NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Id:
District Case Number:
Student’s Name:
Date of Birth:
Hearing Requested By: Parents
Dates of Hearing: August 23, 2016
September 16, 2016
Actual Record Closed Date: November 14, 2016
Hearing Officer:
Case Id:
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 26, 2016
Father — Student
Mother — Student
Attorney — District
School Psychologist — District
Special Education Supervisor — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16,
2016
Father — Student
Mother — Student
Attorney — District
Special Education Teacher — District
Special Education Supervisor — District
School Psychologist — District
I. JURISDICTON AND PROCEDURAL HISTORY
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. Pursuant to a due process complaint (“DPC”), dated the parents of (“”) are seeking to alter the placement of their son in the
(“District”) from a class to an integrated Co-Teaching (“”) classroom. Exhibit R 3.
The District responded in a pleading dated June 27, 2016. Exhibit R 2. Then, on July 6, 2016, the parents responded to the District, which I am entering into evidence as an IHO exhibit. See Exhibit VI The parents are not represented by counsel and have proceeded Pro Se. The District is represented by .
On July 15, 2016, the mandatory resolution period (8 NYCRR §200.5(j)(2))
expired, and on July 21, 2016 a telephonic pre-hearing conference was held pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.I.A.),
The matter then continued to a hearing, which was held on two dates - and . Extensions to the case timeline were issued in accordance with the Commissioner’s Regulations at 8 N.Y.C.R.R. §200.5(j)(5)(i) and 34
C.F.R.§300.315(c). See Exhibits II-IV.
The record was closed on November 14, 2016, upon receipt of written closing statements by the parties. Appended to this decision are lists of the persons in attendance at the hearings, documents received in evidence, and a statement regarding the right to appeal. See 8 NYCRR § 200.5(j)(5)(v).
II. PRELIMINARY FACTUAL BACKGROUND
On May 18, 2016, the Committee on Special Education (“CSE”) met and approved an IEP to be implemented in September of that year. was classified with due to (See (8 NYCRR 200.1 and was slated to have a intervention plan (“BIP”) instituted. While the IEP reported progress in reading, it stated that he struggles with higher level comprehension. Exhibit R 7-1 A 4-page Education Re-
Evaluation summary, dated May 16, 2014 revealed that ’s standardized test scores ranged from to significantly . While he demonstrated certain abilities in reading, he had weakness in math fluency and in solving mathematical word problems. As my findings will dwell upon later, the Summary also noted that ”Internal distracters affected his scores on most subtests,” and were consistent with classroom observation. Overall, “his emotional state impacts his ability to function.” Exhibit R 11-3 Consistent with the latter report, a Re-evaluation Report, dated five days earlier, revealed on a : an , which was characterized as a “very elevated Score [with m]any more concerns than typically reported”. Exhibit R 10-10
While this case contains multiple issues, as outlined in the next section, the focal point is nevertheless centered on the answer to one question: What is the proper placement for within the Public School system? As such, it is fact- centered, and consequently, after outlining the positions of the parties, I will begin by presenting in some detail the testimony of both sides in the dispute. Then, I will proceed to interweave those facts with relevant law in order to reach a decision.
The District presented three witnesses, while the parents each provided testimony, albeit in different form. Mr. testified under oath during his opening statement, while his wife, , responded to questions presented to her by her husband after the District rested. I will begin with a summary of the District testimony, followed by that of the two parents.
III. POSITIONS OF THE PARTIES
The DOE
1) The recommendation of the District’s Committee on Special Education (“CSE”) of a special class for during the 2016-2017 school year _ with related services - is appropriate.
2) Conversely, the Parents contention that an integrated co-teaching class (“”) for him consisting of between 20 and 25 youngsters, including between 4 and 6 with an IEP would not be appropriate.
3) did not have the same kind of success in the 2d grade , as he had in the 3rd grade class.
4) ’s chronicled anxiety significantly lessened in the 3rd grade class, enabling him to perform markedly better, resulting in a reduction of his inappropriate s.
5) The designated 4th grade class will provide with educational benefit in the least restrictive environment.
The PARENTS
1) The recommendation by the District’s Committee on Special Education (“CSE”) of a special class for during the 2016-2017 school year is not appropriate for .
2) demonstrated success in the 2d grade class, and a continuation of his 3rd grade special class would not be appropriate.
3) The 4th grade class does not provide with the same quality of education that an class receives, and will be “doomed” if he remains in such a setting.
4) The District did not properly prepare for the NYS Assessment examination.
5) The CSE recommendation of a Class for is rooted in some ulterior motive, is not therefore educationally based, and will not place him in the least restrictive environment.
IV. THE WITNESSES
A. For the District
Dr.
In short, I found Dr. to be an accomplished . More specifically, she graduated with a Ph.D. from and completed a year of school pursuant to a school post-doctorate training in school . She holds a NYS certificate to practice as a school , and also holds a bilingual extension to that certificate.
Additionally, she holds a NYS license in . Supplemental to her work with the School District, where she has earned tenure, she is also an adjunct professor at , where she has taught graduate level courses for eight years. Finally, she has developed publications that have appeared as chapters in professional books, as well as in peer-review journals. She was awarded the of the Year award in November 2015, and for eight years has been an adjunct associate professor at teaching graduate level courses.
As a school psychologist at the in , her position led her to provide what she described as direct and indirect services. The former included the conducting
[of] evaluations, delivery of counseling services, preparing and implementing positive plans, ensuring that the teachers have been assessed and are able to understand student IEPs, [and are] able to implement classroom modification, etc.” Dr. also served as a case manager who assisted classroom teachers understand goals and modifications contained within individual IEPs. Her caseload recently rose from about 60 or 70 to 100. Additionally, she conducts approximately 50 psychological evaluations and reevaluations a year, and also conducts an average of more than
130 Committee on Special Education (“CSE”) meetings a year. Tr. 30-31 Once a week she delivers “programmatic counseling” in the classroom, which is in addition to any individual counseling that might be included in a student’s IEP. Tr. 33-34
Dr. has been ’s case manager since he was in the 1st grade. For the second grade he was placed in a co-teaching classroom. Tr. 37 Prior to his 3rd grade placement for the 2015-2016 school year, Dr, conducted a evaluation. Entering the CSE meeting for that school year, was classified as due to his . Tr. 43-44 Dr. testified that the impact of the anxiety ran across multiple areas of ’s life and “significantly” affected his ability to grasp classroom work, and to interact with his peers. Tr. 45
Prior to the CSE meeting, ’s two second grade teachers expressed concern to Dr. regarding both his academic work and his social interactions. Indeed, was reported by them to have become progressively more distressed as the pace accelerated in that class. He avoided academic work, and was not able to interact with his classmates. There were times that he would even get physically aggressive with them by pushing someone or by knocking someone with a chair. He was reported to have threatened a teacher’s daughter who was visiting the school saying that “he wished that she were dead and she shouldn’t be in school.” At times, would literally leave the classroom, what Dr. described as “.” Significantly, while the above s were not evidenced during the prior year in the placement, they were interfering with his ability to learn in the 2nd grade classroom. There were also incidents in co-teaching when he would become ”obstructive” and need to be removed so that the other students could be taught. Tr. 48-49 The teacher would then attempt to alleviate the situation by individually re-teaching . However, the attempts were not successful, and his teachers became concerned that his academic knowledge was actually decreasing. Consequently, he was unable to learn new material and they then became concerned about his reading level and math skills. Tr. 49-50. A ist, Ms. , was brought into the picture and created a plan in an attempt to ameliorate ’s aforementioned negative classroom s. The plan was the result of a functional assessment. Tr. 112 Interestingly, when he saw children who he had known from his 1st grade , he would seek them out and would say: “I want to go back there.” Tr. 47-48
At the ensuing annual review to prepare for the upcoming 3rd grade school year, which was held on May 27, 2015, SPAMS1 and goals were developed, one at a time, as guided by the relevant teachers and providers. Input was “welcomed” by the parents. Tr. 56-57 Discussion then ensued regarding whether ’s placement in the class should be modified. As a result of that discussion, the Committee recommended a classroom placement, to which the parents voiced disagreement.
Specifically, they thought that the Committee was exaggerating ’s level of anxiety, and that the curriculum was not sufficiently rigorous for their son. See Exhibit R 7-2
Dr. disagreed and testified that the School curriculum for a class was “very
1 “SPAMS,” is an acronym for current levels of performance that consists of “social, physical, academic and management.” SPAMS, for better or worse, is currently referred to as PLEPS, or “present levels of educational performance.” Tr. 56 rigorous,” which while modified in pace and possibly depth, nevertheless follows the 4th grade curriculum. She added that the slower pace served to lessen ’s anxiety.
Furthermore, the setup of a grouping where he is not singled out as needing adult intervention, lessens his anxiety and allows for that intervention to be better accepted by him. Then, due to the lessened anxiety, is more able to observe his social surroundings and interact with others in a more appropriate way. Tr. 61-64.
Dr. entered the 3rd grade class on a weekly basis as a programmatic counselor for the entire group, but while she did not have direct, personal interaction with , she did note that he was relaxed and able to participate in classroom activities there. Tr.
65-66
Dr. did not agree with the parents’ concern that was not properly prepared for the NYS assessments in the class. She said that while the pace is slower, the students are led through the same core curriculum as general education students.
Furthermore, because the district does not believe that the tests are valid assessments anyway, it does not find them to be important, and consequently does not spend a lot of time focusing on them. Tr. 80 (Core curriculum followed in 3rd and 4th grades.)
Dr. further testified that (the second classification) was somewhere in the middle of the class profile for the 2016-2017 school year. Exhibit R 4-1 She added that he is getting more socially comfortable and the grouping is a “nice fit” academically. Tr. 82-84
Regarding the parents’ questioning of the pace followed in the classroom, she said that while the pace in the classroom was “typical,” students have to spend a lot of time working independently, initiate tasks, and problem solving, areas where struggles. So, he needs to work more slowly. He is not that independent and is not a risk taker, which is harder in a co-teaching classroom. Tr. 84-85 During cross-examination, she added that needs to be emotionally comfortable to absorb higher level academics. If so, the teacher can modify the pace, etc. Tr. 97 adjusts better to a slower pace. Tr. 101-102
, ’s special education teacher testified next. She has two Masters Degrees and holds a NYS certification in special education, grades K through 12, elementary education K though 6, and , grades K through 12. Tr. 119-120 Prior to teaching at , she taught 8th grade for a couple of years and supervised an aide. During that time, she attended on average 15 or 20 CSE meetings. She then came to the system, where a part of her job was preparing approximately 30 educational evaluations and reevaluations a year.
In June 2015, she first met on “moving up day,” which is when students from the next year’s class first visit their teacher and fellow students for the upcoming school year. Tr.127 The upcoming 3rd grade class included four classifications, including . On that day, was “resistant” to entering the classroom, as he was again in September. He appeared “uncomfortable.” It took him about a month to begin to feel comfortable enough to start work. From that point forward until the close of the school year in June 2015, he had a “tremendous year.” Tr. 127-129 He was less anxious and more friendly. Though, at times when he became anxious he became resistant when given new work, and at times would even disrupt the class; however, this occurred less than in previous years and was “very manageable” in the . Then, towards the end of the school year, he made “a lot of progress” in math, reading and basic level word problems. Towards the close of that school year, he again became anxious because he thought that he was going to another school. He would say things like: “I don’t want to go to jail, which was not something that [was] discussed in class.” Academically, reading progressed three levels from a level at the beginning of the year to a level . This was significant for him because the previous year (in co-teaching), he did not make progress. His also improved, as did his socialization. His anxiety lessened during the school year, including with respect to fire drills, which he had been “petrified” about in the past. He began looking like a “typical” child, without resistance. Towards the middle of the year, he became “like everybody else.” Tr. 130-138, 142.
At the May 18, 2016 Annual Review, Ms. described to the Committee the aforementioned progress that she had seen make in the 3rd grade classroom. A draft of the IEP that was presented to the parents. ’s mother, , said that it was what she had expected, and that she agreed with it. The IEP goals were all read from the draft at the meeting, which Ms. later mentioned that she had written. She added that they could be implemented in a class. She thought that due to anxiety, which impeded his performance, again needed a placement. She did not believe that he was ready for an placement, and did not even know if he wanted to be in one. She added that the slower pace and flexibility built into a setting allowed for to leave the class for , and not have to return, having missed some of the curriculum. He was also “Very resistant” to leaving the to attend specials, but the staff would “push” that on him because his parents wanted it. In the he was “a shining star,” and had a great year, despite exhibiting sporadic “outbursts,” which were accepted because all of his cohorts had them. In contrast, he would stand out as “the weird kid” in an setting. Similar to Dr. testimony, Ms. also said that she did not teach for the NYS common core test. She concentrated on the curriculum. She said that the parents objected to the placement and that said that she was concerned with the goal for math word problems.
Ms. concluded her direct testimony by stating that she believed the was the ”right placement” for , and she would “hate to take it away from him.” She thought that his ability to relate to the students and teachers in the classroom was better. He able to ask for assistance and his off-task s were more manageable. She knew that he made progress, and saw it in reading. Tr. 155
The final witness for the District was , the District supervisor for special education. She was in charge of all initial CSE meetings for grades K-6. She reviewed all reports and gave feedback to teachers. Additionally, she evaluated special education staff. She has worked for 13 years in the district, and chairs approximately 350 meetings a year. She also “usually” runs CSE meetings when parents are not happy with a district choice for their child.
She has been chairing most if not all of the CSE meetings for , including the one regarding the 2015-2016 IEP (for 3rd grade), which was held on May 27, 2015.
See Exhibit R-9. Tr. 233-235 ’s classification was , which was based on a neurodevelopmental evaluation from 2011, and on ’s performance.
Earlier, while in the second grade co-teaching classroom, had exhibited disruptive s and would subvocalize, which she found to be acceptable. However, he sometimes did it loudly, and in a “non-contextual manner, meaning that it had no connection to the lesson at hand. Indeed, sometimes he would say: “I’m going to end up going to jail. I don’t want to go to jail.” He seemed “paralyzed” and needed 1:1 teacher assistance to get going. He “really” didn’t make progress in reading. In fact, in a mid-year test, he knew less than he had known at the beginning of the year.
He struggled in math. He would call other children and even teachers names. He would at times “elope,” or leave the classroom or school without permission.
Elopement is a sign of “feeling very anxious and desperate that you have to get out, you have to leave a situation that is making you [feel] that uncomfortable.” also sometimes pushed other children in an inappropriate manner. While some of these s were exhibited in a lesser form in a 1st grade classroom prior to the second grade co-teaching, they were not as extreme. has an “anxiety disorder.” His teachers had “very significant" concerns. (J to I in reading. Ordinarily, he should have reached level . Tr. 245; See Exhibit R 9-6.). He required the most 1:1 in writing. He does have decoding skills and he could spell. (During a PHC, related services were stipulated as not part of this hearing. Tr. 253).
The class profile for the 2016-2017 grouping is appropriate since fits within the middle of the class. Non-verbal cognition is his weakest score and everyone scores higher. Tr. 277-281; R-4. Examining ’s 3rd grade report card, Ms. noted that it was much better than the prior year in . The difference in and performance on work is also significant. She noted that his work study skills and personal and social development contained no “Rs”, which the 2014-2015 class had in abundance. Tr. 259, 287-289. See Exhibits 5-2 and 8-2 is so much more successful socially and academically, and definitely fits in the class. He has made more progress there and he is working through his anxiety. You see much more success and truly needs to continue in this environment until he gets sufficient skill to attempt the harder one. Tr. 289-290. He excels at the literal and the rote, such as math facts and spelling. But, he couldn’t necessarily put that into his writing, into a more complex setting. His report cards prove that he is succeeding in doing that within the setup. Tr. 290-291.
B. The Parents’ case
The Parent’s case commenced with an opening statement by , which was given under oath. He testified that the CSE seems “obsessed” with keeping in a setting, which is not the LRE for him. Tr. 15 A mediator recommended that go into an class, and he was placed there. Tr 18 The curriculum in the class is not the same quality as in the . His initial grades in the were “horrible” and the school did not have patience and quickly called a CSE meeting. However, continued in the and worked hard, and his grades improved, which proved that he had the capacity to learn there. Nevertheless, the teacher gave him a 1 on his report card to prove that he doesn’t belong in an classroom. Tr. 15-22
: ’s mother, testified on behalf of her son. I found her to be honest.
She sometimes gave answers even when it did not aid her position. Her complaints with the setting included that it contained too much repetition, and did not cover important matters in both 3rd and 4th grades. She believed that the 3rd grade teacher was not even aware of ’s strengths and weaknesses in spelling. She felt frustrated because she didn’t see a lot of progress in the 3rd grade. ’s homework was very light, especially in math. The level was set too low. It was hard for him to retell a story, to draw a conclusion from it, to return to the text and to give evidence from the text. Without being in an CT classroom in Kindergarten and in 2d grade, she didn’t believe that would be where he is today academically. She believed that he can read level O and decode but he can’t go to the higher level. It is hard for him to retell a story, to give it a conclusion. “If he didn’t go to in K and in 2d grade, I don’t believe he would be where he is today academically. I strongly don’t believe, I believe he will be much, much [more] backward.”
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Legal Framework and Standard
This case involves a disagreement between the parties over the provision of FAPE, so a look at pertinent law will be a necessary jumping off point.
The underlying intention of the Individuals with Disabilities Education Improvement Act (IDEIA)_ (20 U.S.C. §§ 1400-1482) is to provide children with disabilities a FAPE. A foundational Supreme Court decision, Rowley, in defining what was meant by a FAPE held that the IDEA does not require states to “maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children.” It does set a floor, however, and holds that a State furnishes a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”
Furthermore, the instruction and services must be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Board of Education v. Rowley 458 US 176, 203 [1982].
In determining whether an IEP complies with the IDEIA, courts follow a two-step analysis. In addition to a substantive inquiry as to whether the IEP furnishes educational benefit, as referred to above, courts will initially examine whether there were procedural violations of the IDEIA. R.E. v. New York City Dep't of Educ., 694 F.3d 167. Indeed, the Supreme Court and Second Circuit have emphasized the importance of the procedural provisions found in the IDEA. "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir.
2009])._
An important procedural requirement is parental participation in the creation of a FAPE, and its importance was emphasized from the outset. See Rowley, supra.
In contrast, other individual procedural violations by the IEP team may not be considered “material,” and will not automatically lead to a decision in favor of parents; however, a compelling combination of them may do so. L.O. v. N.Y. City
Dep’t of Educ., 822 F.3d 95, 102-103 (2d Cir. N.Y. 2016)
Discussing the third possibility directly above, the 2d Circuit, in Walczak v. Fla.
Union Free Sch. Dist. 142 F.3d 119, 130 (2d Cir. 1998), later concluded that the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” “The purpose of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” (internal citation omitted). It then quoted from an earlier ruling it had made and reaffirmed that “[w]hat the statute guarantees is an ‘appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents.’” (internal citation omitted). However, a school district must provide an IEP that affords the student with an opportunity greater than only “trivial advancement.” “An appropriate public education under IDEA is one that is "likely to produce progress, not regression." Walczak, 130, 132.
A threshold tool in providing a FAPE is a written, individualized education program (IEP) that is tailored to the unique needs of the handicapped child. Indeed, the Second Circuit has emphasized the importance of the IEP by stating that the "centerpiece" of the IDEA's education delivery system is the IEP. Murphy
v. Arlington Central School District Board of Education 297 F.3d 195, 197 (2d Cir.
2002) (internal citation omitted).
More recently, in L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 95 (2d Cir. N.Y.
2016), the Second Circuit has reiterated crucial components of the IEP:
The IEP "sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." R.E., 694 F.3d at 175 (internal quotation marks omitted). To comply with the provisions of the IDEA, the IEP must "be 'reasonably calculated to enable the child to receive educational benefits.'" Id. [**5] (quoting Bd.
of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)). L.O. supra at 102-103.
Indeed, the CSE “must consider the results of the [student’s] initial or most recent evaluations.” (8 NYCRR 200.4(d)(2)). To put it another way, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR §
200.4(d)(2)(I). 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *19 [S.D.N.Y. July 3, 2008]). Furthermore, that evaluation must be “sufficiently comprehensive to identify all of the student’s special education needs” (8 NYCRR 200.4(b)(6)(ix). The purpose of the comprehensive evaluation is to “provide relevant information that directly assists persons in determining the educational needs of the student” (8 NYCRR 200.4(b)(6)(xi). An evaluation must include a physical examination, a psychological evaluation, an educational evaluation, a social history, a classroom observation and “other appropriate assessments or evaluations.” (8 NYCRR 200.4(b)(1). A student’s IEP must reflect the results of current evaluations.
8 NYCRR 200.4(b)(iv) provides that an initial evaluation must include “an observation of the student’s learning environment (including the regular classroom setting) or, in the case of a student of less than school age or out of school, an environment appropriate for a student of that age, to document the student’s academic performance and in the areas of difficulty.”
A CSE that prepares a student’s IEP must include the student’s parents, a regular education teacher of the student if the student is or may be participating in a regular education environment, a special education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise special education, an individual who can interpret the instructional implications of evaluation results, and/or the school physician and the parent of another child with a disability, if requested by the parent in advance of the meeting, (Education Law Section 4402[1][b]; 8 NYCRR Section 200.3[a][1][vii-viii].
As emphasized above, parents are an integral participant in the development of an IEP. As articulated by the Supreme Court: “Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. §1414(c)(3). Parents are included as members of ‘IEP teams.’ §1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an ‘independent educational evaluation of the[ir] child.’ § 1415(b)(1). They must be given written prior notice of any changes in an IEP, § 1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, § 1415(d)(1). Schaffer v. Weast, 546 US 49, 53 (2005). The IEP must also contain present levels of performance, annual goals, and an objective method to evaluate whether those goals been reached._
Furthermore, parental participation at IEP meetings must be “meaningful”.
Deal v Hamilton County Board of Education, 392 F.3d 840, 853 (6th Cir. 2005). It should be noted that the Sixth Circuit amplification of what constitutes FAPE was cited without comment in a Second Circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217.
The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005).
The Placement for the 2016-2017 School Year is Appropriate
Introduction
As outlined above, the District presented three witnesses, whose testimony I credit and include in my findings below: A psychologist, a special education teacher and an administrator, who individually and certainly together established that will be most appropriately served for the 2016-2017 schools year in a continued setting.
While the parents correctly brought forth the issue of least restrictive environment upon considering all of the aforementioned testimony, and examining all of the exhibits provided by the parties, I have reached the conclusion that the setting is ’s
LRE. I found the District’s case to be well-prepared - at both hearing and in closing brief - Throughout the hearing and later in a post hearing brief, district counsel followed through on that key issue and expounded on why the classroom setting was both appropriate, and in the LRE. As to the former, there are multiple reasons, as discussed below why I find that, at least for the current school year, the special class is the appropriate placement.
FAPE
The threshold issue in this matter, which involves a determination of liability is whether the DOE offered a FAPE. If I find that FAPE was offered, then the matter will close at that point, and the due process complaint shall be dismissed. However, should liability be found, and should the placement be found to be appropriate, I would then pursue a remedy, which is this instance would involve placing into the District’s 4th grade program for the 2016-2017 school year.
The IEP Meeting
The District CSE met to make IEP recommendations for the 2016-2017 school year, on May 18, 2016. In attendance at the meeting were necessary participants, such as a psychologist, a general education teacher and special education teacher, a district representative, the student’s parents, and a number of the student’s providers. See Exhibit R 7-1 The parents did not make any specific claim of a procedural violation, other perhaps than their general belief that a program was not appropriate for their son, or that the meeting was conducted too quickly. There were no claims of improper or outdated evaluations that were utilized to create the IEP and its attendant placement; nor, have I seen any.
At the May 2015 annual review, the parents accepted the SPAMS, as presented. At that meeting, no participant other than the parents wanted to consider a continuation of the co-teaching model for . The parents disagreement centered on a desire to have more typical peer models, and a curriculum that was not watered down.
Others in the room disagreed with the latter statement, and said that the curriculum was indeed the same for a class. As to the former belief, Ms. said that in the , was somewhere in the middle of the grouping so that he would have models there.
See Exhibit 4-1 Conversely, in the , he was much closer overall to the bottom of the class. So, the Committee recommended a setting for him. Ms. believed it appropriate for him because in the he was uncomfortable and regressed. He didn’t learn in reading and learned minimal math skills; nor did he succeed in writing. His report card reflected her testimony. Most of the grades were 1 and 2 on a scale of 4, and were concerning. Despite Mr. ’s earlier statement that ’s performance improved during the year, the report card shows him overall “struggling even more.” Tr. 254-
260; Exhibit R-8-1
Ms. was the chairperson at the 2016-2017 annual. At that meeting Ms.
stated that had had a “very positive year [in her class]” For instance, his reading had risen from Level to Level . He was showing math progress and was not resisting work. Socially, he was beginning to interact with peers appropriately and interacting more with adults. Nor was he as disruptive in the classroom as he had been the prior year in the classroom. She believed that the smaller grouping and extra staff made the difference. The class fit also helped his self-esteem. While the Core Curriculum was the same as the one in a comparative class, the pace was slower. He could succeed, and that also helped his self-esteem. It was a much more comfortable place for him. (Tr. 268) Tr. 262-268 See Exhibit R-7. A ist reported that while there was a al intervention plan in place, almost didn’t need it.
Tr. 270. During the Annual Review, Ms. said that while was making progress in the , he needed “at least one more year” in it because he was still behind, particularly in reading, before possibly returning him to the less restrictive class. Tr.
273. (Parents wanted . Tr. 273). This is so due to the difference in academic and social progress between 2d grade and the 3rd grade. setup is the same for 3rd grade as for 4th grade with approximately 20 students and a full time general education teacher with a special education teacher added for 2 1/2 hours of the day.
“He is finally feeling better about himself and he is really learning,” To be in an classroom, will need to learn strategies to contain himself, and he is not there yet.
Tr. 273-276. is not “doomed.” Many students who go to college from here graduate with regents diplomas out of classes. Tr. 276. He may or may not ultimately get to an class, but he needs to be successful at learning first. He has to learn to apply the basic to the more abstract, and he is not there yet. Tr. 277.
An placement for 2016-2017 would not be appropriate The testimony of the three District witnesses is replete with concern regarding ’s travail in the second grade class. Prior to the CSE meeting, ’s two second grade teachers expressed concern to Dr. regarding both his academic work and his social interactions. Indeed, was reported by them to have become progressively more distressed as the pace accelerated in that class. He avoided academic work, and was not able to interact with his classmates. There were times that he would even get physically aggressive with them by pushing someone or by knocking someone with a chair. He was reported to have threatened a teacher’s daughter who was visiting the school saying that “he wished that she were dead and she shouldn’t be in school.” would literally even leave the classroom, in what Dr.
described as “.” Significantly, while the above s were not evidenced during the prior year in the placement in 1st grade, they were interfering with his ability to learn in the 2nd grade classroom. ’s above described actions were also expressed in words.
For when he saw children who he had known from his 1st grade , he would seek them out and would say: “I want to go back there.” Tr. 47-48 Furthermore, there were times in co-teaching when he would become ”obstructive” and need to be removed so that the other students could be taught.
Anxiety, as Encapsulated within ’s Classification
If I had to describe ’s plight in one word, that word would be “anxiety”. Credible testimony convinced me that it lies close to his core. I believe that his academic and al difficulty flows from it, and is thus secondary. So, prior to branching out into other areas, let us begin at the root cause, and discuss the underlying anxiety. Ms. G told us that was frequently anxious at school, whether with adults or with other children, and that it especially affected his academic performance. Tr. 237. There is no “anticipatory anxiety” in a class, she added, because the pace is slower, and a child is not anxious about completing his work on time. Tr. 238-248. On the other hand, ’s second grade interaction with his peers was only inappropriate. His calling out in a class of 20 was “very disruptive” to the lesson. Tr. 248-249 Ms. testified that regressed in the class. He did not learn in reading and learned minimal math skills; nor did he succeed in writing. His report card reflected her testimony. Most of the grades were 1 and 2 on a scale of 4, and were concerning. Tr. 254-260;
Exhibit R-8-1
Progress Was Achieved in Unlike in the Earlier Classroom
As to the environment, Dr testified that the slower pace there served to lessen ’s anxiety. Furthermore, the setup of a grouping where he is not singled out as needing adult intervention lessens ’s anxiety.
“So, taking into account his significant emotional discomfort, the evident lack of academic progress, it was my belief that the least restrictive environment for him, the most appropriate one would be a small class [where] the pacing .. allows for presentation of information in a way that lessens ’s anxiety. [Furthermore,] this way wouldn’t feel so isolated and pointed out in the classroom where he is the only student that would have [a al] intervention. … It lessens his anxiety.” Tr. 63-64
Later, in response to a direct question from district counsel, Dr. responded that in her opinion the class “is the least restrictive and the most appropriate for , given his emotional needs and academic growth. Tr. 78 She added that the presence of the full-time special education teacher in the classroom provided with consistency and emotional support to the point where he can benefit from classroom academics. Tr. 79
“I think he was matched very well. I think that particular group of students afforded him a variety of experiences where there were times where could be a leader and it could capitalize on some of his strengths because he is very empathic and very kind, but he also had opportunities for what I would call comfortable frustration where he can sort of experience and be challenged in the curriculum, but also see other students struggle sort of similarly in the way that he does, and that, in turn sort of lessens his anxiety.” Tr. 81
Ms. continued by saying that “Anxiety is already reduced in , which is why he was so successful.” Tr. 184 Finally, Ms. brought out the core question: “How do you keep placing a child in a classroom that clearly makes him so much more anxious that he doesn’t have the kind of success he had when he was in a smaller class?” Tr. 257 I agree, and believe that the contained the right complement of children for . When a turmoil within him reached a breaking point, and exploded without, his classmates appeared to understand, rather than judge. Thus, his self image would not be significantly harmed. In sum, I find that the placement for the 2016-2017 school year provides educational benefit for , and as discussed directly below, that benefit is in the least restrictive environment.
The Placement was in the Least Restrictive Environment
The parents at hearing, and in their post hearing memorandum have called for to be placed in the LRE, which they assert is the classroom. Indeed, The IDEIA's preference is for disabled children to be educated as much as feasible with their non-disabled peers, or in what is referred to as the least restrictive environment capable of meeting their needs. See 20 U. S. C. § 1412(5); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch.
Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
Of course, it is true that the classroom, being part of a general education environment, is less restrictive than a special education class. However, following that logic, a general education class taught solely by a general education teacher without any special education services, or with a minimal service, such as sign language, is less restrictive than an class. So, if less restrictive becomes a requirement by itself, then every student must be placed into such a general education class. However, if that were to happen, the IDEA would become an idea without any meaning. Consequently, it cannot be looked at in isolation. The courts therefore, in discussing a continuum of placement options have delineated when a less restrictive placement is triggered. The leading case, Oberti v. Board of Education, 995 F.2d 1204 (3d Cir. 1993), which instituted a two-prong analysis was followed in the 2d Circuit in P. v. Newington Bd. of Educ., 546 F.3d 111, 51 IDELR ¶
2 (2d Cir. 2008). Newington upheld removal of a high school student to a selfcontained class as meeting the Oberti analysis. “The first prong of the test asks whether a student can be satisfactorily educated in the regular classroom with the benefit of supplemental aids and services.” Newington at 121. The second is “whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. Oberti supra, at 1218. In sum, a school district would not be justified in placing a child into an inappropriate setting that does not meet the child’s needs, simply to be less restrictive. However, if the IEP provides a plan that is reasonably calculated to provide educational benefit and is less restrictive, so much the better. But, the latter is not in accord with the facts that have been entered into the record. It is a balance, and the weight of the evidence, both testimonial and evidentiary, falls clearly into the realm of a special class setting, as opposed to that of a general education setting found in a co-teaching classroom.
The NYS Assessments Are Not Valid Indicators of Progress was also very concerned with the common core assessment exam which she and opted him out of taking and the pretest which he took. However, as Dr, testified, since the district does not consider such a test to be valid, it does not teach to it. Tr. 80 Ms. agreed and added that the test is not a focus of the staff and that they teach instead to the curriculum. Tr. 152 On cross examination by , she reiterated that the test was not important for in the third grade. Tr. 171 Authorities have tended to agree with her conclusion. As noted in the District brief (Exhibit VIII)
the SRO overturned a finding that a child failed to make progress, which was based on part on NYS assessment scores. Application of the \Board of Ed., Appeal NO.
15-043 (NY 2015). Federal caselaw would agree. See E.S. v Katonah-Lewisboro
School Dist., 742 F. Supp.2d417 444 (S.D.N.Y. 2010); Gavrity v. New Lebanon
School Dist., 2009 WL 3164435, *31-32 (N.D.N.Y. 2009); G.B. v. Tuxedo Union Free School Dist. 751 F.Supp.2d 552, 581 (S.D.N.Y.), aff’d 486 Fed. Appx.954 (2d Cir.
2012).
The Future
I listened to the parents at hearing, and in an urgent advocacy they brought out examples from their storehouse of memory. Essentially, they stated a fear that is “doomed” in a class due to the slower pacing, and the belief that the grade subject content cannot be covered within such a setting. Testimony has revealed otherwise.
He has shown progress. Significantly, his grades have improved as testified to by the District witnesses, and demonstrated within Exhibits R 5 and R 8. As Ms.
encapsulated it: In the he was “a shining star,” and had a great year, despite exhibiting sporadic “outbursts,” which were accepted because all of his cohorts had them. Tr. 150 is now more comfortable in transitioning to special classes. We could transition him more there depending on his better comfort level and his academic skills that would need to be close to the general education class. We can not now decide if will need to be in a special class for the rest of his time in school.
Dr. emphasized that it were ready for an class, next May, or thereafter, we would recommend it “wholeheartedly.” It would depend on his emotional and academic ability. She agreed with others that the comfort provided by a class might enable to return to an integrated co-teaching class in the future. Tr, 107-108
Conclusion
presented case both methodically and convincingly. From the outset of a pre-hearing conference, he made certain to clarify the key issue, which was the appropriate placement for . Later, during the hearing and in a post hearing brief, he presented necessary facts to demonstrate why the classroom setting was both appropriate, and in the LRE. He was well prepared and covered the bases that needed to be covered pursuant to the IDEIA. I found the parents to be passionate, loving and strong proponents for their son who believed strongly that a classroom setting for him was inappropriate. Furthermore, while not an issue before me, I nevertheless find it worthwhile to mention that beyond school they were making available for an array of activity that may well lead him towards a rich and rewarding life.
FAPE
The threshold issue in this matter, which involves a determination of liability is whether the DOE offered a FAPE. If I find that FAPE was offered, then the matter will close at that point, and the due process complaint shall be dismissed. However, should liability be found, and should the placement be found to be appropriate, I would then pursue a remedy, which is this instance would involve placing into the District’s 4th grade program for the 2016-2017 school year.
As indicated above, I credit the detailed and credible testimony of all three professional District witnesses who knew well, and persuasively testified that the appropriate placement for him during the 2016-2017 school year was in a classroom, and not in the less restrictive classroom. To repeat core question:
“How do you keep placing a child in a classroom that clearly makes him so much more anxious that he doesn’t have the kind of success he had when he was in a smaller class?” Tr. 257 I agree, and find that a FAPE has been devised, that the placement for the 2016-2017 school year is not rooted in some ulterior motive, and that it provides with educational benefit in the least restrictive environment.
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS HEREBY ORDERED THAT:
As the District has offered the Student a free and appropriate public education in the least restrictive environment for the 2016-2017 school year, the parents’ claim for a change in his educational program and placement is DENIED.
Dated: November 28, 2016
_______________________
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities
Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be 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.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm. Officer’s Findings of Fact and Decision
Case Id:
DOCUMENTATION ENTERED INTO THE RECORD
Exhibits Description Date Page(s)
DISTRICT
1 Progress Report 8/9/16 9
2 Response to DPC 6/27/16 13
3 Due Process Complaint Notice 6/15/16 4
4 Class Profile 2016-2017 1
5 Grade 3 Report Card 2015-2016. 2
6 Prior Written Notice Letter 5/18/16 2
7 IEP 5/18/16 16
8 Grade 2 Report Card 2014-2015 2
9 IEP 5/27/15 15
10 Re-Evaluation Report 5/11/14 13
11 Education Re-Evaluation 5/1/14 4
12 Pediatric
Evaluation June-July 2011 1
PARENTS
6-1 Multiplication Tables of 2, 5, 10 12/17/14 1 6-41 Multiplication Tables of 3, 4 4/30/15 1 7 2nd Grade Word Study Quiz Various 28
18 Mathematics Various 7
IMPARTIAL HEARING OFFICER
I Summary and Order 8/22/16 8
II Order extending the Compliance Date 8/24/16 1
III Order extending the Compliance Date 9/23/16 1
IV Order extending the Compliance Date 10/18/16 1
V Post-Hearing Conference Summary and Order 7/6/16 2
VI Petitioner’s Response to District Response to DPC 11/28/16 2
VII Petitioner’s Closing Statement 11/28/16 11
VIII District Memorandum of Law 11/07/16 33