Impartial Hearing Decision

NEW YORK STATE DEPARTMENT OF EDUCATION

______________________________________________x In the Matter of the Impartial Hearing Brought by the Parents of a student with a Disability, Case & the School District, Pursuant to the I.D.E.I.A. _______________________________________________x Hearing Officer’s Finding of Fact and Decision Introduction This hearing was requested on September 28, 2010, by Attorney Esq., attorney for the parents of student, STUDENT The hearing was requested, pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.I.A.), § 1415 (f) claiming that STUDENT was denied a free, appropriate public education (FAPE) in the 2010/11 school year and seeking compensatory education and other relief. I was appointed to hear the matter by the School District by letter dated October 4, 2010, and following an unsuccessful resolution period a hearing was scheduled for December 13, 2010.^[1]

On December 13, 2010, the hearing commenced pursuant to the I.D.E.I.A. at 20 U.S.C. §1415 (f). The hearing continued on March 10, 2008, and ended on April 15, 2011 after eight days of hearing.^[2] Appended to the record are lists of the persons in attendance and the documents received in evidence. Background3 Procedural History

This is the third impartial hearing regarding STUDENT since the 2009/10 school year. The first hearing request, dated July, 2009 (Redacted) See Exhibit 27 [434-443]) The first hearing resulted in a Consent Decree providing for among other relief, a re-evaluation of the student, a new program and placement recommendation, and compensatory services. See Exhibit

Following a pendency order in the first hearing interim special education and related services were commenced by the School District for STUDENT consisting of (Redacted), which were provided in the student’s home. The parents (Redacted) (See IHO 1/31/11 Decision at 18- 20) The student was then evaluated at the Clinic pursuant to the Consent Decree and the student’s special education teacher and aide as well as the parents received training regarding appropriate instructional methodology to address Student’s (Redacted) needs. An IEP was developed for STUDENT on January, 2011 which recommended a placement in the School District’s public school in a 6:1:1 class with various related services and (Redacted). Exhibit 8 The student commenced attending the School District’s recommended placement in the Public School on January 22, 2010, and remained there (Redacted) SRO Appeal No.

On April 22, 2010, the parents requested a second due process hearing before IHO challenging inappropriate implementation of the January, 2010 IEP, requesting properly trained personnel to implement the IEP, compensatory services, and other relief. Student (Exhibit 3) The

3. The background information herein serves only as a brief summary for contextual reasons. The facts summarized in the State Review Officer Decision (SRO), Appeal No. from the parents second due process complaint notice hearing commenced on May 17, 2010 and concluded on October 22, 2010 after 14 days of testimony. The student (Redacted) See SRO Appeal No at 19-20; 27

The hearing request in this matter was filed on September 22, 2010. At the time of the request STUDENT (redacted) The School District arranged for home instruction as requested by the parents on a temporary basis. (Tr. 1364-65; Exhibit 24, pg.423; Exhibit 29 at 485) Instruction began on October 18, 2010, until (Redacted) See Tr. 1399-1401

Testimony commenced in this matter on December 1, 2010.

During the course of this hearing, the IHO Decision was rendered in favor of the School District regarding the parents’ second due process complaint. Thereafter, the School District moved to dismiss this matter claiming that res judicata and collateral estoppel prevented re-litigation of claims that were or could have been raised in the parents’ second due process complaint regarding the provision of FAPE in 2009/10 school year, including pendency. The School District moved to dismiss the parents’ claim in this proceeding that the student was denied FAPE in the 2010/11 school year because the issue was not ripe. (See School District 2/04/11 Motion to Dismiss and Memorandum of Law) The School District’s motion was denied. See April 12, 2011 Interim Order & Decision on Pendency.

At the continuation of the hearing on February 14, 2011, the pendency determination in the April 12, 2011 Interim Order & Decision on Pendency was stayed pending an opportunity for the School District to submit on the issue and for a parent reply, if any. See Tr. 1476-78

Testimony continued in this proceeding over eight days concluding on April 15, 2011.

(infra) provides a comprehensive factual account of what occurred regarding the prior proceedings up to June, 2010 as does the Finding of Fact and Decision of IHO , dated January 31, 2011 (IHO .1/31/11 Decision)

On April 29, 2011 the SRO issued Appeal No. reversing the IHO 1/31/11 Decision except for the issues of the School District having provided the student FAPE from January 28, 2010 to March 10, 2010 and the School District’s failure to provide STUDENT with FAPE from March 10, 2010 to June 30, 2010, which issues were not appealed. The SRO awarded compensatory additional services in the form of (Redacted) services from March 10, 2010 through June 10, 2010 when the School District had a new special education teacher in place to resume services for the STUDENT. The award was made conditional on good faith efforts of the parents to work cooperatively with the School District in (Redacted) SRO Appeal No. pgs. 25-27

On May 19, 2011, the School District moved to annul the April 12, 2011 Pendency order on the basis that the issue was moot as a result of SRO Appeal No. (pg. 28-29) having vacated IHO ’s pendency determination in the IHO 1/31/11 Decision. The parents opposed the School District’s request. See 5/19/11 School District’s motion regarding pendency and 5/23/11 Parents’ response. Position of the Parties School District The School District contends that the parents’ procedural claims do not constitute a violation of FAPE for four reasons. The CSE was properly constituted when it made recommendations for the student for the 2010/11 school year. The record reflects that the parents were provided a full opportunity to participate in CSE meetings making recommendations for the 2010/11 school year, and all of the parents’ concerns were addressed at the meetings. The parents’ request to turn over requested documents does not constitute a violation of FAPE under the circumstances, and even assuming the parents did not receive a copy of the student’s IEP before the first day of school for the 2010/11 school year, that is not a basis for a finding that the student was denied FAPE.

The School District contends that the IEP recommended for STUDENT for the 2010/11 school year was designed to offer the student FAPE. The parents do not challenge the August, 2010 IEP on substantive grounds. The parents misconstrued that the 2010/11 IEP was to be implemented in the special class, special school program at Non-Public School when in fact the recommendation was for the IEP to be implemented in the School District.

Any procedural violations alleged by the parents regarding the development of the August, 2010 IEP are dimininis, and not relevant to the fact that the IEP recommended for STUDENT was substantively appropriate.

The student made progress when instructed under the pendency IEP. Moreover, the School District was prepared to implement the student’s pendency IEP in the School District with qualified staff had the parents consented to the program and placement.

In addition to offering STUDENT a FAPE for the 2010/11 school year, the School District met its obligations under the I.D.E.I.A. to provide the student with pendency. The pendency IEP from January, 2010 is essentially the same as the 2010/11 IEP. Personnel were hired by the School District and were in place to implement the pendency IEP had the parents permitted the student to receive the recommended services.

The School District contends the parents are not entitled to the relief they seek in this matter. The parents are not entitled to equitable relief because of (Redacted) The corrective services requested are inappropriate because the student does not require a more intensive program than was recommended, and equity does not support a parent request to micromanage the student’s special education program.

The School District contends that it did not deny the parents access to STUDENT’s banked services from the Consent Decree and there is no evidence supporting this claim. The student did not need banked services when he was entitled to extended school year services in the summer of 2010, and the request to have services in the home while withholding the student from school was inappropriate.

See School District’s Memorandum of Law & Reply Parents’ Position The parents contend that the School District denied STUDENT a FAPE by failing to recommend a placement for the 2010/11 school year. The School District concedes there was no IEP in place for STUDENT at the start of the school year as required by law. The Non-Public School School did not have an available seat for STUDENT at the start of the 2010/11 school year. The Non-Public School School was also too far from STUDENT’s home to be an appropriate placement, and any variance for the student to attend required parent consent, which the parents refused.

The Non-Public School School was also inappropriate because the January 2010 IEP created for STUDENT from an evaluation at the Clinic required (Redacted) methodology of instruction, which the Non-Public School was not prepared to implement.

The School District denied the parents meaningful participation in the CSE process at the August, 2010 CSE meeting because they refused or could not answer questions about the proposed placement at Non-Public School, and there was no representative from the School at the meeting as required by law. There was also no regular education teacher at the meeting either, and the IEP provided for interaction with general education students.

The School District’s claim that the provision of the student’s pendency placement in the fall of the 2010/11 school year sufficed as an appropriate special education program and the provision of FAPE is without merit and unsupported by law or regulation. Similarly, the School District’s belated claim that the Non-Public School placement was not the intended recommendation at the August, 2010 CSE meeting and the parents understood this is contrary to the record and the School District’s admissions in this proceeding.

The parents contend that the January, 2010 IEP enhanced by the recommendations of and is an appropriate program and placement for STUDENT for the 2010/11 school year, including supervision of the program by a (Redacted), and such a program will provide the student with FAPE.

Because the School District failed to appropriately implement the January, 2010 IEP for STUDENT in the 2010/11 school year, the student is entitled to the remedy of additional services as compensation. Corrective services should be provided after school and on weekends to compensate for the School District’s failure to provide STUDENT with FAPE in the 2010/11 school year.

Relief should also include in this matter training staff in methodology and requiring staff to have experience teaching students with (Redacted). Staff should be competent in (Redacted), appropriate (Redacted) should be made available, the student’s instruction should be (Redacted) to ensure his safety in school, and the parents provided the right to (Redacted).

See Parents’ Closing Brief & Reply

Findings of Fact and Conclusions of Law Legal Framework and Standard

I.D.E.I.A.4

The I.D.E.I.A. mandates that participating States provide students with disabilities FAPE. FAPE requires special education and related services tailored to meet the unique needs of a particular student and reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 102 S.Ct. 3034, 3037-38 (1982) Moreover, the law expresses a strong preference for students to be educated to the maximum extent appropriate with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cann(Redacted) be achieved satisfactorily. Walczak v. Florida Union Free School District, 142 STUDENT3d 119 (2d Cir. 1998)

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. (Walzczak, supra at 122)

Parents play a significant role in the IEP process. They must be informed about and consent to evaluations and have the right to an independent educational evaluation of their child. They are members of the IEP team. (Schaffer v. Weast, 126 S.Ct. 528,532 [2005]) Moreover, parents’ participation at IEP meetings must be “meaningful”. (Deal v. Hamilton County Board of Education, 392 STUDENT3d. 840,853 (6th Cir. 2005) Parents must also be given prior written n(Redacted)ice of any changes to the IEP and n(Redacted)ice of procedural safeguards, including the right to an impartial

4 Although the Individuals with Disabilities Education Act (I.D.E.A.) was amended in 2004 in the I.D.E.I.A., the cases cited herein remain authoritative. due process hearing. Schaffer, supra 126 S.Ct. at 532

Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S.Ct. at 532 citing Rowley at 206; STUDENT v. Board of Education of the City School District of Yonkers, 231 STUDENT3d 96, 102 (2d Cir. 2000) The Court in Schaffer took particular n(Redacted)e of the reliance placed in the I.D.E.I.A. on the expertise of school district personnel to satisfy the law’s goals in holding that an IEP challenged by parents at a due process hearing must be presumed to be valid and that the parents bear the burden of persuasion with respect to demonstrating the inappropriateness of the recommendation. (Schaffer, Id at 536-7) Following Schaffer, the New York State legislature enacted Cha(Redacted)er 583 of the Laws of 2007 (Cha(Redacted)er 583) which provides that the school district bears the burden of proof with respect to the appropriateness of its recommendation.

When determining the appropriateness of a school district IEP recommendation, Congress now requires that a hearing officer render a decision on substantive grounds based on a determination of whether the child received FAPE. Where a procedural violation is alleged, a hearing officer may find that a child did n(Redacted) receive FAPE only if the procedural inadequacies impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. §1415 (f)(2)(E)

There is broad authority under the I.D.E.I.A. for a court (or hearing officer) to fashion appropriate equitable relief where there has been a failure to provide FAPE to a child. The I.D.E.I.A. provides that courts “shall grant the relief that the court determines to be appropriate.” 20 U.S.C. § 1415(i)(2)(C) (iii); 34 C.STUDENTR. § 300.516(c)(3). The Supreme Court has interpreted the statute to “confer broad discretion on the court” in fashioning relieStudent See Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 369 (1985), holding that the statute authorizes private school tuition reimbursement and n(Redacted)ing that “[t]he type of relief is n(Redacted) further specified, exce(Redacted) that it must be appropriate.”.

Compensatory education is “prospective equitable relief” that requires a school district to fund special education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City De(Redacted). of Educ., 538 STUDENT3d 106, 109 n.2 (2d Cir.2008) ( citing Burr v. Sobol, 888 STUDENT2d 258 (2d Cir.1989), aff’g prior holding in Burr v. Ambach, 863 STUDENT2d 1071 (2d Cir.1988); see also, P.ex rel. Mr. and Mrs. P. v. Newington Bd. Of Ed., 546 STUDENT3d 111 (2d Cir. 2008) affirming an award of compensatory services for a denial of FAPE; Reid v. District of Columbia, 401 STUDENT3d 516,522 (U.S.C.A., Dist. Col. 2005); Student X v. New York City De(Redacted). of Educ., 2008 WL 4890440 (E.D.N.Y. 2008)

Where a parent seeks a particular private educational remedy for a denial of FAPE, the legal standard to be applied is set forth in U.S. Supreme Court precedent as modified by amendments to the IDEA at §1412 (a) (10) (C). If the services offered by the board of education are inadequate or inappropriate, the services selected by the parent are appropriate, and equitable considerations support the parent's claim, reimbursement should be granted. Burlington supra; see also, Florence County School District v. Carter, supra, 510 U.S. 7 (1993).

A determination of appropriateness of a parents’ unilateral placement is made by considering whether the placement is reasonably calculated to enable the child to receive educational benefits and likely to produce progress, n(Redacted) regression. Frank G. and Dianne G. v. Bd. Of Educ. Of Hyde Park, 459 F3d 356 (2d Cir. 2006)

Reimbursement sought for a private placement must be reasonable. (See Carter, supra, 510 U.S. 7 at 16) The parents bear the burden of proof with respect to the reasonableness of the services they obtain for their child. (See Schaffer, supra, at 536-7)

In determining an award of compensatory education, courts (and hearing officers) should exercise flexibility and ensure that relief is designed to ensure the student is educated appropriately within the meaning of the I.D.E.I.A. Thus, relief should ensure a student receives instruction to remediate individualized needs and that such relief is reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have provided in the first place. (Reid, supra, 401 F3d 516, 524) other courts have held that an award of compensatory education should be provided for a period equal to the period of a derivation of FAPE but excluding the time reasonably required to rectify the problem. M.C. v. Cent. Reg’l Sch. Dist., 81 F3d 389 391-92, 396-97 (3d Cir. 1996)

In either case, compensatory relief should be consistent with the standard established in Rowley that educational progress be commensurate with a student’s needs and abilities and specially designed instruction should provide some educational benefit and n(Redacted) be aimed at maximizing a student’s educational opportunity. See M.C. ex rel. Mrs C. C. v. Voluntown Bd. Of Educ., 226 F3d 60, 62 (2d Cir. 2000) citing, Rowley, supra at 3034 Appropriateness of the (August,) 2010 Program & Placement recommendations for STUDENT5

Plainly the (August,) 2010 IEP recommended for STUDENT was inappropriate and constituted a denial of FAPE. Federal and State law requires that an IEP be in place at the start of the 5 I decline to address all of the alleged procedural inadequacies of the (August,) 2011 CSE meeting because the (August,) 2010 IEP recommendation for student was unlawful and gave rise to the procedural claim that the School District failed to have an appropriate program available for the student at the start of the school year. (See infra) I note, however, that the CSE team on (August,) 2010 was inappropriate for a recommendation to the Non-Public school year. (34 C.F.R. §300.323[a]; 8 N.Y.C.R.R. §200.4[e][1][ii]) The (August,) 2010 IEP recommendation for the Non-Public School could not be effectuated at the start of the school year because there was no seat available for the student, not because the parents did not participate in the application process as suggested by the School District. (See Tr. 291) According to law, the School District was precluded from recommending the Non-Public School Program at the start of the 2010/11 school year by the absence of an available seat for the student. Moreover, placement at Non-Public School would require parent consent to a (Redacted), which the parents declined to provide. See Exhibit 12 The School District apparently wishes to argue that the (August,) 2010 IEP is similar to the January, 2010 IEP and that renders the placement where services are to be delivered immaterial because the description of the student’s needs, the goals to be implemented, and the special education services recommended remained constant for the most part. Such an interpretation would render the continuum of placements in the Commissioner’s Regulations and requirements for LRE immaterial (see 8 N.Y.C.R.R. § 200.6), while these provisions of the law are central to the purpose of the I.D.E.I.A. (See Walzac, supra) Additionally, such a view would undermine federal regulations providing parents the right to participate in placement (as well as IEP) decisions. See 34 C.F. R. §300.501 [c] and compare with 34 C.STUDENTR. §300.322 (a)

To the extent the School District equates pendency as an appropriate substitute for providing a FAPE, that argument is rejected. Pendency only occurs where there is a dispute concerning FAPE that results in due process. Pendency simply ensures that the student continues to receive special education services in the last agreed to placement unless otherwise agreed by the parties until due process is concluded. See 20 U.S.C. §1415 (j) School School. 12

Finally the contention that the parents understood the CSE was not recommending the Non- Public School placement but rather a District-based program is contrary to the record and the plain language of the IEP and is baseless.

In sum, I find that the School District failed to offer STUDENT a FAPE in a timely way at the commencement of the 2010/11 school year.6 Parent Participation Regarding Recommendations for the 2010/11 School Year

Because the parents were afforded a full opportunity to participate at CSE meetings regarding recommendations for the Non-Public School in May, 2010 (See Exhibits 7 & 15), I find that it was not a material failure to not have a Non-Public School representative at the (August,) 2010 CSE meeting. In so finding, however, I note that it was clear that the parents’ objections to the Non-Public School recommendation involved distance from the parents’ home, among other concerns, that had already been conveyed. See Exhibit 2 at16

With respect to any other claims that the School District denied the parents meaningful participation in making recommendations for STUDENT for the 2010/11 school year, I find them to be baseless. Rather, I agree with the SRO that the School District promptly and professionally responded to the (Redacted) and thereafter consistently offered to provide the student with services recommended on the 1/27/10 IEP either at home or in school according to the parents’ preferences. The SRO then found that the School District continued to make a program available for STUDENT by finding a new special education provider ready to resume the student’s IEP services, who was 6 Had it been raised, I would also find that the manner in which special education services were arranged for in the student’s home in the fall of 2010 (and other times) violated the law. Home instruction is a placement under the Commissioner’s Regulations, and a CSE meeting should have been convened to change the student’s placement when the parents made this request after Student contracted (Redacted). A CSE meeting would also have ensured that the change in placement was based on proper documentation, which it apparently never was. I find that October, 2010 letter from Student’s physician inadequate to sustain a recommendation for home instruction, and it was delivered approximately a month after the requested change. See Tr. 1365; Exhibit 24 p.423 rejected by the parents, which conduct the SRO found to be unreasonable. (SRO Appeal No. at 26- 27)

The School District’s continual efforts to provide services to STUDENT and involve the parents in that process continued in preparation for the 2010/11 school year. Initially, the School District arranged for the 2010/11 school year by identifying a (Redacted), Teacher, as a special education teacher for STUDENT for the summer, 2010 session and then fall, 2010, program. The parents (Redacted) See Tr. 1337-1338; 1341-1343; Exhibits 49 & 50

The School District then arranged for a fall program for STUDENT to attend pending placement in the Non-Public School School that included an experienced special education teacher with extensive experience in (Redacted) and working with students with (Redacted), Teacher, and a teacher with related experience. In addition the School district assigned a (Redacted) fluent in (Redacted), and secured (Redacted) and (Redacted) providers. (See 977-989; 1517; Tr. 1355-58; Exhibits 37, 25, 26) After the parents rejected the School District’s offer of this program in school, it was provided as a home-based program upon request by the parents. (See Tr. 1365-66) Thereafter, the parents again (Redacted) school personnel providing services for STUDENT and terminated the program. (Tr. 1387-88) The parents also rejected the (Redacted) the School District located to replace Teacher because of (Redacted) and the parents’ opinion about her qualifications. See Exhibit 29 at 490-492

Accordingly, I find that the School District deferred far too much to parent demands regarding STUDENT’s special education program for the 2010/11 school year, including permitting the program to be implemented in the student’s home without proper documentation of the need, permitting the parents to (Redacted), permitting the parents to (Redacted), taking sufficient precautions to prevent the parents from (Redacted), and permitting the parents to (Redacted), all of which actions resulted in seriously diminishing the School District’s ability to locate appropriate personnel to instruct STUDENT and to provide him with FAPE.

Accordingly, far from failing to provide the parents with meaningful opportunity to participate in the IEP and placement process, I find that the School District inappropriately acquiesced to parent demands regarding STUDENT’s special education program for the 2010/11 school year, and such acquiescence resulted in STUDENT not receiving FAPE in the 2010/11 school year as the student remained almost exclusively without instruction, in any event. I further find that the provision of special education services to STUDENT in the parents’ home is inappropriate given the parents repeated interference with instruction. See supra

In sum, I find that the parents were provided more than ample opportunity to participate in making recommendations for STUDENT for the 2010/11 school year and they misused those opportunities. What Constitutes FAPE for STUDENT for the Current School Year The parents’ request that I order the School District to modify the student’s current IEP and placement in several ways to ensure the student receives a FAPE on an on-going basis. Those requests include: training staff in (Redacted) instruction and requiring staff to have experience teaching students with (Redacted); ensuring staff is competent in (Redacted), providing appropriate (Redacted); requiring that the student’s instruction is (Redacted) to ensure his safety in school; providing the parents with the right to unscheduled visits. I agree with the parents regarding some of these recommendations and disagree with others as follows. Staff Training

I find that the implementation of the January, 2010 IEP at the School District’s Public School with staff comparably trained to the staff who underwent the Clinic training in January, 2010, is sufficient to provide STUDENT with FAPE. The staff has to have had experience teaching students with (Redacted) who have significant (Redacted) needs or who receive specific training to do so.

I agree with the School District that it is sufficient for methodological purposes that staff providing services to STUDENT be trained in (Redacted) emphasizing verbal behavior but the IEP does not require the specific methodology of to provide FAPE. Initially, I note that ndicated that the program he helped create for STUDENT was not based on his particular methodology but was founded in the science of (Redacted). (See SRO Appeal No. at 12) Moreover, there is no evidence that the CSE agreed to more than a recommendation for (Redacted) methodology to be placed on the January, 2010 (and subsequent IEPs), which is when such a determination is to be made. See Deal v. Hamilton County Bd. Of Educ., 392 STUDENT3d 840, 861-862 (6th Cir. 2004), methodological issues on an IEP are properly addresses at an IEP meeting. I further note that STUDENT made considerable progress pursuant to the January, 2011 IEP recommending (Redacted) methodology in the brief time he attended school in the 2009/10 school year. (See Tr. 1249-50; Exhibit 15 at 287; Exhibit 57 at 671; IHO 1/31/11 Decision at pg. 30) Accordingly, I agree with the School District (and ) that specific form of (Redacted) methodology is not required on the student’s IEP for an appropriate program for STUDENT that will result in his making meaningful progress. See Rowley, supra; Walzac, supra

However, I find that the student’s special education program requires the addition of a (Redacted) to oversee the behavior management needs of the student and ensure that instruction is safely provided. I further find the student requires a (Redacted) performed in the student’s school setting and a (Redacted) that addresses the student’s (Redacted) needs that include a number of (Redacted) (See Exhibits 38, 39, 41, 49, SRO Appeal No., pgs. 3-4) There is also credible evidence of (Redacted) outside of an educational setting. See IHO 1/31/11 Decision at pg. 50

It appears that the parties and the Clinic belatedly realized that the student’s (Redacted) issues included (Redacted) that required substantial intervention in excess of what was prescribed in the Consent Decree or (Redacted) (Exhibit 8, ¶¶ 8 & 10), Clinic recommendations (Exhibits 31 & 32)), and 1/27/10 IEP (Exhibit 8). (See SRO Appeal No, at pg. 14)

The 1/27/10 IEP provides for no specific interventions when the student engages in (Redacted) (See Exhibit 8) Outside of a single goal directed at interfering behaviors, there are no (Redacted) her recommendations to address these issues. (See Exhibit 8)

Moreover, I find that the Clinic Report (Exhibit 31) and the Clinic (Redacted) (Exhibit 32) were woefully inadequate in addressing how special educators should address STUDENT’s (Redacted). The only recommendation addressing (Redacted) appears to be (Redacted). (See Exhibit 32-4 & 5) I find that recommendation wholly insufficient to address (Redacted) Plainly a more intensive program of (Redacted) was required for STUDENT to ensure (Redacted)7

Accordingly, I find the 1/27/10 IEP deficient and inappropriate for STUDENT absent a (Redacted)

Finally, given (Redacted) it may be necessary to conduct additional testing for STUDENT to determine current levels of performance and appropriate goals. However, I defer to the expertise of School District personnel for that determination. (See Schaffer, supra)8

7 A (Redacted) developed for the Student for the 2010/11 school year (Exhibit 43) addresses what school staff should do in the event student elopes but does not specifically address how to control the student when he engages in (Redacted). 8 I agree with IHO that Evaluation (Exhibit 28) should be given little consideration in making (Redacted)

I agree with the parents that staff instructing STUDENT, including his special education teacher and (Redacted), be knowledgeable in (Redacted). I find that (Redacted) is such an integral part of providing appropriate instruction to STUDENT that it should be specifically added to the recommendations on STUDENT’s IEP. See Exhibit 31-19-21; 27-28; 31-32; 35-36; 39-40 (Redacted)

The School district has recommended (Redacted) on the student’s IEP consistently with Commissioner’s regulations, which I find to be an appropriate recommendation. (See 8 N.Y.C.R.R. §200.13[d]) I do not agree with the request that (Redacted) from an outside clinic like the Clinic is required to provide the student with FAPE. Rather, I find that appropriately trained School District staff knowledgeable in providing (Redacted) instruction emphasizing language development and experienced in using (Redacted) are capable of providing (Redacted) that will result in the student making meaningful progress in the home setting. See Walzac, supra (Redacted)

I decline to order that the student’s IEP provide for (Redacted). I base the determination on (Redacted) See Tr. 1350-53; 999-1000; 1364-65; 1372-74; 1385-88; 1519-20; Exhibits 29 [pgs 488- 89] 49, 50, 51, 52, 53; See IHO 1/31/11 Decision pgs 58-66; 69-72 Corrective or Compensatory Services

Any award of corrective or compensatory services must be viewed in light of previous findings of fact by the SRO on this issue for the 2009/10 school year, which bear on what transpired during the 2010/11 school year. In SRO Appeal No. (Redacted), the SRO found:

recommendations for Student. The preparer of the report, is (redacted) (See IHO ’s 1/31/10 Decision at 59, 64) I accept IHO ’s findings regarding the report and agree it should be given little or no

…By June 10, 2010, the district had replaced the student’s special education teacher and was ready to resume the students IEP services at the district. (citations omitted) While the district with the support of continued to make earnest efforts under challenging circumstances to accommodate parents’ concerns and to provide at least some of the student’s special education services, the parents were prepared to (Redacted), even when the district had already acknowledged it shortcomings and had offered to provide make up services to redress them. While I can appreciate the parents’ sincere concerns for the safety of their child in a school environment, based on the evidence in the hearing record, I find that the parents’ conduct in this case was unreasonable and, in part, contributed to the failure of the delivery of a portion of the special education services from March10, 2010 through June 30, 2010.

The SRO then made a ruling on an appropriate compensatory award for the period of time in question:

I also note that there is (redacted) Therefore, I am constrained to disagree with the portion of the impartial hearing officer’s decision that denied compensatory services altogether. Consequently, based upon the consistent availability of the district’s (Redacted) services, as well as the student’s related services from March 10, 2010 through June 30, 2010; and in light of the equitable nature of the compensatory additional services requested on behalf of the student, I find that the student should be provided with “one-for-one” compensatory additional services in the form of special education teacher services to make up for the district’s failure to provide special education services from March 10, 2010 through June 10, 2010, when the district had a new (Redacted)/special education teacher in place and ready to resume the student’s IEP services. Here as in J.G. (infra), the parents failed to exercise the appropriate degree of responsiveness to ensure that the student did not experience a gap in services that remained available, and as a result, I decline to hold the district responsible to provide further compensatory additional services beyond those of the special education teacher. Furthermore, I will condition this award of additional services upon good faith efforts of the parents to work cooperatively with the district in returning the student to a school-based placement. Should the parents fail to work cooperatively with the district to obtain the compensatory additional services described above, nothing in this decision shall preclude the district from seeking a determination in a new due process proceeding that it should be relieved of its obligation to provide them.

I agree with the SRO that any request for compensatory services should be should be conditioned on the School District’s failure to have appropriately trained staff in place to deliver the services, and the parents good faith efforts to work cooperatively with the School District in returning the student to a school-based placement.

In addition, I accept the findings of IHO regarding the parents’ interference with the School consideration by the CSE. 19 District’s efforts to provide STUDENT with FAPE during the 2009/10 school year and the consequences of that interference on the School District’s ability to provide FAPE in the 2010/11. Accordingly, those findings will be given appropriate deference in this proceeding. See IHO 1/31/11 Decision 61-66

I find that the School District had appropriately trained staff available to provide special education services in the School District’s public school in July, 2010, at the start of the 2010/11 extended school year and continued to appropriately trained staff available in the fall, 2010, while acquiescing to the provision of special education in the student’s home. I further find that the parents acted uncooperatively with respect to returning the student to a school-based placement and failed to allow instruction in the parents’ home (Redacted). Accordingly, compensatory services are not merited in this matter.

As indicated supra, the School District arranged for STUDENT to receive special education and related services in the 2010/11 school year commencing with the identification of a (Redacted), Teacher, as a special education teacher for STUDENT for the summer, 2010 session and then fall, 2010, program. After (Redacted) (See Tr. 1337-1338; 1341-1343; Exhibits 49 & 50) I find that (Redacted) See Exhibits 49 & 50

In relying on reports of (Redacted) (Exhibits 49 & 50), I note that the report by School District personnel and the parents are at variance regarding what transpired when STUDENT re-commenced attending school. With respect to a determination of credibility regarding the parents and School District accounts of events, I defer, in part, to a much more extensive record in the prior proceeding before IHO regarding the impartial hearing for the 2009/10 school year.

IHO made several findings regarding School District records and the parents’ credibility. (Redacted) IHO 1/31/11 Decision pg. 66

I find that the findings of IHO regarding the parents’ credibility (and cooperation with the School District) are consistent with the record in this case, and I accept those findings. I also note that none of the findings regarding the parents’ credibility (or lack of cooperation) were reversed on the appeal to the SRO. See SRO Appeal No.

Because (Redacted) I find that the parents’ (Redacted) was sufficient to preclude an award of compensatory services for the 2010/11 school year. See Exhibit 49

Nevertheless, the School District then arranged for a fall program for STUDENT to attend pending placement in the Non-Public School that included an experienced special education teacher with extensive experience in (Redacted) and working with students with (Redacted), Teacher, and a teacher with related experience. In addition the School district assigned a (Redacted) fluent in (Redacted), and secured (Redacted) and (Redacted) providers. (See 983-89; 1517; Tr. 1355-57; Exhibits 37, 25, 26) After the parents rejected the School District’s offer of this program in school, it was provided as a home-based program upon request by the parents. (See Tr. 1365-66) Thereafter, the parents again (Redacted) school personnel providing services for STUDENT and terminated the program. (Tr. 1387-88; Exhibit 29 at 488-489)9 The parents also rejected the (Redacted) the School District located to replace Teacher because of (Redacted). See Exhibit 29 at 490-492

In sum, I find that the parents failed to cooperate with the School District in providing a special education program and services to STUDENT in the 2010/11 school year precluding an award of compensatory services. J.G. v. Kiryas Joel Union Free Sch. Dist., 2011 WL 1346845 at 25 (S.D.N.Y. 2011) holding that parents were not entitled to compensatory services for pendency when, from at least the time they filed their due process demand notice, the School District promptly and professionally offered to provide services and the parents consistently failed to cooperate with the district’s efforts, and the parents were represented by counsel who ought have explained to them the potential legal ramifications of their delayed acceptance of district-provided pendency services citing, Newington, 546 STUDENT3d at 123, noting the Supreme Court emphasized that IDEA relief depends on “equitable considerations,” Carter, 510 U.S. at 15–16, 114 S.Ct. 361; “As with any entitlement that arises in equity ... if the evidence demonstrates that the parents caused or contributed to the delay, a court could find that they are wholly or partly disentitled to pendency reimbursement.” Arlington Cent. Sch. Dist. v. L.P., 421 STUDENTSupp.2d 692, 701 (S.D.N.Y.2006); Mr. “M” ex rel. “K.M.” v. Ridgefield Bd. of Educ., No. 3:05–CV–584, 2007 WL 987483, at *7 (D.Conn. Mar. 30, 2007) (finding in favor of the school district where “the parents' own choices to delay certain tests and evaluations of the child were intertwined with the Board's decisions in such a way as to break the chain of causation between the Board's actions and any prejudice to student’s education”)10 Pendency

For the purpose of this proceeding, I am adhering to the 4/12/11 Interim Order & Decision on Pendency finding that the student’s pendency placement in this proceeding is the January, 2010 IEP implemented in the School District’s recommended 6:1:1 class for the reasons stated therein. See also, SRO Appeal No. regarding pendency.

9 Ultimately, the parents (Redacted). See Exhibit Tr. 1520 10 To the extent that the SRO referred to Penn Trafford Sch. Dist. v. C.F. ex rel. M.F., No. Civ. A. 04–1395, 2006 WL 840334, at *6 (W.D.Pa. Mar. 28, 2006) in SRO Appeal No. for the proposition that the right to compensatory education belongs to the disabled child and should not be deprived based upon the parents' inaction, I find that the case and legal theory are inapplicable here. The court in that case found that the right to compensatory education beyond 21 belonged to the student, not the parent, and the two year statute of limitations to file the claim was inapplicable. The court did not over-rule Burlington, supra or a litany of other cases holding that parents cooperation is an equitable consideration in fashioning an appropriate remedy under the I.D.E.I.A.

Order

The CSE shall re-convene and modify STUDENT’s IEP consistently with this decision.

Until such time as an appropriate non-public school placement recommendation is made and a seat is available for the student, should the CSE make such a determination, the student’s IEP shall reflect the recommendations in the January, 2010 and ((August,) 2010) IEPs regarding the student’s present levels of performance, goals and objectives, and program and services as modified herein, unless the CSE determines additional testing is required before a recommendation is made. If additional testing is recommended, it shall be completed within thirty days of consent by the parents.

Regardless of testing, STUDENT’s IEP shall be amended by adding a recommendation for a (Redacted), for the use of (Redacted) in implementing instruction as appropriate, and for the development of a (Redacted) following a (Redacted) to address the student’s (Redacted) A (Redacted) shall be performed commencing when the student is returned to school by his parents and shall be completed in thirty days.

The School District shall have a reasonable time to assemble a staff of providers to implement STUDENT’s IEP in the School District’s public school not to exceed 60 days. I note that (Redacted)

The parents shall be afforded reasonable opportunity to observe STUDENT in school, consistently with School District policy affording parents this opportunity.

The parents’ request for compensatory services is denied

All other requests for relief are denied

For the purposes of this proceeding, the student’s pendency placement is the 1/27/10 IEP implemented in the School District’s public school.

Dated: July 5, 2011

ESQ.

Impartial Hearing Officer

APPEARENCES

December 13, 2010

Parent:

Attorney Attorney Parent

School District:

Attorney CSE Chairperson December 14, 2010

Parent:

Attorney Attorney Parent

School District:

Attorney Attorney Principal CSE Chairperson January 13, 2011

Parent:

Attorney Attorney Parent

School District:

Attorney Attorney Principal CSE Chairperson January 14, 2011

Parent:

Attorney Attorney Parent

School District:

Attorney Observer Principal February14, 2011

Parent:

Attorney Attorney

School District:

Attorney Attorney Principal Special Education Teacher February 15, 2011

Parent:

Attorney Attorney Parent

School District:

Attorney Principal April 14, 2011

Parent:

Attorney Attorney Parent

School District:

Attorney Principal April 15, 2011

Parent:

Attorney Attorney Parent

School District:

Attorney Principal

EXHIBIT LIST

Joint Exhibits Ex. Descri(Redacted)ion Date Page 1. Hearing Request 9/28/10 1-9 2. District Answer 10/12/10 10-16 3 Hearing Request 4/22/10 17-24 4 Prior Notice 9/07/10 25-26 5 2010/11 IEP 8/31/10 27-65 6 2010/11 Draft IEP 8/31/10 66-104 7 2010/11 Draft IEP 5/19/10 105-131 8 2009/10 IEP 1/27/10 132-165 9 Letter 8/26/10 166 10 Letter 7/28/10 167 11 Letter 7/26/10 168 12 Letter 6/28/10 169 13 Transcript from Annual Review 8/31/10 170-219 14 Transcript from Annual Review 6/23/10 220-281 15 Transcript from Annual Review 5/19/10 282-401 16 Letter to IHO 10/21/10 402-404 17 email 8/30/10 405 18 Attorney Letter 9/01/10 406 19 Email 10/14/10 407-409 20 Excerpt from Consent Decree 9/29/09 410 21 Email 10/14/10 411-418 22a Email 9/23/10 419-420 22b Email 9/24/10 421 23 Email 9/16/10 422 24 Email 9/09/10 423-424 25 Email 9/07/10 425 26 Email 9/04/10 426 27 September 29, 2009 Consent Decree 427-457 28 Evaluation 458-463 29 Series of Emails various 464-510 30 Emails 1/05 & 06/10 511-512 31 Initial Assessment Report 1/07/10 513-554 32 (Redacted) 1/10/10 555-562 33 IEP Objectives 1/10/10 563-568 34 Letter 5/28/10 569-571 34a Letter 6/22/10 572 35 CSE Annual Review Notice 8/19/10 573 36 Emails between Attorney & Attorney various 574-578 37 Teacher Resume 579-581 38 (Redacted) Notes 10/1-30/10 582-583 39 Quarterly Report 2010/11 584-586 40 (Redacted) 587 41 Daily Records 2010/11 588-604 42 Emails 11/20-21/10 605 43 (Redacted) 606-608 44 (Redacted) 10/20/10 609 45 (Redacted) 10/20/10 & 11/04/10 610 46 (Redacted) 11/04 10 611 47 (Redacted) 10/2010 612 48 Email 3/15/10 613-615 49 Reports a. (Redacted) 616-619 b. (Redacted) 620-625 c. (Redacted) 626 d. Teacher 627-633 50 Email 7/12/10 634-638 51 Email 7/12/10 639 52 (Redacted) 7/23/10 640-649 53 (Redacted) 7/12/10 650-654 54 Letters 655-656 55 Emails 1/03/11 657 56 Emails 1/19-24/11 658-662 57 Emails 2/07/11-3/18/11 663-681 58 Pendency Order 682 59 (Redacted) Evaluation 10/08/09 683-684 60 Evaluation 2009 685-703 61 Evaluation 8/31/09 704-709 62 (Redacted) Evaluation 8/19/09 710-716 63 (Redacted) Evaluation 8/19/09 717-730 64 Email 11/17/10 731-732 Other Evidence Decision of IHO 1/31/11 District Motion to Dismiss & Memorandum 2/04/11 Parents’ Opposition to Motion 3/01/11 IHO Interim Order 4/27/11 Decision of SRO Appeal No. 4/29/11

NEW YORK STATE DEPARTMENT OF EDUCATION

______________________________________________x Matter of Parents on behalf of their child STUDENT, & the School District, brought pursuant to the I.D.E.I..A. _______________________________________________x

PLEASE TAKE N(Redacted)ICE

Within 35 days of the date of this decision, the parent and/or board of education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the n(Redacted)ice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal can be obtained from the local school district or State Education Department and can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

+

Footnotes

[1] Another impartial hearing regarding the 2009/10 school year was still proceeding when this hearing request was filed. (See infra) No agreement to consolidate the hearings was reached.

[2] Extensions of time for a decision were granted pursuant to Commissioner’s regulations at 8 N.Y.C.R.R. §200.5(j)(5). 1