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THE UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
x In the Matter of the Application of XX a Child with a Disability, by XX and XX, Parents, for a Due Process Impartial Hearing DECISION AND ORDER
No. 91294
Petitioners,
-against-
XXXXXXXXX CENTRAL SCHOOL DISTRICT,
Respondent. x
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
243 West 99 Street (6A)
New York, NY 10025
Telephone: 347-886-3967 Case No. 91294
On April 29, 2016, May 5, 2016, May 9, 2016, June 15, 2016, June 21, 2016, July 28, 2016, August 4, 2016 and August 17, 2016, at the District Offices of the XXXXXXX Central School District (“the district,” “XXXX” or “XXXXXX”), located at XXXXXXXXXXXXXXX, XXXXXXXXXXXXXX, I conducted an Impartial Hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
The parents assert failures to provide a FAPE in various school years by the district and seek reimbursement for the unilateral placement of the student at XXXXXXXXXX located in XXXXXXXXXXXXXXX (“XXXXXXXX” or XXX ) for the 2014-2015 and 2015-2016 school years. (Ex. VI) The district claims that FAPE was provided in the school years relevant in this matter and, further that the parents have failed to establish that XXXXXX was appropriate. (Ex. VII)
Procedural History
The proceeding was initiated at the request of the parents by correspondence dated August 17, 2015 and received by the district on August 21, 2015. I was appointed Impartial Hearing Officer on August 24, 2016 and was available to conduct a hearing within 14 days of appointment. (T. 3, Ex. I)
At a prehearing conference on October 14, 2015, the parents clarified the claims of their complaint, acknowledged that the student’s then current unilateral placement was never agreed to by the district or ordered through the impartial hearing process and did not thereafter assert claims for tuition payment based upon pendency entitlements and were informed that prospective claims for tuition payment for school years subsequent to 2015-2016 could not be considered. (T. 3-4)
In prehearing conferences and various written and oral communications the parties stated that various evaluations were to be conducted in preparation for a triennial evaluation expected in January 2016 and that they wished to be able to consider the results before making a determination with regard to their positions in this matter. Various delays in the evaluation process ensued, the evaluation did not occur until the beginning of March 2016. At a prehearing conference on March 9, 2016, various dates, commencing April 14, 2016, were agreed upon with additional dates subsequently added. The April 14, 2016 date was thereafter adjourned at the request of the parent and the hearing commenced on April 29, 2016. (T. 5-7)
The parties moved to extend the compliance date on various occasions in light of new evaluations and a CSE review, anticipated testimony, the scheduling of witnesses and the submission of evidence and closing arguments. 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 prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 5, 6-7, 750, 920, 1189, Ex. IV)
The current compliance date is January 3, 2017. The record closed on November 22, 2016, upon the admission to evidence of the parent’s “corrected” closing memorandum. (Ex. V) [1]
Cases Presented 2
A) Both parties submitted documents for admission into evidence. List of documents in the record and person who appeared are appended.
B) The testimony of witnesses presented by the district included the following:
XXXXXXXX (“XXXXX”)
XXXXX has been Assistant Director for Special Education at XXXXXXX for 13 years and her prior experience included being a certified special education teacher for 3rd to 5th grade self-contained classes there. (T. 152, 154)
The self-contained XXXXXXXXXXX program in which the student had been placed while in the district was designed for students with XXXXX XXXXXXXX in XXXXX and XXXXXXXXXXXXX and was a 15:1:1 program. (T. 155, 304, Exs. 40, 60) AAAAAAAA XXXXXXXXXXX (“XXX”) was embedded in the XXXXXXXXXX program although it might not be mentioned in an IEP and for XXXXXXX XXXXXXX software was available. (T. 254256)
The program was based upon a XXXXXXX XXXXXXXXX program and XXXXX therapy was embedded as part of the student’s 2nd, 3rd, 4th and recommended 5th grade program so that a therapist would push in and the student would receive routinely receive XXXXX therapy (“XXXX”) even though not specified on the IEP. However, additional XXXXXX could be added to the IEP and provided if needed as a pull out. (T. 155-157) The embedded therapist worked collaboratively with the teacher on what the teacher had planned including XXXXXXX. XXXXXXXXXX (T. 156, 168, 173) For the 2015-2016 SY (6th grade) program, XXXXX was specified in the May 7, 2015 IEP as a pull out related service because it was not embedded in the period driven 6th grade (middle school) program and the most up to date evaluative material had indicated that the student needed the service. (T. 168-174, Ex. 11)
At the April 23, 2013 triennial review (“the April 2013 review”) the parent signed consent forms for an XXXXXXXXXXX . (T. 212, Ex. 40) That evaluation was conducted in May 2013. (T. 211, Ex. 20) The first CSE meeting that discussed the outcome of that evaluation was the December 19, 2013 review (“the December 2013 review”). (T. 208, 213)
In August 2013, the student’s mother (“the parent”) several times emailed XXXXXX with regard to a discussion of the student’s program and XXX XXXXXXXXX and XXXXXX difficulties, XXX “minimal” progress in the XXXXXX program and progress the parent had observed after a summer program (at XXXXXXXXXX ) using the XXXXXXXXXX program.
(T. 216, Ex. GG) She had no recollection of any meeting or discussion with the parent until the December 2013 review. (T. 216-217)
At the December 19, 2013 review (for the period January-June 2014) the CSE determined that the student would receive additional support with a XXXX and also twice weekly support from a XXXXXXXXXXXX. (T. 161-162, Ex. 31)
At the April 9, 2014 review and concerning the period January-June 2014 ( 2nd half 4th grade) the CSE again determined that the student required, in addition to the XXXXXX Case No. 91294 program, ad 1:1 support by a certified XXXXXXXXXXX as well as additional support a classroom XXXXX who trained in XXXXXX techniques. (T 159-160, Ex. 12) The small group instruction was to be provided in the classroom by the teacher and the 30 minute 1:1 every day from a XXXX would be to review material previously taught by the teacher. (T. 239-240, Ex. 42) The XXXXXX was trained by the district’s XXXXXXXX for 3 days and was under the direction of the classroom teacher who is XXXXXXXX certified. (T. 244-248)
At the April 9, 2014 review and concerning the student’s 2014-2015 SY 5th grade program, the CSE provided XXXXXXXXX pullouts would be provided by a XXXXXXXX XXXXXX teacher daily, an increase in teacher services, and that the XXXXXXX program would be utilized as part of the XXXXXX program. 3 (T. 163-164, Ex. 20) XXXXXX, a XXXXXXXXXXX program, was thought by the parents to be appropriate and the CSE agreed to try it because of the student’s inconsistent progress although the XXXXXXXXXXXX, also XXXXXXXXXX, would continue to be used. (T. 165-167) XXXXX stated that XXXX was not knowledgeable about the specifics of the XXXXXX program but that both XXXXXXX and XXXXXX are based upon the same XXXXXXXXXX approach. (T. 166) That April 2014 review was the first time that the XXXXXXXXX was identified in an IEP. (T. 204-206) In the April 9, 2014 IEP the student was offered summer 2014 services (3 90 minute classes per week) although the district did not know whether or not the student regressed during the summer. (T. 306-308, Ex. 20)
At the May 7, 2015 review for the 2015-2016 SY the CSE reviewed the December 2014 XXXXXXXXX from XXXXXX which was the only report from XXXX or with regard to progress that the CSE had received. (T. 175-176, 178 Exs. 9, 13) That report did not include any XXXXXXXXXX data with regard to the student’s XXXXXXXXXXXXXXXXXXXXXXXXX in any of the academic areas covered nor did it include XXXXXXXXXXXXXXX (“XXXXX”).
(T. 177-178, 197 Ex. 13) Information concerning student strengths, needs and present levels discussed in the XXXXXXXXX was included in the IEP as was information from the participants and utilized in the development of goals by the district’s special education teacher, although XXXXXXXXX data would have enabled more detailed goals, (T. 191-196, 198-202,
Exs. 9, 13) The XXXXXXXXXXXX dated June 2015 with information concerning the XXXXXXXXXXXXXXX (XXXXXX”), XXXXXXXXXXX (XXXXXX) and a “rubric grades 3-12” was not provided until after the filing of the instant complaint. (T. 182-189, Exs. 8, PP)
Regarding the disparity between the student’s 2010 FSIQ of XXX (WPPSI) and the subsequent reports 2013 and 2016 FSIQ of XXX (WISC-III), LLLLLL noted that the WPSSI was a preschool evaluative test but acknowledged that IQ could be affected by not gaining enough XXXXXXXX and background knowledge. (T. 234-238, Exs. 4, 45)
XXXXXX stated that the recommendations in the May 2013 XXXXXXXXXXX Evaluation were implemented for the balance of the 2013-2014 SY in the April 2014 IEP by providing XXXXXXXX instruction, an opportunity for XXXXXX and carrying XXXXXX skills learning across the board. That program provides additional 1:1 support if necessary and was XXXXXXXXX and it was thought that that class was the best available for XXX. (T. 253, Ex. 37)
XXXXXXXX’s testimony included a review of the student’s reported levels/progress during XXX period at XXXXXXXXXXX. (T. 259-315)
XXXXXXXXX (“ XXXXX”)
Cox, a state certified special education teacher ,was the student’s 4th grade (2013-2014).
(T. 578) The student was in a 15:1:1 3rd-4th grade XXXXXXXXXXX class during the 20132014 SY. (T. 579, 581) However, during that year there were also an extra teaching assistant and a teacher for the deaf in the classroom. (T. 574-585) All the children had XXXXXXXX disabilities. (T. 647) XXX has level 1 certification in the XXXXXXXXX (“XXXXXX”) level 2 group certification for level 1 through 5. She has also had some training in XXXXXXXXXXXX (“XXXXX”). (T. 575-577, 644-646) XXXXXXXXXXX services were provided for 2 30 minute sessions per 6 day cycle with a group of no more than 5 students in XXX class and the therapist would work on XXXXXXXXXXXXXX being used in the classroom. (T. 582-585, 587) An XXXXXXXX was in place and a SMART board was used. (T. 588)
The daily TA 1:1 instruction was, however, removed. Case No. 91294
She described the student as a very polite respectful student who worked hard but showed “inconsistencies” in that when working on something for a long time you could see success but very often the student would need later review of what had been thought to be mastered. (T. 580) XXXX provided XXXXXX instruction to the student in a group of 5 for one hour every 3 days.
(T. 585, 706) Grouping was based on XXXXX scores. (T. 639) On the other days the student’s group worked with the TA on one of the days on XXXXXXXXXX and the other they worked independently but were monitored. (T. 585, 648) XXXXX instruction was in 2 groups based upon grade level. (T. 580) With regard to XXXXX the student also had “inconsistencies” in that after XXXXX had learned something and moved on, XXXX noticed a lack of understanding of a previously taught skill (T. 650)
The parent had contacted XXX before the school year begin and had informed her that the student had had success in a XXXXXX program, another XXXXXXXXXXXXXXXXXXXXX, which XXXX had attended during the summer. (T. 595-596, 650) XXXX agreed to try to use XXXX in the language based program by using XXXXX XXXXXXX and workbooks and started where the parent had said the student had left off but XXXX’s efforts were inconsistent due to school scheduling and activities. Lordi directed that the TA take over. (T. 650-651)
XXXX spoke with the parents after the initial report card meeting and voiced concerns with the progress of the student’s XXXXXX and the inconsistencies. (T. 592-593, Ex. 31) The student had been in the XXXX XXXXXXXXXXXX program for the 2 prior years and was still not XXXXXX although a 4th grader. (T. 593) When XXXX had administered the XXXXX in September 2013 she concluded that the student had not mastered or had lost mastery of level 2 (a result of XXX “inconsistencies”) and therefore XXXX was working on it “again” at the beginning of the year. (T. 614-615, Ex. 31) XXX stated it was customary to conduct an XXXX when a student entered the XXXXXXXX program that she had not been aware that a recent XXXX had been done and had discussed with the parent that one was necessary to get XXXXXXXXXXXXXX services. (T. 610-612, 650-651, 717)
XXX had no recollection as to any CSE review in September 2013. (T. 707-708, Ex. 31)
She provided the information concerning academic achievement, functional performance and learning characteristics for the December 2013 IEP. (T. 606-607, Ex. 31) She utilized the Case No. 91294
XXXXXXXXXXXXXXXXXX to determine the reported XXXXXXXXXXXXXX and reported to the CSE that the student had completed XXXXXXX “with some success” (T. 606, 612, Ex.
31) Determinations of XXXXXXX levels between XXXXX administration was based upon interim results on various XXXXX measures and protocols used to determine if the teacher can move on. (T. 616-618) XXXXX was to be utilized as part of the student’s XXXXXXX program to “help [the student] succeed.” (T. 630-632, Ex. 31)
The December 19, 2013 IEP (“the December 2013 IEP”) put in place 1:1 instruction by one of the classroom TAs. (T. 595) The student was also to receive additional 1:1 instruction twice per 6 day cycle from a XXXXXXXXXXXX and daily 30 minute reviews by a TA using the XXXXXX program to, basically, provide someone for the student to XXXXX XXXXXX XXXXXXXXX. (T. 596, 685-686) Per Lordi’s directive, the TA took over the XXXXX piece of the program that XXXX had been trying to implement. (T. 651) Neither XXXX nor the TA were XXXXXXX but the XXXXX steps were consistent with the XXXXX steps being worked on, workbooks were provided and both XXXX and the XXXXX teacher were available if there were any questions. (T. 651, 686, 703) The XXXXXXX teacher was not herself working with XXXXX at that time but received information from the TA. (T.686-688) The main source of the student’s instruction was XXXXXX and XXXXXX was used to help the student proceed through the XXXXXX system. (T. 691)
XXXX had administered the XXXXXXXXXXXXX (“XXXX”) at the start of the school year and administered it again on March 18, 2014. (T. 598, 601, Exs. 88, 87) XXXX has XXXXXXXXXXXXXX for each level. (T. 604-605) The last XXXXXXX that she taught to “mastery” was XXXX. (T. 604, Ex. 87) Although the student also knew certain material covered at higher XXXXX levels as a consequence of class exposure that may not be considered within the XXXXXX assessment system to determine mastery as XXXX had not been taught them in the XXXXX system. (T. 658-664, 667-668, 674-676) Further, XXXX administration would be required the next year to determine if XXXX maintained mastery. (T. 669)
At the time of the April 9, 2014 IEP the student was working on XXXXXXXX which indicated that XXXX had satisfactorily mastered XXXXXX. (T. 619, 713 Ex. 20) XXXXXXX at that time indicated “XXXXXXXXXXXX’. (T. 620, Ex. 20) Goals for that IEP were drafted by Case No. 91294
XXXX based upon what the student was working on and XXX needs and information provided by the parents and other CSE participants. (T. 621-626, Ex. 20) The April 2014 IEP for 20142015 (5th grade) increased pull-out by a XXXXXXXXXXXXXX instruction from twice every 6 day cycle to every day because of the “inconsistencies” and the daily TA review (1:1) with theXXXXXX program was removed. (T. 630, 633-635, 685, Exs. 20, 31)
XXXX also drafted the goals for the May 7, 2015 IEP (“the May 2015 IEP”) and used information provided by XXXXXXXX and CSE participants including the parents and the information as to the academic achievement, functional performance and learning characteristics came from the same sources. (T. 627-628, Exs. 9, 13) All participants had an opportunity to discuss goals. (T. 642) The CSE continued the previously recommended XXXXXXXXXXXXX instruction from a XXXXXXXXXXXXXX and although XXXXX had no recollection as to the reason for that recommendation she thought it was appropriate because it would give the student more opportunity to work at XXX level. (T. 636-637) An additional small group (5:1) pull-out XXXXXXXXXXXX 40 minute period with a special education teacher to focus on XXXXXXXXXXXXXXXXXX 4 times in a 6 day cycle was also provided.
(T. 641, 697, Ex. 9)
In her understanding a CSE review was to be done every time a “five week review” was specified in the student’s IEP. (T. 706, Ex. 31)
XXXXXXXX (“XXXX”)
XXXX was the student’s XXXXXXXXXXXX from January 2014 through June 2014. At that time she was not XXXXXXXXXXXX and had not yet begun training for XXXXXXXXX instruction although now completed but she was certified in XXXXXXXXX (“XXXX”) at the time she was instructing the student. (T. 864-865) She is State certified in general education kindergarten through 6th grade and special education kindergarten through 12th grade and had been certified in special education when she was instructing the student. (T. 841, 866-868) As an XXXXXXXXXXXXX, she works with children who have XXXXXXXXXXXXXXX deficits and uses a XXXXXXXXXX program. (T. 841-842) The focus of XXXXXXXXX instruction is on XXXXXXXXXXXXXXX. (T. 875) Case No. 91294
She provided instruction for 2 30 minute pull-out periods during each 6 day cycle. (T.
844) She had been told to use the XXXXXXXXXX (XXXXX”) in conjunction with the classroom teacher and the TA. (T. 844) XXXXXX is a separate system but XXXX incorporates XXXXXX in its workbook and XXXXXXXXXXXXXXX. (T. 844) XXXX was using XXXXXXX in the class and incorporating XXXXX in conjunction with the skills the class was working on in XXXXXXXX. (T. 845) The TA was implementing XXXXX and overseen by XXXXX who was working on XXXXXXX in the classroom and incorporating XXXXXXX. (T. 843-845) When XXXXXX was working on a skill set, XXXX was working on XXXX components to coordinate the skills. (T. 846) She opined that there was no reason that the student could not receive simultaneously receive instruction through XXXXXXX and XXXXX and she believed the coordination had worked well. (T. 845) XXXXX did not assess the student and did not establish benchmarks for the student but they were built into the XXXX program and XXXX was following what was being done in the classroom. (T. 870-871) There was an assessment at the end of XXXXXXXXXXX which was administered in the classroom and XXXXX was informed of the results. (T. 870, 872) When she initially started teaching the student she was tasked with using XXXXXX with her but when it became apparent that the staff XXXXXX teacher was not returning she incorporated XXXXXX to support the skill set. (T. 881-882)
XXXXX reviewed December 2014 and June 2015 XXXXXXXXXXXXXX (“reports’) and with a chart coordinating XXXX with XXXXX compared the skill sets of those attained by the student in the district with those referenced in the XXXXXXX reports. (T. 846-855, Exs. 85, 86, 13, 8) When XXXXXX started working with the student XXXX was working on XXXXXXXXX. (T. 845, 893) By June 2014 the student had independently achieved XXXXXX skills in the XXXXXXX. (T. 854-856, 884) XXXXX was not working on XXXXXXX. (T. 855) However, the student appeared to have made progress at XXXX in certain XXXXXX skills from December 2014 to June 2015. (T. 889-890, Ex. 86) By June 2015 the XXXXXXXX reports indicated that XXXX had some independent skills at XXXXX although still needing guidance with some XXXXX skills and that XXXX had no independent skills at XXXXXX where XXXX still needed guidance. (T. 855-857, 884-885) Case No. 91294
XXXXX understood the XXXXXXXXXX to be reporting that once the student learned a specific skill XXXX was able to retrieve it but she stated that the process of learning the skill takes a very long time for a child who has XXXXXXXXXXXX. (T. 879, Ex. 37)
XXXXXXXXX (“XXXXXX”)
XXXXXXXX is a state certified school psychologist employed by XXXXXXX. (T. 76,
78) She evaluated the student for her 2013 and 2016 triennial evaluations but has not provided any counseling services to her. (T. 81, Exs. 45, 4 )
She testified that the student had been cognitively evaluated in 2010, before entering a district school, with a Wechsler Preschool and Primary Scale of Intelligence (“WPPSI-III”),a normed standard evaluation used primarily for children under the age of seven, and a FSIQ of XXX was reported. (T. 82, Ex.4)
For her 2013 evaluation XXXX used the WISC-IV and in her January 2016 evaluation she used the WISC-V, a newer version of the 2013 test with non-verbal skills (Perceptual Reasoning) broken down into two categories in the WISC-V. (T. 91-92) The student’s FSIQ in both tests was XXX. The student’s scores for Verbal Comprehension and Processing Speed were essentially the same (XXXXXXX) and there was no statistically significant difference with regard to Working Memory (XXXXXXX). For Perceptual Reasoning, a changed subtest, the student had been at XXX (XXXXXXX) in 2013 but scored at XXX (XXXXX) in the Visual Spatial Index and XXX (XXXXXXXX) in the Fluid Reasoning Index which replaced the Perceptual Reasoning Category. (T. 93-95, Ex. 4)
XXXXX also administered for both her evaluations, the Wechsler Individualized Achievement Test-III (“WIAT-III”), a standardized age based normed test which provided scores in reading, writing, mathematics and oral language and then provided a total achievement composite. (T. 96, 98, 104) She testified that although some scores went down and others scores went up, a determination that there was a gain/loss would require changes that were statistically significant. (T. 794-802) She stated that only the drop in Numerical Operations from the XXXXX to the XXXXX percentile (XXXXXXXXX) was statistically significant. (T. 102-104, Exs. 45, 4) Case No. 91294
She also compared 2013 and 2016 XXXXXXXXXXXThird Edition (“XXXXXX”) results. (T. 105-106, Exs. 4, 9, 37) The only statistically significant change noted was in the XXXXXX subtest which dropped from XXXXXXXXXXX. Total XXXXXX in both tests was in the XXXXXXXXXXX range. (T. 108-111)
XXXXXXX sought parental consent for a XXXXXXXX assessment, also a standardized normed test, to obtain a second measure of the student’s XXXXXX skills but consent was not provided. The parent had questioned the rationale for that testing. (T. 113-115, Exs. 4, 5)
XXXXXXXXX (“XXXXXX”)
XXXXXXXX is a XXXXXXXXXX XXXXXXXXXXXXX and is State certified as a XXXXXXXXXXXXXX, licensed as a teacher of students with XXXXXXXXXXXXXXXX nationally, is accredited with the XXXXXXXXXXXXXXXXX and has a certificate of XXXXXXXXXXXXXXXXXXXXXXX. (T. 22, 25, 53) She conducted a XXXXXXXXXXX evaluation of the student on January 11, 2016, at XXXXXXX for a 2016 triennial evaluation. (T. 26-27, Ex. 2) XXXXXXX’s evaluation noted that the student was receiving XXXXXXXX therapy 2:1 at XXXXXXXX. (Ex. 2)
xxxxxxx utilized the XXXXXXXXXXXXXXXXXXXXXX (“XXXXXXX”) which is a full battery assessment of XXXXXXXXXXXXXX skills. (T. 27) The student’s previous evaluation, conducted on January 23, 2013, utilized the XXXXXX to which comparisons could be made with the XXXXX although some of the subtests are different. (T. 28, Exs. 2, 9) The XXXXXX and XXXXXXX are age normed. (T.31-32, 65-66) XXXXXX also conducted a
XXXXXXXXXXXXXXX Test (“XXXXXXXXXXXXX”.)
She reported that the student had XXXXXXXXXXXXXXXXX skills within the average range, XXXXXXXXXXXXXXXXXX within normal limits and XXXXXXXXXXXXX skills ranging from below average to average. Although XXXXXXXXXXXXX skills were found to be below average the precise results may have been impacted by inattention during part of one of the subtests. (T. 35, Ex. 2) XXXXXXX stated, however, that the student appeared to be attending and focused during the other part of that subtest but was
XXXXXXXXXXXXXXXXX. (T. 35-36)
With regard to comparisons of XXXXXX with XXXXXX subtest results for this student she testified regarding “XXXXXXXX” that the student had gone from the XXXXXXX to the XXXXXX percentile, regarding “XXXXXXXXXXXXX” there was a “XXXXXXX”, regarding “XXXXXXXXXX ” XXXXXXX was about the same percentile (XXX) and regarding “XXXXXXXXX” there was a drop from the XXXXX percentile to the XXXX percentile which she believed was significant notwithstanding that XXXXX was distracted for part of the test although the score in that should be interpreted with caution. (T. 40-45, 62, Exs. 2, 9, 49) There was a significant decrease in the XXXXXXXXXXX and in XXXXXXXXX. (T. 49-51) The average range for each subtest on both the XXXXXX and XXXXXX is from the XXXX to the XXXX percentile. (T. 57-58)
With regard to the XXXXXXXXXX the student was in the average range and the difference in the two tests is not significant. (T. 52)
XXXXXXXX testified that she is not aware of any XXXXXXXXXXX, other than degenerative neurological disorders, that would cause a student to regress in relation to other students. (T. 72-73)
XXXXXXXXXX (“XXXXXX”)
XXXXX is currently XXXXXXX Executive Director of Special Education and Student Service. (T. 856) His professional employment history includes 14 years as a school psychologist in New York State. (T. 858) He has not provided services or evaluated the student but has reviewed the documents in the student’s record with regard to the parents’ claims. (T. 865)
XXXXXXX stated that the results specified in the district’s XXXXXXXXXXXXXX conducted May 2013 and its Triennial Revaluation dated February 28, 2013 are consistent with a student with XXXXXXXXXXXXXXXXXX. (T. 1094-1100, Exs. 37, 45) XXXX also reviewed the January 2016 Triennial Evaluation which had results consistent with prior district testing and showed that XXXX comprehension was good so long as XXXX did not have to derive meaning from reading. (T. 1102, Ex. 4) Case No. 91294
XXXX reviewed progress reports received from XXXX. (T. 1106, Exs. 13, 3,8) The only norm referenced age based evaluative tools used by XXXXXX were the XXXXXX and the XXXXX. (T. 1107-1108) Grade equivalencies were provided for the XXXXXXdue to state agency and school needs but the manual is “pretty unequivocal that they do not recommend using grade or age equivalence” because they are not accurate measures as they move from the middle range. (T. 1110-1112) XXXXXXX characterized them as “wobbly”. (T. 1112) Rather the XXXXX test manual recommends creating an XXXXXXXXXXXX from data provided and using pre tests and post tests (XXXXXXXXXXXX) to determine what progress has been made, i.e. the effectiveness of instruction. XXXXXXXX did not provide XXXXX for the 2014-2015 school year but XXXXX created them from the data and in accordance with the formula provided by the XXXXX. (T. 1115, 1119-1121, Exs. 8, 13) He concluded that the student had an XXXXXXXXXXXX on XXXXXX (Fall 2014) and XXXX on XXXXXX (Spring 2015). Those scores are both in the XXXXXX but the 5 point difference is not statistically significant. (T. 1115-1119) XXXX stated that the XXXXXX reports did not contain any other information which enabled creation of an XXXXXXXXXX but rather was mostly more anecdotal. (T. 1119)
XXXXX stated that the December 2015 XXXXXX report did not report XXXXX scores for Fall 2015 and that therefore administration of the XXXXX in Spring 2016 would not enable an accurate determination as to the degree of progress during the 2015-2016 SY. (T. 1121-1123, Ex. 3) With regard to whether the XXXX results of Spring 2015 and Spring 2016 could be compared with regard to a determination of progress in the 2015-2016 SY, XXXXX stated that the XXXXX manual did not address that and with regard to that was “vague”. With regard to whether differences could be reliable indicators of growth he believed that would depend on the degree of difference. Further, he believed based upon rough calculations he had done after testimony in this proceeding concerning June 2016 results that the difference between XXXXXXXXX was about 8 points which is close to lack of significance if comparing XXXXXXXXXX and in the circumstances he could not 100 % say that the difference was a change in XXXXXXX skill. (T. 1158-1170)
The XXXXXXXXX test measures ability to XXXXXXXXXXXX. (T. 1123) XXXXXX reported results from Fall and Spring 2014-2015 SY results which showed identical standard Case No. 91294 scores, which XXXXX stated indicated that student had remained in the same place in relation to other students XXXX age. (T. 1123-1124, Ex. 8) He stated that the stated increase in grade equivalent from XXXXXXX was probably “statistical noise” and could mean a difference of one
XXXXXXX. (T. 1114-1115)
XXXXX opined that the XXXXXXXX and the XXXXX were insufficient that to ascertain the student’s XXXXXXXXXXXX at any given point of time and that the XXXXX manual recommends that that test should not be used as a stand-alone assessment to make decisions with regard to interventions and programs. (T. 1128-1129)
With regard to how progress is measured in XXXXX between triennial evaluations, XXXXXX stated that formal instruments with appropriate pre and post tests to eliminate the practice effect could be used or progress toward IEP goals. (T. 1038-1041, 1147-1150))
With regard to whether XXXXXXX had sufficient information (its own data and data previously obtained by the district) to make a determination as to whether progress was being made in its program he opined that it did and that relative progress was not being made. (T. 1142-1147)
C) The testimony of witnesses presented by the parents included the following:
XXXXXXXXX (“XXXXXX”)
XXXXXX is a licensed XXXXXXXXXXXXXX who is also XXXXXXXXXXXXX.
(T. 925-927, 1057-1058) She provided direct services to the student within the context of the XXXXXXXXXXXXXXX class for the 2nd, 3rd and 4th grades but for a brief period in XXXX third grade when a very competent and fully qualified provider substituted. (T. 927, 929, 945944, 1001). She also collaborated with the teachers and was in the classroom and touched based with the teachers almost every day and sometimes gave whole class instruction. (T. 943-944,
972) The children in the class were divided into groups of no more than 5 and for the 3rd and 4th grades the student received services in that group for 30 minutes 2 times per 6 day cycle. (T. 928-929, 998-999) The group worked on XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
(T. 928-929) The groups were formed by the teacher and the teacher informed XXXXXXX Case No. 91294 about XXXXXXXXXXXXX being worked on. (T. 930-931, 1014) Teachers utilized various XXXXXXXXXXXX in the classroom but most children received XXXXXXXXX and some received XXXXXXXX. (T. 940)
The student’s disability was XXXXXXXXXXXXXX and Tarczali provided XXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX as part of the
classroom program, to support that program and not interfere with it. (T. 940-941, 938, 973) Methodology included XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX (T. 933-938, 947) XXXXXXXXXXXXXXXXXXXXXXX
(T. 952) The methodology was the same for all students but the program “tweaked” to be individualized with regard to XXXXXXXXXXXXXX. (T. 933-934) Teachers had charts and also maintained XXXXXXXXXXXXXXXXXX. (T. 1007, 1015) XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX was worked on as well as other activities. (T. 935, 940, 961-962) Computer work was individualized. (T. 961)
The student was “XXXXXXXXXXXXXXXXXXX” over several school years
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
and which the teacher had asked XXXXXXXXXXX to review in her sessions. (T. 946, 965, 969970, 992-994, 1019, 1021, Ex. A) If the student was not able to XXXXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXX (T. 992) Although in May 2014 XXXXXX noted that XXXXXXXXXXXXXXX on that date, she would not expect that the student would continue to be able to achieve that the next month or routinely thereafter because of
XXXXXXXXXXXXXXXXXXXXX. (T. 1021-1022)
XXX goals were not specified on IEPs prior to for 6th grade because specific services were not recommended on those IEPs and the student had received XXX services as part of the XXXXXXXXXXXXXXX program for those grades. (T. 1027, Exs. 40, 31, 12, 60, 12)
This student did not receive any other XXXXXXXXXXXXX services although others, who had separate XXXXX services mandated on their IEPs did. (T. 945, 976) Students qualified for additional mandated XXXXX services if, based upon standardized testing, the student had deficits in XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 977-979, 981, 984) The determination to provide additional services is usually made every three years but could be done Case No. 91294 earlier is testing supported it and that testing could be requested by anyone. (T. 978-981) if subtests showed areas of weakness, but no mandated services were required, the weakness could be worked on through the language based class program. (T. 981-982, 988-989)
XXXXXXXXXXXX 2013 evaluation with the XXXXXX did not show deficits in XXXXX but rather showed scores in the average range for each XXXXXXXXXXXXX. (T. 1040, Ex. 49) The XXXXXXXXXXXXXXXXXXXXXXX. which she also administered, also resulted in scores that would not demonstrate the need for XXXXXXXXXXX services as a separate related service. (T. 1040, Ex. 49) Based upon the January 2013 scores there was no need for separate XXXXXXXXXXXXXXXXservices or goals. (T. 1047, Exs. 60, 40, 31, 12, 20)
XXXXXXXXXXX (“XXXXX”)
XXXXXX was a XXXXXXXXXXXXX special education teacher in self-contained classes in for some 27 years prior to her retirement and was a State certified special educator. (T. 1192-1194) She was XXXXXXXXXXXXX. (T. 1194-1195) She was the student’s classroom teacher for the student’s 3rd grade (2012-2013 SY). (T. 1195)
She described the student as XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX. (T.1196) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1198, 1236-
1238) The XXXXXXXXXXXXX used XXXXXXXXXXXXXXXXXX was very structured and sequential and included an evaluation component. (T. 1214-1215) In the 2nd grade a XXXXXXXXXXX program had been used but all student’s in XXXXXXX’s class started with the XXXXXXX program. (T. 1215) XXXXXXX and XXXX are similar in that both are XXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1215-1216) Garcia believed that XXXXXXX could not be used for a second grader. She was required by the district to use XXXXXXXX in her 3rd grade class and was also required to do XXXXXXXXXXX as well because that was the program the general education population was using. (T. 1217) She also used elements of other programs, including XXXXXXXXXXXX, that she found successful with some students. (T. 1218-1219) XXXXXXXXXXXX opined that although Case No. 91294
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXX. (T. 1210-1211)
The student worked hard, was cooperative and friendly with a good attitude to school despite XXXX problems in class, seeming to want to be there and when XXXX succeeded, which was infrequent, was very happy. (T. 1228, 1242-1243, 1246) The student struggled throughout the year and needed a lot of support XXXXXXXXXXXXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1238-1239) The student also required frequent cues to remain on task when the academic pressures were too strenuous. (T.
1241) By Quarter 2 XXXXXX had noted that the student needed XXXXXXXXXXX in the classroom in all subjects to both XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX. (T. 1252-1253) She also had difficulty XXXXXXXXXXXXXX within the time period allotted. (T, 1252-1253)
Although the student had progressed in XXXXXXXXXXXX by April, XXXXX felt that the amount of support she needed to get there was a “red flag”. (T. 1268) XXXXXX believed that the student was not making the progress she would have liked to have seen with the program and prior to the April 23, 2013 review informed the parent that she recommended an XXXXXXXXXXXXXXXX be conducted. (T. 1200-1202, 1207, Ex. LL) Her concerns about the student’s progress had started earlier in the school year. (T. 1201-1203) The parent consented to the evaluation and it was conducted on May 8-10, 2013 by a XXXXXXX staff member with extensive XXXXXXXXXXXXXXX. (T. 1203-1205, Exs. 37, 42) XXXXXX noted that the evaluation contained no recommendations for a program change or XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX, which would have resulted in a new review but rather it stated that the evaluator believed that accommodations recommended coupled with the student’s strong motivation would result in improvements but that if the expected results and progress was not apparent then XXXXXXXXXXXXXXXXXX should be considered. (T. 12081209, 1211, Ex. 37)
She participated in the April 23, 2013 triennial review for the 4th grade. (T. 1281-1288, Ex. 40) That review noted that the student continued to have difficulty with XXXXXXXXXXXXXX needed for success in the 2nd and 3rd grades. (T. 1282) With regard to Case No. 91294 the reason the IEP indicated that XXXX was not eligible for Extended School Year (“ESY”) Services, XXXXX had no specific recollection and believed that it was not discussed at all. (T.
1291) However, she testified that based upon what she knew about the district’s programs her feeling may have been that it would not have been beneficial for the student. (T. 1286) Further, she had no knowledge as to whether the student regressed over the summer more than typically expected. (T. 1287-1291)
XXXXXXXXXX’s testimony included a review of the student’s reported levels/progress during 3rd grade. (T1255-1227, 1263-1265, 1273-1280)
XXXXXXXXX (“XXXXXX”)
XXXXXXXX was a XXXXXXX special education teacher in WCSD for some 28 years until retirement and was the student’s 2nd grade teacher (2011-2012 SY). (T. 1294, 1297) She is certified in special education, in early childhood and in secondary social studies and is
XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1296)
The student was in XXXXXXXXXXXX’s 2nd grade XXXXXXXXXXXXXXXXX class from about the beginning of the school year in September 2012. (T. 1130, 1303, 1308) XXXXXXXXXXXX had limited recall of events during that school year but stated that she would not have worked from an XXXXXXXXXXXX IESP and it was customary practice for the district to create its own IEP within a short time of the student entering from another district. (T. 1298-1307, Ex. 65) However, she had no recollection as to any IEP she was using for this student. (T. 1306)
XXXXXXXXXXXXX participated in a March 15, 2012 XXXXX CSE review that resulted in an IEP for the student’s 3rd grade (2012-2013 SY). (T. 1298, Ex. 60) She had no recollection with regard to that review. (T. 1307) She had no specific recollection with regard to the issue of ESY services but believed that they were not discussed. (T. 1291)
For placement in her XXXXXXXXXXXX class a student generally had a difficulty which XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1308) This student was had a classification of XXXXXXXXXXXXX, had difficult XXXXXXX and had difficulty XXXXXXX requiring “XXXXXXXXXXXXXXXXXX” and the student had a lot of difficulty Case No. 91294
XXXXXXXXXXXX XXXXXXXXXXXXXXXX. (T. 1308-1309) XXXX was able to more correctly respond when responding XXXXXXXXXXXXXXXXXXXXXX. (T. 1324-1326) The student wanted to please and to XXXXXXXXXXXXXX. (T. 1330) XXXXXX was a “wonderful little XXXXX and a well-behaved child”. (T. 1389)
XXXXX utilized XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX. (T. 1309) She knew of nothing else to address XXXXXXXX that was not attempted. (T. 1327) Testing was done throughout the year XXXXXXXXXXXXXXXXX and slow progress, not big jumps, was made but the student did not XXXXXXXXXXXXXXXXX over periods of time. (T. 1310) Although the student was making slow progress XXXX was not to the standard she should have been. (T. 1327) The student was assessed through GRL levels and in March 2012 was at XXXXXXXXXXXXXXXXXX. (T. 1317, Ex. 60) XXXXX had no recall of the student’s level upon entrance into her class, although she assessed all students at the beginning of the school year with regard to GRL, but at the end of quarter 1 the student was reading at a level XXX. (T. 1328-1329) XXXX was also assessed by a district wide DIBELS program, which was a timed test evaluating rapid naming of words and things (oral reading fluency) and Temple stated that XXXX was XXXXXXXXXXXXXXX which adversely impacts reading comprehension. (T. 1312-1315, Ex. 60) With regard to math the student had difficult in understanding how to approach XXXXXXXXXXXXXXXXXXXXXXX. (T. 1316-1317, Ex. 60) Social studies and science report card grades in the language based class depended on hand-on and/or oral activities and the student understood. (T. 1333)
XXXXXXXXXXXX (“XXXXXXXX”)
XXXXXXX was the XXXXX Director of Special Education and Student Services from approximately 2012 to 2015. (T. 1373) He is State certified in special education and also as a reading teacher and is Wilson Level 1 certified. (T. 175-1377) During his tenure XXXXXXX had informed him that the parents believed the student was not making adequate progress. He reviewed some of the records including the student’s psychological file, XXXXXX reading tests and IEPS and noticed that she had made some gains but he could not recall the details. (T. 1378, Case No. 91294
1387-1388) He did recall that there had been mention that the parents reported that the student had done well with a XXXXXXX XXXXXXX program provided by a private school over the summer and he had suggested that there was no reason why the district could not also provide that. (T. 1377) XXXXXXX informed him that the parents expressed interest in a private school that was not “state approved.” (T. 1381, 1384, 1401) He was never informed that the parents were interested in meeting with him. (T. 1380)
XXXXXXX had not been aware that the student had been a transfer student. T. 1388) It was customary practice that when a student with an IEP transfers back into district a transfer meeting of the CSE would be held with 30 days of the student coming into the district but the CSE chair could determine to place the student in a closely aligned program with the consent of the parent and have the meeting at a later date. (T. 1388-1392)
Student’s Mother (“the parent”)
The parent has been an elementary school teacher for 20 years, is certified in general education K-6th grade, and has taught in ICT classes as the general education teacher and is a member of her school’s RTI committee. (T. 1404-1406) The student had XXXXX delays as a toddler and started XXXX services through Early Intervention and thereafter at about age 4 tested out of XXXXX service. (T. 1406-1407) XXXX attended a parochial school in another district for kindergarten and first grade, was referred for evaluation in spring of kindergarten year and after review and classification received resource room for the 1st grade. (T. 1408-1409) The student had a lot of difficulty XXXXXXXXXXXX in the mid 1st grade and in view of the options available at that school the teacher recommended 1st grade retention. (T. 1410-1411)
The parent contacted XXXXXXX, described the student and was offered XXXXXX’s 2nd grade class in June 2011 which she thereafter observed, agreed to it and enrolled the student for attendance in September. (T. 1413) She was not asked to come in for a CSE review prior to enrolling the student, there was no “transfer meeting” held or offered and the first CSE review she was offered at the district occurred on March 15, 2012, when a program for the 2012-2013 SY, the student’s 3rd grade was developed. (T. 1418-1421, Ex. 12) Case No. 91294
With regard to ESY services for the Summer 2012, services were not specifically offered by the CSE and were not recommended by XXXXXXXX. When the issue came up in the course of the review, parent did not refuse services but did ask various questions concerning the possible program and implementation which were not answered at that time or later. (T. 1422-1425) Significant regression was mentioned as a requirement and although the parent noted XXXXXXXXXXXXXXXX which she believed could be called regression no data was provided at the meeting. (T. 1423, 1426)
During the 3rd grade XXXXXX indicated that the student was not hitting benchmarks which the parent understood to mean that XXXXXXXX was not working. (T. 1429-1430)
The student’s IEP for the 4th grade noted continued significant delays and during the April 2013 review, ESY services for Summer 2013 were discussed, XXXXXX indicated it would be XXXXXXXXX instruction and opined that she did not think the student would benefit from the summer program. (T. 1438-1444) The subject of summer services was not raised during the balance of the school year. (T. 1445)
The parent had agreed to XXXXXXXXX evaluation when the subject was raised by XXXXXXXX. (T. 11451, 1618-1620) However, the consent form was not provided until the April 2013 CSE review. (T. 1433) The evaluation was completed in May 2013 and mailed to her with an invitation to call the evaluator if there were any questions. (T. 1433) In the summer, the parent emailed XXXXXX specifically asking what was to be done with regard to the student’s XXXXXXX difficulties, did not receive a prompt response and eventually was told that XXXXXX was going to be speaking to the student’s 4th grade teacher. (T. 1432, 1453, Ex.
GG) 3) Although the December 19, 2013 IEP references a September 2013 meeting and suggests that the XXXXXXXXXXX evaluation was discussed, the parent was not invited to or informed of that meeting and has no reason to believe that it occurred. (T. 1499-1527)
The parents had enrolled the student in an XXXXXXXXX summer 2013 5-6 week program. (T. 1446, 1448) That program offered various XXXXXX programs taught by certified special education teachers and after assessment and evaluation selected the XXXXXXXX XXXXXXXXXXXXXX program for the student. (T. 1446-1448) The parent believed the student progressed with regard to XXXXXX. (T. 1448-1449, 1459 Ex. R) She forwarded the Case No. 91294 report she received, which included recommendations for instructional modifications, to XXXXXXX and inquired as to whether the XXXXXXXXXXX method used during the summer could be incorporated into the student’s program. (T. 1451, Ex. GG)
XXXXX, the 3rd grade teacher, tried to use XXXXXX with the student but her multiagemulti grade classroom with many small reading groups made individual direct instruction with the student very difficult to provide. (T. 1461) At the December 2013 review it was noted that was not a XXXXXXXXXXXX instructor and, further, was having difficulty incorporating both programs in her class. (T. 1462) XXXXX had not done any baseline testing with XXXXXX. (T.
1462) The parent believed that XXXXXXX was not working in that the student was still unable to “XXXXXXXXXXXX.” (T. 1470) Her request for exclusive use of XXXXXX every day was rejected by the CSE. (T. 1470-1471) Her understanding was that the CSE was recommending two sessions per 6 day cycle from a XXXXXXXXXXXXXXXXXXX specialist on a pull out basis and 30 minute daily individual review sessions with a TA working with the XXXXXXX program in the classroom. (T. 1467, 1472-1473) At the same time XXXXXX would be used by XXXX in the class. (T. 1471) Although a 5 week review was required by the IEP, none was done and the services continued on the same basis. (T. 1469-1470)
The parent testified that the May 2013 XXXXXXX evaluation was not actually discussed at the December 2013 review but rather the IEP merely recorded information from it. (T. 1459, 1511-1516) Further, data had not been gathered and the parent believed that progress from instruction could not be appropriately measured with regard to areas of specific areas of deficit shown by the XXXXXXXXXXX evaluation. Therefore there was no appropriate guide for what should be done. (T. 1516-1517, 1520-1521) The parent did not recall being asked for consent to another XXXXXXXXXXXX evaluation although the IEP indicates that and she speculated that note may have been merely copied over from the prior IEP in error. (T. 1464)
The CSE convened on March 17, 2014 but that did not result in an IEP. The parents informed the CSE that they believed that the combined XXXXXXXXXX program was not working and that sufficient progress was not being made. They told the CSE that they wanted a placement at XXXXXXXXX and when told that XXXXXXX could not make that decision said that the wanted to discuss that with an administrator who could. The CSE decided to reconvene Case No. 91294 pending further testing and a review of the student’s current program. (T. 1478-1481, 1487-1488, 1491, 1508, Ex. 20)
By prior written notice dated March 19, 2014 the district asked for consent to a battery of testing. (T. 1481-1483, Exs. 26, 27) The parent believed they were unnecessary in view of the triennial, classroom and XXXXXXXXX evaluation testing done the past year but that testing in certain areas of known weakness- XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and the results should have been compared to the prior baselines and the district’s request for consent was refused. . (T. 1482, 1486-1487, 1489, Ex. 26)
The CSE reconvened on April 9, 2014. Among its recommendations were XXXXXXXX services which the parent believed was offered only because the requested XXXXXXXX placement was not provided. XXXXXXX instruction would be provided by the XXXXXXXXXXXXXX teacher in daily pull-out sessions starting September. (T. 1490-1494,
1497) The CSE also reported that the “Academic information indicates that [the student] has made progress…” but the parent did not agree that progress had been indicated. (T. 1494-1495) Rather, the parent believed that the district was scrambling to come up with a program in view of the intention to remove the student. (T. 1496) The parents were never given the opportunity to discuss an out-of-district placement with an administrator who could make that decision. (T.
1496) The parent was not aware that there was a SED list of State approved schools or that XXXXX was not on it. (T. 1508)
With regard to XXXXXX progress, the student is now willing to use XXXXX strategies XXXXXXXX, including to XXXXXXXXXXXXXXXXX and is working independently without prompting. XXXXX now is independent with regard to homework and is also better organized as a result of skills instruction at the school. (T. 1503-1507) The parent stated that XXXXX uses XXXXXXXXXXX program, for the student and incorporating pieces of both programs because the two programs go hand in hand. For other students they use different programs. (T. 1533)
Tara Clancy (“Clancy”) Case No. 91294
Clancy is a Parent Advocate and Admissions Assistant at XXX. (T. 351) She commenced at XXXX in January 2014 but was not involved in the admission of this student. (T. 350, 355) Her primary role at XXXX has been as a parent advocate which involves communicating with parents with regard to their concerns and assisting with regard to CSE and similar reviews and with efforts to obtain funding by districts for parental placements including testifying at impartial hearings regarding XXXXX. (T. 351, 355, 431-433) She has teaching experience in reading and in public schools and is certified in reading in New York State and Connecticut. (T. 350-351) She provides no instruction at XXXX. (T. 436)
She initially met the student in October 2014 and observed XXXXXX twice in the 20142015 school year and about six times in the 2015-2016 SY. (T. 354-356) Her observations consisted of going into the classroom to see how the student was responding to instruction, what scaffolding was required and how engaged the student was. (T. 357) Her personal observations are consistent with XXXXX’s twice yearly advisor reports as well as direct teacher reports to her. (T. 357-359, 361) Over her time at EH, the student has presented as much more engaged.
(T. 357-359)
XXXX is a school for children with XXXXXXXXXXXXXX difficulties and uses a XXXXXXXXXXXXX approach, breaking down XXXXXXXXXXXXXXXXXXXXXXXXX approach. (T. 365, 371) It has some 250 students. (T. 434) It is ungraded to allow different classes for different skill levels. (T. 504-505, 508)
The student’s tutorial XXXXXXXXXXXX teacher (the same for both years) had some
30 years of experience XXXX and the student’s tutorial classes (2 per day) had 4 children (although could have been smaller or larger depending on student needs). (T. 365, 367, 369, 381, 389, 517, Ex. 8) For both school years XXXXX had 1 period per day each of math, writing, and literature, social studies or science, study hall and activity block and about half of the school day was specific to XXXXXXXXXXXXX instruction with the other classes XXXXXXXXXXXXXXX xxxxxxxxxxxxbuilt into the instruction. (T. 370-371) There was a “call-back” time provided in which the student could get an extra 20 minutes of help if a teacher thinks it is necessary. (T. 371-377) Schedules were changed 3 times per year and classes were reconfigured if necessary based upon individual student needs, which has been done for this Case No. 91294 student. (T. 379-382) Students were grouped by age and similarity of needs and adjustments in groups were cionsidered on the basis of student progress. (T. 380-381, 400, 405) The school day as from is from about 8:20-4 pm. (T. 386)
In the 2014-2015 SY the student was in a 7:1 writing class, 5:1:1 (aide) math class, 11:1 social studies class. 7:1 literature class and also had a session (2:1) with the speech pathologist who also consulted with the teacher for planning once a week although possibly for several students. (T. 389-396 , Ex. 8)
Although the class ratios may have minimally changed during the 2015-2016 SY, they had included tutorial 4:1, math 5:1, writing 5:1, social studies 9:1, literature 8:1 (T. 397-400, Ex. OO)
Each student was provided with an advisor whose role was to keep on top of things with regard to the student’s needs and who was the primary point person for the student, the teachers and the parents. (T. 377-378) The advisor shared information between teachers and scheduled team meetings if appropriate. (T. 418) Each XXXXXXX teacher was certified as a teacher and must have at least a XXXXXXXXX initial certification. (T. 383) One of the student’s 20152016 teachers was completing her first year of teaching in that school year but Clancy believed that all XXXXXX other teachers during that school year were certified in special education or reading. (T. 388, 513-515)
Students are assessed with the GORT upon entry into the school and at the conclusion of each school year. The GORT measures rate and accuracy which are combined to provide a fluency score and comprehension is also scored. Students are also assessed with the Slosson, which measures real words in isolation, upon entry and at the end of each year. (T. 400-404, 446, Ex. 8)
The GORT indicated that the student was reading with the skill of a student at grade XXXX with regard to fluency and grade XXXXX for comprehension when XXXXX entered XXX as a district 5th grader but had increased to grade equivalent XXXX fluency and XXXX comprehension at the end of that school year. (T. 409-410) XXXX percentile score had increased from XXXXX and XXXXXX in fluency and comprehension to XXXXXXXXX Case No. 91294 respectively. (T. 407, Ex. 8) Slosson scores went from grade equivalent XXXX (standard score XXX) to XXX (standard score XXXX) in approximately the same period. (T. 409)
GORT scores in the beginning of May 2016, near the end of the 2015-2016 SY reported the student at XXXXXX for fluency and the XXXXX for comprehension. (T. 411) That information was provided to Clancy orally by the advisor who did not provide standard scores.
(T. 442-443) Clancy acknowledged standard deviations and confidence intervals are associated with GORT but did not know them. (T. 443)
A standardized writing assessment (WRAP) created by the Educational Records Bureau
(ERB) which is sent out for scoring is also routinely administered at the end of each school year.
(T. 414, 459, 483, 485-487, Exs. 8, PP) Rubrics are provided by the scorers which give a visual representation of the tables and relate to interpretation of the testing. (T. 463-476) The 20142015 end of SY results report level XXX for “overall development” , i.e.” XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX and a level XX for organizational skills, i.e. “XXXXXXXXXXXXXXXXXXXXXXXXX.” (T. 463-477, Exs. 8, PP) The student scored in the XXXXX percentile. (T. 484)
Language is assessed for incoming students with the CELF screener followed by additional testing as determined by XXXXX which may include certain elements of the full norm based CELF evaluation. (T. 415-416, 486-494, 519-526) Subsequent re-administration of the CELF screener is done if XXXXX believes it to be appropriate and SL staff are qualified to do the full CELF evaluation. The CELF results are not typically reported to the parents but are used in house to help determine the level of support needed from the SL department. (T. 415-416, 487, 525) The fact that speech services were provided indicates that the student did not meet the criteria set forth by theXXXXXX SL department. (T. 498) The manner in which this service is delivered to individual students is determined by their individual needs. (T. 502)
Informal assessments designed to match up current levels with instructional scope and sequence also monitor progress. (T. 414, 454)
Clancy stated that progress by this student has been demonstrated by movements to different levels of tutorials as she participated in the program since the tutorials are based on scope and sequence of skills and different material (from tutorialXXXX at the beginning of the Case No. 91294
2014-2015 SY to tutorial XXXX at the end of that year. (T. 420-421, Exs. 8, 3) There is no expected timeline for progress and some will never acquire true fluency due to the nature of their disability. (T. 425) Clancy acknowledged that review of the December 2015 report which shows that the student continued at tutorial XXXX level did not indicate progress from the end of the
2014-2015 SY. (T. 427)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A) Findings re Testimony
With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held. I note that the testimony is substantially consistent. The relevant testimony is discussed below.
Transcript and Exhibit references not specified below are set forth above.
B) Analysis
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]
Prong 1
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, Case No. 91294 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 No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
In their closing memorandum, the parents assert substantive and/or procedural claims concerning school years commencing with the 2011-2012 SY, when the student entered the district’s schools.
First, I note that the complaint in this matter does not assert any procedural claims. (Ex.
VI) The parents may not now assert claims not raised in their complaint. To the extent that the record includes evidence relating to procedural claims that evidence was admitted in connection with the history of this matter and does not constitute a waiver by the district. (T. 14) [4]
Second, the sole relief sought by the parents is reimbursement for tuition for a unilateral placement at XXXXXXXXXX for the 2014-2015 and 2015-2016 school years. “[T]he case law in this Circuit is unequivocally clear that if parents seek retroactive tuition reimbursement for a unilateral placement…, then the analysis must be conducted under the Burlington/Carter test.” Appeal No. 14-088 (p. 21, n.3) Pursuant to that test the district’s burden is to establish that it offered a free and appropriate public education for the school years for which reimbursement is sought. Tuition reimbursement for a unilateral placement cannot be provided as compensation for district failures in other school years. (Id.)
I reject the district’s claim, however, that the parents are merely claiming compensation for prior years and have no objections with regard to the years at issue. Rather I conclude that the parents’ complaint, in addition to issues regarding prior years, is that the 2014-2015 and 2015-2016 programs were not reasonably calculated to enable meaningful educational benefits in view of the student’s needs, her lack of progress in those prior years and the ineffectiveness of prior district response to that.[5] I therefore consider whether the district has established that the 2014-2015 and 2015-2016 programs were substantively sufficient. Claims that the district will not adequately adhere to the IEP or of anticipated bureaucratic delays, oversights or errors involves speculation about how that program will be delivered and may not be considered in determining sufficiency. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d. 167, 195 (2d Cir. 2012) I note that the parents have not claimed that the programs specified cannot be provided in the district’s proposed placements.
The evidence in this matter shows the following:
The student received Early Intervention services and thereafter was initially classified as a Preschool Student with a Disability but prior to kindergarten was declassified. (Ex. 71) The student was enrolled by the parents in XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX , for kindergarten and first grade. (2009-2010 and 2010-2011). Various evaluations had been conducted while the student was at that school. The student was in the XXXXX range in all tested CELF indices. (Ex. 71) XXXX FSIQ was XXXXXXXXXX, in the XXXXXX according to WPSSI testing. (Exs. 65, 71, 72) However a WIAT III evaluation in February 2011 although determining that her reading score was at the XXXXXXXXXXXXXXXXXXX, noted that the student was XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 69) It was reported that the student was XXXXXXXXXXXXXXXXXXXX. (Ex. 68) Although at XXX initial CSE review XXXX was determined to be ineligible for services, subsequent review by the XXXXXXXXX during 1st grade resulted in XXXX classification as a student with a XXXXXXX and a recommendation for resource room and accommodations for 2nd grade. (Ex. 65)
The parents thereafter communicated with XXXXXXXXXXXX, their home district, concerning a placement, and the student was enrolled in September 2011 as a second grader in the district’s XXXXXXXXXXXXXXXX taught by XXXXX. The district’s XXXX program provided a XXXXX program by instructors XXXXXXXXXXXXXXX instruction, with XXXX services for each student in the class using XXXXXXXXXXXXXXXX embedded in the program and it was designed to meet the needs of students with XXXXXX difficulties in XXXXXXXXXXXXX. XXXXXX software and XXX equipment was included in XXXXXXXXXXXXXX classes. (T. 255-256) The student was in that program for each of XXX 3 years at XXXXXXX (2d through 4th grade). (T. 1309, Exs. 40, 60)
No evidence of any CSE review or waiver/refusal for the 2nd grade school year has been presented and I conclude that the district did not create an IEP for that year and did not place the student in the XXXXXXX class pursuant to an IEP. There is nothing in the record indicating what records were reviewed by XXXXXX although all records had been sent to the district. Nevertheless, the student was instructed with XXXXXXXXXXXXXXXXXXX methodology in Case No. 91294 which XXXXXX were used, as well as XXXXXXXXXXXXXXXXXXXXXXXX XXXX techniques. Progress was made but it was slow and the student did not retain previously acquired information over periods of time although she wanted to learn and was very well-behaved. Her teacher could not recall the XXXX she had on entry but she was at Level XXXXX at the end of Q1, Level XXXX in March 2012 and working on level XXXX (around 1st grade) in June 2012. The XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
The CSE had convened in March 2012 to develop an IEP for the 3rd grade, XXX first XXXXXXXXXXX IEP. The only district participants were XXXXX 1st grade teacher and a general education art teacher. Evaluative material from XXX prior school was referenced in the IEP and there was no additional testing referenced but for the running records. The CSE classified the student as XXXXXXXXXXXXX and recommended the same program the district had provided without IEP in the 2nd grade, i.e. an XXXXXX with accommodations and mainstreaming for art, music and gym. ESY services were not provided. The evidence indicates that there was mutual concern about the existence/extent of regression and no information was provided concerning the program that could be provided. XXXXX stated would not oppose it and the parents did not request it. (T. 1427-1429) However, the record shows that there was no district XXXXXXXXXXXXXX program available that summer. (Ex. JJ)
In the student’s 3rd grade, XXXXXXXXXXXX instruction was provided mainly through the XXXXXXXX program which used XXXXXXXXXXXXXXXXXXXXXXXXXXX to learning, was very structured and sequential and included an evaluation component.
XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
when she thought it would be effective.
The student worked hard but struggled throughout the 3rd grade both with words and math. At the end of Q1 the student was XXXXXXXXXXX. By Q2 the teacher noted that she needed XXXXXXXXXXXX to both attain and maintain tasks to avoid regression. (Ex. C) Prior to the April 2013 triennial review for the 4th grade, XXXXX had recommended XXXXXXXXXXXXXXXXX Assessment prior to the end of the school year due to the effort it required to enable XXXXXXXX progress and consent was obtained from the parent at the review. (T. 1431) In February 2013, the student had been just completing XXXXXXXXXX Case No. 91294
“with some success” and was XXXXXXXXXXXXXX. (Ex. O) XXX report cards indicated some but small progress generally in both English Language Arts & Reading and in Math in Q1 and Q2. (Ex. 45) At the time of the April review the student was reported to be at XXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. By June XXXX had not
mastered any additional XXXXXXXXXXXXXX. (Ex. 35) In State assessments that year XXXX was at the XXXXXXXXX for both ELA and Math. (Exs. S, T)
Evaluations conducted for the triennial showed that the student was in the XXXXXX range in the speech areas tested. A Psychological Services evaluation reported that the student’s FSIQ was XXXXXXXXXXXXXX with verbal comprehension and processing speed in the XXXXXXXXXXXXXX. WIAT III results indicated that the student was in the XXXXXXXXXX range in all Reading subtests but XXXXXXXXXX and in XXXXXXXXXXXXXXXX and XXXX was in the XXXXXX Range in all Math Composites. (Ex. 45) Although different instruments were used, district witnesses acknowledged that IQ could be affected by the program provided. At the April 2013 triennial review the CSE recommended the same program for the student’s 4th grade. ESY services were not recommended. (Ex. 40) XXXXXX could not recall any discussion but noted that there was no evidence of regression over the summer and speculated that she may not have believed at that time that the district’s programs would have been beneficial. (T. 1286-1291) It is noteworthy that the district was offering a XXXXXXXX that summer. (Exs. II, HH)
The XXXXXXXXXXXXXXXXXXX was conducted in early May 2013 and the
XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX were administered. The evaluator concluded that the student had a XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX which resulted in XXX having greater difficulties XXXXXXXXXXXXXXX than a student with one XXXXXXXXXXXXXX but that XXX also displayed strengths in XXXXXX ability to XXXXXXXXXXX XXXXXXXXXXXXXX in a timely and speed manner. She recommended continued XXXXXXXXXXXXXXXXXXXXXXXXXXX instruction in a small group setting in a special class, reinforcements by the TA within the class, the use of XXXXXXXXXXXXXX Case No. 91294 but stated that if expected successful results and progress are not apparent, XXXXXXXXXX services should be provided. (Ex. 37)
Notwithstanding an indication on the IEP that the CSE convened in September 2013, XXXXX acknowledged that there was no CSE review. (T. 208, 213) Further, I conclude that there was no meeting of any kind and note that there is no evidence that any took place and the parent credibly testified that she was not informed of any. I note that there has been no testimony and no indication in the record that the type of program recommended by the evaluator differed from what was already being provided in the XXXXXX and the student’s difficulties were already known to the CSE. In those circumstances the failure of the CSE to convene and consider immediate provision of XXXXXXXXXXXXXX services is puzzling.
The parent had commenced inquiries concerning Summer 2013 programs (district or otherwise) in January 2013. (Ex. KK) During Summer 2013 the student was enrolled in an XXXXX XXXX program which included intensive instruction in XXXXXXXXXXXXXX. Instructional materials included XXXXXXXXXXXXXXXXX. Her classes were all 3:1 but for XXXXXXXXXXXXXXX which was 5:1:1. A report was issued at the conclusion of the program which described the student’s skills at that time but did not indicate where XXXX had commenced or indicate the student’s levels XXXXXXXXXXXXXXX equivalents. (Ex. R) The parent testified that XXXX determined to use XXXXX material based upon its assessments but there is nothing in the record indicating why XXXXXX was not selected. The parent concluded that the student had progressed with XXXXXX instruction and requested its inclusion in the district’s instruction for the 4th grade (2013-2014) to which the district agreed. (Exs. GG, 14 at 21)
XXXXXXXXXXX, the student’s 4th grade teacher, administered the XXXXX at the commencement of the school year and concluded that the student had not mastered or had lost mastery of XXXXXXXX and began working on it again. The parent had provided XXXX with information about where the student had left off in Merrill. (T. 650) Cox attempted to provide XXXXXX instruction to the student by using XXXXXX workbooks and XXXXXX for a scheduled period each morning but her efforts were inconsistent due to school scheduling and other activities. By November she was voicing concerns about the student’s progress and the fact that the student would show success after substantial effort but then XXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXXXXXXXXXXXXXXThe parent requested a CSE review and that was conducted in December 2013. 6
At the time of the December 2013 review the student was reported again to be at XXXXXXXX (reported the previous Spring) and was reported again to have again completed XXXXXXXXX. XXXXXX test results were referenced in the resulting IEP for the period January 14, 2014 through June 25, 2014. I note that I find credible the parent’s testimony that the XXXX was not itself discussed at the review.
The CSE again recommended the XXXXX but added 1:1 instruction twice per 6 day cycle (30 minute sessions) from a XXXXXXXXX and 1:1 daily review by a TA, with whom the student would XXXXXXXXXXX material. The main source of the student’s instruction was XXXXX and XXXXXXX was initially used to help the student proceed through the XXXXXXXXXX. (T. 686-688, Ex. 31) The XXXXX teacher initially used a XXXXXXXX but then began incorporating XXXXX which uses the XXXXXXXX and works on skill sets reinforced in XXXXXXXX. There was close coordination between XXXX, the XXXXXXXXX and the TA with regard to the skill sets being taught and reviewed. (T. 687, 844, 872)
Although the IEP required a 5 week review after commencement of the recommended program that review was not conducted. (T. 479)
The CSE reconvened on March 2014 for the student’s annual review. The parents informed the CSE that they had decided to enroll the student at XXXX for the 2014-2015 SY and wanted district funding. The CSE recommended a reconvene for possible further testing and review of the student’s program. (Ex. 20) XXXXX thereafter consulted with her supervisor who told her that there was no reason that a XXXXXXX program could not be provided. Although he was informed that the parents were seeking a placement in a private school that was not state approved
Consent for further tests were requested by the CSE but the parents believed them to be redundant and not focused on relevant areas and denied consent.
XXXXX agreed that a review was necessary and her recollection is that she requested it. Case No. 91294
The CSE reconvened on April 9, 2014 and issued two IEPS, one for the period from January 14, 2014 through June 25, 2014 (2014 IEP) and one for the 2014-2015 school year, the student’s 5th grade (“the 2014-2015 IEP) .
The 2014 IEP continued for the balance of the 2013-2014 SY the program provided in the December 2013 IEP. (Ex. 12)
The 2014-2015 IEP stated that the student was at “intro to XXXXX in the XXXXXXX” XXXXXXXX. It also stated that XXXXXXXXX were inconsistent but showed some progress. I note that the XXXXXXXXX progress claimed was extremely minimal and indeed the level reported in 2014 was reported in the student’s report card after Q1 of the 3rd grade. (Ex. 20) Further, no indication of the student’s level at the commencement of XXXXXX instruction was provided so the student’s reported XXXXXX level provides no indication of effectiveness, especially in view of XXXX reports that the student was working on XXXXXXX materials during the prior summer. . (Ex. 20) Therefore, there was no way to determine progress resulting from the district’s addition of XXXXXX. The CSE removed all TA 1:1 assistance with XXXXXXX (previously provided daily) but increased XXXXXXXXXXXXXX pullouts by the XXXXXXXXXXX teacher who was to “utilize” XXXXXX to daily (previously twice per 6 day cycle). The CSE also added summer services (reading and math “special” classes 15:1, 3x1 ½ hours weekly for each subject.
The parents rejected the program and informed the CSE that the student would be enrolled in XXXXXXXX for her 5th grade (2014-2015). (Exs. 20, C)
The CSE reconvened on May 7, 2015 to develop a program for the 6th grade. XXXXX special education teachers participated in the review and provided information and the CSE had received the December 2014 XXXXXXXXXX (“the report”). Although the report described the materials utilized in the student’s classes and described XXXX abilities with regard to various skills, the report included no standardized testing results or quantitative data and no grade level or other similar indicators of the level the student was working at and there is no claim that such information was provided to the CSE. The student would now be attending middle school requiring different formulation of the programming. The CSE recommended continuation XXXXXXXXXXXXX special class but with a 15:1 ratio instead of 15:1:1 as previously, for Reading, Math, Social Studies and Science (daily 40 minute periods). It also recommended an additional XXXXXXXXXXXX class (5:1) for daily 40 minute periods as well as pull out instruction from an XXXXXXXXXXXXXX teacher who would utilize XXXXXXX.[7] Speech was XXXXXXXXXXXXXXXXXXXXXXXXXXXXX was provided for 40 sessions of 40 minutes yearly. Summer services of XXXXXX and XXXXXX 12:1:1 for daily 1 ½ hour sessions each were provided. An XXXXXXXXXXXXXXXXXX were continued but made explicit and accommodations were continued. (Ex. 9) The CSE developed academic goals based upon the student’s progress as reported by XXXXXXXXX and speech goals relating to what the student would have been working on when speech was XXXXXXin the program. (T. 194, 626-627, 1028, 1048, 1051)
I turn to whether the 2014-2015 and 2015-2016 IEPs were reasonably calculated to enable this student to make meaningful progress.
Conclusions
It is undisputed that the student was a hard worker who wanted to succeed. XXXX teachers were highly experienced and trained. Notwithstanding the student’s placement in the XXXXXXXXXXX program, the evidence shows that XXXX progress was non-existent to minimal. Limited grade level equivalent information has been provided but that does not support claims of progress.
The highest XXXXXXXXXXXX level the student received (in both the 3rd and 4th grades) was XXXXXXXXXXXXX which XXXX stated was considered a XXXX grade level.[8] XXXX was reported to be around a XXXXX grade level by use of a similar instrument at the end of 2nd grade as well. The gap has apparently increased notwithstanding the programs the district has provided. Further in view of the small differences and the low levels generally I give no weight to any claim that XXXXXXXXX show reasonable progress has been made. [9]
Her XXXXXXXXX, to which no grade level has been ascribed, shows her in almost the same place at the end of the 4th grade as she was at the end of the 3nd when she had completed level XXXXXX. The difference was solely mastery of the first step of XXXXXXXX and no evidence in the record supports a conclusion that that is significant progress even absent this student’s difficulties in XXXXXXXXXX once mastered. Moreover, in view of the student’s continued inconsistencies it is not clear that XXXXX retained mastery of that XXXXXXXX level at the end the school year. (T. 713-714)
The district relied upon XXXXX for instruction in grades 3 and 4, adding a XXXXXX component to it in grade 4. However, there is no claim by district staff that XXXXXXX might have been a better system for this student or that it is significantly different from the XXXXXXX system provided or that providing it would, other than by increased instructional hours, enhance the XXXXXX program.[10] Rather the evidence shows that the CSE incorporated XXXXXXX not because it had concluded that system would provide an additional benefit but because the parents thought so. Indeed, it is noteworthy that significant coordination is required to have the two programs to reinforce one another and not operate on inconsistent tracks.[11] I conclude that the addition of XXXXXX instruction should properly be considered only with regard to the instructional XXXXXXXX time added.
During the 2013-2014 the district had provided XXXXXXXX instruction, in addition to XXXXXXX, from September 2013 albeit somewhat intermittently until January 2015. Commencing January 2015 the student received 2 30 minute sessions per 6 day cycle of XXXXXXXX from an XXXXXXX XXXXXXXXX teacher and 30 minutes daily 1:1 XXXXXXXXXXXXXXXXX with a TA trained for the XXXXX who was working closely with both the XXXXXXX teacher and the classroom teacher. At the review there was no evidence before the CSE that the student made meaningful progress in that program as a whole or benefited in any way from the XXXXXXXX portion provided. I note that there was no district XXXXXXX assessment but for the final one so that the completion of XXXXXX provided no meaningful information as to progress.
For the 2014-2015 school year the district continued XXXXXX but enhanced thy XXXXXXXXXXXXXXX teacher support while eliminating TA 1:1 sessions) and added summer services. I give little weight to the summer services since there is no indication of the nature of the services and no indication that they could be expected to provide any benefit to this student. I note that XXXXXX had indicated that even a XXXXXXX based program in the summer 2012 would not. With regard to the XXXXXXX services generally, in view of the student’s lack of progress with a different configuration of additional XXXXXXXXX support, I find no basis for concluding that the CSE had a reasonable basis for a conclusion that changes would result in meaningful educational gains. It is noteworthy that the only assessment the district sought or considered was its in-house XXXX conducted in May 2013 which, I conclude, provided limited information concerning the reason for the student’s difficulties and that specific focused testing on areas of known student difficulty or a more comprehensive evaluation was not proposed by the district. I therefore conclude that the district has failed to establish that its April 9, 2014 IEP for the 2014-2015 SY was substantively appropriate and that therefore it has failed to establish it provided a FAPE for that school year.
With regard to the 2015-2016 SY, the program differed as a consequence of middle school scheduling constraints and period lengths. The sole additional information concerning the student was obtained from XXXX did not I conclude amplify the information the CSE had concerning the nature of the student’s difficulties or provide support for the appropriateness of the program proposed for the reasons discussed above with regard to the prior year program. I therefore conclude that the district has failed to establish that its May 7, 2015 IEP for the 20152016 SY was substantively appropriate and that therefore it has failed to establish it provided a FAPE for that school year. Case No. 91294
Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be Stateapproved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
The parents rely principally on the XXXXXXXXX and the testimony of Clancy and the parent to support their claim that they have met their burden to demonstrate that XXXX was an appropriate program for the school years at issue. I find the evidence insufficient.
I note that the XXXXXXXX provide information concerning the precise educational program that was provided to the student and I find the information concerning the materials used and the class size, general classroom techniques and instructional modifications credible. Further, I credit the testimony of Clancy, supported by the parent, with regard to general procedures in the school and conclude that the program was highly individualized with regard to determination of groups, methodology and materials. However, Clancy did not instruct or evaluate this student and her knowledge of this student was limited to review of records, communications with XXXXX teachers and other XXXXXX staff and her classroom observations (2 in the 2015-2016 SY and about 6 in 2015-2016) which were not focused on Case No. 91294 academics but rather on the student’s engagement and level of response. No XXXX teacher, advisor or provider testified as to how this student’s individual needs were addressed or how she responded to instruction.
The school does not use a traditional grading system and its use of standardized assessment instruments is very limited. There is no evidence in the record with regard to specific assessment instruments utilized but for the limited number of standardized ones discussed below the informal assessments conducted simply match up current levels with the cope and sequence of skills. In lieu of grades, teachers evaluate the student’s progress with regard to the level of mastery of skills determined to be within their subject areas and/or needs. However, there is no evidence as to the training and supervision the teachers receive with regard to the categorization of the level of mastery to ensure consistency and that the reports are not merely anecdotal. Further, there has been no evidence presented concerning how those skill categories have been determined.
The student has been diagnosed with XXXXXXX and a XXXXXXXXXXXXXX based learning disability is undisputed. (T. 26) The continued XXXXXXXX deficiency with its effects on progress in other academic areas led the parents to a private school placement. The district had addressed the student’s disability principally with XXXXXX supplemented at various times with XXXXXXX elements from 3rd grade on with minimal success. XXXX apparently considered several systems and decided that XXXXXX was appropriate and with incorporated parts of XXXXXX uses that. However no information about the reasons for the XXXX determination were provided and there is therefore no way to evaluate that decision other than by results.
Progress is a factor which may be considered in determining whether a unilateral program is appropriate. The parents assert that the student has progressed appropriately with regard to XXXXX and academically at XXXX. However, the comparisons of standardized testing results, discussed by XXXXX, do not provide support for the claim of progress at XXXX with regard to closing the gap with typically developing same age peers. In consecutive administration of the WIAT-III and WRMT-III, the student’s only statistically significant XXXXXXXXXXXXXXX certain categories between the district’s testing in the 2013-2014 SY and subsequent testing Case No. 91294 during the 2015-2016 SY when the student had been at XXXXX for about a year and a half. I note the possibility that the student had declined relatively during the period she was in the district’s school and the results may therefore have reflected a relative gain while at XXXXXX. However, no evidence has been submitted by the parents as to the student’s levels upon entry into XXXXXX and the testimony of XXXXXXX has not been rebutted or otherwise explained by XXXXXX staff.
Further, the parents relied substantially on XXXXXXXXXXXXXXXXXXX standardized test results in their conclusion as to progress at XXXXX. However, those tests do not measure XXXXXXXXXXXXXXXXXX. Moreover, as discussed by XXXXX, the results did not indicate statistically significant gains in 2014-2015 when reviewed in accordance with XXXXX recommendations. Although I note that XXXXXX start of year GE results are consistent with the end of 4th grade levels described by XXXXXX, XXXXX testified that the reported grade level equivalent increases in that year are unreliable in view of the degree of deviation from typically developing same age peers as is confirmed by XXXXXXX protocols. Only limited information was provided by the parent with regard to June 2016 results and there was no XXXXXXXX pre testing at the beginning of the school year in September with which progress at XXXXXX could be compared. XXXXXX testified that factors other than progress between September and June resulting from the XXXXXXX program could have accounted for the apparent increase when comparing only the two June reports. I note, for example, that Clancy had no knowledge as to whether the student attended an XXXXX summer program, evidence shows that the parent was communicating with XXXXXXXX staff member about providing tutoring in the summer of 2015 and that the student had benefited while at XXXXX from XXXXXXXXXXX which was provided by the parents after the student left XXXXXXXXXX. (T.453, 1531, Ex. 14) The change in XXXXXXX scores between years was statistically insignificant. The parents presented no witness familiar with XXXXX or XXXXX scoring and evaluation and XXXXXX testimony was not rebutted and was persuasive.
Finally, I note that, as acknowledged by district witness XXXXX, the student appeared to make certain gains in XXXXXX during the 2014-2015 SY when the claimed skill levels were evaluated by XXXXXXX with relation to XXXXXXX levels. There is no evidence or claim Case No. 91294 that the student had been XXXXXXX assessed by the district prior to instituting XXXXXXXXXXXXX XXXXXX instruction in the second half of 4th grade. However, XXXXX was XXXXXX assessed at the end of that year and it was determined XXXXXX was independent in XXXXXXXXXX skills, i.e. XXXX had completed XXXXXXX. In June 2015, after one year at XXXXXXX XXXX had some independent XXXXXXXX skills. However, I note that the student had been working on XXXXXXXXXXXXX material during her Summer 2013 XXXX program and further that student “inconsistencies,” i.e. the losing of previously gained skills, was described by all her district teachers as well as her SL provider. There was no testimony by XXXXX staff concerning the student’s skill levels during the 2015-2016 SY to support a conclusion as to progress in XXXXXX at XXXXX and whether it was significant.
Other evidence with regard to XXXXXX progress was anecdotal. The evidence of increased engagement and more positive attitude with regard to XXXXXXX over XXXX 2 years at XXXX is persuasive but I note that the student was described as engaged and hardworking in the district’s school and further XXXXX XXXX class groupings and content are specifically adjusted to foster that result, even if necessary by removing what is challenging.
Based upon the foregoing, I conclude that the parents have not met their burden to establish that the unilaterally selected program was appropriate
Prong 3
Although unnecessary in view of the foregoing findings I note the following:
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral Case No. 91294 placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14.
In its closing memorandum the district does not repeat claims concerning equitable considerations made in its opening statement and I conclude those claims have been abandoned.
(T. 14-15, Ex. VII) However, I note that I find credible the parent’s testimony with regard to the issues previously raised by the district and find no basis on equitable grounds for any denial or limitation of reimbursement if otherwise warranted.
ORDER
This matter is DISMISSED.
Dated: December 12, 2016
______________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer Case No. 91294
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. 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 the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html. Case No. 91294
APPEARANCES April 29, 2016
KERI PETERSON, Parent Advocate –SECONNY — Student
XXXXX, — Parents
XXXXX, — Parents
NEELANJAN CHOUDHURY ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle — District
XXXXXXXX, Executive Director of Student Services and Special Education, XXXXXXX XXXXXXXX, Speech Therapist, XXXXXXXX XXXXXXXX, School Psychologist, XXXXXXXX
May 5, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXX., Parent XXX, Parent
For the District
NEELANJAN CHOUDHURY, ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle XXXXXXXXXX, Coordinator of Special Services, XXXXXXXXXX XXXXXXXXXX, Assistant Director for Special Services, XXXXXXXXXXX
May 6, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXX, Parent XXX, Parent
TARA CLANCY, XXXXXXXXXX School
For the District
NEELANJAN CHOUDHURY, ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle Case No. 91294
XXXXXX, Executive Director of Student Services and Special Education, XXXXXXXXXXX
May 9, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXX., Parent XXXX., Parent
For the District
NEELANJAN CHOUDHURY ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle XXXXXXXXXX, Executive Director of Student Services and Special Education, XXXXXXXX XXXXXXX, Special Education Teacher, XXXXXXX
June 15, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXXX, Parent XXXX, Parent
For the District
NEELANJAN CHOUDHURY, ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle XXXXXXX, Executive Director of Student Services and Special Education, XXXXXXXX XXXXXXX, Coordinator of Special Services, XXXXXXX XXXXXXX, School Psychologist, XXXXXXXX XXXXXXX, XXXXXXXXXXXXX Specialist,
June 21, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXXX, Parent XXXX, Parent XXXXXX, Speech-Language Pathologist, XXXXXXXXXX Case No. 91294
For the District
NEELANJAN CHOUDHURY ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle XXXXXXXX, Executive Director of Student Services and Special Education, XXXXXXXX
July 28, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXX, Parent XXX, Parent
For the District
NEELANJAN CHOUDHURY ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle XXXXXXXXX, Executive Director of Student Services and Special Education, XXXXXXX
August 4, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXX, Parent XXX, Parent XXXXXXXXXX, Special Education Teacher of Student- 3rd Grade, XXXXXXXX XXXXXXXXXX, Special Education Teacher of Student- 2nd Grade, XXXXXXXX
For the District
NEELANJAN CHOUDHURY ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle XXXXXXXXXX, Executive Director of Student Services and Special Education, XXXXXXXX
August 17, 2016
For the Student
KERI PETERSON, Parent Advocate –SECONNY XXX, Parent XXX, Parent XXXXXXXXXX, Former Director of Special Education and Student Services, XXXXXXXXX Case No. 91294
For the District
NEELANJAN CHOUDHURY ESQ, Attorney-Thomas, Drohan, Waxman, Petigrow & Mayle XXXXXXXX, Executive Director of Student Services and Special Education, XXXXXXXX
EXHIBITS
Parents
A XXXXX Speech Therapy Log Notes (XXXXXXXX) September 2012 (3 pages)
B XXXXX Speech Therapy Log Notes (XXXXX); February 2013 (2 pages)
C XXXXX 3rd Grade Report Card; 2012-2013 (4 pages)
D Progress Report for Goals and Objectives 2012-2013 (5 pages)
E XXXXXXXXXXXXXXXXXXXXXXXXXX, undated (5 pages)
F WITHDRAWN (Duplicative-Ex. 60)
G Teacher Observation Guide; April 1, 2013 (7 pages)
H Teacher Observation Guide; April 9, 2013 (6 pages)
I Teacher Observation Guide; undated (6 pages)
J Teacher Observation Guide; November 8, 2012 (6 pages)
K Teacher Observation Guide; November 9, 2012 (6 pages)
L Teacher Observation Guide; Why Are We Stopping (5 pages)
M Running Record A-Z; January 31, 2012 (1 page)
N WITHDRAWN (Duplicative-Ex. 45)
O Triennial Evaluation; Feb 23, 2013; XXXXXXXXX (3 pages)
P WITHDRAWN (Duplicative-Ex. 37)
Q WITHDRAWN (Duplicative-Ex. 49)
R Summer Academic Program XXXXXXXX; August 2013 (10 pages)
S NYSED Math Parent Report Card 2012-13 (2 pages)
T NYSED ELA Parent Report Card 2012-2013 (2 pages)
U XXXXX 2nd grade Report Card; 2011-2012 (4 pages)
V Reading Performance Assessment 2nd Grade; (5 pages)
W WITHDRAWN (Duplicative Ex. 57)
X XXXXX 4th Grade Report Card; 2013-2014 (1 page)
Y XXXXX Speech Therapy Log Notes (XXXXXXXXX); 2013-2014 (5 pages)
Z WITHDRAWN (Duplicative Ex. 40)
AA Progress Report for Goals and Objectives 2013-2014 (4pages)
BB XXXXXXX Committee on Spec Ed minutes; Annual/Trie; Grade 4 (4 pages)
CC Assessment for Independent Reading Levels; Silent Sam; March 25, 2014 (3 pages)
DD Assessment for Independent Reading Levels; Surprise Moon; March 25, 2015 (3 pages)
EE Prior Written Notice; April 9, 2014 (2 pages)
FF WITHDRAWN (Duplicative Ex. 20)
GG emails; XXXXXXXX and XXXXXXXXX; August 2, 2013 – August 19, 2013 (2 pages)
HH emails; XXXXXXXX to XXXXXXXXX; February 19, 2013 (1 page)
II emails; XXXXXXXX to XXXXXXX; January 7, 2013 (1 page)
JJ emails; XXXXXXXX to XXXXXXX; May 28, 2012 (1 page)
KK emails: XXXXX to XXXXXXXXX; January 9, 2013 (2 pages)
LL email; from XXXXXXX to XXXXXXX; April 17, 2013 (1 page)
MM WITHDRAWN (Duplicative Ex. 4)
NN WITHDRAWN (Duplicative Ex. 2)
OO XXXXXXXXXXX; December 2015 (17 pages)
PP XXXXXXXXXXXXXXX; June 2015 (22 pages)
QQ Progress Report for Goals and Objectives 2013-2014 (4 pages)
RR XX XXXXXXXX spelling (2 pages)
SS XX work sample; December 5, 2012 (2 pages)
TT XX work sample; March 4, 2013 (1 page)
UU XX work sample; June 12, 2013 (2 pages)
VV XX work sample; September 24, 2014 (1 page)
WW XX work sample; September 6, 2013 (1 page)
XX XX work sample; February 27, 2012 (1 page)
YY XX Informational Writing Rubric; April 25, 2013 (1 page)
ZZ XX CCSS Grade 3; 3rd Benchmark (1 page)
AAA XX. Summary Writing Rubric; October 2012 (5pages)
BBB XX “How To Writing Rubric”; September 2012 (5 pages)
CCC WIST evaluation; June 2013 (1 page)
DDD XX Spelling Test; March 18, 2014 (1 page)
EEE XX Sight Words; March 18, 2014 (2 pages)
FFF XX work sample (1 page)
GGG XX work sample; September 12, 2013 (1 page)
HHH XX work sample (1 page)
III XX work sample; November 8, 2013 (2 pages)
JJJ Writing Rubric; November 8, 2013 (3 pages)
KKK XX writing sample; September 10 (1 page)
LLL XX writing assignment; May 5, 2015 (1 page)
MMM XX writing assignment; January 9, 2015 (1 page)
NNN XX writing sample; November 18, 2014 (1 page)
OOO XX writing sample; October 5, 2015 (1 page)
District
1. IEP, dated 3/8/16, 16 pp.;
2. Speech and Language Evaluation, dated 1/11/16, 3 pp.;
3. WITHDRAWN (Duplicative Ex. OO)
4. Psycho-Educational Re-Evaluation, dated 12/2/15 & 12/7/15, 16 pp.;
5. E-mail dated 10.5.15 @ 12.43 p.m., 3 pp.,
6. E-mail dated 10.5.15 @ 11.16 a.m., 2 pp.;
7. E-mail dated 10.1.15 @ 8.58 p.m., 1 p.;
8. XXXXXXXXXXXXX, June 2015, with W. Salisbury letter, 25 pp.;
9. IEP, dated 5/7/2015, 12 pp. ;
10. XXXXXXXX School Contract 2015-2016, dated 2/19/15, 5 pp.
11. Student Information Summary, 2015, 1 p.;
12. IEP, dated 4/9/14, (for Jan-June 2014) 14 pp.;
13. XXXXXXXXX, December 2014, with W. Salisbury letter, 16 pp.;
14. E-mails to W. Salisbury (XXXXXXX) to Parents, multiple dates, with attachments, 36 pp.
15. Letter from Parent, dated 7/1/14, 2 pp.;
16. CSE Notice of Review, dated 5/6/14, 1 p.;
17. Triennial Student Notes Form, dated 4/21/14, 2 pp.;
18. Committee Information and Attendance, dated 4/9/14, 1 p.;
19. WITHDRAWN (Duplicative-Ex. 19);
20. IEP, dated 4/9/14, (for 2014-2015 SY) 13 pp.;
21. CSE Meeting Notice, dated 4/3/14, 2 pp.;
22. Letter from Parents to XXXXXX and Ms. XXXXXXX, dated 4/1/14, 2 pp.;
23. CSE Meeting Notice, dated 3/31/14, 2 pp.;
24. CSE Meeting Notice, dated 3/24/14, 2 pp.;
25. Consent Form for Reevaluation, dated 3/19/14, 1 p.;
26. CSE Prior Written Notice, dated 3/19/14, 2 pp.;
27. Measures of Academic Achievement Skills, dated 3/19/14, 2pp.
28. Record of Attendance, dated 3/17/14, 1 p.;
29. CSE Notice of Review, dated 1/15/14, 1 p.;
30. CSE Prior Written Notice, dated 12/19/13, 2 pp.;
31. IEP, dated 12/19/13, 14 pp.;
32. Record of Attendance, dated 12/19/13, 1 p.;
33. CSE Meeting Notice, dated 11/27/13, 2 pp.;
34. CSE Meeting Notice, Revised, dated 11/27/13, 2 pp.;
35. XXXXXXXXXXXXX, dated 6/2013, 1 p.
36. CSE Notice of Review, dated 5/20/13, 1 p.;
37. XXXXXXXXXXXXXXXX, dated 5/8/13 & 5/10/13, 7 pp.;
38. CSE Minutes Form, dated 4/23/13, 2 p.;
39. CSE Prior Written Notice, dated 4/23/13, 2 pp.;
40. IEP, dated, 4/23/13, 12 pp.;
41. Medicaid Reimbursement Form, dated 4/23/13, 1 p.;
42. Record of Attendance, dated 4/23/13, 1 p.;
43. CSE Meeting Notice, dated 3/11/13, 2 pp.;
44. Reevaluation Assessment Letter from XXXXXXXX, dated 2/28/13, 1 p.;
45. Report of Triennial Reevaluation, dated 2/28/13, 13 pp.;
46. WITHDRAWN (Duplicative-Ex. O);
47. E-mail from XXXXXXXX to XXXXXXX, dated 2/19/13 @ 9:42 a.m., 1 p.;
48. Testing Behavioral Observations, dated 1/29/13, 2 pp.;
49. Initial Speech-Language Evaluation, dated 1/23/13, 4 pp.;
50. Informal Self Questionnaire, dated 1/11/13, 2 pp.;
51. Classroom Observation Form, dated 1/10/13, 2 pp.;
52. Reevaluation Triennial Form dated 1/3/13 and Physical Exam Report dated 9/17/12, 2 pp.;
53. Authorization to Request or Release Confidential Information, dated 11/4/12, 1 p.;
54. Assessment Descriptors, dated 10/5/12, 2 pp.;
55. CSE Prior Written Notice and Request for Consent, dated 10/5/12, 3 pp.;
56. Consent Form for Reevaluation, dated 10/5/12, 1 p.;
57. CSE Prior Written Notice, dated 5/8/12, 2 p.;
58. CSE Notice of Review, dated 5/7/12, 1 p.;
59. CSE Notice of Subcommittee Annual Review Meeting, dated 3/15/12, 1 p.;
60. IEP, dated 3/15/12, 9 p.;
61. Record of Attendance, dated 3/15/12, 1 p.;
62. IEP Progress Report, dated 6/21/11, 2010-2011, 4 pp.
63. Release of Student Information, dated 6/11/11, 1 p.;
64. Auditory Processing Evaluation, dated 5/14/11, 7 pp.;
65. IEP, dated 5/6/11, 10 pp.;
66. Educational Evaluation, dated 4/16/11, 6 pp.
67. Summary of Test Results, dated 2/1/11, 4 p.;
68. Student Evaluation Addendum, dated 1/28/11, 5 p.;
69. Classroom Observation, dated 12/1/10, 4 pp.;
70. Form for Psychologist to Obtain Medical Records from School Nurse, dated 10/22, 1 p.;
71. Psychoeducational Evaluation, dated 2/19/10, 5 pp.
72. Educational Evaluation, dated 2/18/10, 2 pp.
73. CSE Private School Invitation Meeting, dated 2/12/10, 1 p.;
74. WPPSI Report, dated 2/11/10, 4 pp.;
75. Speech and Language Reval., dated 1/12/10 & 1/14/10, & CELF-4 Summary Rpt, 20 pp.;
76. Social History Update, dated 1/4/10, 4 p.;
77. Letter from L. Wong-Trufanoff to District, dated 12/30/06 with Preschool Student Eval
Summary, Speech and Language Therapy Eval. and Psychological Evaluation, 10 pp.;
78. IFSP Review and Summary, dated 8/30/06, 5 pp.
79. Early Intervention Program IFSP, dated 2/23/06, 6 pp.
80. IEP Direct Maintenance, 4 pp.;
81. Parent Triennial Reevaluation Questionnaire, 2 pp.;
82. Report Card, Grade 3, 4 pp.;
83. Special Education Meeting Request Form, 1 p.;
84. Student Record, 4 pp.;
85. Charts, 2 pp.;
86. PAF Progress Chart, 1 p;
87. XXXXXXXXXXXXXXXXXXXXXXXX, Student Information Form, Grade 4, dated 3/18/14, 8 pp.;
88. XXXXXXXXXXXXXXXXXXXXXXX, Student Information Form, dated
9/10/13, 8 pp.;
Impartial Hearing Officer
I Impartial Hearing Request dated 8/17/15, received 8/21/15, & enclosure envelope, 6pp.;
II District Due process Response dated 8/31/15, 5pp.;
III Subpoenas and related emails
IV Compliance date extension decisions
V Email re Record closing
VI Parents Closing Memorandum
VII District’s Closing Memorandum
Footnotes
[1] I note and regret that the instant decision is not delivered in compliance with applicable regulations but unexpected circumstances precluded that. The term CSE herein also refers to a CSE Subcommittee.
[4] Further, I note that at the October 14, 2016 prehearing telephone conference to, among other things, clarify the issues in this matter and in which their advocate participated the parents confirmed that only substantive claims were being made and that the assertions concerning school years prior to the 2014-2015 school year were in support to their claims of substantive deficiency in the 2014-2015 and 2016-2016 programs.
[5] I note, for example, the parent’s belief that the XXXXXXXXXXXXXXXXXproposed for those school years would not be effective.
[7] Although the IEP specifies that that program was to commence in July, that is an error. It was to commence in September. T. 637)
[8] XXXXXXXXXXXXXX are considered as XXXX grade reading levels. (T694, 721) I note the student’s XXXX grade level as indicated by XXXXXXXXXX level at end of 4th grade is not inconsistent with theXXXXXX results obtained by XXXX at the beginning of her 5th grade.
[9] XXXXXXXXXXXX over several years in this matter indicate substantial variation which is explained not only by the student’s “inconsistencies” but also by the instrument chosen, whether XXXXXXXXXXXXXXXXXX levels are determined and even the student’s mood that day. All, however, are in the XXXXXXX range not exceeding XXXXX grade. (T. 269-270, 276, 680)
[10] I also note that no evidence with regard to this issue has been submitted by the parent.
[11] The parents’ claim that the district’s additions to its program were to forestall the withdrawal of the student, even if true is, however, not a basis for a determination that the program ultimately proposed was not appropriate.