NY IHO #2011-ih-176: Impartial... | Special Education Law

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IMPARTIAL FORMAL HEARING PURSUANT TO

EDUCATIONAL LAW SECTION 4404(1) AND

COMMISSIONER OF EDUCATION REGULATION

SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,

IMPARTIAL HEARING OFFICER

_________________________________ In the Matter of the Complaint of -DQXDU\ Student with a Disability Against the XXXXXXXXXXXX ___________________________________

PROCEDURAL POSTURE

This IHO was appointed to preside over an Impartial Hearing that was filed on or about September 1, 2010. This Hearing Officer was notified on September 17, 2010 that a resolution session was held and the parties were unable to reach a resolution to the satisfaction of the parents. By means of a letter dated September 20, 2010, the hearing process was initiated with a pre-hearing conference being conducted on September 27, 2010, in which tentative hearing dates were discussed. There was a mutual request for an extension on October 22, 2010, which was granted resulting in a compliance date of December 1, 2010. The hearing was conducted on November 18th and 19th, 2010. There was a subsequent scheduling order resulted in a record close date for the filing of transcripts and briefs for December 22, 2010. There was a subsequent request for an extension resulting in a compliance date of January 30, 2011. The record close date was subsequently extended to provide for the provision of an admitted document, same being received on January 4, 2011. Allowing the regulatory two week decision time, this Hearing Officer’s decision was due to be filed on January 18, 2011. During the course of the hearing, Joint Exhibits were prepared and admitted resulting in Exhibits J-1 through J-47. In addition, IHO ^[1] was the District listed Index; IHO 2 was the parent’s listed Exhibits.

SUMMARY OF FACTS

The parties stipulated to the admission of joint Exhibits 1-47, T20, with the exception of J-33, which was objected to, but subsequently admitted, T121.

The District’s first witness was A.P., the student’s current Special Education teacher in an 8:1+1 program that included seven (7) students, one (1) Special Education teacher, and two (2) T.A.’s. A.P. is certified birth-Grade Six (6) in Special Education and General Education with three (3) years experience at the District’s Fourth Grade self-contained classroom, having taught the student since September, 2010, T29. The student is on grade level in ELA and Math and is placed in a classroom which utilizes BIP using positive reinforcers, T30. The student pushes into General Education classroom for Social Studies, Science, with a Special Education Teaching Assistant into a classroom of seventeen (17) students, T30.

The witness reviewed J-25, the BIP dated March 31, 2010. The student’s ongoing behavior is his inability to move on and is exhibited by explosiveness and removal from the classroom when unsafe for students and adults, resulting in missing of classroom content area instruction, T31. The student demonstrates unsafe behaviors when he is fixated and refuses to be redirected, he then throws objects, pushes desks, T32, bangs chair, T34. There were two (2) incidences that resulted in two (2) suspensions, T37.

The witness next reviewed J-31, page 6, Discipline Referral forms of October 20, 2010. It was reported that the student was upset, and chose not to go to the quiet room, would not listen or follow directions, was yelling at the teacher, T.A., and interrupted instruction, prompted by an attempt to change colors on chart. The other incident escalated into pushing desks and chairs, and had to be restrained by Administrator T34.

Another incident of November 3, 2010, the student was yelling, the student was stubborn and would not transition, T35. Administer was called in to de-escalate. The student’s attitude is different from other students, and he is more “squirrely” and stubborn, difficult to move on.

The frequencies of behaviors vary daily, some days they are continual, with behaviors every few minutes. Other days it’s sporadic, T37. Behaviors are interfering with instruction. The student needs more resources than the Elementary Education certified Social Worker can provide, and needs more restraints with therapeutic resources, T37.

On cross, it was revealed that the student’s classroom was an E.D. program. There are some and some classified students, some of which are academically at grade level; some have behaviors or are significantly below grade level, T38. The students are the are . or , T39.

It was admitted that the student is friendly with other students, T39. The student pushes into Science, Social Studies, and Specials, i.e.; Art, and P.E. Three (3) other students do not push in because of behaviors or below grade level. It is admitted that because of the student’s articulation problem, some other students have difficulty understanding the student, T41.

The witness admitted the student in 2010, did not bite or head butt, nor has thrown objects, J-24, some of the F.B.A.’s targeted behaviors.

J-25, the B.I.P., targeted unsafe behaviors with interventions, i.e.; close proximity, reflective feelings and wait time, T44, when adults intervene to avoid unsafe behavior. There is also a B.I.P. imbedded into the classroom via the color chart. The antecedents are requests and directions by the teachers, T45.

The scope of interventions depends and varies from mirroring to close proximity, but is very situational. The successes of interventions are very situational, but behaviors serve as avoidance techniques; the student’s academic progress is impacted by behaviors and difficulty in learning coping skills, T46.

The quiet room is two (2) doors down from the classroom and is used to cool off, relax, vent, it is a safe room with a mat, and a yoga sitting ball. The student can discuss feelings, T47.

J-41, the witness reviewed the color chart which is the visual, emotional management system designed to allow the student to self-monitor behaviors. J-42 tracks behaviors September 7th, blue day with one (1) rule break with a few warnings, T49, the Special Education teacher gives the student a couple warnings before turning color, T52. There was a blue on September 17th, purple on September 24th, white on November 3rd with a suspension, T53. The witness testified that if student becomes upset, they may not turn colors because it causes his behaviors to escalate. The student’s color is reported in the student’s tracker, T54.

Even though the student is on medications, he needs more therapeutic intervention, he only gets counseling one (1) to two (2) per week, but not hands on day to day, T55. Training of personnel was done with all personnel that had direct contact with the student, but there is not enough staff, T55. The student gets counseling one (1) or two (2) times per week for social coping skills, improving behaviors. The student has difficulty using coping skills. He does not use self-pep talk; he likes to be in control of the situation. The student becomes very frustrated,

T57, does not like to be told what to do. At times ignores others as coping skill, T58.

At the parent teacher conference, the teacher reported there were no explosive issues, but the student’s behaviors are out of line with other students, he can’t move on like other students because of weak coping skills and he is explosive, T59. To move on through color chart, he would be white every day, T61. The student did not make appropriate choices to use quiet room, T61. J-22, the student can’t visualize needs and he does better in small group settings. The witness reviewed the student’s current IEP, and the SET reported the student was on grade level for Reading, Science, Social Studies, but not Writing, T62. The witness reviewed J-24, J19, which indicates the student’s deficits in articulation, which interferes with his ability to verbalize his frustration, T63. The witness was quizzed regarding the sending of mixed messages by inconsistently applying the color chart, T63.

The District’s next witness was ., the student’s Grade Special Education teacher for the 2009/2010 school year. She has a B.S. from SUNY Plattsburgh, M.S.D.A. from LeMoines, and is certified Special Education birth through Sixth Grade, T64. She has taught in the District’s Elementary for four (4) years in a Special Education classroom, T65. She testified J-13, the IEP for the

Grade with an 8:1+1 placement, with tow TA’s even though the IEP lists a 12:1+1 T65. The morning would start with morning work, reinforcing transitions in the General Education setting, stressing responsiveness in classroom group setting, T66. The class for 2009/2010 included students with behavioral issues, classified E.D., T67.

The student’s IEP utilized an imbedded B.I.P. which was modified and supplemented for the student, T67. L.B. participated in the team that formulated student’s B.I.P., J-15, based upon the F.B.A. J-14, January 11, 2010. L.B. implemented the B.I.P., T68. She also participated in the team which included the School Psychologist, School Certified Social Worker, which prepared the F.B.A. updated March 30, 2010, J-24, because the student was exhibiting more difficulties in behavior. This was the student’s third B.I.P., T69, which supplemented the classroom behavioral modification program.

Academically, the student received instruction 2:1, or 1:1, and worked at grade level, T70. Writing was an area of difficulty because the student did not want to, and would refuse to comply and would get upset, T71.

Behavior issues in the classroom include the student not following instructions, i.e.: close book, clean up toys, T71. The Special Education teacher would employ “wait time” when student would engage in obstructive behavior, ripping up things, move furniture, yelling, talking over adults, T71.

The witness reviewed J-26, the Behavioral Modification Monitor report. The nature of the student’s behaviors changed from January, increasing in frequency and intensity, T72. J-36, J-26, documented incidents with color changes on behavior tracking chart, T72. The Special Education teacher would reset green after playtime, T73. During the course of the year, there were disciplinary referrals because of unsafe behaviors requiring office intervention, T73. The student would engage in physically violent behavior, when unhappy with change of colors, the student would pull on adults, pull things off wall, grab teacher’s clothing, fighting, kicking, hitting, climbing up shelves, crawl under things, T74. The student’s behavior was more significant than other students, more physical. The student’s behaviors would disrupt the classroom for everyone, T74.

The Special Education teacher reviewed J-27, disciplinary reports, and J-28, the graph of the student’s behaviors which indicated there were more behaviors by the student in the afternoon, but vary from day to day, T76, there was a lot of variability day to day, but afternoon was worse, T77. The witness reviewed J-29, the B.I.P. timeline, and revised the March, 2010 B.I.P. because of the student’s physical violence, T78. The witness reviewed J-27, the disciplinary reports from February 9, 2010, where the student had to be removed from Art class, and tried to force his way back into the classroom, which was very disruptive, T78. There was an incident on March 3, 2010, where the student was pushing, pulling, climbing on shelves. Also, on March 15, 2010, there was hitting and head butting incident, T78.

The witness and others in contact with the student were trained to restrain, T79. The witness spoke with parent and found behaviors were also occurring at the home, T80. The witness reviewed J-19, the Special Education report tracking the student’s behaviors over the year, T80. The B.I.P. would work at times, but interfered with instructions in the classroom and related services, T81. The witness felt that the student needed additional resources in the form of more therapeutic component because they were working hard to meet the student’s needs, but were not succeeding, T82. The witness attended the annual review CSE meeting. The placement options were discussed which were to continue the placement at Elementary School, or the The Principal at the program participated by phone, felt the student was appropriate for the program, offering more therapeutic support, immediate coordination, and crisis management, T83. The witness acknowledged the student had traits of T84.

On cross-examination, it was revealed that the student’s IEP placed the student in a 12:1+1, but the District created a third class, and reduced class size to 8:1+1, which was reflected in a later IEP, T85.

The Grade SET classroom teacher was in reality, a 7:1+2 T.A., T86. The second T.A. would push-in to the General Ed. classroom, with three (3) or four (4) students. It was admitted that the student benefitted from the push-in with responsiveness, greeting, eye contact, and speech and social skills, T87.

The F.B.A. J-14, of January 10, 2010, reported the student’s speech difficulties, T87, and the student’s speech was not always intelligible, T88. Also, the witness explained use of teacher meeting card and break card, T89. The B.I.P. was changed to add proximity of adults to the student, look for success, and replicate those successes, T90. The student’s behaviors were improved when with a preferred adult, i.e.; Special Education teacher, social worker, but still the student would get upset in the classroom. The yelling upset other students, affecting peer relations, T91.

The witness reviewed J-39, the progress report. She was responsible for goals 1 and 3, providing input to for goal 5, but not goal 2, T93. The student went from . to from the third to fourth quarter for goals 3 and 5. The student worked with the student in classroom get along time. The student would not use Smartboard appropriately, T96. He knew about teacher meeting card around Special Education teacher’s neck, T96. J-26 was the basis for the F.B.A. /B.I.P., was revised after looking at individual difficulties determining causes of behaviors, looking for consistencies lies, but could not find any, T98. The F.B.A. by outside consultant was done before parents were reviewing meds with providers to control behaviors, T99.

J-25, walkway was specific to an approved location designed to de-escalate behaviors. The J-26 was typed from the Special Education teacher’s handwritten notes, but was not shared with parents, J-101. The chart was for self-monitoring to allow the student to change behaviors, but often did not change behaviors.

The District’s next witness was the school licensed, certified Social Worker with six (6) post-doctorate hours in clinical social work with an LCSWR certification, T110. She has been at the District elementary building for six (6) or seven (7) years, T111. She is responsible for 1,100 students at concentrating on s a Special Ed. classroom providing parent counseling, crisis management, social skills development, T112.

She started providing services to the student at age five (5) with crisis management because of troubles in the classroom, T112. She also provides consult with classroom teachers and Special Education teachers on the FBA, and BIP team. The student placement went blended to more restrictive 8:1+1, T113.

The witness reviewed J-4, the FBA for Grade and Grade and the BIP during 2007/2008, T114. The witness provided counseling. She also reviewed J- 14, the FBA for 2009/2010 school year dated January 11, 2010, which was upgraded because the student was in a lot of distress. Counseling focused on coping strategies, play and peer and adult interactions, T116. The March, 2010 FBA, J-25, was done because of increased behaviors. The coping strategies were effective when not totally escalated beyond 2/3 or 3/4 of the way, T117. The witness did not observe any behaviors in sessions, T117. There were behaviors in the classroom during get along time, where the student would refuse to stop because of overlays. They utilized times and visuals, and the student become passive- aggressive. Then would escalate to unsafe behaviors. The student demonstrated traits of ., ., and . with uncontrollable rage without antecedents, T118.

The witness spoke with the private psychiatrist and reviewed the report. There was an alleged HIPA FERPA violation on behalf of the parent against the hospital, T119-T125.

The student’s behaviors interrupted instruction when refused to move on. The student exhibited cyclical periods with behaviors occurring during December and May; however the student was currently doing better, T126.

The witness reviewed progress survey, J-18, T127. The witness was present at the CSE meeting discussing placement at Elementary or the

T127. The student needed a more restrictive placement with greater mental health component, T128. In the school building, more education mental health would assess you need to flip-flop the ratio for this student, T128.

The witness discussed lack of progress of the student with morning coping skills. The student was plodding along without generalization, T129. The witness also testified that the student reported during counseling sessions, that he was attracted to and because he was mad at the grandmother, who was babysitting him, T131.

On cross-examination, the parents’ attorney explored the importance of having consistent consequences, especially when employing the color and changing colors when breaking rules. Also, the need for positive reinforcements with the student, T137.

The witness reviewed J-46, the proud tree, which utilized positive reinforcement strategies, T139.

The student’s behaviors escalated in October when the witness was brought in to diffuse the student’s behavior, was not able to because the student had escalated too far, T140. The witness was familiar with Dr. J, Dr. M., the student’s treating providers, T142. The witness explained the Centralized Committee that included participants from non-District day treatment programs, T144. The Centralized Committee recommended the and the CSE adopted the Centralized Committee recommendation because of on-sight behavioral interveners. This was necessary because the student’s behaviors were interfering with the educational process, T148.

testified as the school physician, who attended U.B. and Oswego, with experience at before working at the District herein. At her prior position, she worked on integrating students out of placement back into public schools, T151. She has experience preparing FBA’s and BIP’s, T152.

She was concerned that the student’s behaviors were getting more aggressive in nature. The school psychologist reviewed J-14, view data observed the student. She has been in the student’s classroom in Grade 12 times, and in the Grade, about 3 or 4 times, T154, in Social Studies, with the student 1 time.

The student’s behaviors were getting more aggressive, requiring disciplinary referrals, T158. Behaviors changes, the goal was to ensure safety of adults. The witness prepared psych evaluation in January, 2009, but there was no outside consultant because it was previously done.

The witness reviewed J-32, the educator’s timeline based upon a record review which tracked student’s escalating behaviors over time, T166.

The witness explained the program which educates students with medical management and wraparound with parent providing additional on-sight support, T162.

At the February, 2010 CSE meeting, the representative participated by phone, indicating the student was appropriate. The other option was Elementary, but the CSE felt it could not address the student’s needs, T164. Also the program was academically appropriate, T166.

On cross-examination, it was revealed that the student had a working relationship with Speech & Language Pathologist and the Social Worker during get along time. The student’s speech created only a slight issue, T168.

The witness reviewed J-14, 24, 32. The day treatment program is more intensive than the because of a more psychiatric component. The has a trained staff using a fully immersed behavior modification program.

The District’s last witness was ., from the placement, who also participated in the centralized committee’s meeting, who recommended that the student was appropriate for the placement. He has a B.S. in Industrial Arts, and an M.S. in Learning Behavioral Disorders, Advanced Study Certificate. He is certified in Industrial Arts, Learning and Behavioral Disorders in Special Education, and an S.D.A. He has been employed by since 1975, 13 years as a teacher, TT4. (TT refers to day two of the hearing because the transcript did not contain continuous pagination)

As a CETAS member, which stands for Consultation Educational Teaching Assistance Services, provided behavioral support component for Districts, the witness provided behavioral plans and support for students with challenged behaviors, workshops and staff development.

The Centralized Day Treatment Committee consists of representatives from day treatment providers and acts a pre-screen to ensure the student requires that level of support provided by a day treatment program, TT6. The day treatment program has a high level of therapeutic services, interventions with small adult to student ratio, providing psychiatric, psychological and childcare services, TT7. To ensure consistent therapeutic treatment, the students do not receive services from their private providers. The witness, ., provided a CETAS consult, J-10, for the District to provide behavioral support for the student. He met with staff, obtained areas of concerns, observed the student at Elementary, but did not observe the described behaviors. The consult developed interventions, TT8. The student was subsequently referred to the by the Centralized Committee, TT8. The student was not accepted into the program because the intake process was not completed by the parents, TT9.

The witness testified in a conclusory fashion, that there were other students in the program of similar age and levels of cognitive function, TT11. The program consists of K-10 Grades, and is an academic program that the student would be grouped accordingly. After the intake process is completed, the student would be matched in a classroom, TT11. Also, the goal is to return the student to the home district, TT12.

It was revealed that the classrooms in the program have a combined overlapping and a separate overlapping Grades class, to assist in providing appropriate academic levels, TT21. is different because Elementary because its staff is highly trained in behavior management and crisis response and in de-escalation strategies. There are five (5) Social Workers to sixty (60) students with staff availability at times of crisis, TT25. The goal is to return the student to home District.

In referencing J-10, the CETAS Evaluation, did not speak directly with the parents, though protocol is that they would be notified. At times, the CETAS is prepared by the multi-disciplinary team. The Speech and Language Pathologist did not assist in the preparation of this report, TT14. There were no follow-up to determine if J-10 recommendations were implemented. testified that there is no need to follow-up in order to see the student exhibit the behaviors. The program’s recommendations were to allow the student specific choices, to guide the student toward desired behaviors, including academic tasks, TT18. The list explained the pre-task detailed instructions and prompts were important to avoid behaviors, avoiding intervention. Another recommendation was to use a jigsaw note for positive reinforcements that if the student acts appropriate in each class, he gets pieces of a note to the parents, and thereby completing the puzzle, TT19. At the witness explained the classrooms are 8:1+1, with many students having 1- phased back into Elementary initially for two (2) hours, which was increased by an hour for good behavior for a 15 school day increment. The mother reported that by the end of the school year, the student was in school a full day, TT36. The mother never saw, nor was informed of the consult, but felt the student was doing great. The mother requested a 1:1 aide, but the CSE rejected her request, TT39.

The parents had a psychological evaluation performed over the summer of 2009 provided to school representation, Mrs. the school psychologist from

Elementary, who performed a triennial review. Dr. S recommended a 1:1 aide. There was a belief that the student was , TT40. The IEP of July, 2009, from the removed O.T. was later added, TT40. The parent’s request for 1:1 aide was rejected by the CSE. The Mother felt the student did very well in Grade.

The IEP from January, 2010 CSE adjusted the student’s program to reflect the existing 8:1+1, which the student was placed in since September, 2009, and added O.T.

The Mother reported that the parent tour of the program, when members of the CSE felt it was an appropriate program. The Mother testifies she was informed that the students were two (2) to three (3) years below grade level, and she was not allowed to attend a centralized day treatment committee.

The Mother felt that the student was given inconsistent response from the

Grade teacher, via the color chart, J-25, J-37, TT51. The Mother challenged the quality of the disciplinary system, failure to report disciplinary slips, failure to report antecedents. Nor did she know how the student got to purple. This would have assisted, identifying if it was impulse control, ., or . The parent was never provided teacher L.B.’s, though asked for more detail. The parent did not agree with the March 31, 2010 CSE recommendation for program, because academic levels were below student’s and lacked good social involvement.

Currently the student is in with LINK, TT50, through Hospital. The student only saw Dr. for two (2) to three (3) months, who had working diagnosis of The student is currently in outpatient counseling at LINK through and has an appointment for LINK psychiatrist on January 20, 2011. The mother felt the student did well in his extended school year program by told the Mother the student was doing well.

On cross-examination, it was revealed that the mother felt the student had a good summer, TT52, even though the program was run with some District personnel, TT54. It was further explored that the CSE considered the placement, but recommended . Elementary placement based upon the parent’s request, TT55. The subsequent CSE recommended placement at the program. The parents disagreed with the recommendation and did not follow through with the intake meeting, TT58.

The witness explored J-36, the IEE from Dr. which recommended a 1:1 aide. This recommendation was never inputted, TT59. This report was provided to District personnel, TT57. There was a psychiatric evaluation in December of 2008. It was not provided to the District because the mother did not agree with the evaluation. There was an evaluation by Dr. the student needs were beyond the scope of Dr. the pediatrician. The student needs Dr. for med management, TT62. The student now going through LINK, but eventual referral to a psychiatrist. The mother did not provide J-27 to Dr.

ISSUES

The District argues the following, the student’s classroom Special Education Teachers, School Psychologist, and the Social Worker testified that the student should be placed in the placement. The only contrary evidence was from the mother who spoke in favor of continuing the placement at the District Elementary School. The District also argues the decision was not a rash decision, and delayed implementing the placement at the behest of the parents. The District also argues that parent is wrong, that the CSE did not defer its judgment to that of the Centralized Day Treatment Committee, but considered the expertise of the Centralized Day Treatment Center about what placement would be appropriate for the student. The Principal of the placement participated at the CSE meeting by telephone stating that the student was appropriate for its program. The District argued that the student was in a small adult to student ratio i.e. 8:1+1, providing close supervision and “no shortage of adult supervision”. The District also argues that testimony from the witness from testified that the student would be appropriately grouped.

The parent argues that the District’s IEP placement at the placement is inappropriate because of LRE considerations that the student progressed obtaining an educational benefit from the program despite the District failing to implement two (2) key supplemental aides and services of a 1:1 aide, and an outside behavioral consultant to help deal effectively with the student’s behaviors. Also, that the student is academically at grade level and achievement is consistent with the student’s cognitive level. Also, the student’s behaviors impede instruction at most a minimal amount.

The parent also argues that it was improper for the District to recommend the placement prior to the accepting the student into its program.

DECISION

The District bears the burden of proof regarding the appropriateness of the CSE’s recommendation.

Special Education teachers testified the student needed additional support and that the 8:1+2 program could not meet the student’s needs. A review of the student’s placement revealed that the student’s program became more restrictive from a 15:1 Special Education and inclusion class for Grade. In Grade, the student was placed in a 12:1+1 and the student then went into an 8:1+1 self-contained class.

The student’s pendency IEP placed the student in an 8:1+2 which had two (2) T.A.’s. One T.A. would push into some of the content areas classes leaving one T.A. and a Special Education teacher in a self-contained classroom with the class size reduced by the three students that push-in, leaving 1 SET, 1 TA for four (4) students for a 2:1 ratio. A review of Exhibit J-27, evidences an ongoing pattern of disruptive behaviors.

IEP J-22 recommended an 8:1+1 special class with several students having an 1:1 aide to be placed at the program. J-22 for March 31st-June 30th, was never implemented because of an out of school suspension where the student’s school time being increased for good behaviors based upon a set schedule. J-23, September, 2010 until June, 2001, this led to a loss of a substantial amount of instructional time, was never implemented for two (2) reasons, the due process hearing request filed on September 2, 2010, and the fact that the parents never participated in the intake process.

J-23, page 8, the comments from the Principal and describing the SED program stating “… this is part of our program on skill, behaviors, and appropriate and non-appropriate behavior. We have counselors in the classroom throughout the week”.

The mother was critical of the performance of , the Special Education teacher, by not consistently applying the behavioral color chart. Although the District staff was trained to deal with the student’s behaviors, District personnel have less background training and experience than the Behavioral Specialists at the program.

The training background and numbers of Certified Social Workers and training background experience of staff and teachers were the major differences in the District’s program compared to the program. In addition, the staff would take a more proactive approach to the student’s medications. It should be noted that the actual makeup of this class is not disputed although D-17, D-22, and D-23 list an 8:1, 8:1+1, and 8:1:1, respectively. However, according to the testimony of , the representative, there are additional adults and many of the students have a 1:1 T.A., and 1:1 aide.

A closer review of the student’s progress is necessary to determine if the District based program was appropriate.

The District Certified Social Worker testified that there exists a need to prevent the student from fully escalating in order to control his behaviors and limit the loss of instructional time, J-11, J-18. J-11, counseling progress reports were intermittent due to homebound instruction. The student has not met his IEP goal for initiating, sustaining and turn-taking for three (3) complete exchanges at this time. The student has also not met his goal of learning three (3) coping skills to use when emotionally reactive. A review of J-18, progress report of March 23, 2010, indicates that the student has made significant progress in his peer relationships. He has gained greater ability to reciprocal with peers. The student continues to struggle with his characteristics. He continues to need assistance through logic; a strict limit setting/behavioral management planning when refuses to move on. Once heightened emotional reactivity takes over, he can become extremely stubborn and angry. His refusals can lead to physical tantrums, (unsafe, aggressive behaviors and verbal pleading/negotiation) that have necessitated removal to a quieter area or physical restraints.

A review of J-39, the progress report of 2009/2010, showed progress satisfactory or some progress in the majority of the quarters of the IEP goals. It was reported that out of the twenty (20) marking periods, there were two (2) not progressing satisfactory grades.

There were no goals written regarding the safety of the student or other students or adults. This type of conduct is assumed for all in the school. Needless to say, it is not disputed the student failed to meet appropriate levels of conduct. It is not disputed that there were ebbs and flows of the student’s behaviors, but that is different than saying the student progressed.

The parent was critical of the District because it failed to have an FBA performed by an outside evaluator showing the student’s current condition. The District prepared an FBA in October, 2008, February, 2008, January, 2009, and March, 2010. There were no challenges that the FBA’s were lacking in any required element. The NYSED July, 1998, field memo provides Guidance on Functional Behavior Assessments for Students with Disabilities. The common thread through the FBA’s was the antecedents were instructional direction, or directions to maintain classroom control. Both of which would be clearly impossible to remove or avoid, especially in light of the student’s diagnosis of ., ., ., and . I find the FBA’s contained all of the required elements.

It should be noted that the parents were critical of the observations and recommendations. The parents were critical that the recommendations of cognitive behavioral strategies were not implemented. Also, found the student’s was a result of underlying anxiety and cannot be addressed simply through behavioral strategies and opined the behavior based approach not appropriate notwithstanding the 6 on staff CSW. It is noted that the District’s Elementary was more behavioral based modification program with less therapeutic intervention than the program.

The weight of the testimony support a finding that the District based 12:1+2 program, J-13, in the 8:1+2 program of J-17, was not appropriate and did not eliminate the student’s behaviors.

The parent argues that the District CSE improperly delegated authority to the CDTC. In considering ultimate placement, the CSE has an obligation to investigate possible alternative placements. The District considered an out of District placement at the previous CSE meeting. The inquiry to CDTC is similar to investigating day treatment or residential options to determine whether the student would fit the possible placement and whether the placement is appropriate for the student.

The parent was critical of the placement over concerns regarding provision of related services, Speech & Language. It is a listed related service on the student’s IEP for four (4) weeks bi-weekly for 30 minutes in a 5:1 setting. The parent questions the intensity of the delivery of the related service but it’s the same as in J-22, and J-17, the IEP’s for March 31, 2010, and January 14, 2010, respectively.

The parent also objects to the out of District placement based on LRE considerations. LRE is defined in Part 200.1(cc)

"(cc) Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home."

There was testimony that the student behaved better when accompanied by a preferred adult. The CSW did not observe any behaviors initiating in her presence. The District responds that there was a close adult to student ratio, at times, two (2) students to one (1) adult.

The thrust of the District’s position was based upon the testimony of the two (2) SET’s, the School Psychologist and the CSW, was that the student needed more therapeutic setting implying that an aide did not possess the skill training or background to appropriately manage the student’s ., ., ., and .

A component of this issue concerns whether the student would be appropriate at the , which is approximately fifteen (15) miles from the home District, so this distance not appear to be a concern. The class ratio does not appear to be much different from the District Elementary program. The parent has raised an issue regarding exposure with lunch and other specials, which is listed on the IEP with general population. This is misleading since the placement is in a Special Education building, so the student does not interact with General Education students. The District’s program did provide for push-in into some General Education classes. The student was to be transported in a small bus, which does not provide for interaction with General Education students.

It is not disputed that the District did not attempt to utilize a 1:1 aide to assist the student in either the General Education in District based building or the SET self-contained classroom.

Related services is defined in Part 200.1 (qq)

"Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school nurse services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students.

Although a personal aide or a 1:1 aide is not a listed service, it falls within the realm of support service. Part 200.1 (bbb) states:

"Supplementary aids and services means aids, services, and other supports that are provided in regular education classes, other education-related settings and in extracurricular and nonacademic settings to enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate in accordance with the least restrictive environment.”

According to Part 200.1(hh) Supplementary school personnel means a teacher aide or a teaching assistant as described in section 80-5.6(a) through (d) of this Title.

Section 80-5.6. Supplemental school personnel: states

"(a) Teacher aide. A teacher aide may be assigned by the board of education to assist teachers in such nonteaching duties as: (1) managing records, materials and equipment; (2) attending to the physical needs of children; and

(3) supervising students and performing such other services as support teaching duties when such services are determined and supervised by teacher."

A teacher aide are commonly called class room aide or if assigned to a individual student a personal aide or 1:1 aide

The parents had a psychological evaluation J 36 preformed in July and August of 2009 by S, PhD, a non district evaluator which recommended a 1:1 aide, however this recommendation was not implemented. The parent claimed this was provided to district personnel in Fall of 2009. It is not listed in J 17, 22, or 23 as an evaluation considered by the CSE. J 36 page 12 recommendation 1 states: The addition of a one -on-one aide may provide (the student) with the assistance he requires to be successful in the classroom. It is believed that this individual may be able to intervene early if ( the student) begins to become agitated, avoiding a escalation of behaviors" At the time of this evaluation the student was attending the District's Road Elementary building is a self contained class listed J 13 as a 12- 1+1 special class. There was testimony that the 12:1+1 was subsequently split into two 8:1 + 1 classes, however this was reflected in an amended IEP until J17 01-14- 2010. It is unclear if the 8:1+1 self contained classroom would satisfy the recommendation of A review of J23 and J24 revels the following PLEPS (The Student has recently demonstrated difficulties with following adult driven directions and activities. During ELA he has either refused to complete the activity provided or he has altered it to his own way of doing things. He is also showing difficulty transitioning from one activity to another until he is finished to his satisfaction. Since February redirection or “moving on" has become difficult for (the Student). (The Student’s) behaviors have escalated to the point he is not consistently staying safe in the learning environment. He has moved furniture, run from the room, disrupted the learning of others by yelling, pulled pins or staples from walls, locked himself in bathroom and become physical with teachers and administrators. He has needed to be restrained on several occasions for the safety of himself and others."

The Management needs section re[ports the difficulties that the student t was having in the fall of 2008 and reports that since February of 2010 there has been a similar pattern with regression in his abilities to make safe choice and comply with adult requests. The student has refused to stop self directed tasks that are not desirable as well as. He has become physical with staff on numerous occasions, hitting kicking, biting, head butting and hang on arms and legs of different adults. It is difficult to redirect due to lack of regard for consequences.

Also listed on the IEP under other options considered is a general education setting without support services which was rejected because the student needs additional support due to management needs. As was stated in SRO 92-15:

“Federal and State regulations require that, to the maximum extent appropriate, each disabled child must be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a] [1]).

A child may be removed from the regular educational environment, only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be satisfactorily achieved (34 CFR 300.550 [b] [2]). It is not necessary to establish that the child will learn at the same rate, or master as much of the regular education curriculum as his non-disabled peers, in order to place the child in a regular education class

(Daniel R.R. v State Board of Education, 874 F. 2d 1036 [5th Cir., 198]9). The relevant inquiry is whether the child can achieve the goals of his IEP within a regular education program, with supplementary aids and services (Application of the Board of Education of the Schalmont Central School District, Appeal No. 90-19).”

Impartial Hearing Decision