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X In the Matter of the Impartial Hearing of [Student], by [Redacted] and [Reacted, his parents,
Petitioners,
-against-
VESID IHRS
CENTRAL SCHOOL DISTRICT, IDENTIFIER NO.
Respondent.
A Hearing Under the Individuals with Disabilities Education Improvement Act, 20 United States Code Section 1400 et. seq. and New York State Education Law, Article 89, Section 4404 X
FINDINGS OF FACT AND DECISION
Impartial Hearing Officer
Decision Date: May 16, 2011
Record Close Date: May 2, 2011 Impartial Hearing in the Matter of [Student] v. Central School District Page 2 Findings of Fact and Decision
On July 1, 2010, the parents (the “Parents”) of [Student] (the “student”) filed a request for a due process hearing (Joint Exh. 1) under the Individuals with Disabilities Education Improvement Act (the “IDEIA”)1, 20 U.S.C. section 1400 et seq., and Section 4404 of the New York State Education Law. I was appointed as hearing officer on July 15, 2010 and the matter came on for a pre-hearing conference on August 24, 2010.[2] The due process complaint was amended on September 8, 2010 (Joint Exh. 46).[3] The parties waived the resolution session after the filing of the amended complaint, and substantive hearings were held on September 13, 2010, November 15, November 16, November 23, 3010,
December 2, 2010, January 20, 2011, January 25, 2011, and January 31, 2011. The compliance date for issuing a decision in this proceeding was extended on multiple occasions.4
Lists of the persons that appeared at the hearings and the documentary evidence submitted is appended to this Decision and Order. The parties submitted post-hearing briefs in support of their respective positions. IHO Exhibits XIX and XX.
1 In 2004, Congress reauthorized the Individuals with Disabilities Education Act ("IDEA") as the IDEIA. See Pub.
L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. Throughout this decision, statutory references will be to the IDEIA, except when quoted in opinions as the IDEA. Impartial Hearing in the Matter of [Student] v. Central School District Page 3 Findings of Fact and Decision
BACKGROUND AND PROCEDURAL HISTORY
[Student] is years old and is classified as a student with a disability having [Student] resides with his family in the Central School District (the “District’). His classification and his eligibility for special education supports and services are not in dispute. It is undisputed that [Student] needs to receive services on a twelve-month school year basis. This proceeding involves the Parents’ request for reimbursement for [Student]’s special education program for the 2010-2011 school year.
[Student] was initially diagnosed as having ( at the age of He received Early Intervention (“EI”) services at the [Redacted] Day School (“[Redacted],”), and was subsequently classified as a preschool student with a disability by the District’s Committee on Preschool Special Education (“CPSE”). He attended preschool programs at the [Redacted] Preschool (“[Redacted]” ) and the [Redacted] Preschool (“[Redacted]’). [Redacted] is a regular (general education) preschool for typically developing students. His [Redacted] preschool class had about students in it. The class size would have increased to 18 or 19 students when he turned so the Parents placed him at [Redacted] , which had class sizes of to students, for the following school year. [Redacted] is also a regular (general education) preschool for typically developing students. As preschool student, [Student] received Special Education Itinerant Teacher (“SEIT”) services, therapy, therapy, and therapy. His SEIT services, which were provided by a Board Certified Behavior Analyst (“BCB”), were provided in the home and preschool settings. His preschool education program also included
Tr. 39-47; Parent Exh. Q
The CSE obtained an educational, therapy, therapy, and evaluations during the Spring of 2009. Tr. 47-48; Jt. Exhs. 32, 33, 34, 35 and
36. The CSE prepared several IEPs for the 2009-2010 school year. The Parents rejected the CSE’s program and placement recommendations for that year. They unilaterally placed [Student] in a general education developmental kindergarten class at [Redacted], with SEIT services, therapy, therapy, and therapy services. He attended Impartial Hearing in the Matter of [Student] v. Central School District Page 4 Findings of Fact and Decision
[Redacted], with 1:1 SEIT support, for two and a half hours per day, five days a week. He received additional SEIT services at home, and received his related services before and after school. The Parents filed a due process complaint regarding the 2009-2010 school year, and the parties entered into a Stipulation of Settlement (the “Settlement Stipulation”) in which the Parents agreed to bear the expense of the [Redacted] placement and the District agreed to reimburse the Parents for the cost of SEIT services (25 hours per week), therapy, therapy, therapy, and Tr. 51-56; Joint Exh. 15.
The CSE performed several observations in preparation for the development of [Student]’s special education program for the 2010-2011 school year. It convened CSE review meetings on March 19, 2010 and April16, 2010. [Student]’s initial 2010-2011 IEP (the “April IEP”) included separate recommendations for the summer of 2010 and for September 2010 through June 2011 . Jt. Exh. 14. The Parents rejected the April IEP and advised the District that “in the absence of an appropriate and timely program and placement recommendation . . . would look to the school district to reimburse and otherwise fund an appropriate program . . including mainstream placement, such as [Redacted], with SEIT support, and additional related services (i.e., therapy, therapy, and therapy).” Jt. Exh. 13.
The Parents filed their request for a due process hearing on July 1, 2010. Jt. Exh. 1. Since [Student] receives services on a twelve-month (extended school year) basis, July 1 was the first day of the school year for him. The parties met for a resolution session meeting on July 30,2010, but were not able to come to a resolution of their dispute. The Parents declined to sign the resolution agreement proposed by the District. See Jt. Exhs. 6 and 13. The CSE convened a program review meeting on August 20, 2010, which resulted in the preparation of a new IEP (the “August IEP”). Jt. Exh. 2. The Parents rejected the August IEP and filed an amended due process complaint. Jt. Exh. 46.
A dispute regarding [Student]’s pendency program arose during the course of this proceeding. The parties presented their arguments on the Record, and submitted briefs and other documentation in support of their respective positions. Tr. 22-37; IHO Exhs. VII, VIII, IX, X, Impartial Hearing in the Matter of [Student] v. Central School District Page 5 Findings of Fact and Decision and XI. In a “Decision and Order on Pendency” issued on February 2, 2011, I found that [Student]’s pendency program during this proceeding, and any appeals thereof, was “the program and services described in his May 29, 2009 Individualized Education Program.” IHO Exh. XVII at 10. The CSE’S Program/Placement Recommendations
July/August 2010
For July and August of 2010, the CSE recommended (in the April IEP) that [Student] be placed in a 12:1+1 special class at the District’s [Redacted] Elementary School (“[Redacted] ”) for three hours per day, with two 30-minute sessions of 1:1 therapy in a separate (“non-integrated”) location, two 30-minute sessions of 1:1 therapy in a “flexible location,” two 30-minute sessions of 1:1 therapy in a separate location; and one 30-minute sessions of 5:1 therapy in a separate location. The April IEP did not include , or contain the support of a behavioral consultant or teaching assistant for July and August.[5] Jt. Exh. 14.
September 2010-June 2011:
The CSE’s initial recommendations for [Student]’s September 2010-June 2011 placement was contained in the April IEP, which It recommended that [Student] be placed in a general education kindergarten class at the District’s [Redacted] Elementary School, with English and Math instruction in daily 12:1+1 special classes. The CSE also recommended that [Student] receive the following weekly services: behavior consultant (variable class size) for two one-hour sessions; two 45-minute sessions of 1:1 therapy in a separate location, two 30minute sessions of therapy in a flexible location, three 30-minute sessions of 1:1 therapy in a separate location, one 30-minute session of 5:1 therapy in a separate location, and six hours per day of a 1:1 teaching assistant. The IEP also provided for one hour per month of Jt. Exh 14.
Impartial Hearing in the Matter of [Student] v. Central School District Page 6 Findings of Fact and Decision
On August 20, 2010, the CSE modified its September 2010-June 2011 program recommendations by adding an additional 30-minute session of 1:1 therapy, and by increasing the weekly group (5:1) session from 30-minutes to one hour. The IEP also increased the frequency of 30-minute staff team meetings from one per month to one per week. Jt. Exh. 2.
POSITIONS OF THE PARTIES
The District’s Position
The District takes the position that it offered [Student] a free appropriate public education (“FAPE”) for the 2010-2011 school year. It contends that its CSE complied with the all procedural requirements with respect both the April IEP and the August IEP, and that the CSE’s program recommendations were reasonably calculated to allow [Student] to receive meaningful educational progress.
The District maintains that the CSE obtained and considered sufficient assessments and evaluations, and that [Student]’s behaviors did not interfere with his instruction or the instruction of other. As such, a functional behavior assessment (“FBA”) and Behavior Intervention Plan (“BIP”) were not warranted and need not have been included as part of the IEP development process . The District took the position that it was sufficient to defer the FBA and BIP until after the school year began and [Student] began attending a District program.
The District also maintains that the April and August IEPs were substantively appropriate, collaboratively developed, and were likely to produce progress, not regression. The District asserts that the CSE duly considered, and the IEPs appropriately described, [Student]’s present levels of performance and needs, that the IEPs included appropriate levels of behavioral support and , that the IEP goals were appropriate, and that the staff implementing the IEP would be provided with sufficient training and supervision. It rejects the Parents’ assertion that the CSE inappropriately “predetermined” its program recommendations prior to the IEP meetings.
The DOE rejects the Parents’ contention that the recommended summer program was too restrictive. Since the only children eligible for extended school year services are students with Impartial Hearing in the Matter of [Student] v. Central School District Page 7 Findings of Fact and Decision disabilities, the District maintains it is not possible to educate [Student] with non-disabled peers during July and August. The only classes available in the District during that time are selfcontained classes consisting exclusively of students with disabilities. It also argues that the sole purpose of the summer program is to prevent regression. It is not designed to teach new skills.
The District also asserts that [Student] would have been appropriately grouped for instructional purposes in the summer and September-June self-contained classes. The other students were sufficiently close in age and had similar educational achievement, social development, physical development and management needs.
In addition to asserting that it offered [Student] a FAPE for the 2010-2011 school year, the District maintains that the Parents failed to meet their burden of showing that the program that they chose for [Student] was appropriate. It was not, the District maintains, reasonably calculated to enable [Student] to receive educational benefits. The program did not contain a sufficient amount of services, and the home component of the program was not in the least restrictive environment. The District requests that I reject, or heavily discount, the testimony of the Parent’s expert witness, Ph,D., BCBA-D. It also asserts that the Parents’ documentary evidence and the testimony and reports of [Student]’s SEIT and related service providers are not sufficient to sustain their burden of establishing the appropriateness of the program chosen by the Parents. Jt. Exh. XIX at 42.
The District also asserts that the equitable factors preclude reimbursement due to the high cost of the program chosen by the Parents, and because the Parents “had no actual intention of accepting a District program.” IHO Exh. XIX- at 42-3. The District also maintains that the Parents “routinely ‘withheld’ or failed to share any of their concerns with the committee” IHO Exh. XIX at 43.
The District requests that the Parents’ request for relief be denied in its entirety. The Parents’ Position
The Parents maintain that the District failed to offer [Student] a FAPE for the 2010-2011 school year. They seek reimbursement for the following: (a) [Redacted] tuition; (b) up to 40 hours per week of 1:1 -trained SEIT (provided in the home and at [Redacted]): (c) three 45Impartial Hearing in the Matter of [Student] v. Central School District Page 8 Findings of Fact and Decision minute sessions per week of 1:1 therapy; (d) five hours per week of 1:1 therapy; (e) two 45-minute sessions per week of 1:1 therapy; (f) two hours per week of (g) five hours per week of program supervision by a BCBA; and (h) transportation expenses.
The Parents challenge the CSE’s 2010-2011 program and placement recommendations on a variety of procedural and substantive grounds. They assert that I must look at what is contained in the “four-corners” of the IEPs, rather than rely on the “after-the-fact” testimony as to what the District would have done or what it could have changed if [Student] attended the District’s program.
The Parents maintain that the CSE inappropriately predetermined its program recommendations, thereby depriving the Parents of the opportunity to participate in the CSE process. They also assert that the CSE did not obtain and consider sufficient evaluation data, that it improperly failed to obtain a functional behavior assessment (“FBA”), and that it failed to develop the necessary behavior intervention plan (“BIP”). They assert that the self-contained summer program was not in the least restrictive environment (“LRE”) for [Student], and that he would not have been suitably grouped for instructional purposes with the other students in the class. The summer program was also, they assert, defective because it did not include any 1:1 SEIT support. It did not even include the 1:1 TA (teaching assistant) that the CSE had included as part of the September-June program.
The Parents maintain that the IEPs did not included appropriate levels of service for therapy, herapy, and 1:1 instruction. They maintain that [Student] requires the services of a full-time 1:1 SEIT throughout the school day in order to be supported in the general education setting, and that the teaching assistant would not have the training, experience or skills necessary to meet [Student]’s needs. Even if those needs could be met by a teaching assistant, [Student] needs such assistance throughout the school day, not just for six hours listed in the IEP (which leaves [Student] without any 1:1 support for approximately one hour each day).
The Parents also challenge the goals contained in the April and August IEPs. They note Impartial Hearing in the Matter of [Student] v. Central School District Page 9 Findings of Fact and Decision that the goals were not discussed at the March and April meetings, and were unilaterally developed by CSE staff after the CSE meeting. They also maintain that the goals were not appropriate for [Student], and that the IEPs do not include appropriate behavioral support. The TA mandated for the September-June program did not have the training or skills necessary to implement the program contemplated by the District, and the IEP did not include the high level of supervision that she would need to implement [Student]’s programs.
While the Parents are in agreement that [Student] should be placed in a general education setting, they maintain that the District’s 25-student kindergarten class was much too large. [Student] would be overwhelmed, distracted, and would not be able to function in such a large class. The maximum class size for him is ten to fifteen students. The Parents also maintain that the IEPs do not provide for adequate team meetings and collaboration amongst [Student]’s providers, which is critical in light terms of the complexity and evolving nature of his instructional needs and behavioral issues. They assert that the CSE failed to consider [Student]’s need for consistency, and that the proposed program was too “disjointed.” [Student] would be repeatedly pulled out of the his general education classroom for related services and special class instruction. The Parents also assert that [Student]’s IEP goals were not appropriate for him, and that the goals did not include appropriate objective measurements.
On the whole, they assert that the CSE’s recommendations, as contained in the April IEP and in the August IEP, were not “reasonably calculated” to enable [Student] to receive meaningful educational benefits. They believe that he would have experienced regression in the program.
The Parents also assert that the combined [Redacted] and home/community-based program, consisting of instruction, supports, and services, was reasonably calculated to provide [Student] with meaningful educational benefits in the LRE. They assert that they have met their burden of establishing the appropriateness of the unilateral placement by both prospective and retrospective evidence. [Student] made excellent progress with a similar combined-program during the 2009-2010 school year and has in fact continued to make progress in the program during the current school year. Impartial Hearing in the Matter of [Student] v. Central School District Page 10 Findings of Fact and Decision
They also contend that equitable factors support their claim. To the extent that cost is a factor, they contend that the program costs were within the “market rate” for such services. As such, the costs were neither unreasonable nor excessive. They further assert that they cooperated with the CSE at all times. They attended meetings, visited proposed programs, etc. The Parents also maintain that they provided with the CSE with all requested documents and information, and that they provided appropriate and timely notice of their rejection of the CSE’s proposed program.
The Parents request that I direct the District to reimburse them for the full cost of the combined [Redacted]/Home-community program (tuition, SEIT services, related services, etc.).
TESTIMONY AND DOCUMENTARY EVIDENCE
The District presented the testimony of the [Redacted], the Student’s mother;
Director, Office of Pupil Services; and , Ph.D., Board Certified Behavior
Analyst.
The Parents presented the testimony of , occupational therapist;
, Board Certified Behavior Analyst, Ph.D, Board Certified Behavior Analyst; and [Redacted] , Ph.D., the Student’s mother.
Lists of the documents entered in the Record as Joint Exhibits, Parent Exhibits, and Hearing Officer Exhibits are appended to this decision. The documents included IEPs, correspondence, evaluations, progress reports, curriculum vitae and resumes, behavior data, financial documentation (proof of payment and invoices), and audiotapes and transcripts of the March, April, and August CSE meetings. The testimony and documentary evidence will be discussed more fully below.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEIA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in Impartial Hearing in the Matter of [Student] v. Central School District Page 11 Findings of Fact and Decision conformity with a comprehensive written an IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5(4);
J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); see also Frank
G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 (Oct. 15, 2007.
School districts need not furnish every special education service necessary to “maximize” a student’s potential (Rowley, 458 U.S. at 199), however school districts must produce an IEP that is “likely to produce progress, not regression” and must afford the Impartial Hearing in the Matter of [Student] v. Central School District Page 12 Findings of Fact and Decision student with an opportunity to make more than mere “trivial advancement” (Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 1222 (2d Cir. 1998).
In order to provide FAPE, a CSE must develop an IEP which reflects the results of current evaluations and which is reasonably calculated to allow a student to receive meaningful educational benefits. In developing a student’s IEP, the CSE “must consider the results of the [student’s] initial or most recent evaluations” (8 NYCRR 200.4(d)(2)). A school district is obligated to perform an evaluation that is “sufficiently comprehensive to identify all of the student's special education needs” (8 NYCRR 200.4(b)(6)(ix). It must utilize “technically sound instruments” to “assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors” (8 NYCRR 200.4(b)(6)(x). 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, and educational evaluation, a social history, a classroom observation and “other appropriate assessments or evaluations” (8 NYCRR 200.4(b)(1).The evaluation must include a functional behavioral assessment (“FBA”) for “ a student whose behavior impedes his or her learning or that of others.” 8 NYCRR 200.4(b)(1)(v).
The IDEIA also mandates that students with disabilities be educated in the least restrictive environment (“LRE”):
[t]o the maximum extent appropriate, children with disabilities . . .
[shall be] educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A)
The CSE’s Recommendations for July/August 2010 Impartial Hearing in the Matter of [Student] v. Central School District Page 13 Findings of Fact and Decision The District has the burden of proving that it offered a student a FAPE. In determining whether it has met this burden, it is necessary to examine the CSE’s recommendations as of the time the recommendations were made. The CSE made its recommendations for the Summer of 2010 at the March and April 2010 CSE meetings. Its recommendations were memorialized in the April 2010 IEP. Based on the legal standards set forth above, I find that the District did not meet its burden of proving that its recommendations for [Student]’s summer 2010 program were appropriate. First and foremost, the recommended program was not in the LRE for this Student.
The appropriate inquiry in determining whether an IEP meets the LRE requirement is two-fold: (1) “whether a student can be satisfactorily educated in the regular classroom with the benefit of supplemental aids and services;” and (2) if the school district was justified in removing the student from mainstream classes, “whether the school has included the child in school programs with nondisabled children to the maximum extent possible.” P. ex. rel. Mr. and Mrs. . v. Newington Bd. of Educ., 546 F.3d 111, 120-21 (2d Cir. 2008). In considering the first prong, courts need to consider whether “reasonable efforts [were made] to accommodate the child in a regular classroom,” “the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class”, and the potential “negative effects . . . on the education of the other students in the class.” Id., 546 F3d at 120.
It is undisputed that [Student] can be educated in a regular (general education) classroom. He successfully attended general education pre-school programs while classified as a preschool student with a disability, and successfully attended [Redacted]’s general education developmental kindergarten program during the 2009-2010 school year. The CSE’s acknowledgment that [Student] could be educated in a general education setting is implicit in its recommendation for such a placement for September 2010 through June 2011.
The sole reason cited by the District in defense of the recommendation for a [Student]’s summer placement in a 12:1+1 self-contained class was that the only children eligible for summer (extended school year) services are children with disabilities. As such, there was no Impartial Hearing in the Matter of [Student] v. Central School District Page 14 Findings of Fact and Decision
District regular education setting in which to place [Student] during July and August. However, the absence of an appropriate in-district setting does not negate a student’s right to be educated in the LRE. It was incumbent upon the CSE to identify and offer [Student] a placement in the LRE; which was, for him, a regular education setting with typically developing peers, along with the supplemental aids that he needed to receive an appropriate education in that setting.
The failure to offer him a summer program in the LRE constitutes a deprivation of [Student]’s right to a FAPE. There are several additional factors that render the CSE’s recommendations for [Student]’s summer program inadequate and inappropriate. The April 2010 IEP did not include the services of a behavior consultant or a 1:1 teaching assistant for the Summer program. The parties appear to agree that a behavior consultant is necessary for the purposes of developing, modifying and supervising [Student]’s instruction. Although there is a dispute as to whether a 1:1 teaching assistant would be sufficient (the Parents maintain that [Student] requires 1:1 SEIT instruction), there is no dispute as to his need for some level of 1:1 support in order to function in a school setting. The total absence of a behavior consultant and 1:1 support renders the CSE’s recommendations for [Student]’s summer 2010 program inappropriate. I also note that the Record also does not support a finding that [Student] would have been suitably grouped for instructional purposes in the self-contained class. Having found, based on the foregoing factors, that the District did not offer to provide [Student] with a FAPE for the summer of 2010, I need not address the Parents’ other challenges to the summer program. The Parents have met their burden under Prong I of the Burlington/Carter analysis with respect to the CSE’s recommendations for July and August of 2010. The CSE’s Recommendations for September 2010 through June 2011
The CSE’s recommendations for the period September 2010 through June 2011 require a somewhat different analysis. Although the recommended program includes some portion of time in self-contained classes, it also includes a portion of the day in a regular education setting. The recommended program also includes the services of a behavior consultant and teaching assistant. In these aspects, the program differs from the CSE’s summer recommendations. The CSE’s initial recommendations were made in April 2010, and were modified in August 2010. Impartial Hearing in the Matter of [Student] v. Central School District Page 15 Findings of Fact and Decision
In reviewing the testimony presented by the District witnesses at the hearing (and the supporting documentary evidence), it is clear that the CSE expended a great deal of effort and put a lot of thought into developing a special education program that would meet [Student]’s unique needs. Despite their best intentions, however, the CSE’s recommendations do not comport with FAPE requirements.
The evaluations considered by the CSE were not sufficient. The Hearing Record reflects that the CSE performed multiple observations prior to the March CSE meeting. The April 2010 IEP lists the following documents as being considered in the development of [Student]’s IEP: Observation, Therapy Observation, Progress Summary,
Evaluation, Therapy Progress Summary, Therapy Progress Summary, two Classroom Observations, and a Observation. Jt. Exh.
14 at 6-7. These documents were generated in February and March of 2010. The IEP also lists the following standardized test results: Peabody Developmental Motor Scales - 2 (March 2009, May 2009 and March 2010), Vineland Adaptive Behavior Scales (May 2009), Learning Accomplishment Profile-Diagnostic (May 2009), and Preschool Language Scale - 4 (April 2009), Jt. Exh. 14 at 4-5.
The CSE’s August 2010 recommendations were based on the same standardized tests, evaluations and observations, with the addition of the following August 2010 reports: behavioral specialist oral report, Parent oral report, Teacher Report, and Progress Summary. Jt. Exh. 2 at 5, 7.
The CSE did not perform an FBA or create a BIP as part of the IEP development process. The CSE’s evaluation also did not include cognitive testing (which is generally included in psychological evaluations) or standardized assessments of academic achievement (which is generally included in educational evaluations). The April and August IEPs describe [Student]’s academic functional levels in narrative form (with lists of the academic skills that he has mastered); the IEP does not include grade equivalents, percentile scores, or standard scores for academic achievement for mathematics, reading, writing, etc. The IEPs also do not include objective data (such as an IQ score or range) regarding [Student]’s cognitive function. Impartial Hearing in the Matter of [Student] v. Central School District Page 16 Findings of Fact and Decision The District asserts that an FBA and BIP were not necessary because [Student]’s behaviors did not impede his learning or the learning of others, and because [Student]’s off-task and self-stimulatory behaviors were easily redirected with verbal or physical prompts. IHO Exh. XIX at 22. Ms. completed an FBA in May of 2010. The FBA was provided to the CSE for consideration at the August 2010 CSE meeting. Dr. the District’s behavioral consultant and expert witness, dismissed the FBA as being of no value in developing [Student]’s program. It was not considered by the CSE in the development of the August IEP (since the FBA was not completed until May 2010, it was not available for the CSE to consider at the March and April 2010 CSE meetings). The CSE appears to have disregarded the FBA in the development of the August IEP. The FBA was not listed as one of the documents considered in the formulation of the IEP. See Jt. Exh. 2 at 8. Although the CSE did not utilize the FBA in the development of the August IEP, the document was discussed at the August CSE meeting. The discussion was primarily limited to Dr. critiquing the document and providing the Parent with a list of questions that she needed Ms. to answer about the document. The CSE determined that in the event that [Student] attended the District program, “the District’s behavioral consultant will collect data and observe [[Student]] during the first month he attends the District’s school to develop an FBA and BIP, if necessary.” Jt. Exh. 2
As per Ms. [Student] has a “history of stereotypical problematic behavior which significantly interferes with is academic, social and language development.” Jt. Exh. 11 at 1. This information was known to the CSE.
An FBA is “essential to addressing a child’s behavioral difficulties, and, as such, it plays an integral role in the development of an IEP.” Harris V. District of Columbia, 561 F.Supp. 2d 63, 68 (D.D.C. 2008). A CSE must utilize the results of an FBA in the formulation of a BIP to address a student’s problem behaviors. The failure to provide and FBA and develop a BIP to address behaviors that impede learning may be considered a denial of FAPE. See, Application of a Child with a Disability, Appeal No. 05-031. [Student] has a long history of distractibility and self-stimulatory behaviors. When distracted or engaging in self-stimulatory behaviors, [Student] is not available for learning, Behaviors which render him unavailable for learning by definition Impartial Hearing in the Matter of [Student] v. Central School District Page 17 Findings of Fact and Decision impede his ability to learn. Moreover, the CSE was on notice of [Student]’s these behaviors. It should have, but did not, perform an FBA and develop a BIP as part of the IEP development process.
There was a substantial amount of testimony at the hearing from both parties expert witnesses, and from [Student]’s service providers, about [Student]’s behaviors and the need to promptly address them in the classroom setting. There is no dispute that [Student] requires carefully crafted programs to address his behaviors. The various interfering and inappropriate behaviors cited at the hearing included distractibility, inattentiveness and difficulty remaining on-task, non-contextual vocalizations, finger twirling, etc. Dr. Dr. and Ms. stressed the importance of determining the function(s) of [Student]’s behaviors. Although the behaviors were being addressed by [Student]’s SEIT provider, [Student]’s behaviors did interfere with his learning. There is a logical inconsistency in the District’s position. One the one hand the District asserts that a behavioral consultant and full-day 1:1 teaching assistant is necessary during all classroom instruction. On the other, it argues that [Student]’s behaviors do not interfere with his learning. If [Student]’s behaviors did not interfere with his learning, there would be no need for a behavioral consultant or full-day 1:1 behavioral support. Based on these factors, I find that an FBA was a necessary part of [Student]’s evaluation, and a BIP is a necessary component of his special education program.
The IEP reference to a possible future FBA and BIP was no substitute for appropriately assessing and addressing [Student]’s behavioral issues during the IEP development process. The IEP made the FBA and BIP optional, rather than mandatory. Moreover, deferring the FBA and BIP for up to a month after [Student] started attending the program would have required him to start the program without necessary behavioral supports. The likely result would be regression. Under the circumstances, the CSE’s failure to perform an FBA and develop a BIP constituted a FAPE deprivation. Without an FBA and BIP, the IEP was incomplete.
Turning to some of the Parents’ other challenges to the CSE’s recommended program and placement, I find that the general education class size (25 students) was too large for [Student] The testimony regarding [Student]’s need to be in a class with no more than 15 Impartial Hearing in the Matter of [Student] v. Central School District Page 18 Findings of Fact and Decision students was clear and convincing. In addition, the IEP mandate for special class instruction for reading and math was overly restrictive in light of [Student]’s demonstrated ability to function in a general education class (with appropriate supports). The provision of related services as multiple “pull-out” sessions during the course of the school day compounded this problem. Although I have no doubt that the CSE’s recommendations were the result of a substantial amount of deliberations and were well-intentioned, the end result was, unfortunately, a rather disjointed program that would not have adequately met [Student]’s special education needs.
The August IEP recognizes that [Student] needs “a predictable routine and structured setting.” Jt. Exh. 2 at 7. The program recommended by the CSE would not have provided [Student] with the continuity and structure that he needed. Per Dr. testimony, [Student] would have had limited time in any one setting, would have been unable to form relationships or friendships with other students, and would have experienced difficulty in re-integrating himself into the classroom when he returned to his general education classes. Tr. 1662-1665.
In the CSE’s recommended program, [Student] would start each day in a general education class, followed by being removed from that setting for math instruction, for reading instruction, and for multiple related services. He would be required to adapt to and learn to function in several different social groups: the general education class, the self-contained math class, the self-contained reading class, and in his weekly 5:1 group session. Over the course of the week, he would be removed from the general education setting for seven or eight related service sessions. [Student] has substantial delays in the socialization domain. Rather than one consistent, daily classroom routine, he would be required to learn the different routines in the general education classroom and the special education classroom. Rotation between different classroom routines and different social groups over the course of the day would not provide [Student] with the predictable routine that he needs.
The August IEP did not include sufficient behavior consultant report. The two hours listed in the IEP would not provide sufficient time for the level of supervision that would be needed by a teaching assistant who had minimal or no prior background in providing instruction and interventions. Nor would two hours per week provide sufficient time for Dr. Impartial Hearing in the Matter of [Student] v. Central School District Page 19 Findings of Fact and Decision to develop the instructional programming that she described in her testimony and to provide the training, support, and supervision that the assistant, general and special education teachers, general and special education teaching assistants, and [Student]’s related service providers would need. In reaching this conclusion, I rely on Dr. testimony regarding the programs that need to be developed, as well as Dr. and Ms. testimony regarding [Student]’s 2009-2010 and 2010-2011 programming.
Based on the foregoing factors, I find that the District did not meet its burden of proving that the CSE’s recommendations for the period September 2010 through June 2011 were reasonably calculated to enable [Student] to receive meaningful educational benefits. Having reached this conclusion based on the foregoing factors, I need not address the other challenges raised by the Parents..
The Parents have met the first of the three Burlington/Carter criteria for reimbursement. Neither the April IEP nor the August IEP would have provided [Student] with an appropriate program in the least restrictive environment. The Program Obtained by the Parents
The Parents have the burden of proving that the program that they chose for [Student] was appropriate. In order to meet this burden the Parents must establish that the combined [Redacted] and home/community-based program was “reasonably calculated” to meet [Student]’s special education needs. The program need not be perfect and need not necessarily meet all of his special education needs. Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). The school need not have an IEP for the student, and need not employ certified/licensed special education teachers. The Prong II analysis is somewhat less stringent than the Prong I test regarding the appropriateness of the placement. See Frank G. v. Bd. of Educ. The least restrictive environment standard is also somewhat less stringent.
In order to qualify for reimbursement, the program and services chosen by the Parents must provide “educational instruction specifically designed to meet the unique demands of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” I find that the Parents have met this burden. The Parents submitted substantial Impartial Hearing in the Matter of [Student] v. Central School District Page 20 Findings of Fact and Decision testimony and ample documentary evidence in support of their position. During the 2009-2010 school year, [Student] had a similar program: general education class at [Redacted], SEIT support at [Redacted] and in the home/community, therapy, therapy, and therapy. The primary difference for the 2010-2011 school year was an increase in the amount of time spent in the general education class (from 2.5 hours per day last year, to 4 hours per day this year) and an increase in the amount of SEIT support (from 25 to 40 hours per week). The increased SEIT support is due, in large part, to [Student]’s need for 1:1 support during the longer school day.
A review and comparison of the various evaluations, progress reports, and reviews included in the Hearing Record reveals that [Student] made progress across all domains during the course of his placement in the combined the combined [Redacted] and home/communitybased program. See Jt. Exhs. 19, 20, 21, 22, 32, 33, 34, 35, 36, 49 and Parent Exhs. D, E, K and
S. In light of his progress during the 2009-2010 school year, as of the time the Parents rejected the CSE’s recommendations and decided to continue [Student]’s placement at [Redacted] with SEIT support, etc, there was every reason to believe that [Student] would continue to benefit from the program. Moreover, [Student] has, in fact, continued to make progress in the program.
The program implemented by the Parents was specifically tailored to meet [Student]’s special education needs. Moreover, his special education providers had regular team meetings in order to coordinate his instruction and make adaptations as appropriate. The home-based 1:1 component of the program is a necessary component of his program. It was not, as the District maintains, too restrictive. The home-based program was designed, in part, to pre-teach concepts and materials and to help him learn the skills that he needs to function in the general education class (e.g., observational learning, reducing interfering behaviors).
The Parents have met their burden of establishing that the program that they chose for [Student] was appropriate. It included educational instruction specifically designed to meet [Student]’s unique special education needs. The Parents have met the second of the Burlington/Carter criteria for reimbursement.
The determination as to whether equitable factors support tuition reimbursement turns, in Impartial Hearing in the Matter of [Student] v. Central School District Page 21 Findings of Fact and Decision large part, on whether or not the parents cooperated with the CSE. The appropriate inquiry regarding parental cooperation with the CSE is whether a parent’s actions, or inactions, interfered with the CSE’s evaluation, program development, and placement process. There is no evidence of the Parents having interfered with the CSE process in any way. They attended meetings, promptly responded to correspondence, provided all requested documentation, signed any necessary consents, and facilitated the CSE’s observations of [Student] at [Redacted]. The Parents also provided the CSE with timely notice of their rejection of the CSE’s proposed program and placement. In short, the Parents appear to have acted in good faith at all times.
The Parents’ subjective intent or preference for a non-public school setting does not constitute an equitable bar to reimbursement. There is no evidence in the Record to support the District’s contention that the Parent’s routinely withheld information or failed to share their concerns.
Contrary to the District’s contention, the cost of the program obtained by the Parents is not excessive. It is clear from witness testimony that the rates charged by [Student]’s service providers are at or below current market rates. In fact, the hourly rates are similar to the rates listed in the 2009-2010 Settlement Stipulation. See Jr. Exh. 15. The increase in the program’s cost is largely due to the increase in the length of [Student]’s school day. The time spent in a general education setting (at [Redacted]) nearly doubled, and with it the amount of school-based SEIT support increased accordingly.
Although the due process complaint requests five one-hour sessions of speech/language therapy, it appears from the Parents’ receipts, Exh. P., and from Ms. testimony, that [Student] has been receiving three 30-minute sessions per week of herapy. The reimbursement award should be limited to the program and services that [Student] has actually been receiving.
ORDER
Impartial Hearing in the Matter of [Student] v. Central School District Page 22 Findings of Fact and Decision
It is hereby
ORDERED that the Central School District shall reimburse the Parents for the cost of the educational program and services that they obtained for [Student] during the 2010-2011 school year as follows:
I. Tuition at the [Redacted] School in an amount not to exceed $ for July and August of 2010 and the $ per month for the period September 2010 through June 2011;
II. Forty (40) hours per week of SEIT services (provided at [Redacted] and in the home/community) at a rate not to exceed $ per hour;
III. Three 45-minute sessions per week of 1:1 therapy at a rate not to exceed per session;
IV. Three 30-minute sessions per week of 1:1 therapy at a rate not to exceed $ per session;
V. Two 45-minute sessions per week of 1:1 therapy at a rate not to exceed
$ per session;
VI. Two hours per week of parent at a rate not to exceed
$ per hour;
VII. Five hours per week of program supervision by a Board Certified Behavior Analyst at a rate not to exceed $ per hour; and
VIII. The cost of transporting [Student] to and from school and related service providers at the then-current mileage rate set by the Internal Revenue Service; and it is further
ORDERED that reimbursement shall be made by June 21, 2011 for any expenditures for Impartial Hearing in the Matter of [Student] v. Central School District Page 23 Findings of Fact and Decision which invoices and proof of payment was included in the Hearing Record as part of Parent Exh. P; reimbursement shall be made for the remaining 2010-2011 expenditures within thirty (30) days of the submission of invoices and proof of payment.
Dated: May 16, 2011
cer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the school district has a right to appeal this 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 forms can be found at the Office of State Review website: http://www.sro.nysed.gov/appeals.htm Impartial Hearing in the Matter of [Student] v. Central School District Page 24 Findings of Fact and Decision Impartial Hearing in the Matter of [Student] v. Central School District Page 25 Findings of Fact and Decision
PERSONS WHO APPEARED AT AUGUST 24, 2010 PRE-HEARING CONFERENCE
For the School District:
, Esq. Attorney
(By Telephone)
Esq. Attorney
(By Telephone)
For the Parent:
Esq. Attorney
(By Telephone)
Esq. Attorney
(By Telephone)
Paralegal
(By Telephone)
PERSONS WHO APPEARED AT SEPTEMBER 13, 2010 HEARING
For the School District:
, Esq. Attorney
Director, Office of Pupil Services
For the Parent:
, Esq. Attorney
[Redacted] , Ph.D.* Mother
[Redacted], Ph.D. Father Impartial Hearing in the Matter of [Student] v. Central School District Page 26 Findings of Fact and Decision
PERSONS WHO APPEARED AT NOVEMBER 15, 2010 HEARING
For the School District:
, Esq. Attorney
* Director, Office of Pupil Services
For the Parent:
, Esq. Attorney
[Redacted] , Ph.D. Mother
[Redacted], Ph.D. Father Impartial Hearing in the Matter of [Student] v. Central School District Page 27 Findings of Fact and Decision
PERSONS WHO APPEARED AT NOVEMBER 16, 2010 HEARING
For the School District:
, Esq. Attorney
* Director, Office of Pupil Services
, Ph.D.* Board Certified Behavior Analyst
For the Parent:
, Esq. Attorney
[Redacted,], Ph.D. Mother
PERSONS WHO APPEARED AT NOVEMBER 23, 2010 HEARING
For the School District:
, Esq. Attorney
Director, Office of Pupil Services
, Ph.D.* Board Certified Behavior Analyst
For the Parent:
, Esq. Attorney
[Redacted] , Ph.D. Mother
[Redacted], Ph.D. Father
PERSONS WHO APPEARED AT DECEMBER 2, 2010 HEARING
For the School District: Impartial Hearing in the Matter of [Student] v. Central School District Page 28 Findings of Fact and Decision
, Esq. Attorney
* Director, Office of Pupil Services
For the Parent:
, Esq. Attorney
[Redacted] , Ph.D. Mother
[Redacted], Ph.D. Father
* Therapist
(By Telephone)
* Pathologist
(By Telephone) Impartial Hearing in the Matter of [Student] v. Central School District Page 29 Findings of Fact and Decision
PERSONS WHO APPEARED AT JANUARY 20, 2011 HEARING
For the School District:
Esq. Attorney
Director, Office of Pupil Services
For the Parent:
Esq. Attorney
[Redacted] , Ph.D. Mother
[Redacted], Ph.D. Father
Therapy
(By Telephone)
Board Certified Behavior Analyst
PERSONS WHO APPEARED AT JANUARY 25, 2011 HEARING
For the School District:
Esq. Attorney
Director, Office of Pupil Services
For the Parent:
Esq. Attorney
[Redacted] , Ph.D. Mother
[Redacted], Ph.D. Father
Ph.D.* Educational Consultant, Board Certified Behavior Analyst Impartial Hearing in the Matter of [Student] v. Central School District Page 30 Findings of Fact and Decision
PERSONS WHO APPEARED AT JANUARY 31, 2011 HEARING
For the School District:
Esq. Attorney
Director, Office of Pupil Services
For the Parent:
Esq. Attorney
[Redacted] , Ph.D. Mother
[Redacted], Ph.D. Father
* Testified at Hearing (Note, the Student’s mother was called as a District witness and as a Parent witness). Impartial Hearing in the Matter of [Student] v. Central School District Page 31 Findings of Fact and Decision
JOINT EXHIBITS
| 9 | Demand for Due Process Hearing with attachments, 7/1/10, 24 pp. |
| 10 | 2010-2011 IEP, with cover page, 8/27/10, 11 pp. |
| 11 | letter to [Redacted] - August emails and Evaluation, 8/18/10, 1 p. |
| 12 | [Redacted] email to re 8/20/10 CSE, 8/18/10, 1 p. |
| 13 | [Redacted] letter to 8/16/10, 1 p. |
| 14 | [Redacted] letter to - Follow up to Resolution Meeting, /6/10, 1 p. |
| 15 | [Redacted] fax to with Email Evaluation Request and FBA Report, 8/6/10, 7 pp. |
| 16 | CSE Meeting Invite letter to Metz, 8/12/10, 1 p. |
| 17 | Resolution Agreement Offered, 7/30/10, 2 pp. |
| 18 | [Redacted] fax to with 2010-2011 Estimated Expenses, 7/21/10, 2 pp. |
| 19 | FBA Report, May 2010, 5 pp. |
| 20 | Questions on FBA by , 8/30/10, 2 pp. |
| 21 | [Redacted] letter to rejecting 4/16/10 IEP, 6/16/10, 2 pp. |
| 22 | 2010-2011 IEP, 4/16/10, 10 pp. |
| 23 | Stipulation of Settlement 2009-2010, 10/30/09, 4 pp. |
| 24 | CSE Meeting Invite Letter to 4/8/10, 1 p. |
| 25 | Therapy Observation, 3/12/10, 1 p. |
| 26 | Therapy Observation , L, 3/12/10, 1 p. |
| 27 | Evaluation - DDRS, , MS ED, BCBA,2/22/10-3/3/10, 5 pp. |
| 28 | Therapy Annual Review, L, 3/2/10, 3 pp. |
| 29 | Therapy Evaluation, , MS, DPT,3/2/10, 1 p. |
| 30 | 2010 Annual Progress Summary, , , 3/9/10, 2 pp. |
| 31 | Classroom Observation, J.Hahn, 3/1/10 and 3/4/10, 2 pp. |
| 32 | Recommendations for 2010-2011, undated, 1 p. |
| 33 | Observation, , 2/8/10, 1 p. |
| 34 | Classroom Observations at [Redacted], , MA/C.A.S.,2/19/10, 2 pp. |
| 35 | email to with letter, 2/9/10, 2 pp. |
| 36 | letter to [Redacted], 2/9/10, 2 pp. |
| 37 | [Redacted] letter to 2/8/10, 1 p. |
| 38 | [Redacted] email to 1/21/10, 1 p. |
| 39 | Prior Notice and 2009-2010 IEP, 9/1/09, 16 pp. |
| 40 | Therapy Annual Review, Stubecki, 5/26/09, 3 pp. |
| 41 | Educational Evaluation, , MS ED, BCBA, 5/11/09, 3 pp. |
| 42 | 2009 Summary, , 4/16/09, 2 pp. |
| 43 | Evaluation, M. Werczberger, MS ED, BCBA, 3/31/09, 3 pp. |
| 44 | Therapy Evaluation, , MS DPT, March 2009, 2 pp. Impartial Hearing in the Matter of [Student] v. Central School District Page 32 Findings of Fact and Decision |
| 45 | Therapy Annual Review, , /L Supervising, 1/28/09, 4 pp. |
| 46 | Curriculum Vitae Ph.D., May 2010, 5 pp. |
| 47 | Board Certification of BCBA-D, 12/31/08, 1 p. |
| 48 | Registration Certificate , expires 7/31/11, 1 p. |
| 49 | Teaching Assistant Certificate for [Redacted] , date not legible, 1 p. |
| 50 | Curriculum Vitae, , Ph.D., undated, 2 pp. |
| 51 | Behavior Intervention Plan dated 4/27/10 and revised 4/17/10?and attached Data Graphs (2), 4 pp. |
| 52 | Special Class K-1 Profile Elementary School, undated, 2 pp. |
| 53 | [Redacted] email to re: Resolution Meeting with fax cover sheet, 7/11/10, 2 pp. |
| 54 | Amended Demand for Due Process, 9/6/10, 8 pp. |
| 55 | District Response, 7/16/10, 4 pp. |
| 56 | District Response to Amended Due Process Complaint, 9/16/10 4 pp. |
| 57 | Educational Observation and Program Review Report, Ph.D., BCBA-D, SAS, 6/18/10, 16 pp. |
PARENTS’ EXHIBITS
| A | Letters to w/ fax confirmation, 3/4/10, 2 pp. |
| B | Family and Child Information Sheet, 3/24/10, 4 pp. |
| C | Letter from M.D., 11/4/10, 2 pp. |
| D | Observation Report, 11/2/10, 7 pp. |
| E | Educational Progress Report, 10/25/10, 4 pp. |
| F | Progress Report, 10/18/10, 1 p. |
| G | Progress Report, 9/27/10, 2 pp. |
| H | Summary Report: Preschool Student Evaluation, 9/27/10, 2 pp. |
| I | Letter from and , 9/20/10, 2 pp. |
| J | Progress Report, 9/1/10, 2 pp. |
| K | Therapy Annual Review, 3/2/10, 2 pp. |
| L | Resume, undated, 3 pp. |
| M | Curriculum Vitae, undated, 3 pp. |
| N | Resume, undated, 2 pp. |
| O | Resume, undated, 2 pp. |
| P | Affidavits, Invoice, and Proof of Payment, 2010-2011, 75 pp. |
| Q | Individualized Education Program 2009-2010, 5/19/109, 11 pp. |
| R | Data Graphs, 2010-2011, 5 pp. |
| S | Observation Report, 5/16/09, 28 pp. |
| T | CSE Meeting Transcript, 8/20/10, 104 pp. |
| U | CSE Meeting Transcript, 4/16/10, 96 pp. |
| V | CSE Meeting Transcript, 114 pp. |
| W | Audiotapes of 4/16/10 Meeting, 2 audiotapes Impartial Hearing in the Matter of [Student] v. Central School District Page 33 Findings of Fact and Decision |
X. Audiotapes of 3/19/10 Meeting, 3 audiotapes
Y. Audiotapes of 8/20/10 Meeting, 2 audiotapes
IMPARTIAL HEARING OFFICER EXHIBITS
| I | Confirmation of Impartial Hearing Officer Appointment, 7/15/10, 2 pp. |
| II | Impartial Hearing Officer Summary of Pre-Hearing Conference, 8/25/10, 1 p. |
| III | Memorandum from Impartial Hearing Officer, 8/25/10, 1 p. |
| IV | Notice of Hearing, 8/26/10, 1 p. |
| V | Memorandum from Impartial Hearing Officer, 9/8/10, 1 p. |
| VI | Memorandum from Impartial Hearing Officer, 9/12/10, 1 p. |
| VII | Letter Brief from & Associates, and annexed exhibits, 9/21/10, 50 pp. |
| VIII | Letter Brief (Reply from PC), 9/29/10, 19 pp. |
| IX | Letter Brief (Response) from & Associates, 10/4/10, 3 pp. |
| X | Email and attachments from & Associates, 12/21/10, 8 pp. |
| XI | Letter from , PC, 12/23/10, 1 p. |
| XII | Memorandum from Hearing Officer, 10/25/10, 1 p. XIII. Memorandum from Hearing Officer, 12/1/10, 1 p. |
| XIV | Memorandum from Hearing Officer, 12/22/10, 1 p. |
| XV | Memorandum from Hearing Officer, 1/20/11, 1 p. |
| XVI | Memorandum from Hearing Officer, 1/25/11, 1 p. XVII. Decision and Order on Pendency, 2/2/11, 17 pp. XVIII. Memorandum from Hearing Officer, 3/24/11, 1 p. |
| XIX | Memorandum of Law on Behalf of Central School District, 3/25/11, 46 pp. |
| XX | Petitioners’ Post-Hearing Brief, 3/25/10, 51 pp.[6] |
Footnotes
[2] The Impartial Hearing Officer’s written summary of the pre-hearing conference has been entered into the Record as IHO Exh. II.
[3] The District’s response to the due process complaint is included in the Record as Joint Exh. 47. It’s response to the amended due process complaint is included in the Record as Joint Exh. 48??? The extended compliance date in this proceeding is May 16, 2011.
[5] On August 20, 2010, after the District’s summer program ended, the CSE prepared a new IEP, which modified the previously-recommended summer program by adding a 1:1 teaching assistant for three hours per day. Jt. Exh. 2.
[6] The Petitioners’ Brief had a typographical error in the date of the document. The date was listed as 3/25/10; the correct date was 3/25/11.