained program was disingenuous because Ms. Muller of the District also testified that the Student would not have good language models or a peer grouping in the setting, which was at the school. However, during the meeting in January, the record also suggests that the District was motivated at least in part because it would be unwise to transfer the Student between programs mid-year. Moreover, the record established that the District did informally offer the parent a self-contained classroom earlier. These claims have no merit. 2. IEP.

The parent contended that the IEP contained inappropriate “present levels of performance,” inappropriate goals, an inadequate amount of speech and language therapy, inadequate supports and services, and recommended an inappropriate ICT Classroom. They also contended that the IEP provided for a curriculum that was too advanced for the Student, that the IEP was not based on assessments, and that the IEP did not contain sufficient parent training and counseling.

a. Present Levels of Performance.

The Due Process Complaint alleged that the IEP failed to indicate that the Student was struggling and not meeting grade level standards. The IEP must include “(a) statement of the child's present levels of academic achievement and functional performance”, including “(h)ow the child's disability affects the child's involvement and progress in the general education curriculum (i.e., the same curriculum as for nondisabled children).” 34 CFR Sect. 300.320.

The IEP is spare in its description of the Student’s present levels of performance. The section entitled “Academic Achievement, Functional Performance and Learning Characteristics” contains four sub-domains of focus: Speech/Language; Reading; Writing; and Mathematics. Descriptions are not extensive in these sub-domains. The description of the Student’s reading, which is his main issue, is only four brief sentences. The description of the Student’s writing is similarly four brief sentences.

However, there are sufficient references to performance in other sections of the IEP to make this description of the Student sufficiently complete. Eight standardized test results are reported, going back to the year 2014. These results make it clear that the Student has deficits in {}. It is noted that the parent did not clearly reference this claim in her brief. This claim is dismissed. b. Goals.

In her brief, the parent contended that the Student worked on the same goals for several years. Goals are written in IEPs in order to meeting “the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum” and “(m)eet each of the child's other educational needs that result from the child's disability.” 34 CFR 300.320(2).

In fact, the goals for this Student are different from year to year. For instance, the goals in the IEP dated December 3, 2014 are almost entirely different from the goals in the January, 2016 IEP. While it is true that the three IEPs for the 2015-2016 school year contain the same or similar goals, “annual” goals should not be expected to be completed before the end of a school year. Accordingly, it is not inappropriate that the April, 2015 IEP has the same goals as the January, 2016 IEP.

The other goals claims in the Due Process Complaint are not mentioned in the brief. These claims assert that the goals are generic and that the methods of measurement and schedule for measurement of the goals are not sufficient. {}’s testimony established that the goals were in fact tailored to the Student’s needs. (Tr. @ 88-95) There is nothing in the record to suggest that these goals are not measurable, and the goals contain a criterion for measurement, a method of measurement, and a schedule. While the criteria for measurement is listed at eighty percent for all goals, and while the schedule for all goals is listed as “(b)y the end of each marking period,” the goals do vary regarding “measurability.” While the goals could have been written more excellently (and while the writing goal could be viewed as problematic, see infra), I cannot find that the goals, by themselves, denied the Student a FAPE.

c. Speech and Language Therapy.

The parent alleged that the speech and language therapy offered in the January, 2016 IEP was inappropriate because no 1:1 speech and language therapy was offered. The IEP did offer group speech and language therapy, twice a week for thirty minutes.

Both sides called speech and language therapists on this issue. The District’s therapist, {], testified that the Student was doing well in the group sessions and had made “slow and steady” progress through the end of first grade. (Tr. @ 143, 150-151) The report of Ms. Modruson indicated that the Student continued to expand his vocabulary. (Exh. 8) On the five speech goals for the year, the Student was progressing satisfactorily on four, and progressing gradually on one. (Exh. 13)

It is noted that, at the parent’s proposed placement, the Student also received speech in a small group, also for twice a week. (Tr. @ 320) While Ms. {}, the speech and language therapist from {}, did indicate that the Student should receive speech individually (Tr. @ 326), she did not explain why the Student received group speech at the school if individual speech was necessary. While I can understand the parent’s position on this issue in view of the Student’s slow progress, I find that the school district offered the Student appropriate speech and language services in its January, 2016 IEP.

d. Supports and Services/ICT classroom.

The parent contended that the Student should have received a self-contained special education classroom recommendation in the IEP for January, 2016. Alternatively, the parent contended that the ICT classroom that was recommended did not have sufficient supports and services to allow the Student to make meaningful progress.

The parent suggested that by the time of the January, 2016 IEP it was clear that the Student was {} in the ICT classroom at the time. The parent argued that, at the time of the IEP creation, the Student needed {}. She pointed to the testimony of her professional witness,{}, who indicated that the Student was unable to learn in a large setting. They pointed out that the Student was functioning on only {}. The parent noted that one of the Student’s writing goals was changed from the earlier year because {}.

However, the District’s proposal to place the Student in an ICT class represented an increase in services from the 2014-2015 school year, and students who are not on grade level do not necessarily need self-contained classes. As is clear from a review of the continuum, there are other options that can be successful, including the ICT model classroom. Moreover, school districts must operate pursuant to the mandate to provide a Least Restrictive Environment. In Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993), the Third Circuit Court of Appeals set forth a construct for school districts in connection to their duties to provide an education to students with disabilities in the Least Restrictive Environment. The Second Circuit explicitly adopted the Oberti approach in 2008 in P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122(2d. Cir. 2008). In Oberti, the Third Circuit looked to: (1) whether the District has made reasonable efforts to accommodate the child in a regular education classroom; (2) whether there are educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) whether there are possible negative effects of the inclusion of the child on the education of the other students in the class. Id., at 1217-1218. Newington, 546 F.3d at 119-120. The Oberti court continued to explain that, if after considering these factors, the court determines that the District was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. Since the student was making “slow and steady” progress in some areas, it was within the District’s discretion to continue the ICT classroom throughout the year.

However, the Student did not progress in all areas -- in particular, {}. The parent expressed concerns about the Student’s {}, and the record suggests that {} was a subject that the Student himself was particularly upset about. (Tr. @ 293) Consistent with this, the teachers’ report from November, by {}, indicated that the Student had a hard time {}. There is only one IEP goal in {}. The progress report on goals from December, 2015 indicated that the Student was progressing inconsistently on this one goal and may not achieve the goal. In the report card for the first semester for the 2015-2016 school year, the Student received {}.

Indeed, going back to the 2014-2015 school year, there appears to be no reported progress in {}. There is some suggestion that he knew his {}. More services should have been recommended so that the Student might have had a reasonable chance to meet the goal. In fact, Ms. Muller testified that the Student needs individualized attention {}, though this is not on the IEP. While there is testimony that the Student did receive some “small group individualized” instruction at {} (Tr. @ 32, 83) this intervention was not significant enough to produce tangible results.

There was a related problem with {}. At the IEP meeting, the parent contended that the Student had too much difficulty with {}. (Tr. @ 363; Exh. D, @ 29-30) There is no reason to doubt that the parent was {}. In fact, at the IEP meeting, {}. However, there is nothing in this IEP to address the Student’s issues in {}.

The failure of a school district to address issues with {} can amount to FAPE denial in this Circuit. In Bougades v. Pine Plains, 376 Fed. Appx. 94 (2d. Cir. 2010), a hearing officer (myself) found that an IEP sufficiently addressed the Student’s issues in, inter alia, {}. Judge Paul Gardephe reversed the ruling, finding that the IEP did not address issues in these two areas. The Circuit reversed back to my original determination, specifically analyzing whether the relevant IEP provided for an appropriate program in {}. To this hearing officer, the Circuit is therefore suggesting that the absence of appropriate interventions in {} should amount to FAPE denial.

In sum, while I agree with the District’s point that it was inappropriate to pull the Student out of the classroom entirely in the middle of the school year, Holmes v. District of Columbia, 680 F. Supp. 40 (D.D.C. 1988), additional {} could have easily been added to the IEP together with the ICT classroom.1 The school district, therefore, denied the Student educational benefit, and therefore a FAPE.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an

The parent also alleged that the IEP did not contain parent training and counseling, but there is no requirement for IEPs to contain these services unless a student is eligible for services as a student with autism. There is no need to address any of the parent’s claims relating to implementation of the IEP since I have already found FAPE denial in connection to the IEP itself. appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The parent placed the Student at the {}. The Student progressed in reading from this curriculum, which was provided by a certified reading teacher. He received a multi-sensory math program as well. (Tr. @ 257-261) It was reported that the Student learned to add and subtract successfully during this time. {}. The Student also completed his homework every night without his parent’s help (Tr. @ 266), received speech and language therapy twice a week in a group of three, and occupational therapy once weekly individually and once in a group. One-to-one instruction was provided to the Student. (Tr. @ 270, 306-307) Significantly, there was credible testimony that the Student had finally improved in writing with more individualized attention. The Student had not been able to write a complete sentence when he entered {}. He now completed sentences -- even though, with the additional help, the Student’s written work was still often incomplete. (Tr. @ 261; Exh. S) Overall, the record supports a finding that this the parental placement provided this struggling student with additional resources that were needed for him to make meaningful progress. The parent prevails on “prong two.”

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.

There is no argument that the parent has failed to participate, denied the school district an opportunity to create an IEP or evaluate, failed to provide the District with notice, or engaged in any conduct that constitutes bad faith. The parent prevails on “prong three” and is awarded tuition reimbursement/payment for the 2015-2016 school year at {}.

ORDER

As a result of the foregoing, the parent is hereby awarded tuition reimbursement/payment for the {} for the portion of the 2015-2016 school year that the Student attended the school.

Dated: Brooklyn, N.Y.

February 2, 2017

Michael Lazan

MICHAEL LAZAN IHO

APPEALS NOTICE

There is a right to appeal this decision to the New York State Review Officer in accordance with 8 N.Y.C.R.R. Sect. 200.5(k) of the Regulations of the Commissioner of Education.