Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 Findings of Fact

BEDS No. 800000053483

of the Regulations of the Commissioner of Education NYS Case No. 52684

S.M. and A.M. on behalf of their infant son, F.M.

-against-

The 7 Central School District

Procedural Context

On May 7, 2010, I was appointed to hear the matter of F.M. versus the 7 Central School District pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Section 1415 (f)(1). On May 17, 2010 a pendency hearing was held and an Interim Order issued on June 6, 2010. Thereafter, hearings on the substantive merits were conducted on July 1, 2010; July 2, 2010, July 29, 2010; July 30, 2010, August 2, 2010; August 3, 2010; August 23, 2010; August 30, 2010; August 31, 2010; September 13, 2010; September 14, 2010; September 15, 2010 and October 22, 2010. During these lengthy proceedings, both the District and Parent generally availed themselves of the same witnesses and in the interests of judicial economy their testimony was, on occasion, taken out of order; the Parent additionally supplied her direct testimony via affidavit. On this last date of hearing, the parties were invited to submit Memoranda of Law and, as a result thereof, the compliance date for issuing a decision in the abovereferenced matter was duly extended.

At the outset, there is no dispute regarding the provisions of the January 27, 2010 IEP, a document developed over several months pursuant to a Consent Decree, dated October 9, 2009. Rather, the Parents maintain that the School District’s failure to appropriately implement the IEP places them in abrogation of their IDEIA mandate pursuant to 20 US Code Section 1412 [a][3]. Exh. 1. There is no dispute regarding classification, nor is there an articulated claim for compensatory education although, in its Answer, the District agrees to provide F.M. with compensatory services. In furtherance thereof, the Parents Due Process Request denominates a long list of supervisory, training, evaluative and programmatic demands along with a request for corrective services and the termination of all further referrals to CPS. A list of persons in attendance and of evidence is appended hereto.

Historical Context

F.M. is an child who is now ten years old. The child has received special education services since pre-school, having initially attended 9 III, a county operated program. According to Parent report, F.M. was physically abused at 9, and suspended from the program in April 2006. Exh. 120. At age six, F.M. was placed at the 8 School until he was withdrawn in or about May 2009 by his Parents “due to the physical abuse of F.M. at 8 and their failure to implement F.M.’s IEP.” Exh. 1 at 1. When F.M. returned to District during the 2009-2010 school year, it appears that a mutually agreeable placement could not be identified. As the District itself did not have an appropriately profiled class, it was ultimately determined that an ABA based 6:1:1 magnet program would be developed in District with the anticipation that other Districts would eventually avail themselves of this placement. The program commenced mid-year and F.M. was the only student. As such, F.M. received services within a 1:1:1 paradigm.

From January 28, 2010 through March 9, 2010 the child transitioned from a part-time home program to a full day of school pursuant to a mutually agreed upon IEP developed after exhaustive evaluation by experts independently selected by the Parents. It is noted that this IEP derives from a Consent Order issued by IHO Joel Ziev on October 10, 2010 and includes specific provisions for a behavioral consultant, behavior intervention program, emergency interventions, Parent visitation, and non-use of aversives. Exh. 4.

From October 11, 2010 through at least the first week of January 2010, the Parents engaged in the process of evaluating F.M. Upon completion of these assessments and after several meetings, the CSE generated the IEP sub judice on January 27, 2010. Thereafter, the child participated in a school-based program for 22 days. On March 9, 2010, F.M. arrived home with a scratch on his neck, the second such injury observed by the Parents. Since then, F.M. has remained home with minimal services due to “the physical abuse suffered at the hands of the District,” as alleged in the Parents’ Due Process Complaint. Exh. 1. at 2.

The School District’s Case

Christina 4 testified on behalf of the School District. Ms. 4 holds a Bachelors degree in communication disorders with a minor in linguistics. With the exception of 16 hours of student teaching, she has completed her formal coursework for her Master’s degree in special education. She is not certified by New York State as a special educator, but received intensive training at the Clinic in Applied Behavioral Analysis (hereinafter referred to as “ABA”). She has additionally received various forms of crisis prevention training on several occasions. Ms. 4’ prior experience includes employment as a respite worker and 1:1 paraprofessional at The . July 1, 2010 Tr. at 318. In October 2009, the witness began providing paraprofessional/teacher’s aide services to F.M. at home along with Nancy 3, the child’s teacher and Patty 5, a speech and language therapist. Ultimately, the child transitioned back to the District campus where Ms. 4 assisted Ms. 3 in a complex ABA protocol of ADL, behavioral and communication goals which had been incorporated into the child’s program.

From January 5, 2010 through January 7, 2010, Ms. 4 participated in a group training session at the Carbone Clinic along with the Parents, F.M. and District personnel.^[1] During this time, participants were trained in specific ABA protocol, response identification and data collection. The witness noted that F.M. exhibited several negative behaviors in the course of the training and personnel were instructed in the techniques of blocking, planned ignoring, re-direction, over-correction and voice control. Ibid. at

327-331.^[2]

On January 27, 2010, Ms. 4 participated in a CSE convene. Beyond the positive instructional goals articulated within the student’s IEP, the witness noted that the document referenced both the Carbone Clinic’s behavioral reduction plan to address negative behaviors as well as the District’s “Safety Plan,” a plan which called, inter alia, for the use of 2-way radios, full-time assignment of two adults to F.M., architectural modifications, safety drills and a building wide protocol in the event of elopement. Exhs. 3, 5, L-N. It was agreed, moreover, that both Ms. 4 and Ms. 3 would alternate data collection depending on who was working directly with the student. Ibid. at 323; Exhs. 95-116.

On January 28, 2010, the IEP’s implementation date, F.M. began his transition back to District classes by spending half of his day in school. Ms. 4 testified that she was optimistic about the program and the District’s ability to implement the Carbone Clinic program as F.M. had easily transitioned from home to school receiving a full day of related services and 200 minutes of 1:1 ABA instruction.^[3]

In the District’s implementation of the January 27, 2010 IEP, Ms. 4 noted that the Carbone had a recommended schedule which personnel had adapted. July 2, 2010 Tr. at 590; Exh. 134. Along with his academic program, the child mainstreamed during art, music and physical education. These integrated experiences were largely uneventful and the child was always in the presence of two adults, often with multiple professional certifications. The witness opined that the January 27, 2010 IEP was appropriate and noted that it had incorporated many of the suggestions. Ibid. at 638-639. She offered a brief overview of the data maintained during F.M.’s school day.

As the was provided within discrete-trial parameters, the witness described the manner in which data was collected, a system organized by the Clinic (hereinafter alternately referred to as ) into a Data Book. Exhs. 95-117. Since the speech therapist had been responsible for labeling, tacting and echoics goals, it was determined that the “time delay echoic sheets” would be her responsibility to maintain. As a result, this data was not part of the Data Book. July 1, 2010 Tr. at 372, 376-378, 419. Moreover, Ms. 4 indicated that, per the sign manding with “time delay echoic sheets” and the Antecedent/Behavior/Consequence charts (hereinafter referred to as “ABC” Charts) were considered raw data, which could be destroyed after several days and were not considered part of the Data Book.

The witness additionally provided a review of the Problem Behavior Summary Data Sheet, a form indicating frequency and duration of negative behaviors. On review, the witness indicated that with minimal exception, the intensity of F.M.’s negative behaviors had declined significantly since the program was initiated. Ms. 4 further observed that the improvement over F.M.’s training period at the Clinic was particularly significant as, by February 8, 2010, the child was attending school fulltime. Ibid. at 427-431; Exh. 115 at 2. With the exception of February 4, 2010, March 8, 2010 and March 9, 2010, the child’s negative behaviors lasted well under one hour on all other days.

In reviewing the behavioral data collected during the 22 days in which the child attended school, Ms. 4 noted that the antecedent behaviors which precipitated negative behavior were, as a rule, easily identified. On other occasions, the term “MO” was utilized, indicating “motivation unknown,” a situation which had occurred frequently even during their training at Nonetheless, the training at had not provided a better system for identifying antecedent behaviors and it was not uncommon for negative behaviors to surface for no apparent reason.

Ms.^[4] and Ms. 3 remained in touch with the Clinic4 as questions arose, with the understanding that a subsequent six-week session would take place to evaluate the consistency and appropriateness of the District’s programming. July 1, 2010 Tr. at 334-336: July 2, 2010 Tr. at 649; Exhs. 120-131. As the program ensued, Ms. 4 regularly communicated with the Clinic regarding certain technical aspects of their protocol in addition to seeking direction for the identification of new goals. This occurred as F.M. rapidly achieved many of the goals initially developed during the Carbone training. As the Clinic had not furnished either Ms. 4 or Ms. 3 with instruction regarding the use of criterion based assessments5 to develop new goals, Ms. 4 frequently emailed the Clinic for direction.

During this time, the witness was not alerted to any particular concerns on the part of the Clinic. The Clinic did not request a review of the District’s data, nor had it sought to schedule an accelerated evaluation session. Rather, had been pleased and surprised by F.M.’s progress. Ultimately, the six week re-assessment by the Clinic did not occur as his Parents had removed him from school.

On February 5, 2010, at the end of the school day, the bus matron alerted Ms. 4 and Ms. 3 to the presence of a red mark on F.M.’s neck. July 1, 2010 Tr. at 452; Exh. 89. Ms. 4 testified that she did not know how this had occurred, but speculated that it may have occurred when F.M. was zipping his jacket or rolling on the classroom’s bean bag chair. Ibid. at 452-453. Nevertheless, the witness testified that neither she nor Ms. 3 had noticed the mark until it had been pointed out. Indeed, notwithstanding the mark on F.M.’s neck, Ms. 3 had described the day as a “great day,” a fact supported by the raw data in the ABC chart. Reviewing the chart, Ms. 4 noted that, with the exception of 5 seconds earlier in the day, the child’s negative behaviors were confined to the end of the day. At this time, bolting, flopping, kicking and grabbing behaviors were evidenced. Although the Parents returned to school that day to express their concerns about the mark, F.M. reported to school again the following Monday.

The witness testified that it was not uncommon for the child to present with marks on his skin that could not be explained and, on one occasion, was alerted by the Parent as to an injury caused by F.M.’s brother. July 2, 2010 Tr. at 447, 507. On other occasions, Ms. 4 had observed F.M. striking himself on the head or punching his leg. July 1, 2010 Tr. at 571. She noted that the child was still in diapers and frequently came to school with rashy skin and scratch marks. She testified, “He’s scratching himself. He’s always scratching his neck, his hands . . . He’s always itchy.” Ibid at 447, 504. She added, “He was always red on his back area, he was red on the side of his face, he was red on his upper legs. He had rashes. He had rashes. And even Mom said he was always itchy, he’s got dry skin.” Ibid. at 507. On other occasions, Ms. 4 had observed F.M. striking himself on the head or punching his leg. July 1, 2010 Tr. at 435-438, 446-458, 571; July 2, 2010 Tr. at 707-708; Exh. 89. In response to the District’s concerns, the Parent provided personnel with a non-prescription lotion. Nevertheless, Ms. 4 testified that,

5

i.e. ABLLS or VB-MAPP to the best of her knowledge, the Parents had not sought medical attention for this condition, nor were personnel offered a medical diagnosis. July 2, 2010 Tr. at 707-708.

By March 8, 2010, it was evident that the child’s resistance to toileting had become a more significant issue. Ms. 4 noted that F.M. would become silly and giggly, flopping about the floor. The Parents were advised of this issue, and Ms. 3 sought direction from

On March 9, 2010, the only day in which the child’s negative behaviors exceeded one hour, negative behaviors were documented for more than 4 hours and fifteen minutes. Exh. 116 at 575-576. On this day, the witness made a notation on the ABC chart that F.M. had arrived in school with a red mark on his neck and Ms. 3 had additionally reported the mark to the school nurse.

The witness described March 9, 2010 as a difficult and “scary” day in which new negative behaviors were observed virtually from the moment F.M. arrived at school. By 10:15 am, Ms. 4 had emailed Carbone, seeking assistance with toileting, a protocol which had not been furnished. Ibid. at 494. Ms. 4 testified that the child began flopping continuously down the hallway, biting, jumping off the classroom window and sliding on the floor. A short time later, while receiving his physical therapy services, F. M. removed his cloths. Behaviors previously observed were intensified this day and Ms. 4 noted that the strategies learned at the Clinic -blocking, counting and manding, vocal control, limiting reinforcement and offering sensory stimulation- had been ineffective. This included July 1, 2010 Tr. at 462-463.

Ms. 4 indicated that had not included a crisis protocol. July 2, 2010 Tr. at 671-673. She had, however, received CPI (“Crisis Prevention Institute”) training twice at the and was in possession of a current certificate. She had not, moreover, received any training from the District or regarding the use of restraints, nor could she remember any discussion about restraints at the January 27, 2010 CSE convene. The teacher testified that she had never seen the Consent Decree executed between the District and Parents and did not know there was a school reporting policy regarding restraints. Exh. 4.

In the interests of protecting both the child and classroom personnel from injury, Ms. 4 and Nancy 3 placed the child in a “basket hold” in the interests of re-clothing F.M. and maintaining him safely within the environment. She testified, “Staff were [sic] getting injured. He was almost going to injure himself. He was jumping off the windows, sliding across the rug. He had gotten naked as he was running around the classroom. Staff was getting hurt. He could have hurt himself.” July 1, 2010 Tr. at 465-466; Exh.

133.^[6]

During this time, the witness observed that the child’s back was “red and blotchy.” The witness could not identify any specific cause for these marks but opined that they may have been friction marks sustained when the child was sliding around the floor or on the rug. Ibid. at 471. Moreover, Ms. 4 opined that it was unlikely the use of a basket hold had been responsible for these marks as this maneuver involves holding the child under the arm pits with both hands. At the end of the day, the witness wrote a brief note to the Parents in the communication log, indicating that a lengthier note would ensue. July 2, 2010 Tr. at 683-684; Exh. 132. As the child never returned to school, there were no further entries in the child’s communication log.

Following the basket hold, the witness testified that administrator 1 was contacted and the Parent notified. Although the child’s agitated behaviors persisted, F.M. remained in school until the end of the school day. Instructional demands were minimized and the student was intermittently on task. At one point, while F.M. engaged in a table top activity with Ms. 3, F.M. suddenly and deliberately struck the witness in the eye, an injury for which an accident report was submitted. July 1, 2010 Tr. at 478-480; Exh. 133.^[7] Ms. 4 indicated that she was unaware that F.M. had been scratched on his neck and was not alerted to this until the Parents’ complaint.

By 4:06 pm on March 9, 2010, the Parents had filed a criminal complaint with the Columbia County Sheriff’s Office against Ms. 4, accusing the teacher’s aide of causing intentional harm to their son. By 7:30 pm, Ms. 4 was contacted by the police and asked to provide a statement regarding the events of the day with F.M. Ibid at 485- 492; Exhs. 92, 93. Ultimately, photographs of F.M. were shared with Ms. 4 who was asked to describe how these marks had occurred.

In reviewing photographs of the child’s March injury, Ms. 4 testified that the scratches and reddened areas did not appear any different from injuries she had previously observed on the child. She believed a four finger scratch on the child’s neck appeared related to the zipper on his jacket and was similar to an injury she had seen on his chest. Ibid. at 500- 509; Exh. 94. She testified that an ecchymosed area on the child’s elbow had not been present when she observed him naked on March 9, 2010.

Notwithstanding the events of March 9, 2010, Ms. 4 testified that F.M.’s data reflected significant improvement in his ability to interface appropriately within his environment by requesting or “manding” for items in his environment, both behaviorally and through the production of a sound. Similarly, F.M. progressed in his ability to receptively understand and imitate motor movements. July 1, 2010 Tr. at 414-

416. By March 3, 2010, F.M. had mastered six out of ten target goals. Responding to Ms. 4 request to formulate new goals, responded, “This sounds like some lovely progress . . .” Exh. 131.

The witness noted that the District’s program had been successful and the Parents had frequently commended her on her success. In fact, Ms. 4 observed that there were occasions when F.M. resisted putting on outerwear as he did not want to go home. July 2, 2010 Tr. at 705. As a result, she believed she had developed a positive rapport with the M. family. Ms. 4 testified that it had been very rewarding to work with F.M. as his progress had exceeded her expectations and, prior to March 8 and March 9, 2010, F.M.’s negative behaviors had been very manageable. Ibid. at 732.

Following the events of March 9, 2010, it was Ms. understanding that F.M. would return to school. When this did not occur, she opined that it was a mistake to remove an educational opportunity from any autistic child and expressed concern about the likelihood of regression. She stated, moreover, that during the 22 days F.M. attended school, she was unaware of the Parents’ dissatisfaction with the District’s program. Most significantly, Ms. 4 testified that while she believed Ms. 6 understood the mechanics and rationale of the program, she did not feel this way about Mr. 6 She testified, “. . . They were at the Clinic, dad was not but—well, he was but he was out at the mall and things.” She estimated that Mr. 6had participated in the structured learning environment at “probably much less than fifty per cent of the time. I don’t think – there may have been one or two times that Clare assisted him with something, but he was out with the brother most of the time. . . ” Ibid. at 735-737.

On May 13, 2010, at the request of Mr. 1, Ms. 4 completed an incident report regarding the events of March 9, 2010. Exh. 90. She was unaware, at this time, that the Parents had filed a Notice of Claim against the District seeking damages in the amount of five million dollars. Ibid. at 690; Exh. 121.

Ultimately, in light of the Parents’ accusations and their criminal complaint, Ms. 4 testified that she had been frightened by the experience and no longer wished to have direct contact with the child. July 1, 2010 at 537-538.^[8] She stated, “. . . There were accusations about me harming the child and putting him in a restraint, harming him during a restraint when all I was doing was looking out for the safety of the child and the staff. And just the shock that we were making such great progress and I had such a rapport with the parents and this comes about.” Ibid. at 725-726. She further testified, “. . . It was just when there was, you know, accusations that were coming out that I could have hurt the child or I injured the child. And I just wasn’t comfortable with that affecting my career or being accused of hurting a child that I absolutely cared for.” Ibid. at 710.

John 1, Jr. testified on behalf of the School District. Mr. 1 has been an employee of the School District for 16 years, serving as both Principal of the elementary school and Director of Pupil Personnel Services. He has been involved professionally in the areas of child welfare and education for 38 years and has held various instructional and administrative positions during this time. Mr. 1 is certified by New York State as a Teacher of Special Education as well as a School District Administrator and School Building Administrator.

As Director of Pupil Personnel Mr. 1 serves as the CSE chairperson and is additionally responsible for the development, implementation and supervision of both IEP and Section 504 plans. Mr. 1 first learned of F.M. in the summer of 2008, but had no direct responsibilities with this child until April 2009.

On January 27, 2010, Mr. 1 participated in a CSE meeting which generated the 20009-2010 IEP recommendations for F.M. This included the development of a 6:1:1 classroom, hiring personnel, overseeing structural modifications to the classroom and making daily observations once it began. Referencing the IEPs provisions, the witness noted that there was a daily requirement for both a communication book and language log sign. While the former was exchanged with the Parents on a daily basis, the latter was maintained daily but not exchanged. In fact, the language log sign reflected reflected raw data which would be summarized by graph on a weekly basis. Mr. 1 testified that, prior to the within proceedings, the Parent had not expressed concern that she was not receiving the language log sign,^[9] but was interested in developing a book of ASL signs F.M. had mastered. September 14, 2010 Tr. at 3467; Exh. 99. Moreover, while the IEP had specified that the summarized data be shared with the Parents on a weekly basis, this had not occurred. Given her other programming responsibilities, Ms. 3 had indicated this would be unduly burdensome and requested that the exchange occur bi-weekly meetings; Mr. 1 testified that the Parents had not objected to this as she was in regular communication with the administrator from January 27, 2010 through March 9, 2010. September 15, 2010 Tr. at 3804.

Although Mr. 1 opined that that F.M. was making clear strides towards achieving his IEP goals, the Parents became extremely alarmed by the presence of a scratch they observed on F.M.’s neck February 5, 2010, seven days into the program. Ibid. at 3473; August 23, 2010 Tr. at 2322-2323. A scheduled status meeting to discuss F.M.’s educational data was ultimately utilized this same day to discuss the “red scrape” but personnel were unable to account for how the scratch had occurred.^[10] Exhs. 89, 171. Although the administrator believed the issue had largely been resolved, he testified that the relationship “soured” following an email in which Parents’ counsel observed,

“ . . . It kind of appears to be a rope/string friction burn to me. I had a similar injury once from some hand-to-hand combat training in the Marines learning how to deal with an attack from the rear of this nature. It makes me wonder what type of experiences F.M. is having on his first few days in a new program. How many physical assaults will take place before F.M. is [sic] completely resistant to attending school?

Now recognizing that there are two staff members with him at all times, I have to wonder how no one could know what is going on. Do we have two perps, or is one just a witness afraid to speak out? Or, because neither can explain the injury, might we assume that F.M. was locked, and maybe even tied up, in some room unsupervised where this injury occurred?

Maybe we should launch a website and post pictures of F.M.’s injuries each time they occur and we can get photos of the teachers and put their explanation (or lack thereof) next to each of the injuries.

And we can have visitors to the site vote on whether or not they believe the explanations. That could be fun – for everyone but F.M. and his parents, that is. . . . ”

Exh. 172. Sent at 5:01 pm on the day of the occurrence, Mr. 1 testified that he had not even had an opportunity to fully investigate the circumstances leading to F.M.’s scratch. August 23, 2010 Tr. at 2360-2361. Although aware that the Parents would be sharing photographs with their forensic expert, the Parents had agreed to send their child back to school the following Monday and the District believed the parties would move on. Referring to her attorney’s email, Ms. 6 asked Mr. 1 not to share this with personnel as “it would completely destroy our relationship with them and F.M.’s ability to continue attending this program in a positive environment.” Exh. iii at 10.

On March 5, 2010 the parties met to discuss the child’s program. Mr. 1 described this meeting as collaborative and productive. While F.M. was progressing well, Ms. 3 expressed concerns about the level of paperwork involved and, as an accommodation Ms. 6 offered to assist with building the ASL sign book. During this time, the District additionally attempted to identify a suitably trained speech therapist in the interests of meeting the Parents’ request to access their Consent Decree “bank” of related service hours. Exh. 4. September 14, 2010 Tr. at 3507. This, however, did not occur.

Mr. 1 briefly described the incidents following the March 9, 2010 incident. Upon arrival that morning F.M. was exhibiting constant and extreme behaviors. Concerned, classroom personnel had asked Mr. 1 to contact the Parent to inquire if anything atypical had occurred at home. The Parent indicated that she was unaware of anything unusual, but offered to take F.M. home. Upon returning to the classroom, Mr. 1 found the child appropriately engaged, and a decision to retain the child in school was made so that F.M.’s negative behaviors would not be reinforced by his removal from the academic demands of school. August 23, 2010 Tr. at 2320-2321.

On this date, administrator 1 learned of a new mark on the child’s neck by Parent email at 4:35pm. , Although the administrator had just learned of the event and had not had an opportunity to conduct an investigation, a formal complaint with the police had already been filed by the Parents. Exhs 26, 91, 93. Ultimately, Mr. 1 described an uncharacteristically difficult day for F.M., a day in which the strategies and interventions personnel had learned at ineffective. He opined that the marks on F.M. were incidental to the physical interventions employed by staff to protect the child from his own selfinjurious behaviors.^[11] Ibid. at 2341. Although the school nurse had been contacted earlier in the day regarding a scratch on the child’s neck, no further referrals had been made. Given the prior notification requirements regarding the presence of “injuries” on the student, he opined that Ms. 3’s failure to immediately contact the Parents was “inexcusable,” assuming she was, in fact, aware of the marks. August 23, 2010 Tr. at 2319. That evening, Mr. 1 informed Ms. 3 that the Parents had filed criminal charges of abuse against her with the Sheriff’s office. In response, Ms. 3 resigned from her position. Ibid. at 2325-2326.

Following the events of March 9, 2010, Mr. 1 testified that he and had spoken several times about reconstructing F.M.’s program, addressing the issue of “program drift” and instructional control. It was his understanding, uncontradicted by Dr. at this time that new personnel would be retained and further training completed. By email dated March 12, 2010, Dr. confirmed both his and the District’s understanding that the program would be resurrected at school with new training and additional personnel. Exh. 173. Mr. 1 testified that Dr. did not offer new recommendations for BCBA supervision until May 19, 2010 when Dr. adopted Dr. programmatic revisions. Significantly, Dr. current history and status of F.M. were based exclusively upon representations made by Ms. 6 and her family.

The witness testified that, although now moot, it was clear the Ms. would refuse to send F.M. to school if Ms. 3 continued her assignment as his teacher. May 17, 2010 Tr. at 257-261; Exhs. 26-28. As a result, he noted that both he and the Parents initially agreed that (1) Nancy 3 could no longer function as F.M.’s teacher and (2) the District would identify a new teacher and re-schedule training at the Clinic as quickly as possible. May 17, 2010 Tr. at 182. By email dated March 10, 2010, Mr. 1 reported the results of his investigation regarding the prior day’s events and further indicated his intention to retain new personnel so that the student could return to class as expeditiously as possible. Exh. 28. In response, Ms. 6 indicated that she could no longer trust the School District to offer a safe environment to F.M., nor would she “continue to entrust our child to your care.” Exh. 29.

Nevertheless, Mr. 1 began to explore various personnel options in order to continue F.M.’s full-day program on campus. Consistent with the District’s right of assignment as well as contractual and “reduction in –force” obligations, the District identified as a replacement for Ms. 3 and secured a new training date at the Clinic from April 13, 2010 to April 15, 2010.^[12]

The Parents, however, were unable to participate in the scheduled date as it was initially their understanding that both Parents would need to attend the training. Aware by email dated March 31, 2010 that the Clinic did not require the presence of both Parents, the Ms. were urged to avail themselves of the April training dates as the next available training could not be scheduled until June. The email stated, “ . . . Given the fact that F.M. is not in school and is not receiving instructional services and the family may not return him to school until his educational teams receives training at my clinic, I recommend that you urge the family to make F.M. available for the consultation and training on April 13-15, 2010. . . I am of the opinion that we will be able to accomplish all of our training objectives with one of the parents in attendance during the consultation.” Exh. 35 at 2. Ultimately, the Parents insisted that they were unavailable and the training was deferred until June 2, 2010. In the interim, F.M. did not receive educational instruction either at school or at home.

More substantively, the Parents objected to Mr. based upon his lack of experience with the population. Although Mr. 1 testified that the ultimate selection of a teacher would not be within the discretion of the Parents, he expressed concern that the Parents’ clear displeasure with Mr. inexperience would galvanize into a self-fulfilling prophecy of an ineffectual program. Ibid. at 188. Dr.

additionally conveyed a reluctance to train Mr. based upon the special educator’s limited experience with the autistic population, but agreed that he could participate in the Clinic training and be re-assessed thereafter. In furtherance thereof, Dr. indicated that he would support Mr. training to the extent the educator was willing to return to his clinic on a weekly or bi-weekly basis. May 17, 2010 Tr. at 216-217.

In the end, given the deferred June 2, 2010 training date, combined with both Parental and Dr. reservations regarding Mr. suitability, and the knowledge that Mr. would be “excessed” effective June 30, 2010, secondary to District-wide contractual obligations, Mr. was no longer a logical replacement if training were deferred to June 2, 2010. September 14, 2010 Tr. at 3512. The witness testified, however, that had the training occurred in April 2010, Mr. would have been a reasonable replacement until the end of the 2009-2010 school year.

As time lapsed, the District opted to identify a different individual to serve as F.M.’s teacher. Ibid. at 188-193. In furtherance thereof, the witness testified that, although at least three special education teachers knew their employment would be terminated as of June 30, 2010, each elected unemployment over the opportunity to work with F.M. and his Parents. Ibid. at 203-205; August 23, 2010 Tr. at 2393- 2394. Given the Parent’s email that she would no longer entrust F.M. to the District’s care and their rejection of Mr. the witness acknowledged that the District did not have any program in place within a week of the March 9, 2010 events. August 23, 2010 Tr. at 2372; Exh. 29.

Although Ms. 6 had indicated to Superintendent by email dated March 9, 2010, that she would no longer send her child to school until, “. . . you explain what happened and fire whoever did this to him,” Mr. 1 continued to entertain the possibility of restoring a reduced program of related services, rather than permit F.M. to remain idle at home until the school program could be restored. May 17, 2010 Tr. at 253-254; Exh. 26. While the Parents continued to request home instruction, the witness objected, indicating that, “. . . it was a long process to get him in school. I didn’t want to go backwards.”^[13] The witness testified that the Parent objected to this suggestion, indicating that her son had been “traumatized” by the events at school and was not prepared to return to class, a position they maintained by email communication dated March 30, 2010. May 17, 2010 Tr. at 200, 48-56; Exh. 33. In furtherance thereof, Mr. 1 noted that the Parents were now requesting, at District expense, a psychiatric evaluation by a pediatric trauma specialist in the Boston area.^[14]

On March 19, 2010 the parties met to discuss the future educational planning for F.M. who was present at this meeting. Mr. 1 described the child as physically active and eventually the meeting was moved outside so F.M. could play on the swings. The witness indicated that F.M. did not appear stressed, did not offer resistance to the campus or classroom and played uneventfully with Mr. 6and himself. September 14, 2010 Tr. at 3498. Although an interim program had been offered to the Parents, this suggestion was rejected as they did not believe F.M. could be safe on campus. Ibid. at 3502.

On April 1, 2010, aware that the Parents were now requesting home instruction, Mr. 1 attempted to schedule a home visit, accompanied by other school personnel, in order to assess F.M.’s instructional readiness and ability to return to school. Exh. 38 at 3. At or about this time, Mr. 1 spoke with the Clinic regarding the viability of F.M. returning to school. Based upon information he had received from Ms. 6 regarding the child’s presentment, Dr. now indicated that a home program might be preferable, a shift from his earlier position. September 14, 2010 Tr. at 3518. On April 7, 2010, Ms. 6 indicated by email that her son’s behaviors had stabilized and he appeared more relaxed during the day. Exh. 38 at 2. On April 9 and April 12, 2010, Dr. 1 again offered to evaluate F.M. at home in order to resolve the Parents’ issues and expedite the child’s return to school. May 17, 2010 Tr. at 248.

The Parents did not permit this meeting to occur and, rather than discuss the matter informally, by email dated April 11, 2010 requested an emergency CSE convene with their attorney. The witness indicated that the emergency CSE convene did not, in fact, take place as the Parents opted to initiate a Due Process Request. As a result thereof, all communications between the parties were halted and the District discontinued its efforts to transition F.M. back to school. In the interim, the child received no services as, as late as May 4, 2010 the District was maintaining its offer to provide F.M. with an on campus program while the Parents refused to send their child to an educational environment they deemed unsafe. Exh. 3 at 4.

On May 19, 2010 Dr. participated telephonically in a CSE convene in which Dr. indicated he could not endorse the program which initially resulted in the January 27, 2010 IEP as it was clear that personnel lacked the requisite level of ABA supervision and that the program had drifted from its original course. He based this opinion upon new information provided by Dr. and the Parent. Dr. agreed that the current program was unsafe for F.M. as it did not include the supervisory infrastructure required by F.M. and, as a result, Mr. 1 reversed his opinion regarding the provision of campus based services. September 15, 2010 Tr. at 3905; Exh. i at 60.

Having lost one of his key employees, Dr. urther noted that he could not continue his involvement with F.M. and the District. Beyond this, the behaviorist was uncertain if the District could commit the necessary resources to hiring a new full time onsite In the absence of these additional elements, Dr. could not sanction the educational program generated on January 27, 2010 and effectively terminated his relationship with the parties. Finally, Mr. 1 testified that it was unlikely Dr.

e was totally insulated from the adversarial relationship the parties now had and was skeptical about their ability to work together. September 14, 2010 Tr. at 3544-3547; September 15, 2010 Tr. at 3948.

On June 9, 2010 was retained to serve as the special educator in F.M.’s school-based program and, by email to the Parents, indicated that Ms. would be available to commence instruction as early as June 10, 2010. Ms. Bryson had been referred and hired through 9, a cooperative bi-county BOCES program, and was currently one of their employees. The Parents, however, required additional information regarding Ms. qualifications and in a series of emails dated June 9, 2010 through June 21, 2010 expressed concern about her competency for the position. Exhs. 56-65. Specifically, Ms. 6 was skeptical about Ms. familiarity with the autistic population, her lack of ASL fluency, her familiarity with 8 NYCRR 200.22,^[15] her recent certification as a Special Education Teacher and her lack of data tracking experience. The Parents were further concerned about Ms.

slightly abbreviated availability during the remainder of the 2009-2010 school year and summer session. In response to their apprehensions, the Parents were invited to share their concerns directly with Ms. September 14, 2010 Tr. at 3556-3571. In a subsequent conversation with Ms.

Mr. 1 testified that, although it might have been appropriate for the Parents to discuss restraints, the manner in which Ms. 6 approached the interview was inappropriate and offensive. He testified, “. . . . The question was . . . basically what’s 200.22. Now, here you are talking to parents (sic) who you are going to, as I said, try to establish a relationship of trust. She could have said 200.23. And the obvious answer is that the teacher did not know that 200.22 referred exactly to the concerns the parents had. If the Parent had said, you know, we have a concern about restraints being used properly on our son, what you know about restraints, I think she could have provided a proper answer. But in an interview the first time you meet someone and say hey, what’s 200.22? See, she doesn’t know it.

And that was the reaction. It was a ‘gotcha’ mentality and it was an inappropriate way to approach an interview.” September 15, 2010 Tr. at 3860-3861.

Following this interchange, Mr. 1 testified that he no longer believed the Parents would be sending F.M. to school and on June 17, 2010 advised the Parents that he would be making a referral to CPS. Ibid. at 3570-3572; Exh. 63.

Following the CPS referral on June 23, 2010, the Parents brought F.M. to school. Mr. G testified that he was “incredulous” at the sight of F.M. as the family had given him no notice they would be bringing their son to school and were, furthermore, aware that Ms. was a contracted employee. In response to these new events, Mr. 1 engaged the services of Ms. for June 24, 2010. The child, however, was not in attendance the following day as the Parents indicated F.M. was too ill to attend. Ibid. at 3572, 3578.

Ultimately, F.M. attended class for two days on July 6-July 7, 2010. On July 7, 2010 the Parents again filed criminal charges against District personnel in addition to complaints with New York State. They further indicating that they would not continue to send their child to school absent continuous videotaping or the presence of the Parents in the classroom. As a result of their actions, Mr. 1 indicated that Ms. no longer wished to work with the family. He testified, “ . . . But when you get police involvement, when your credentials are at stake with the State Education Department complaint, I mean when you’re told I’ll see you behind bars, she was scared.” September 14, 2010 Tr. at 3593.

On July 12, 2010 the parties met to discuss the prior events and, in the course of these discussions, it became clear to Mr. 1 that the Parents would not be sending F.M. to school.” At this time, Mr. 1 noted that the child care that day for F.M. was being provided by another child, F.M.’s older brother. Along with concern regarding marks and scratches noted July 7, 2010 on F.M.’s body and the manner in which both Ms. 6 and Mr. 6had been observed interacting with their son this day as well as July 12, 2010, a new referral to CPS was initiated. In sum, Mr. 1 testified that Ms. “was a contracted employee who is no longer working for us since, again, a teacher who was hired specifically to work with F.M. can no longer complete that task since the Parents are not presenting him to school.” August 23, 2010 Tr. at 2392.

On September 8, 2010, the first day of the 2010-2011 school year, Mr. 6brought F.M. to school. Upon learning that he would not be permitted to remain in the classroom and, in the absence of continuous videotaping, Mr. 6brought F.M. home. Thereafter, Mr. 1 initiated a new referral to CPS. The witness concluded that the Ms have now informed the District that F.M. suffers from Lyme disease and is too ill to attend school. September 14, 2010 Tr. at 3643. In the absence of any notice or assurances that the child will be attending classes, Mr. 1 indicated that he continues to rely upon contracted employees.

Linda 2 additionally testified on behalf of the School District. Ms. 2 is employed by the District as a school psychologist and currently serves as Chairperson for the CSE and CPSE. In addition to these duties, she is the District’s 504 Coordinator. Ms. 2 first became familiar with the M. family in the course of earlier litigation which generated a Consent Decree for the 2009-2010 school year.

In May 2009, the Parents removed their child from the 8 School, alleging that their child had been physically abused. Shortly thereafter, the CSE convened to discuss plans for a new extended year educational placement. Although, at this point in the school year, Ms. 2 indicated it would be difficult to locate a summer program for F.M., she had, in fact, secured a seat at The

(hereinafter “ and previously known as The ) for the upcoming 2009-2010 school year. July 30, 2010 Tr. at 1142. Anticipating that F.M. would begin school at The Center in September, a program to which the Parents had agreed, the CSE convened to develop a home program for the 2009 summer. Ibid. at 1379. In June 2009, an Annual Review was held in which personnel from The Center participated via telephone. At this time, it was hoped that The Center could be ratified as F.M.’s placement during the 2009-2010 school year. Nevertheless, in the course of the June 2009 CSE, the acceptance was withdrawn. Ms. 2 testified that the Parent perseverated with hostile inquiries of their Admissions Director relating to child abuse, 8 NYCRR 200.22 and whether the Center would report itself in the event its employees violated the law. Although the Parent was offered an opportunity to observe their placement, the Ms. refused to schedule an appointment, noting that they could not do so until additional evaluations were completed. July 2, 2010 Tr. at 775-777; August 3, 2010 Tr. at 1857-1859. Given the adversarial relationship anticipated by the Ms. 6 before school had even begun, The Center rescinded its offer, believing it could not establish the level of trust inherent within a successful educational relationship.

Although the child had been evaluated during the 2008-2009 school year,^[16] an FBA had not been developed. Due to the issues surrounding F.M.’s treatment at 8, the Parents objected to the use of 8’s personnel to perform this function and a behavior specialist at Clinical and Consultation Services was designated at the Parents’ request. July 30, 2010 Tr. at 1344. The Parents, however, now refused any services based upon the prior evaluations as they believed a completely new set of assessments was indicated before any instructional intervention could commence by the new providers. In furtherance thereof, the Parents were furnished with a list of providers authorized by the District. Ibid. at 783.

Ms. 2 testified, “. . . they felt the entire IEP should be null and void and we needed to start from scratch and obtain all new evaluations. . . . Based on what happened at 8, anything on the IEP was now tainted and suspect and we could not have a program for the student until we obtained all new evaluations.” July 30, 2010 Tr. at 1356-1357. Although The Center indicated that they did not need additional assessments as they would conduct their own, the Parents were no longer comfortable with this placement. Rather, the Parents believed F.M. should be assessed by a pediatric trauma expert. In response, The District offered the services of M.D. although ultimately Dr. services were not accessed by the Parents.

From May 6, 2009 through August 5, 2009, the child remained home in the absence of any educational programming. Ms. 2 testified that the parties could not agree on a program and the Parents opted for no program rather than one which they considered unsafe. On August 5, 2009, a Pendency agreement was facilitated by IHO Ziev17 who instructed the parties that “no services” was not an option.”^[18] Ibid. at 773. Ms. 2 testified that the pendency services ultimately ordered were no different than those which had been offered by the District in June. Ibid. at 785. Following IHO Ziev’s Pendency Order, the child began receiving one to two hours per day of special education and speech services.

During the summer of 2009, the Parents determined that they wished to have a speech evaluation conducted. In furtherance thereof, they indicated that they wanted F.M. evaluated by the Clinic. Ms. 2 indicated that the District had been furnished with minimal information about Dr. and due to the expense of evaluation19, the lack of geographic proximity and the costs associated with travel and lodging for both the family and District personnel, the District sought more information as this did not appear to be the speech evaluation the Parents had originally requested. Ms. 2 indicated that the Parents, nevertheless, would not sign an authorization permitting communication between the District and July 30, 2010 Tr. at 1390. Ultimately, Ms. 2 indicated that the District did, in fact, receive consent from the Parents, pursuant to a Resolution Session in the afore-referenced matter with IHO Ziev. A report of Dr. evaluation is dated January 10, 2010. There are no references to pediatric trauma.

By October 2009, a new set of evaluations was finally completed. In the course of obtaining these evaluations, some delay was incurred as a result of the Parent’s insistence on an independent evaluation from , an therapist in the Buffalo/Niagra area. There is no indication in the record as to why the previous therapy of August 19, 2010 was inadequate or why more local alternatives in the Capitol region were unacceptable to the Parents,^[20] although Ms. 2 indicated that the Parents wanted a “SIPT” test performed. July 30, 2010 Tr. at 1402-1411. Although F.M. was evaluated by occupational therapist Alterio, Ms. 2 subsequently learned that the SIPT test is not indicated for a significantly autistic child and, ultimately, Dr. did not utilize this instrument. Ibid. at 803-807. While the District did not concur with the use of Dr. for the evaluation, given the Parents’ position that a dispute regarding the selection of an occupational therapist would generate a lengthier hearing for a child who was already at home with minimal services, the District underwrote the evaluation, travel, and lodging expenses for the M. family. July 2, 2010 Tr. at 791-793. After securing Dr. assessment, this evaluation was marginalized by Dr. the Parents’ expert, who did not incorporate the use of sensory diets into his data based methodology.

17

IHO Ziev had been appointed pursuant to an earlier Request for Due Process initiated for the 2009-2010 school year.

19

The valuation cost By October 13, 2009, all evaluations had been completed with the exception of the assessment which was scheduled for January 2010. Although this included a low vision evaluation, it did not include a specific CSE recommendation for an assistive technology assessment21 as the Parents did not want F.M. to utilize a communication device. August 2, 2010 Tr. at 1524, 1587-1589. Nevertheless, the Parents continued to keep their child home, notwithstanding additional CSE convenes in November and December 2009 as they continued to assert that the District could not furnish a safe environment for their child.^[22]

In or about November 2009, F.M. attended classes within District for approximately one week. At this time, the Parents again expressed concerns about the child’s safety and terminated F.M.’s services in the school-based program.^[23] Ibid. at 811-816, 824; July 30, 2010 Tr. at 1416. The Parents continued to reject both the District’s offer to provide additional onsite services as well as offers to increase home services hours. In December 2009, administrator John 1 developed a School Safety Plan, hoping to facilitate F.M.’s return to school. Exh. 5. Notwithstanding this, F.M. remained home until January 28, 2010 as the Parents did not believe the safety plan could adequately protect their son. July 30, 2010 Tr. at 1417-1419.

In January 2010, the parties commenced their training at the Clinic. Ms. 2 testified that the Parents had initially misunderstood Dr. believing that it was necessary for everyone in the family to participate in his three day training program. Following several reiterations by that the presence of W.M., F.M.’s older brother, was inappropriate, W.M. accompanied his Parents to the Clinic as they had no one available to baby-sit for him. Exh. 19.

On January 27, 2010, Dr. participated in the District’s CSE meeting. Ms. 2 testified that the Parents’ expert was optimistic and confident about the success of the program. She noted that the IEP had incorporated many of suggestions. In sum, the IEP recommended a 6:1:1 placement in which parent training, adaptive physical education, related services and educational accommodations would be provided to the child. Although the class would begin as a 1:1:1 program, it was anticipated that other Districts would eventually cross-contract for this program.^[24] The IEP further included the use of a daily sign log, a communication notebook, sensory diet tools and a behavior intervention plan. The parties agreed that the program would focus upon functional communication skills utilizing an methodology. Exh. 3 at 19. From January 28, 2010 through March 9, 2010, Ms. 2 testified that she was

21

The assistive technology recommendation was recommended, but declined by the Parents. unaware of any Parent concerns regarding the implementation of the IEP and had not received any communications from them in this respect. Ibid. at 835.

Ms. 2, however, testified to a second misunderstanding generated by the Parents. Specifically, the Parents had advised her that would be developing two programs, one school based and another home-based. In his January 13, 2010 email copied to Ms. 2, Mr. 6accused Dr. of misrepresenting his offer to provide the parties with two programs, an offer vigorously disputed by the latter. Exhs. 21,23,24. Underscoring his position during the January 27, 2010 convene, Dr. unambiguously reiterated his opinion that home instruction was inappropriate and the child should return to school. Ultimately, Ms. 2 was advised via email that no further communications would be had with the Parents, unless held within the context of “formal educational planning.” July 30, 2010 Tr. at 1420-1421; Exh. 23.

Ultimately, the child commenced the program, transitioning from home to the District campus in January 2010. The witness was unaware of the events of February 5, 2010, but did learn that the Parents had removed their child from school on March 9, 2010, alleging that their child had been physically abused. As the child was only in attendance for 22 days, the District did not have an opportunity to conduct its quarterly review, nor was it able to marshal sufficient data to update the child’s FBA. August 2, 2010 Tr. at 1515.

Following the events of March 9, 2010, the Parents sought an additional psychological evaluation of F.M. Ms. 2 testified that although both and Dr. were suggested, individuals not associated with the 8 School, the Parents refused to consider either one as both had previously utilized the word “allegedly” in describing the “abuse” at 8. July 2, 2010 Tr. at 844-846; Exh. 39.

By email dated April 12, 2010, the Parent rejected both services indicating, “We’ve lost confidence through the IEP and evaluation process” further noting her dismay with refusal to entertain discussions with the Parent about “the long-term behavioral mismanagement at 8.” Ms. 2 was further advised by the Parent that she did not feel Delibero could be helpful as “her approach to behavior reduction is different from Dr. ” Exhs. 39,40. Thus, although psychologist Delibero had been identified within the Consent decree as F.M.’s ongoing behavior specialist, Ms. 6 now objected to her utility. The Parents similarly rejected the services of

M.D., the District’s psychiatrist. To date, Ms. 2 testified that the District has not had an opportunity to evaluate F.M., nor has the Parent offered her consent. July 29, 2010 Tr. at 1022. Nevertheless, Ms. 2 indicated that the District was still optimistic about reinstating the program and, in furtherance thereof, had identified a teacher to take over for Nancy 3. The Parents, however, objected to the District’s suggestion that Jim assume Ms. 3’s responsibilities. In fact, Mr. was a certified special educator with eight years of experience who had volunteered for this position. Although he had not worked specifically with autistic children, he had worked with special education children who demonstrated behavioral issues. The witness testified that Mr. was available for new training dates in April and the District was eager to re-institute the program. Although Dr. next training availability was in June 2010, the Parent declined the earlier session as her husband would be unable to participate. As the Parents objected to Mr. and declined the earlier training session, the District was unable to proceed with a program for F.M. between May 9, 2010 and June 24, 2010. August 2, 2010 Tr. at 1511. Ms. 2 testified that she continued to search for Ms. 3’s replacement and contacted, BOCES, 9, Service Connections, and the CARD Center in Albany, SUNY at Albany as well as some private school placements. She testified, however, that identifying staff was difficult as the Parents wanted to review resumes, interview candidates and inquire into their credentials. August 3, 2010 Tr. at 1841.

As a result of the events of March 9, 2010, Ms. 2 attempted to reconvene the CSE on April 30, 2010 for the purpose of assessing the District’s program. Although the Parents were invited to attend, Ms. 6 indicated that she would prefer to exercise her due process rights. The witness indicated that when the Parent learned the CSE would nevertheless convene in her absence, Ms.^[6] changed her mind and requested a date when she and her attorney could attend. Exhs. 44-46. By email dated May 12, 2010, Ms. The Parents had additionally provided a report from M.D. which recommended the continued use of methodology. Exh. 120. At this time individuals from also contributed to the proceedings and indicated that their facility could appropriately meet the needs of both and non-oriented IEPs. Exh. 123. Although there was no seat currently available, and, in fact, the program had not been recommended, personnel urged the parties to at least get onto the waiting list in order to reserve a spot in the future. Beyond this, Ms. 2 further testified that she believed state officials could facilitate a timely admission, as they were aware of the difficulties the District was experiencing. In any event, the witness testified that the child was again home and the District was anxious to restore at least some services. July 29, 2010 Tr. at 933. Exhs. 148-149.

Following the events of March 9, 2010, the Parents objections to Mr. and the termination of involvement, the May 19, 2010 CSE began “brainstorming” for educational alternatives as Ms. 2 indicated that it was difficult to engage personnel without the certainty that the program would move forward. Unable to identify a special educator amenable to the M. family and waiting for Dr.

availability in June 2010, Ms. 2 emailed the Parent hoping to explore alternative programs. Exh. 52. The witness noted that the parties had a “spirit of let’s look at this together, what can we possibly do and just also some commiseration about look at the area we’re in, there are no programs, that the state doesn’t help.” Ibid. at 942-949. Ms. 2 noted that the Parent began suggesting placements and researching alternatives and there was a positive sense of collaboration. On May 28, 2010, District Superintendent forwarded a letter to Commissioner of Education, seeking assistance and cataloging its difficulties providing a program for F.M., difficulties exacerbated by the small, rural nature of the District. Exh. 122. In response, had contacted her, indicating that he could facilitate an admission to a placement for children to which the Parents objected based upon its residential component.

On cross-examination, the witness acknowledged that F.M.’s behavior could present a risk of harm to both himself and others. Although the District’s paradigm was a 6:1:1, F.M. had been the only student. Nevertheless, she believed the child could be educated with other similarly profiled children providing they were also assigned to individual aides. Ibid. at 1109.

On May 20, 2010, the Parent emailed Ms. 2 stating, “I’m sorry that it was inappropriate for me to discuss these exploratory options because we understand now from discussion with Mr. that taking these kinds of actions could be harmful to F.M., including discussion with Valley and as I know they cannot implement the IEP. I think it’s best for Mr. to be involved in future conversations to provide guidance that I lack, even for him to have these discussions directly with Ms. At this time, we must decline to pursue any options except those where F.M.’s IEP can be delivered full time. I apologize for the inconvenience and hope you understand.” Exhs. 70,71. Ms. 2 testified that she has not heard further from Ms. 6 regarding the resumption of F.M.’s programming. Since January 27, 2010, the CSE has not recommended any programs. July 30, 3010 Tr. at 1144. There is only one self-contained classroom within the District; the program services severely learning disabled or mildly retarded children.

Although the Parents had rejected special educator Spock as a replacement for Ms. 3 and Dr. had terminated his relationship with the District, Ms. 2 noted that, pursuant to pendency provisions, the District remained responsible for implementing the program initiated in January 2010. In furtherance thereof, , was hired on June 9, 2010 to commence services as a special educator and, following the summer, she would serve as the District’s consultant. By this time, Ms. 2 noted that the District had lost the services of Dr. and the Parents had objected to

Nonetheless, the District was able to develop a team of teachers and therapists in anticipation that the child would be in school and that the pendency would continue through both the summer of 2010 and perhaps part of the 2010-2011 school year.

On June 23, 2010 the CSE again met for the purpose of discussing the child’s summer program, a extended school year provision which had been inadvertently omitted on the January 27, 2010 IEP. Although the Parent requested an adjournment of this meeting so that Dr. could participate, Ms. 2 indicated that it would proceed nevertheless as the CSE was already in possession of Dr. report. July 29, 2010 Tr. at 1069. At this time, Ms. 2 announced that the District had made an administrative decision to prohibit the use of all day videotaping within F.M.’s classroom. July 30, 2010 Tr. at 1202- 1204. Lastly, aware of the Parents’ objections to the IEP of January 27, 2010, on June 23, 2010, Ms. 2 asked the Ms. if they would be sending their child to school during the summer session as it would be necessary to ensure that all staff was in place. Exh. 151 at 1. Although F.M. had not attended classes since March 9, 2010 as the Parents continued to maintain that the school was unsafe for their child, Mr. 6appeared with F.M. the following day, asking for services.

By email dated June 29, 2010, the Parents again agreed to send F.M. back in school during the summer months. The witness noted, however, that the erratic behavior of the Parents in terms of sending their child to school has made it difficult to engage staff. Ibid. at 1059.

Again, Ms. 2 indicated that she had been confused by the Parents communications regarding the summer program. Although they had apparently agreed to send F.M., the Parents indicated that the program was

25 Ms. Bryson was only available for three hours per day during the summer. The summer program is a five hour day. inappropriate as the District could not implement it correctly. Exh. 150. With regard to ongoing prescriptions for therapy, Ms. 2 indicated that she was confused by the Parent’s objections, their allegations of impropriety between the District and its doctors as well as the Parents’ subsequent withdrawal of consent for services. Exh. 150-151.

With specific reference to therapy, the witness testified that these services were distinct from private therapy in that these related services were only provided through the school when the child’s needs had an impact on the child’s educational program. As a result, a prescription could not be authorized by a physician unless it had been recommended through the CSE and the District’ physicians had frequently signed off on therapy recommendations without incident. She testified that the District did not have these authorizations as the Parent had objected to the use District’s school physicians, Pediatric,^[26] and had yet to provide an authorization from her private pediatrician. Ibid. 1099-1103. In fact, on July 13, 2010 the Parent had rescinded consent to share information with In her emails, the Parent asserted that a signed prescription from reflecting a decrease in services constituted both a conflict of interest and a lack of due diligence on the physicians’ part. When asked to have the scripts signed privately, the Parents indicated that the child’s private pediatrician had “discontinued F.M. as a patient apparently due to their conflict of also being the District’s physicians.” Exhs. 151. In his email to the District, Parents’ attorney advised the District, “Apparently has chosen to dump F.M. as a patient after many years as a result of District action. I presume this will be part of the damages that will be included in the claim pending against the District. For this reason, F.M. has no pediatrician.” Exh. 151 at 8.

Although there were personnel changes at Ms. 2 testified that, had the Parents provided the District with executed scripts by June 25, 2010, F.M. would have received therapy during the summer of 2010.^[27] She added, however, that this had not been the only occasion in which therapy services had not been provided, adding that services had been terminated in or about September 2009 through November or December 2009 when the Parents objected to the objectives and goals. Nevertheless, Ms. 2 testified that, had F.M. attended the summer program, appropriate personnel were available, including individuals trained in American Sign Language (hereinafter “ASL”). August 2, 2010 Tr. at 1576-1578.

The child attended the District’s 2010 summer program for one day. Ibid. at 1480. Although he has not been in school, Ms. 2 indicated that, as of the hearing date, the Parents had not requested the resumption of either therapies. August 2, 2010 Tr. at 1468. She added, however, that, following F.M.’s removal two days into the summer program, the program ceased to exist as it was clear the M. family would not send their child to school and the District could not retain staff for a program which had no children. Nevertheless, had F.M. remained, the program was set to move forward with Ms. as the consulting and additional staff already in place. The District would then have identified an aide. Ibid. at 1494. Ultimately, she believed the Parents had sabotaged the District’s efforts to implement a program. August 3, 2010 Tr. at 1826-1834.

On cross-examination, Ms. 2 reiterated the provisions of the Consent Decree in which the District retained as their Consultant. On January 27, 2010, Ms. was effectively replaced by the services offered at the Clinic. At this time, the District began communicating with Dr. assistant, in person and through emails with an anticipated six-week onsite follow-up. However, in the course of her professional duties, she was not involved in the day to day management of F.M.’s program. Nonetheless, she was aware that F.M’s program included both a communication notebook and a language log sign daily; only the communication book shuttled between home and school on a daily basis. The IEP of January 29, 2010 did not include provisions for the daily exchange of the language log sign daily.

Nevertheless, she was aware that Nancy 3 had resigned from her position and that Jim a special educator with eight years of experience wished to replace her, an offer with which the District concurred. Had this occurred, and had the Parents participated in the April training at the child could have resumed his program in April 2010. This, however, did not occur. As a result, Ms. 2 testified that the District did not have any personnel with expertise in either from or through certification until June 9, 2010 when Catherine was hired. Ibid. at 1086-1088. She acknowledged that Ms. had obtained her teaching certification only one year earlier and had limited experience working with children, although she had considerable experience with methodology and special needs individuals. Exh. 127.

Ms. 2 agreed that the Parents were sensitive to the issue of “injuries” with regard to F.M., noting their allegations of abuse at 8 as well as Ms. 6’s claim that a music therapist in a 9 program “had been inappropriately physical” with her son. July 29, 2010 Tr. at 1094.^[28] As a result, the Parents were extremely concerned that physical restraints be limited to emergency circumstances and not be incorporated into a Behavior Intervention Plan. July 2, 2010 Tr. at 758-759; Exh. 4.

The witness was additionally aware of the fact that, pursuant to the Consent Decree, the child was entitled to “make-up” services which the Parents were requesting for a summer home program. Notwithstanding this, the witness indicated that the District had offered the Parent a summer program and saw no need to utilize the banked service hours provided in the Decree. The Parents made no further requests and none of the compensatory hours have been utilized. Ibid. at 1095.

The Parent, however, declined these dates as her husband would be unable to participate. On crossexamination, the witness acknowledged that the District’s budgetary constraints had impacted upon their ability to hire personnel. This was particularly so as special education teachers had been excessed on June 30, 2010 and the District was compelled to honor contractual and legal commitments in securing new personnel. Although BOCES had been contacted to provide a substitute, none was available. July 30, 2010 Tr. at 1163-1168; August 3, 2010 Tr. at 1835-1837.

In the interim, the District wished to continue the child’s related services onsite. She added that, although the child utilized sign language, pictures, verbal approximations and gestures to communicate, with the absence of Ms. 3 and Ms. 4, the only staff member specifically familiar with F.M.’s sign language was Patty 5, the speech therapist. The Parents, nevertheless, insisted upon home instruction, as they did not believe the District could furnish a safe environment for their child. Nevertheless, following the May 19, 2010 meeting in which Dr. opined that the District’s current program was dangerous, Ms. 2 agreed to provide home instruction. In response, the M.’s indicated that they “wanted nothing less than what was on the IEP . . . delivered in the school.” Ibid. at 1182-1183. In sum, the witness opined that the January 27, 2010 IEP was appropriate and remained so until through June 23, 2010.

Patricia 5 additionally testified on behalf of the District. Ms. 5 is licensed by the state of New York as speech language pathologist. She was previously employed by the District, but was excessed in 2010 due to budgetary considerations. The witness testified that she has known F.M. since he was an infant and worked professionally with him between the ages of two and five and again at age ten. She described F.M. as a child with unbelievable potential who could be manipulative, notwithstanding the absence of language. She opined that the January 27, 2010 IEP had been appropriate and, in the course of her interventions, the child had made significant progress during the 2009-2010 school year. In furtherance thereof, she testified that the child had increased his ability to label, produce meaningful sounds and understand speech notwithstanding his apraxia. July 30, 2010 Tr. at 1266. Beyond progress with communication skills, Ms. 5 testified that F.M. had shown greater strengths with generalization, decreases in negative behaviors and improvements in social skills. Ibid. at 1322-1324.

The witness noted that, although she had not participated in the training, she had observed Ms. 4 and Ms. 3. As a result, she was quickly able to integrate the modality into her own protocol. The witness recalled meetings with the Parents to discuss data in addition to a communication book which traveled between school and home daily. Exh. 132. At some point, she noted that someone had created a compilation of F.M.’s sign language words. As sign language is very concrete, Ms. 5 opined that it could easily be acquired by the average person. Nevertheless, she observed that F.M.’s fine motor deficits sometimes compromised the integrity of his signs making them less understandable to those who did not know him well. Ms. 5 testified that in 2008 she had evaluated F.M. at the 8 School. Pursuant to that evaluation, she determined that the child required a “total communication” system within a highly structured environment. In this manner, F.M. was encouraged avail himself of pictures as well as to use verbal approximations for words. Finally, although the therapist believed the child would benefit from the use of communication, the Parents had objected to its use and the child was never assessed for a device. July 30, 2010 Tr. at 1334-1337.

She opined that instructional videotaping was helpful, but did not believe unlimited videotaping would be beneficial. Similarly, she had no objection to scheduled observations by the Parents, but felt that unlimited “drop-ins” would distract the child and interfere with instruction. Ibid. at 1296-1298. Finally, the witness noted that F.M. was able to benefit from peer interactions, a situation he would be deprived of with home instruction.

The witness recalled the events of March 9, 2010, noting that the child appeared unusually agitated that day. She noted that his neck had a red mark on it and a referral to the nurse was initiated. Nevertheless, she was not concerned about this as the child frequently presented with skin problems such as irritated insect bites, irritation caused by clothing tags or zippers, bruises and scratches. Ibid. at 1291-1293. In furtherance thereof, Ms. 5 testified that she had seen F.M. jump from the stairs in his home, landing on his knees. The witness reported that the child had very fair, dry skin which he frequently scratched and irritated.^[29] July 30, 2010 Tr. at 1253.

During the considerable period of time in which she has worked professionally with F.M., Ms. 5 could only recall three incidents in which F.M. exhibited significant “acting out” behaviors. These had occurred during the 22 days F.M. attended school and were, she opined, atypical for the student. July

30, 2010 Tr. at 1319-1320. She did not view F.M. generally as a danger to himself or others, nor did Ms. 4 or Ms. 3. As a result, Ms. 5 testified that she sought out opportunities in the halls and cafeteria to engage F.M. with other children. Ibid. at 1329.

Nancy 3 additionally testified on behalf of the District. Ms. 3 holds a Masters degree in special education and is permanently certified in special education, kindergarten through twelfth grade. She began her ABA training through Rutger’s University and has additionally worked professionally with the autistic population at The Center where she was employed for five years. In October 2009, Ms. 3 began working with F.M. as a home instructor for the District, noting “I was enchanted with him . . .” Although the child had many needs, he was a pleasure to work with and absorbed material like a “big sponge.” August 2, 2010 Tr. at 1605-1606. Nevertheless, Ms. 3 described the initial working relationship with the Parents as “walking on eggshells . . . Kind of strained.” During this time, Ms. 3 observed that the child frequently slid about on the kitchen floor, jumped off the couch and bolted over the top of the desk. August 2, 2010 Tr. at 1651. F.M.’s skin became irritated easily and, in particular, his legs were frequently chapped by his diapers.^[30] August 2, 2010 Tr. at 1652-1653; 1711, 1718, 1744-1745, 17481763, Exhs. 89, 94.

During the period of home instruction, the Parent insisted that F.M. be permitted to leave his seat whenever he wanted, a situation which Ms. 3 believed interfered with her instruction. Ibid. at 16071612, 1652. She could not recall any negative comments from the Parents and believed they were pleased with the progress F.M. was making. Other than the February 5, 2010 and March 9, 2010, she could not recall any parental concerns about injuries. Ibid. at 1654-1655.

In January, 2010 the witness participated in the training. Although both Parents had traveled to the site, she noted that Mr. 6had a great deal of time with his son at the mall while Ms. 6 observed, used her laptop, but did not actually participate in the training with Dr. Ibid. at 1616. During this time, F.M. exhibited many negative behaviors, including bolting, mouthing and urinating, all of which decreased significantly following the instruction. August 23, 2010 Tr. at 2157. It was Ms. 3’s understanding that a six week follow up would occur with Dr. to assess the status of the child’s program; there were no prescribed time frames for skills acquisition. August 23, 2010 Tr. at 2148-2149. Other than this, communication with occurred on an ad hoc basis as did consultations with Elena the District’s school psychologist. Ibid. at 2152-2154. In furtherance thereof, the witness reported that she and Ms. 4 would email the clinic as questions arose as a routine matter. At no time was District personnel asked to furnish data, nor did express concerns regarding the District’s interventions.

On January 28, 2010, F.M. began classes at school in a specially modified classroom, retrofitted with padded corners, dimmed lights and a weighted door whose upper window was opaque. A second door in the room was plastered closed and all cabinets locked. F.M. was the only student enrolled although the School District had initially hoped to attract other non-District students. The witness described the child as a visual learner who could become very rigid with routines. As a result, she and Ms. 4 made special efforts to expose F.M. to new personnel, routines, goals and reinforcers in an effort to avoid satiation and effectuate generalization. The witness observed that staff worked cooperatively with each other and the child exceeded many of the goals anticipated by Although F.M. continued to improve his facility with ASL, the child’s ability to sign remained compromised by poor fine motor skills and muscle control. August 23, 2010 Tr. at 2130. Nevertheless, while the child communicated primarily via ASL, he verbalized simultaneously and was capable of some verbal approximations. Ibid. at 2187.

During the course of the day, Ms. 3 testified that she and Ms. 4 would alternate taking data and at the end of the day, Ms. 3 would place an entry into the child’s communication book. As the child’s needs were considerable, Ms. 3 testified that she brought this work home, where she spent nights and weekends compiling cumulative color-coded data charts, analyzing probe sheet, developing new target goals, purchasing new materials and assembling a “sign” book including photographs of F.M.’s mastered ASL.31 Ibid. at 1640, 1658-1659, 1667; Exhs. 95-116. Mainstreaming opportunities occurred daily during breakfast program, non-academic classes and peer manding goals, a situation which Ms. 3 largely described as positive and uneventful.

The witness noted that she was “absolutely” proud of the work she had done with F.M., testifying that, “. . . I think that six goals out of nine mastered with double targets, being able to be integrated into three different areas, walking the halls and eating breakfast and lunch in the cafeteria in a month or about a month is pretty good. I was very happy with that . . . He’s a beautiful kid, he was making beautiful progress.” August 23, 2010 Tr. at 2169;2240-2244. During this time, the witness noted that the Parents occasionally visited the school, but that their visits were not intrusive. While the witness described a pleasant relationship with the M. family in terms of conversations or communications with the family, she maintained nevertheless that “. . . you never knew when the other shoe might drop.” Ibid. at 2174.

31 The witness indicated that she frequently purchased educational materials, reinforcers and diapers at her own expense. August 2, 2010 Tr. at 1725. Although initially the child’s behavioral data was to be exchanged weekly with the Parents, Ms. 3 testified that it soon became clear that this was unduly burdensome and unnecessary, given the fact that the communication book continued to travel back and forth on a daily basis. Beyond this, the parties believed a bi-weekly meeting would prove more functional and, in a discussion with the Parents, this modification was adopted. As a result, the cumulative data was shared on a bi-weekly basis, while daily concerns and new ASL were shared in the communication log and at meetings. August 23, 2010 Tr. at 2185; 2246. The witness testified that the Parents had not expressed concerns about this, noting that the ASL sign book was not IEP driven. Rather, it had been developed at the suggestion of Ibid. at 2186-2187. In furtherance thereof, Ms. 3 testified that the “language log sign” denoted in the IEP was a daily compilation of the child’s “mands” or requests and had been IEP driven. Ms. 3 testified that the Parents were aware of the two different data books and did not indicate any confusion regarding their distinct purposes. In fact, Ms. 6 herself had offered to assist with the sign book. Ibid. at 2194-2196; 2233-2235.

Other than the six week follow-up review by Dr. and the quarterly FBA, neither of which occurred due to the child’s removal from school, Ms. 3 opined that she and Ms. 4 had complied with the reporting and implementation guidelines articulated during the training. In furtherance thereof, she indicated that descriptions referencing F.M.’s “great day” were relative statements, taken in context with F.M.’s negative behaviors. Exh. 132. In furtherance thereof, the witness testified, “I didn’t have major concerns. Things were kept at a pretty low level as far as occurrences. We saw a lot more occurrences on many things down actually when we were at than we did once we got back.” August 2, 2010 Tr. at 1689, 1696.

On February 5, 2010, Ms. 3 recalled an occurrence in which the Parents alerted the school as to a presence of a red mark on their son’s neck. The witness indicated that she was unsure how this had occurred and, after searching the classroom, she and Ms. 4 concluded that the mark may have been caused by a zippered bean bag which the child had been rolling over. Nonetheless, Ms. 3 was unconcerned as she was often advised by the Parents that F.M. had exhibited “behaviors” and was “out of sorts” at home. Exh. 132 at 2, 3, 3-A, 8. As the program for F.M. progressed, the witness indicated that she was comfortable with the manner in which the program had been implemented at school, but did have concerns about open gates and the Parents’ use of kerosene floor heaters at home. Ibid. at 1647, 1679-1680.

On March 9, 2010, the child’s behavior was so disruptive that both she and Ms. 4 worked directly with F.M. all day. Ms. 3 noted, as the outset, the child exited the bus, flopping about the floor and engaging in self-injurious behavior. While removing his coat, a small scratch was noted on F.M.’s neck and the nurse was contacted so that the mark could be documented. August 2, 2010 Tr. at 1724. At or about this time, the Parent was contacted by Mr. 1 and, although Ms. 6 offered to take F.M. home, the student remained in school. F.M. continued to throw himself to the floor and kick, eventually breaking the witness’s eyeglasses, bruising her and demonstrating “over the top” behaviors which Ms. 3 had not observed earlier. Although there were three adults in the room, 32 personnel were struggling to contain F.M. The witness testified that the techniques were ineffective33 and when the child removed his clothing, she directed Ms. 4 to assist her with a basket hold as she was concerned that F.M. would injure himself. Ibid. at 1731, 1735. Ultimately, Ms. 3 indicated that personnel were unable to identify any precipitating antecedents which would have explained this behavior. The witness was unaware of any marks on F.M.’s body, other than the one she had observed in the morning, testifying that it was not her practice to remove the clothing of a ten year old boy in order to ascertain whether there were marks on his body. August 23, 2010 Tr. at 2216-2217.

As a result of the day’s events, data collection was somewhat compromised as both she and Ms. 4 were required to supervise F.M. Although Ms. 3 testified that she was aware of the Consent Decree requirement mandating an oral report when restraints were applied, she took full responsibility for the fact that this was not done by the end of the day. Ibid. at 1765-1767. Given the circumstances, however, in which F.M. required the supervision of both teachers at all times, she simply had not been able to advise Mr.^[1] of the events telephonically and was not given an opportunity to provide notice by letter within 24 hours as set forth in the Consent Decree. Exh. 4 at 6.

At the end of the day, Ms. 3 testified that, unlike other days, she had planned to type up a note from her computer at home. As a result, the witness remained with F.M. and directed Ms. 4 to write a quick note in the communication log, to be followed by a lengthier type-written note. The witness indicated that this did not occur, however, as her responsibilities as F.M.’s teacher were removed that evening by Mr. most of my weekends creating new things, targets for the book. I spent close to a thousand dollars on things for this room. And it just got to be too overwhelming.” August 2, 2010 Tr. at 1785.

The District additionally called Ms. 6, the child’s mother, as their witness. Although she did not participate in the entire IEP meeting of January 27, 2010, and in particular, the portion of the meeting in which Dr. was present, it was the Parent’s understanding that she would receive the raw ABC data upon which daily graphing was based. In furtherance thereof, she opined that the raw ABC data should be considered part of F.M.’s educational record and requested that these sheets be saved. Although she objected to the lack of specificity on the District’s ABC data sheets, she acknowledged that this had been template but inferred that any ABC document from which did not include the time of occurrence might not have been completed at personnel. August 30, 2010 Tr. at 2476-2478.

With regard to the maintenance of F.M.’s data, Ms. 6 initially testified, “I recall that the clinic suggested that it would be up to the school how to handle that ABC data. That at the clinic underlying data that they maintained they shred on some kind of periodic basis.” Ibid. at 2450. In contrast, Ms. 6 subsequently stated upon inquiry:

Q. So I will call it ABC charts. Did you understand Dr. statements about you don’t need to keep the ABC charts?

A. No, I never heard anyone say shred the ABC charts.

August 30, 2010 Tr. at 2454. On February 5, 2010, Ms. 6 testified that F.M. returned from school with at approximately 1:00 pm with a throat scratch which was described by the bus matron as a “scrape,” possibly due to chapping. Exh. 171. Notably, the communication book was silent regarding the scratch and described a “great day” for F.M. As Ms. 3 had initially indicated she had not seen an “injury,” the Parents immediately brought their son into school whereupon Ms. 3 recognized the mark in question. By 1:15 pm, the parties met to discuss the occurrence at which time the Parents were assured that no “bolting” behavior had occurred that day. Ultimately, Ms. 6 learned that there had a number of negative behaviors that day, including hitting, pinching, grabbing, kicking, flopping and, indeed one bolting incident, totaling approximately 5 minutes during F.M’s half day at school. Exh. 116. As a result, Ms. 6 concluded that day that Ms. 3 had lied at least twice, once when she described F.M.’s “great day” and again when she indicated there had been no bolting episodes that day.” By February 5, 2010, Ms. 6 concluded that the ABC data was not collected contemporaneously and that the District had failed to make “any” investigation into the occurrence. Ibid. at 2540. In the interim, the family took photographs and forwarded them to counsel. By 5:01 pm, the Parents were copied on an email from their attorney to the District. The email states, “It kind of appears to be a rope/string friction burn to me. I had a similar injury once from some hand-tohand combat training in the Marines learning how to deal with an attack from the rear of this nature. It makes me wonder what type of experiences F.M. is having on his first few days in a new program. How many physical assaults will take place before F.M. is [sic] completely resistant to attending school?” Exh. 172.

Shortly thereafter, the M. family initiated a complaint to the New York State Commission of Quality of Care and Advocacy, alleging District malfeasance as evidenced by the occurrence of a “ligature-like” injury. Ibid. at 2512. The Parent testified that the Commission’s “forensic people” concluded that the injury may have been “created by the zipper of his partially closed coat, possibly when a staff member held on to it while F.M. attempted to drop to the floor.” The complaint was dismissed. Ibid. at 25182519; 2524; Exh. 166.

On March 9, 2010, the Parent testified that F.M. was again injured by personnel. By 4:59 pm of March 9, 2010 the Parent wrote, “F.M. will not be back at your school until you explain what happened and fire whoever did this to him.” Exh. 26. By 7:00 pm, it was her determination that F.M. could not return to school and transportation services were discontinued. Exh. 27. By email dated March 11, 2010, Ms. 6 noted that she could not entrust her son to the care of the District as the child had been traumatized by the events at school. She wrote, “To me, the most important issue is how to restore F.M.’s ability to trust and feel safe, but that cannot be accomplished in an unsafe environment.” Exh. 29 at 2. Thereafter, the child remained home and without services.

In support of their claim that F.M. had been traumatized as a result of the March 9, 2010 events, Ms. 6 testified that her son had never evidenced toileting problems prior to this date. Nevertheless, she did recall that F.M. had urinated on the floor at the clinic and that F.M.’s negative behaviors surrounding toileting prevented from offering a toileting protocol during the January 2010 training. Ibid. at 2647.

By email dated March 30, 2010, the Parent catalogued a range of extreme behaviors memorializing F.M.’s state of trauma, noting that “Nancy’s behavior must have pushed F.M. over the edge,” resurrecting previously quiescent harm originally sustained at 8. She noted, “There are many issues as well, but the main point is that they seem to be getting worse.” Exh. 33 at 1. By May 10, 2010 a Notice of Claim had been filed, with a supporting affidavit executed by counsel on April 28, 2010. In its five million dollar claim, the Parents asserted multiple claims of conscious pain and suffering in addition to educational regression. Exh. 121. Ultimately, she recalled a conversation with Mr. 1 in which the administrator expressed concern about F.M. and offered to conduct and observation at home in order to assess his “instructional readiness.” In fact, the Parent testified that she did not allow this meeting to occur as it seemed to be occurring outside of the CSE process. August 30, 2010 Tr. at 2660-2661; 2699; Exh. 38 at 2. Rather, Ms. 6 requested a psychiatric evaluation from a pediatric trauma specialist. Exh.

39. In response, the District offered to have F.M. evaluated by either Liz Ph.D. or Elana both of whom were rejected. Ibid. at 2699. In fact, the Parent indicated that Ms. had previously refused to discuss the Parent’s allegations of physical abuse at 8 in developing an FBA for F.M. and developed an inappropriate FBA for her son. August 31, 2010 Tr. at 2948. Although provided with a list of Independent Educational Evaluators by the District, the Parents obtained their own assessment from Phyllis M.D. as the family “had already made an appointment.”35 August 30, 2010 Tr. at 2704; Exh 42.

Ultimately, by email dated April 11, 2010, the Parent requested an emergency CSE convene, asking District personnel to arrange for Dr. participation. Three days later, Ms. 6 withdrew her request as arrangements for Dr. were being made, and on April 22, 2010 the Parent initiated a Due Process Request alleging that F.M. had been physically abused by District personnel. The Parents further alleged that, but for the District’s failure to implement the IEP, F.M. would be attending classes. August 31, 2010 Tr. at 2727; Exh. 44.

Ms. 6 testified that, following the events of March 9, 2010, she has always been willing to send F.M. to school as long as she believed his IEP could be implemented correctly. August 3, 2010 Tr. at 1879. In contrast, in her email of March 10, 2010, she maintained that it was Mr. 1 who indicated that F.M. was not allowed to return to school. August 3, 2010 Tr. at 1913-1915; Exh. 28. Moreover, without a special education teacher, the Parent believed the school would be unable to effectively deliver any services, including the related services of therapy. As a result, Ms. 6 did not believe F.M. should attend school to receive related services. She testified, “My understanding is it’s not so much whether Nancy went to the bathroom during speech but that a special ed. Teacher with the qualifications required was the glue that held the program together and therefore without that the speech would be – ultimately would not attain the goals in the IEP.” Ibid. at 1918. In furtherance thereof, she testified unambiguously that she was unwilling to send F.M. to school until all aspects of the IEP and its related services could be provided. Ibid. at 1925.

By email dated March 16, 2010, an offer to continue related services on campus was extended by Mr. 1. Exh. 31 at 1. The Parent described the District’s proposal as “vague” and in response to the family’s

35

The Parents were referred to Dr. Schlaff, a Suffolk County based psychiatrist, by their attorney. need for more specifics, the parties met on March 19, 2010. At this time, the Parents determined that F.M.’s negative behaviors had escalated and that he would be unsafe at school. Nevertheless, Ms. 6 believed the child would be receptive to home instruction, observing that the child’s fearfulness and anxiety appeared to be precipitated by the sight of the school. August 30, 2010 Tr. at 2552-2553. Although Ms. 6 believed F.M. could not participate in any program that had been “cobbled together,” she acknowledged that, following a conversation with Dr. on March 9, 2010 or March 10, 2010, the psychologist recommended F.M. continue, at the least, with the related services program offered by the District. August 30, 2010 Tr. at 2591.36

By emails dated April 1, 2010 and April 7, 2010, the Parent’s request for home instruction was reiterated. In particular, Ms. 6’s email of April 1, 2010 states, “It is clear that he [F.M.] is unsafe at the school but there is no reason why he cannot get services here.” The Parent subsequently testified that these emails were not, in fact, requests for home instruction; rather, the email of April 7, 2010 was a request to begin the process of reintroducing F.M. to school. Ibid. at 1905; Exh. 38 at 2.

During this time, the Parent testified that several telephone conversations occurred between themselves and Dr. conversations in which at least one telephone call was taped by her husband. Ibid. at 1894-1896. Although Ms. 6 had initially offered to provide a copy of this tape, she subsequently indicated that her husband’s computer had broken and she was unaware of the tape’s location. Ibid. at

1898. Likewise, Ms. 6 testified that she had given away an audiotape of the May 19, 2010 convene with Dr. Carbone. August 30, 2010 Tr. at 2571. Likewise, Ms. 6 denied knowledge of an unauthorized tape of Ms. Bryson made by her husband. August 31, 2010 TR. at 2886.

Ms. 6 additionally testified that she was unaware of the fact that the program had been unilaterally modified by the School District. In furtherance thereof, she noted that the school had not shared F.M.’s “sign book” as mandated. It was her understanding that this sign book, a compilation of the child’s ASL signs, would be shared on a daily basis. This was separate and apart from the “language log sign,” maintained daily by Ms. 5 and reflecting echoics, manding and tacting. August 3, 2010 Tr. at 2015-2017. Although the January 27, 2010 IEP makes no reference to the exchange of a “sign book”, the witness testified that the book was alternately described as the “language log sign” and, in fact, this was clearly referenced in the child’s IEP. Ibid. at 2105-2020. While Ms. 6 indicated that she had not received her daily “sign book” as required (August 3 tr. at 2014-2015), she then noted that the language log sign was a different book (August 3, 2010 Tr. at 2016). When pointed out to her that the IEP makes no mention of a daily “sign book,” Ms. 6 testified, “It’s called here language log sign. I could call it that

36

The student did not return to class until July 6, 2010. as well rather than a sign book if you’d prefer.” August 3, 2010 Tr. at 2018; nExh. 3; Exh. 6 at 40. The witness testified that there was never any dispute as to the use of an ASL “sign book” was incorporated into the child’s IEP. Ibid. at 2029. Although the Parent indicated that the District had not furnished her with an ASL sign book, she acknowledged that she had received lists of words from both Ms. 4 and Ms. 3 via email and through the communication book. Ibid. at 2484-2495.

Although by March 5, 2010, Ms. 6 was still not in possession of a sign book, Ms. 6 acknowledged that staff had shared some documentation with her regarding F.M.’s use of signage. During this time, both she and School District personnel exchanged sign information via the daily communication book and emails to John 1. Nevertheless, on March 5, 2010, the Parent advised the School that she still not received a “sign book,” as required by the child’s IEP, but offered to assist with its preparation.

With regard to weekly conferences, Ms. 6 testified that these were unilaterally re-scheduled by the School District to bi-weekly meetings. Due to F.M.’s limit tenure of 22 days, however, only a few conferences were held. On at least two occasions, educational conferencing was supplanted by discussions of F.M.’s injuries.

Nevertheless, following the events of March 9, 2010, the Parent continued to have faith that the program could be resurrected. While Ms. 6 noted that Mr. 1 had responded to the events with integrity and professionalism, she remained “frightened” by Superintentant who had “threatened” to stop speaking with her and her husband if litigation were commenced. Ibid. at 2043. Nevertheless, by the beginning of July 2010, Ms. 6 testified that she could not trust Mr. 1 to implement the IEP as required and she felt betrayed by the School District’s referral of her and her husband to Child Protective Services (hereinafter “CPS”). August 3, 2010 Tr. at 2055.

Following the events of March 9, 2010 and Ms. 6’s statements that she could not “entrust” F.M. to the School’s care, Ms. 1 offered an interim program of related services at school until the Carbone program could be resurrected. Although F.M. could have continued his related services with Ms. 5 until the end of June, Ms. 6 testified that, “we didn’t think that would work,”37 noting that “if nobody understood what had happened here on March 9, 2010 and after we received the ABC data on March 8, 2010 and possibly some other dates, then what would be keeping him safe when we returned him?” August 30, 2010 Tr. at 2503-2510. Ultimately, the witness rejected the interim offer of related services because she believed in large part that it would develop into a “watered down” pendency although by March 16, 2010 she was aware that the School District had identified a new teacher and interim period of truncated program period would be brief. The relevant testimony follows:

Q. What was he [John 1] communicating to you about the resumption of the program and any interim plans to have

F.M. receive related services while we were arranging – the district was arranging for all of you to go back to the Clinic with a new teacher?

A. He said that we have identified a new teacher and aide and will be calling the Clinic to set up training for these individuals. That he knows how strongly we feel about the methodology while we transition the new teacher and aide, however, let’s work out arrangements so that F. can receive his related services on campus.

Q. And what happened?

A. Well, we met on the 19th and we still didn’t get all of the data we were asking for. And than what happened is when we did get all of the data we realized that we hadn’t been told the truth about what had been going on here and that caused another problem in our minds.

Q. So when you got the data and you concluded that you were not told the truth you rejected Mr. 1’s offer to the extent possible until the training?

A. No, that was only part.

Q. That was one part?

A. There were many factors . . . Another was that it had been made very, very clear to us in our previous hearing that whatever kind of IEP, interim program, whatever we accept as a, quote, placement that can be construed as a placement would become F.M.’s pendency.” August 30, 2010 Tr. at 2506-2508.

Although the witness indicated she may have spoken with Mr. 1, the witness later testified, however, that her understanding of the pendency provisions was deduced from communications with her attorney and prior meetings; she was, additionally, unaware of any offer communicated by the District to provide a limited program of related services until implementation of the January 27, 2010 IEP could resume.38 Exhs. 158 at 3, 31; August 31, 2010 Tr. at 2767; 2770-2771; August 30, 2010 Tr. at 2555-2560; 25882590; 2592-2603. In fact, even when the parties reconvened on May 19, 2011 and specifically discussed the provision of an interim program without prejudice to her pendency rights, the Parent reiterated that she was unaware of this offer. August 31, 2010 Tr. at 2756; Exh. 158. Moreover, notwithstanding District assurances to the contrary, she believed an interim program would compromise her rights to a full-time pendency program, an opinion based upon discussions with her counsel. Referring to her discussion of pendency with the District and her attempts to cooperate, the relevant email from Parent’s counsel follows:

38 The witness testified that, if an offer of a truncated related services program had been made without prejudice to the pendency agreement, she was not aware of it. Furthermore, any awareness if present, was “subconscious.” August 30, 2010 Tr. at 2594.

“. . . I have explained to the Ms. the pendency rule, as it is applied. I also explained to them that an agreement to different services in the middle of this hearing will change pendency. Therefore, there is a danger in reaching any agreement, especially when there is a pit of vipers on the other side of the tale waiting for a mis-step. Additionally, any interim or pendency services will alleviate any pressures on the District to begin complying with the law and implementing the IEP we went to great lengths to secure. I explained to the M.’s that every communication from you offering any type of resolution proposed an undefinitive (sic) search for a placement, which could leave F.M.

without appropriate programming undefinitely (sic). . . ” Exh. 158 at 4.

Although the Parent had previously indicated that F.M. could not participate in an interim program of related services as Dr. methodology required a cohesive, “all or nothing” approach, she now acknowledged that Dr. recommendation had assumed F.M. was in school. August 30, 2010 Tr. at 2509.

In April, the District advised the M. family that it would proceed with Mr. although they were aware the Parents did not endorse his selection. In furtherance thereof, April 13, 2010 through April 15, 2010 was offered as a training session. The Parent rejected these dates as Mr. 6had accepted an employment opportunity at this time. Although Dr. ndicated that he believed they would be able “to accomplish all of our training objectives with one of the parents in attendance,” Ms. 6 insisted that her husband attend. Exh. 35 at 2.39 In response, the Parent suggested training dates during the School District’s Spring intersession when personnel were on vacation.

Clearly, Dr. was aware that F.M. was a long-term absentee by April 20, 2010. Exh. 46. His email of March 31, 2010 similarly acknowledges that the child has not been in school. Exh. 35. Although the Parent testified that Dr. was aware that she had removed F.M. from school on March 9, 2010 or March 10, 2010, it is unclear at what point Dr. understood that the Parents had removed F.M. until new personnel and training could be arranged months later. Although new training dates were not available until late May or June, the Parent rejected the April 13, 2010 date suggesting that Dr. was unconcerned about F.M.’s absenteeism; rather, he believed it more important for both Parents to attend the training. Dr. emails suggest otherwise. Although the Parent had testified earlier that tapes of these conversations had been made by her husband, she indicated that the relevant tapes were missing. August 30, 2010 Tr. at 2683. In the interim, Ms. 6 began searching aggressively for a new ABA provider.

39 The baby-sitting issues for their older child appear irrelevant as Ms. 6 testified that she could make arrangements if both she and her husband attended together. Ibid. at 2675. On May 19, 2010 the CSE again convened. The Parent initially agreed to work collaboratively with the CSE, exploring placement options and programs for F.M. However, by email the following day, Ms. 6 wrote, “I am sorry that it was inappropriate for me to discuss these exploratory options because we understand now from discussions with Mr. that taking these kinds of actions could be harmful to F.M.” Testifying about this dramatic reversal, Ms. 6 stated that she had been upset at the previous day’s meeting and had later been enlightened by her attorney. The Parent added she could no longer discuss placement options, indicating that “I know they cannot implement the IEP.” Exh. 70.

As for Dr. participation at this meeting, Ms. 6 concurred with his view that the program as initially conceived and implemented was unsafe, and could no longer serve as “an effective service mode.” August 31, 2010 Tr. at 2797-2798. Given the incident of March 9, 2010 and the apparent escalation of F.M.’s behaviors, Dr. believed the District could not furnish a safe and appropriate program for F.M. unless intensive on site supervision40 and training were available, programmatic elements and financial resources the District was reluctant to offer. Ibid. at 2803-2804. As a result, the witness indicated that she could not send her child to school until these provisions were met. August 31, 2010 Tr. at 2844.41

On June 10, 2010, the Parents were invited to meet with new personnel and to resume F.M.’s program. The District indicated that they had retained the services of Catherine who additionally possessed a special education teaching certificate, dated September 2009. Exh. 127. Ms. 6 testified that at the outset, she was concerned about Ms. competency as she appeared to have limited experience with autistic children. Although the Parents had been invited to a preliminary meeting with Ms. Bryon, she noted that Mr. 1 prevented her from asking questions of the new hire, indicating, “This isn’t a job interview and it’s not your place to ask these questions and I’m putting a stop to it.” Ibid. at 2629.

Thereafter, F.M. remained home while the Parents sought answers to their questions regarding Ms.

credentials, her recent teaching certification, her knowledge of restraints and de-escalation techniques. Although District personnel attempted to respond to the Parent’s repeated inquiries, Ms. 6 objected to District responses in which personnel indicated they had given the best answer they could. Ibid. at 2623;Exhs. 56-65. Ultimately, Ms. 6 testified that she could not send F.M. to class as the school was not “offering his IEP,” expressing concern that (1)Ms. had limited experience with notwithstanding her certification. (2) Ms. had allowed her restraint training certification

40 The recommendation calls for full-time BCBA supervision on site with 3-4 hours per week specifically dedicated to F.M. 41 The Parent was advised via email from Parent’s counsel, “The District is going to deny F.M. pendency because it cares more about financing its football team.” Exh. 158 at 1. to lapse and (3) the child would not receive the entire complement of special education services as mandated by the IEP. August 30, 2010 Tr. at 2615-2619.42 Due to all of these concerns, the Parents did not believe the IEP could be implemented appropriately and, as a result, F.M. did not return to school on June 11, 2010. Ibid. at 2665.

Thereafter, the District initiated a referral to CPS and, pursuant to CPS directive, the Parents brought F.M. to school on June 23, 2010. Ms. 6 testified that she provided no notice, either by email or telephone, to the District that her son would be in school that day as CPS had informed her that “the school was waiting for us.” Ms. 6 testified that she believed the District would simply retain personnel on contract until the Parents indicated a readiness to return. Ibid. at 2635.

On July 6, 2010, under pressure from CPS, the Parents permitted F.M. to return to school for his first day of school following the incident of March 9, 2010. Although the Parent testified that parts of the child’s programming had been “handled beautifully,” she nevertheless did not feel confident about the School’s ability to work successfully with F.M. Ibid. at 2056-2057. In furtherance thereof, she cited Catherine lack of ASL fluency, a situation which Ms. 6 believed generated frustration on behalf of F.M. Secondly, she was not in possession of the child’s summer schedule, did not believe it was in effect on July 6, 2010 and was concerned about the absence of bus transportation.

More substantively, Ms. 6 testified that personnel had not adhered to the educational protocols developed by Dr. . Most particularly, Ms. 6 objected to Ms. s encouragement of verbal approximations uttered by F.M., an intervention Ms. 6 believed was inconsistent with F.M.’s IEP and the requirement that F.M. primarily use ASL to communicate. Finally as the Parents’ ability to observe F.M. had additionally been rescinded, Ms. 6 now felt uncomfortable sending F.M. to school in the absence of continuous live video feed. Ibid. at 2062-2063, 2067. She noted, however, that she might consider returning F.M. to campus, in the absence of ongoing video-taping if she approved of the supervising personnel. August 31, 2010 Tr. at 2911.

On July 7, 201043 a new incident occurred at the school with F.M. and his teacher. The Parent reported that she and Ms. initially disagreed over the manner in which water would be used as a reinforcer. Following a lengthy period in which several negative behaviors were demonstrated at the playground, Ms. 6 believed F.M. had become over-heated and “delirious”. The Parent indicated that personnel did not adhere to the safety plan created earlier, nor did they observe protocol. As a 42 In fact, the IEP called for 3 hours and 20 minutes of special education which Ms. could provide through the 20092010 school year. August 30, 2010 Tr. at 2619, 2633 43 The Parent credibly testified that a heat advisory had been issued for this day. result, Ms. 6 believed it was incumbent upon her to take charge of the situation to ensure F.M.’s safety, stating, “I’ve had enough. I’m taking over.” The child was eventually brought back into the building where the Parent objected to Ms. offer of cookies to F.M. when she herself was trying encouraging her son to eat a healthy lunch. Ibid. at 2085-2086; Exhs. 5, I-1, I-2 and I-3.

Based upon the manner in which the Parent had engaged with F.M. on July 7, 2010, a second CPS referral was initiated. Thereafter, a second police investigation ensued and it appears that the Parents additionally filed a complaint with SED. Ibid. at 2885.

Following these events, the witness indicated that the parties returned to F.M.’s classroom to discuss the occurrence. The witness testified that her husband had taped these conversations, indicating that they would prove Ms. and her assistant were untruthful about their description of the incident.44 Nevertheless, Ms. 6 indicated that the family had not shared this tape with CPS or the police during their investigations and, when queried, Ms. 6 no longer knew about the tapes as they were in her husband’s possession. August 31, 2010 Tr. at 2886-2887. Although Ms. 6 initially testified that she had not told Mr. 1 about the tape, she later indicated that on July 12, 2010, she offered to provide him with a copy. August 31, 2010 Tr. at 2887, 2893. The witness further noted that she would be providing copies of the tapes to SED in connection with her complaint.

The following day, F.M. did not attend school as he was still recovering from the traumatic events of the previous day. Ultimately, the Parents again withdrew their child from classes, as the District’s permission to observe F.M. in class had been rescinded. As she believed there were numerous data and report discrepancies for that date, Ms. 6 initially testified that she could not really know what had happened that day as “things didn’t add up.” August 31, Tr. at 2894.45 She later indicated that, in fact, she did know what had happened on July 7, 2010 as she had been present. Ibid. at 2912. Nevertheless, she was still confused about the events of February 5, 2010 and March 9, 2010 and, in the absence of continuous, live-feed videotaping, she believed “staff could not implement his IEP” In summarizing the child’s experience during the 22 days in which F.M. attended school, Ms. 6 testified that she was unaware that behavior was a concern for F.M. until February 5, 2010. Thereafter, it was her opinion that the District was unable to implement F.M.’s IEP and, as a result, F.M. would be unsafe. Thus, F.M. could not attend school. August 3, 2010 Tr. at 2071; August 31, 2010 Tr. at 2873-2874; Exh. 140.

44 District personnel were unaware that their discussions were being taped. 45 The Parent later indicated that her earlier response was a reference to “what steps would be taken so that Ms. would be possibly able to follow the IEP protocols. August 31, 2010 Tr. at 2913. The Parent further noted that the District had fraudulently withheld documentation from the 8 School and that this generated a further source of distrust for her. Although the District had supplied the Parents with certified copies of the child’s records, a specific exception for emails had been carved out. Although it had been explained that the absence of these older emails occurred as a result of District software which automatically destroyed “deleted” emails, Ms. 6 testified that she had been led to believe they existed. This, too, compromised her ability to have confidence in the District’s integrity. As such, the Parent in her Due Process Request asserted that the failure to supply her with this documentation occurred fraudulently.

Mark additionally testified on behalf of the District. Mr. Sposato has been the Superintendent of Schools for the 7 School District for the past four years.

Following the events of February 5, 2010, the parties met to discuss how F.M.’s injury had occurred and how it could be avoided in the future. Towards this end, Mr. indicated that he believed the parties had been working collaboratively to discover the source of F.M.’s scratch. At 3:58 pm that day, the Parent wrote a pleasant email to Mr. indicating that she was “looking forward to F.M. going to full day [school] starting Monday and staff also seems excited.” Exh. iii at 8.

Shortly thereafter, on February 5, 2010 at 5:01 pm, Parents’ attorney forwarded an email suggesting the injury was similar to one he had sustained “during hand to hand combat training in the Marines.” Exh.

172. As the witness believed the matter had been resolved, he was confused by Mr. letter and the threats contained therein. At some point following the February 5, 2010 incident, Mr. testified that he placed a second telephone call to the family. At this time, Mr. 6initially refused to call Ms. 6 to the telephone and then called the witness a “f’king a-hole.” Ibid. at 3666, 3706-3707. The witness denied threatening to stop speaking with the Parents, but indicated that, in an effort to simplify the matter, encourage direct discussions and reduce the adversarial nature of the proceedings, it would be preferable to avoid engaging lawyers. September 14, 2010 Tr. at 3664-3667.

Ms. then referenced a series of emails from Parents’ counsel in which, on one occasion, Mr.

described an herapist as a “lazy good for nothing educator[s]” from “some Podunk school” who “never really learned a stinking thing” who “can get away with this and then go out each night and smoke crack” . . He indicated, “I also will be suggesting to the parents that they make a complaint against her license.” Exh. iii at 1.

A second email dated September 26, 2009, raised Mr. objections to the use of the word “aggressive” when describing F.M., postulating that “some jackass” had “wanted it in the documentation so that they could justify their own aggression toward F.M.” Exh. iii at 2. On October 4, 2009, Mr.

noted two conflicting versions of the therapy reports for January 2008. Contacting the District’s attorney, Mr. wrote, “Nice little piece of criminal fraud. Don’t worry I’ll be going after license.” Finally, in counsel’s February 5, 2010 posting, Mr. wrote, “. . . because neither can explain the injury might we assume that F.M. was locked and maybe even tied up, in some room unsupervised where this injury occurred? Maybe we should launch a website and post pictures of F.M.’s injuries each time they occur . . . “Exh. iii at 9. Given this scenario in toto, Mr.

not understand why Ms. 6 testified that she was fearful of him.

Finally, Mr. acknowledged directed an inquiry to Deputy Commissioner, New York State Education Department, on May 28, 2010 seeking assistance with the provision of educational services for F.M., further indicating that, without the State’s intervention, it could not provide F.M. with FAPE. Exh. 122.

The Parents’ Case

A.M. is the child’s father. He testified that both he and his wife sent emails to the District; each would review the other’s communications suggesting that, in this regard, the M.’s stood as a united front. October 22, 2010 Tr. at 4039. In particular, Mr. 6referenced a set of occurrences beginning on February 5, 2010. Exhs. 87-89 . On this date, F.M. had come home with an unexplained red scratch on his neck. After some inquiry by the District, no definitive cause could be ascertained. Following a meeting with District administrators, the issue appeared to be resolved; Mr. 6testified that he and his wife had agreed to move forward and send F.M. back to school. He testified that, although the “trust factor had dropped down and it was coming back up again around this time. . . Obviously, we had trust because we brought him back to school.” Ibid. at 4133. He added, “I think it shows a tremendous amount of trust for us to send him back [to school].” October 22, 2010 Tr. at 4133-4134.

Shortly thereafter, at 5:01 pm on February 5, 2010, the Parents were copied on an email from their attorney, Andrew o District’s counsel. In it, Mr. email speculated upon the cause of F.M.’s scratch. The email states, “It kind of appears to be a rope/string friction burn to me. I had a similar injury once from some hand-to-hand combat training in the Marines learning how to deal with an attack from the rear of this nature. It makes me wonder what type of experiences F.M. is having on his first few days in a new program. How many physical assaults will take place before F.M. is [sic] completely resistant to attending school?” Exh. 172. With reference to the child’s mark, the email further stated, “Maybe we should launch a website and post pictures of F.M.’s injuries each time they occur and we can get photos of the teachers and put their explanation (or lack thereof) next to each of the injuries. And we can have visitors to the site vote on whether or not they believe the explanations. That could be a lot of fun – for everyone but F.M. and his parents.” Exhs. 154, 174-176.

Although the parties had apparently reached an accord on February 5, 2010, Ms. 6 now objected to “ridiculing and diminishing the injury,” opining that F.M. could not safely attend classes if Ms. were involved in “setting the level of care.” Exh. 174. In contrast, having resolved the issue at the “building level,” Superintendent was puzzled as to why the Parents had involved their attorney and why the family was now threatening to post a website. By approximately 1:00 pm on February 11, 2010, in a subsequent telephone conversation with Mr. regarding the Parents’ plans to post a website, Mr. 6acknowledged that he became angry and resorted to vulgar namecalling. Ibid. at 4054-4059. While Mr. 6noted that he had been “shocked” by Mr. vehement approach to the website” and his reference to the Child Privacy Act, ultimately, in their email to Superintendent the Parents acknowledged the inflammatory and divisive nature of their attorney’s email suggesting that it should remain a “dialogue between the attorneys as it would be destructive to share with staff and most likely completely destroy our relationship with staff.” October 22, 2010 Tr. at 4148- 4149; Exh. 154. In furtherance thereof, Mr. 6suggested that conversations between counsel had “nothing to do with us. That’s between – if Andrew and Karen want to get together and if he’s going to take that route, that has nothing to do with us. We’re engaged with the school district like we always have been.” Nevertheless, when queried whether his understood that his lawyer spoke on behalf of him and his wife, he testified, “Right here, yeah.” Ibid. at 4149.

At or about this time, Mr. 6further testified that he had created a video of F.M.’s classroom. Frustrated by his perception that personnel were incompetently applying the technique, Mr. 6testified that he had taken a video of Ms. 3 in the course of her instruction with F.M. Exh. 153. With respect to his concern that personnel were not implementing the methodology, Mr. 6testified that his expertise in ABA had derived from the three day training at the In furtherance thereof, he stated that “I was there for all meetings, all the discussions.” Ibid. at 4062- 4063.

Mr. 6testified that his video had been taken from outside the classroom when personnel believed he had left for the day. Although the witness initially testified that he could not recall mentioning or sharing the tape with either Ms. 3 or Mr. 1, after extensive inquiry the witness acknowledged that neither Ms. 3 nor

1 had offered their permission to video tape them. He denied making any other tapes during in 2010. Ibid. 4063-4078, 4089, 4102-4103. However, on cross-examination, Mr. 6recalled that he had additionally created CSE recordings as well as a second unauthorized tape of a conversation with Dr.

He testified that the recording of Dr. had been destroyed by a “computer error” and that, although he had wanted to save the tape, he could not recall its contents. October 22, 2010 Tr. at 4170-4174. In sum, Mr. 6had no recall of any other recordings and no recall of any specific discussions in which Mr. 1 indicated that the M.’s did not have permission to tape its employees. Ibid. at 41794181.

The Parent's Position

The Parents do not dispute the validity of the January 27, 2010 IEP, a document based upon lengthy evaluations and an independent educational expert selected by the Parents. Rather, it is their position that the District stands in abrogation of its duty to provide F.M. with a free and appropriate public education by virtue of its failure to implement the IEP’s provisions correctly. In furtherance thereof, the Parents cite a range of procedural deficiencies which, in concert and alone, render the District’s program compromised F.M.’s right to a free and appropriate public education. As such, the Parents are seeking corrective and additional services to address F.M.’s needs along with multiple programmatic supplementations.

There is no claim for compensatory education in its Due Process Request. However, in its Closing Brief, counsel states, “The school district even had the nerve, in its answer to offer to provide compensatory education to F.M. as long as he remains eligible to receive a free and appropriate public education” despite the fact that the district has conceded that it cannot offer appropriate services to F.M. at this time. . . . Thus, an order merely granting compensatory services is worth little more than the paper it is printed upon in a district that refuses to spend the money to provide appropriate services.” Nevertheless, citing Streck v. E. Greenbush Central Sch. Dist, Case No. 09-3526 –cv (November 30, 2010, 2nd Cir.) the Parents ask that an escrow account reflecting the value of prospective compensatory education be utilized “for paying up-front for the compensatory education expenses.” Exhs. 1, v.

Finally, the Parents assert that equitable considerations do not enter into a consideration of whether a child is entitled to FAPE or whether it is, in fact, delivered, noting that “Charles Manson’s child is still entitled to those special education services irregardless (sic) of their conduct (emphasis added).” September 14, 2010 Tr. at 3757.

The District’s Position

The School District contends that from January 28, 2010 through March 9, 2010, the IEP was implemented correctly. Thereafter, the Parents actively obstructed their efforts to resurrect the program and, as a result of their actions, the District was unable to acquire and train new personnel in a timely manner. The District acknowledges its liability, as of May 4, 2010, however, for compensatory services but asserts that the Parents’ removal of F.M. from classes has prevented it from offering them.

Discussion

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.S.C.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA. Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability. 20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]. The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance of this, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; F.M. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Thus, procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a Parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). Appeal 03-061.

It is clear that where procedural violations are alleged, an administrative officer may find that a child did not receive FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[3][E][ii]; see 8 NYCRR 200.5[j][4][ii]). The Second Circuit Court of Appeals has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression,'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], in other words, is likely to provide some "meaningful" benefit (Mrs.

B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

1. Did the Department of Education provide F.M. with FAPE from January 28, 2010 through March 9, 2010? Referencing March 9, 2010 as a pivotal date, Parents’ counsel has acknowledged “. . . for all intents and purposes, the program continued successfully up until that point.” September 14, 2010 Tr. at 3741. Nevertheless, the Parents allege that the IEP was not implemented correctly, a situation of which they were unaware until March 9, 2010. In furtherance thereof, the Parents assert that an injuries sustained by their son on February 5, 2010 and March 9, 2010 provided the District with both the actual and constructive notice that the child’s program was being improperly executed. Based upon data now available to them, the Parents maintain, a priori, that the District inadequately documented its protocols, failed to exchange necessary data, deliberately misled the Parents regarding the implementation of F.M.’s behavior plan, improperly supervised personnel and failed in its duty to report the use of physical restraints, all in abrogation of its IDEIA mandate.

I find that the appearance of a physical injury, in itself, does not militate against a finding of FAPE as there are a constellation of factors which must be considered, not least being the magnitude and circumstances of physical harm alleged and whether this (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[3][E][ii]; see 8 NYCRR 200.5[j][4][ii]). In this equation, the Parents argue that the presence of a scratch sustained by a zippered jacket along with various computational and qualitative errors in data vitiate any consideration of the educational benefits derived by the child. As such, a denial of FAPE must be found.

Educational Benefits During the time frame referenced above, there is no question that every one of the child’s providers as well as the Parent described the meaningful progress F.M. had made during his 22 days of attendance. This included significant and meaningful gains in speech, ADL, generalization and behavior management.

For example, Ms. 4 noted that the child’s progress had exceeded her expectations and the Parents had frequently commended her on her success. July 2, 2010 Tr. at 705. Similarly, Ms. 3 testified that she was “absolutely” proud of the work she had done with F.M., testifying that, “. . . I think that six goals out of nine mastered with double targets, being able to be integrated into three different areas, walking the halls and eating breakfast and lunch in the cafeteria in a month or about a month is pretty good. I was very happy with that . . . He’s a beautiful kid, he was making beautiful progress.” August 23, 2010 Tr. at 2169; 2240-2244. Similarly, Patty 5 testified that the child had increased his ability to label, produce meaningful sounds and understand speech. In a note to Ms. 4, even the clinic expressed delight at the “lovely progress” F.M. had demonstrated. Exh. 131. Beyond progress with communication skills, F.M. had shown greater strengths with generalization, decreases in negative behaviors and improvements in social skills. July 30, 2010 Tr. at 1266, 1322-1324. Significantly, Ms. 6 testified that she had observed meaningful progress during the 22 days in which F.M. participated in the program. She testified, “[h]e knew his numbers . . . and numerous parts of his body. He knew his colors and shapes and understood spatial concepts. August 30, 2010 Tr. at 2491, 2511, 2685; Exh. H. at 4,11.

Thus, on the issue of educational progress alone, it is clear that the District’s implementation of the IEP was substantially true to its provisions, producing far more than trivial progress across several academic and behavioral categories. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). It is well established, however, that the IDEA does not require school districts to maximize the potential of a student with a disability. (Rowley, 458 U.S. at 197, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Regrettably, I believe this became the expectation of the Parents.

The Injuries

F.M. presents with a long history of aggressive and self-injurious behaviors as documented by the Parents’ witness, Ilana M.D. Exh. 120. More recently, the uncontroverted testimony indicates that F.M. engaged in self-stimulatory and self-abusive behaviors across environments and people, especially at the inception of the District’s program and during toileting. These behaviors occurred at the Clinic as well and were, in fact, Dr. rationale for deferring the child’s toileting program. Even at the Clinic, the Parents’ designated experts in ABA, the data indicates multiple instances of kicking, bolting, flopping, grabbing, biting, hitting, dumping of materials, spitting and hair pulling. Exh. 116. Most recently, in her abbreviated “Mental Status Exam,” Dr. observed the child climbing over furniture, grabbing and throwing things when asked to eat. Ibid. at 4.

In the course of providing services to F.M. at home, both Ms. 5 and Ms. 3 testified that they had observed F.M. jump from the stairs in his home, landing on his knees. Moreover, Ms. 3 observed that the child frequently slid about on the kitchen floor, jumped off the couch and bolted over the top of the desk while Ms. 4 had, on occasions, observed F.M. striking himself on the head or punching his leg. August 2, 2010 Tr. at 1651-1653; 1711, 1718, 1744-1745, 1748-1763; July 1, 2010 Tr. at 435-438, 446458, 571; July 2, 2010 Tr. at 707-708. At home, the Parent additionally reported the presence of negative behaviors and, in subsequent discussions with District personnel, noted that F.M. “likes to swing upside down and when he does that he likes to rub his back against the gravel and sometimes that – and that resulted in some light bruising.” August 31, 2010 Tr. at 2899; Exh. 132. In contrast, referencing the considerable period of time in which she has worked professionally with F.M., Ms. 5 could only recall three incidents in which F.M. exhibited significant “acting out” behaviors. These had occurred during the 22 days F.M. attended school and were, she opined, atypical for the student. July 30, 2010 Tr. at 1319-1320. In fact, District personnel uniformly testified that F.M. had responded well to the structure of their program. As a result, F.M. was generally not viewed as a danger to himself or others and personnel had sought out opportunities to engage F.M. with other children. Ibid. at 1329.

In fact, therapist 5, a family friend who has known and treated the child since he was an infant, testified that she was unconcerned about marks and scratches on F.M.’s body as he frequently presented with skin problems such as irritated insect bites, irritation caused by clothing tags or zippers, bruises and scratches. July 30, 2010 Tr. at 1291-1293. Ms. 5 additionally reported that the child had very fair, dry skin which he frequently scratched and irritated, an opinion uniformly shared by personnel.46 July 30, 2010 Tr. at 1253. The Parents were well aware of F.M.’s propensity to chafe and redden easily, having supplied personnel with a skin lotion previously approved by for the District. Exh. 132 at 11.

Although not articulated, the Parents urge a “res ipsa loquitur” approach in assessing responsibility for F.M.’s assortment of scratches and marks, some worse than others during the January 28, 2010 to March 9, 2010 period. Ms. 6 thus opined, “A trained person can perform interventions without injuring a child.” Exh. 29 at 2. Assuming, arguendo, the presence of a significant injury, this does not provide notice of an inadequately implemented IEP until March 9, 2010 and, in fact, the evidence indicates otherwise. On February 5, 2010 and March 9, 2010, the Parents allege F.M. was “physically abused at the hands of District personnel.” Exh. 1. Having reviewed photographs of F.M.’s injuries, I believe the scratches which occurred on February 5 and March 9, 2010 are minimal and their import over-blown by the Parents. Exhs. 89, 94. There is simply no evidence of significant injury to F.M. which cannot be explained rationally through the record; the Parents’ allegations of an on-going pattern of mistreatment and violence are untenable. This is particularly true in light of Ms. 5’s testimony that she had frequently observed injuries, including zipper injuries, at the M’s home.

False Record Keeping – February 2010

I have additionally reviewed the Parents’ claims of “false” and misleading record-keeping, including incidents in which Ms. 6 testified she had been “lied to,” a scenario duplicative of their 9 III and 8 experiences. August 30, 2010 Tr. at 2536; Exh. 120. While their allegations of inaccurate record

46

Although personnel referred to “eczema”, the District has not been furnished with a diagnosis. keeping might have been alleged in the context of negligence, I note that the Parents’ Due Process allegations of “false” and “misleading documentation,” implies a criminal intent to misinform and even dupe the Parents. In the matter at bar, it is more likely that, because of the pedestrian nature of F.M.’s injuries, personnel did not observe them or attribute to them any significance requiring documentation.

For example, the Parent acknowledged that she did not seek any treatment for the “injury” of February 5, 2010 and it appears that neither Ms. 3 nor Ms. 4 were aware of the scratch until alerted by the bus matron. August 31, 2010 Tr. at 2946; August 2, 2010 Tr. at 1703-1704; Exh. 89. Given the likelihood that F.M.’s neck was scratched by the zipper on his jacket as he resisted dressing for the bus, it is reasonable that neither Ms. 4 nor Ms. 3 would have observed it. Nonetheless, Ms. 3’s genuine effort to investigate whether the zipper on a bean bag chair might have caused this injury was perfunctorily dismissed by the Parents as an effort to deflect “blame.” Rather, the Ms. automatically accepted the exculpatory denials of the bag’s manufacturer. As a result, Ms. 6 immediately concluded that personnel had “lied” and intentionally misled the Parents when Ms. 3 had described February 5, 2010 as a “great day” in the communication book. Exh. 132.

Ms. 6’s testimony and her affidavit are inconsistent with each other as well as the facts. Notably, the Parent initially testified that staff was unaware of F.M.’s injury and did not acknowledge its presence until confronted. She testified, “. . . First they said they weren’t aware of anything at all, had no idea what we were talking about. Then by the end of the meeting, Nancy 3 acknowledged that she saw the injury as she was taking F.M. to the bus.” August 30, 2010 Tr. at 2530; Exhs. H. at 17, 171.

In contrast, both Ms. 6’s Affidavit and her letter of February 9, 2010 acknowledge that Ms. 3 had observed the mark when F.M. was boarding the bus, but had not mentioned it as she knew the Parents would be meeting with her later that day. Exh. H. at 3. Similarly, the Parents’ Due Process Complaint alleges that staff had observed the injury before F.M. had boarded the bus. Exh. 1 at 3.

On February 5, 2010, it is clear that with the exception of 19 seconds earlier in the day, the child’s negative behaviors were confined to the end of the day at which time five minutes of bolting, flopping, kicking and grabbing were documented. There is no doubt that the injury could have been sustained as a result of any one of these incidents. Exh. 116 (pps 521-523). It appears, however, that Ms. 6’s flawed understanding of the distinctions used to describe “bolting” as opposed to the more serious “eloping,” precipitated her belief that personnel were concealing evidence that they had grabbed F.M. as he attempted to run away. In fact, the data indicates that Ms. 3 duly noted multiple incidents of bolting and flopping during the last five minutes of class while there had been no incidents of eloping. Convinced that personnel had made fraudulent entries into the communication book, the Parents pursued further investigation, notwithstanding the de minimus nature of the scratch which Ms. 6 later described as a “ligature mark.” August 30, 2010 Tr. at 2512.

In a complaint filed with their “forensic” expert regarding the February 5, 2010 injury, an injury analogized by their attorney as “a rope/string friction burn” similar to an injury he had sustained, “from some hand-to-hand combat training in the Marines learning how to deal with an attack from the rear of this nature,” the matter was dismissed. In its report, Randal Holloway, on behalf of the New York State Commission of Quality of Care and Advocacy, concluded that the injury may have been “created by the zipper of his partially closed coat, possibly when a staff member held on to it while F.M. attempted to drop to the floor.” Mr. noted, “I’m glad the principal has been responsive and addressed this incident in a forthright manner. Providing effective and safe services and supervision to F.M. is going to require some learning on the District’s part. In any case, no one should believe any guarantee that our children are totally safe in any setting. There are too many things beyond anyone’s control. Frankly, the humans we hire are imperfect and effected by the stresses placed upon them on a daily basis, just as our children are.” Ibid. at 2518-2519; 2524; Exh. 166.

The Parents’ additional allegations regarding “false record keeping and misleading progress notes” include the failure on February 1, 2010 to indicate the timing for one episode of negative behavior. During a day in which 21 episodes lasting 67 seconds throughout the day were recorded, Ms. 6’s affidavit claims that the failure to include the specific timing of this lone event compromised her ability to discern its duration. As a result, the Parents were precluded from an accurate analysis of F.M.’s behavior that day. Moreover, Ms. 6 objected to the School’s failure to document its rationale for the use of shaving cream on this day. Exh. H. at 16.

As further evidence of the District’s lies and deceit, the Parent noted that the data for February 2, 2010 indicated fourteen minutes and fifty-nine seconds of problem behaviors while the ABC data indicated fifteen minutes and thirty-nine seconds, noting that inaccuracies such as this may “contaminate the analysis of F.M.’s data.” Exh. H. at 15. A similar allegation concerns the log entry for January 28, 2010, the first day of F.M.’s program. On that day, Ms. 6 noted further duplicity on the part of the District by virtue of an inconsistency on the summary sheet memorializing the duration of problem behaviors.

The Parent further objected to Ms. 3’s February 3, 2010 entry in the communication book, describing F.M.’s behavior as “so-so” although there were twenty-nine minutes and twenty-five seconds of problem behavior that day. Specifically, Ms. 6 was disturbed by Ms. 3’s failure to address at greater length the presence of F.M.’s negative behaviors on February 11, 2010, a day on which 33 negative behaviors occurred with a cumulative duration of fewer than 15 minutes. In fact, the Parents were not informed that day that F.M. had been referred to the nurse following a toileting incident in which the child had thrown himself to the floor and sustained a scrape on his finger. Exh. 147. In this regard, the District should have informed the Parents as to the nursing referral. I do not construe their failure to do so, however, as a malicious act of deception.

False Record Keeping – March 2010

The record indicates that March 9, 2010 was a particularly difficult day for F.M. who exhibited negative behaviors for several hours that day. Upon arriving home, the Parent discovered several marks about the child’s body and, in particular, a new mark on the child’s neck. Although Ms. 6 had not spoken with District personnel and did not know what had transpired, a criminal complaint was immediately lodged with the sheriff’s office. Exhs. 91-94.

The police report states in relevant part,

“Patrol reviewed the information from the case with Sgt. Lopez. From the information collected it did not appear as though if any marks on F.M. were made by Nancy or Christina through the course of the day, they were not intentional or reckless done (sic). Since nothing was intentional or reckless done (sic), there would be no grounds for criminal charges in this case. Patrol contacted S. [Ms. M]

and advised her that after the investigation there would be no criminal charges in the case. S. [Ms.

M] was upset to hear this outcome and did not agree with it. S. [Ms. 6] told patrol that she felt that

Nancy was purposely hurting F.M.”

Exhs. 93 at 3; 94.

Notwithstanding the evidence of “physical abuse,” Ms. 6 testified that she did not seek medical treatment for F.M. until two days later. August 31, 2010 Tr. at 2945-2946.47 The Parents maintain that they were willfully uninformed of this occurrence by virtue of the District’s failure to prepare an incident report contemporaneous with the events of March 9, 2010 and, secondarily, by Ms. 3’s “failure” to document the circumstances of F.M.’s injury that day in the communication book. While Ms. 6 testified, “On the 9th, I didn’t know who had injured F.M.,” this had no bearing on her ability to initiate criminal charges of child abuse against specific District personnel by 4:06 pm. August 3, 2010 Tr. at 1929.

The Parents’ allegations presuppose the existence of a threshold injury for which a report would be written. Moreover, their allegations clearly presume personnel knew about the injury and nefariously sought to conceal evidence of its occurrence. Lastly, it assumes the Parents’ testimony is credible. In

47

There is no documentary evidence to confirm this. fact, I find Ms. 6’s testimony totally unpersuasive as it is frequently internally inconsistent and at odds with the testimony of others, including her husband. While personnel did not prepare an incident report until two months later, critical facts are omitted from Ms. 6’s Affidavit, suggesting that District personnel did not engage in the multiple communications and meetings which ensued. Exh. H.

Similarly, the Parents suggest nothing more than malevolent intent regarding the absence of a note in the communication log for March 9, 2010. This position is utterly at odds with the record which indicates specifically that due to the severity of F.M.’s behavior that day, Ms. 3 had not had the opportunity to communicate in the log book, but would prepare a typewritten note at home that evening. Exh. 132 (pp 673). Finally, although Ms. 6 complained in her Affidavit that, following the events of March 9, 2010, superintendent Sposato did not respond to her efforts to communicate with her, the very same Affidavit indicates that Mr. Sposato immediately responded by email, stating, “This is inexcusable and will not be tolerated . . .” Exhs. H. at 20; 26.

I have reviewed the remaining allegations and they are similarly over-blown, misleading or, frankly, untrue. Under these circumstances, it is not surprising that the Parents have cited absolutely no testimony in their Closing Brief.

Failure to Provide ABC Data

The Parents additionally maintain that the District failed to provide them with both the raw ABC data as well as a sign book which was to be exchanged daily. With regard to the ABC data, Ms. 6 herself testified that Dr. destroyed this data after it had been entered into a graph as it was not considered part of the Data Book. This testimony was supported by both Ms. 3 and Ms. 4, who indicated that although not mandated to retain the ABC sheets, they had elected to do so. The Parent, however, had an independent understanding that the ABC data sheets, separate and apart from the cumulative weekly graphing of daily data, would be shared with her on a weekly basis as indicated in the IEP. Exh. 3 at 40.

The IEP, however, does not refer to the exchange of ABC data. Rather, it indicates that daily behavioral data shall be reported to the parents weekly. Exh. 3 at 40. There is no specific reference to the exchange of ABC data; rather, this information was to be supplied in condensed form as a bi-weekly graph.48 July 1, 2010 Tr. at 372; August 2, 2010 Tr. at 1666; September 14, 2010 Tr. at 3470. Clearly, the Clinic concluded that the raw data had little intrinsic value, if any, once weekly graphs with easily

48 While it was initially contemplated that data be exchanged on a weekly basis, a bi-weekly schedule was adopted without objection from the Parents. identified trends and patterns were developed. Viewed essentially as teacher work product, there was no mandate to retain this information. While this information should have been exchanged on a weekly basis, it was, in fact, only supplied twice during F.M.’s 22 days of attendance. Nevertheless, Mr. 1 testified that the Parents had never raised a concern about the daily ABC sheets, a matter which could have been rectified easily since it was already being maintained. September 14, 2010 Tr. at 3468-3470. Given the Parent’s silence regarding the exchange of raw ABC data, the absence of any IEP reference and the fact that the clinic regularly shredded this material after graphing, this does not constitute a material breach in the District’s implementation of the IEP.

Failure to Develop a “Sign Book”

The Parents further maintain that the District failed to develop an ASL sign book which could be exchanged weekly. Exh. H. While daily data was maintained in a “daily language log,” it appears that this information was a compilation of the child’s manding skills, rather than a catalog of ASL signs acquired by F.M. Personnel testified consistently that the log sign book, maintained daily, reflected the child’s ability to communicate requests by manding, tacting and verbal approximation. August 23 Tr. at 2195; July 30, 2010 Tr. at 1279-1280. While the language log sign was IEP driven and maintained daily, there is nothing in the child’s IEP which directs the District to develop a weekly book of ASL signs. Exh. 3. Moreover, Mr. 1 testified that, prior to the within proceedings, the Parent had not expressed concern that she was not receiving the IEP referenced “language log sign.”49 Rather, she was interested in developing a book of ASL signs F.M. had mastered. September 14, 2010 Tr. at 3467; Exh. 99.

Nevertheless, Ms. 6 testified that she had repeatedly raised the District’s failure to provide her with a sign book as an abrogation of its IEP mandate with Ms. 3. August 3, 2010 Tr. at 1999-2003. This testimony, unsupported by documentary evidence, is inconsistent with the testimony of Ms. 3, Ms. 4, Ms. 5 and Mr. 1, all of whom shared a different understanding of what the IEP required in terms of a “sign book.” Given Ms. 6’s testimony that she viewed the absence of the sign book as a violation of the IEP and articulated this on several occasions, it strains credulity that not one individual, including her personal friend, Patty 5, would correct her understanding.

Ultimately the Parent volunteered to assist with the preparation of a sign book when Ms. 3 indicated that she was already over-burdened with F.M.’s responsibilities. On March 19, 2010, Ms. 4 developed an ASL book for F.M., based upon 43 words supplied by Ms. 6 Although Ms. 6 was now in possession of

49

A compilation of F.M.’s ability to make requests. the ASL sign book she desired, the Parent nevertheless objected to this book as it had not been alphabetized nor did it include at least six words she believed F.M. had acquired. Exh. H. at 15.

Improper Implementation of Behavioral Implementation Plan

The Consent Decree specifically requires the development of a positive BIP which shall not include “the use of time out rooms, time out procedures or any physical interventions or restraints, including but not limited to basket holds and prone restraints.” Exh. 4 at 7. In furtherance thereof, the Parents allege the improper use of a prohibited basket hold on March 9, 2010. While the District does not deny implementing this intervention, both Ms. 3 and Ms. 4 testified that the basket hold was an emergency measure taken after F.M had disrobed and staff was re-dressing him. These measures were not instituted as part of F.M.’s BIP; rather the basket hold was utilized as an emergency measure, pursuant to Item 10 of the Consent Decree. August 23, 2010 Tr. at 2206-2209. As such, the basket hold did not constitute a violation of 8 NYCRR 200.22.

However, this provision requires “immediate notification by phone on the same day as the emergency intervention and in writing within one business day of the emergency intervention. Although aware of the District reporting requirements for restraints, Ms. 3 testified that she had not alerted the Parents immediately, but verbally informed Mr. 1 the next day. August 23, 2010 Tr. at 2206-2210. Pursuant to administrator 1’s own investigation, written notification was forwarded to the Parents indicating that a physical restraint had been utilized to prevent F.M. from harming himself. Exh. 28. There is no evidence that personnel employed physical force to “guide” F.M.’s behavior. Rather, their interventions fell squarely within the parameters of 8 NYCRR 19.5, 200.22 (d). While the Parents did not receive an immediate notification, in violation of the Consent Decree, I do not believe this militates against a finding of FAPE. Exh. 4 at 6. In fact, the Ms. received written notification from Mr. 1 on March 10, 2010. And, but for the Parents’ initiation of criminal charges against Ms. 3, it is likely F.M.’s teacher would have provided a detailed description of the day’s events as promised in the communication log on March 9, 2010.

The Parents were aware that F.M. had experienced an extremely difficult day, unlike any others, and communication with Dr. had already been initiated. Ms. 3’s “failure” to discuss the day’s events in the communication log can hardly be characterized as a deliberate effort to conceal the facts from the Parents. Rather, it was a responsible measure taken to ensure that both instructors were actively engaged with F.M. during the remainder of a very difficult day. Given the Parents’ strenuous objections, it is ironic that Mr. 1 had observed Mr. 6holding F.M. in a similar basket hold during a CSE convene. September 14, 2010 Tr. at 3574-3575. As a totality, I find the Parents’ claims, especially those asserting physical abuse, little more than dramatic hyperbole, reflecting a long pattern of parental accusations of “child abuse” across county, local and non-public school providers. While there are some calculation errors in the data, qualitative objections (i.e. the failure to discuss the use of shaving cream) and a failure to advise the Parents of a nursing referral, the Ms.’s affidavit is replete with minutiae, distortion and inaccuracy. Exhs. H, 146, ix at 27.

Although the District was clearly trained to utilize a discrete trial, data-based program, it is obvious that the level of intensity expected by the Ms., including data collection, evaluation and reporting, could never be implemented within the parameters of a 6:1:1 classroom, nor was it mandated to do so as enrollment increased. Exh. 173. But for the negative and critical micro-management of F.M.’s Parents, intentional or otherwise, this program would have continued as had been initially anticipated by Dr. Carbone. Exh. 173.

2. Did the Department of Education provide F.M. with FAPE from March 9, 2010 through June 30, 2010?

The regulations are clear regarding District liability where parental consent has not been provided. In furtherance thereof, 8 NYCRR 200.5 (b)(4)(i) states,

If the Parent of the student refuses to consent or fails to respond to a request to provide such consent to the provision of special education programs and services, the school district shall not provide the special education program and services to the student and shall not use the due process procedures described in this section to challenge the parent’s refusal to consent.

(i) The school district shall not be considered to be in violation of the requirements to make available a free appropriate public education to the student for the failure to provide such student with the special education program and services for which the school district requests such consent.”

Clearly, the Parents did not provide consent to the District’s programming after March 9, 2010. Their repeated assertions that F.M. could return to school upon “safe and appropriate delivery of F.M.’s IEP services” is little more than an illusory effort to appear cooperative. As the Parents have set themselves up as sole arbiters of whether the IEP can be implemented correctly, their consent is conditional and can only be furnished on their terms. This unilateral “stonewalling,” has long characterized the Parents’ relationship with the District and their attitude towards F.M.’s education. As a result, F.M. has experienced huge gaps in his education while his Parents deny him, in some cases, any education at all in the name of ensuring the “appropriate implementation of F.M.’s IEP.” Thus, the Parents’ allegations, inter alia, that “F.M. is home due to physical abuse suffered at the hands of the District staff and his lack of readiness to return to the scene of the abuse,” memorializes their unilateral determination that F.M. cannot return to school. Exh. 1 at 2. This is particularly evident by the Parents’ refusal to permit an assessment of “F.M.’s instructional readiness” by District personnel or any of its independent educational evaluators. Rather, they rely upon the well-filtered history provided by Dr. wife of their 50-H negligence attorney, Albert Esq. Exh. 121. If anything, the record indicates that, through on-going litigation, the Parents have been well trained to articulate a sense of cooperation while demonstrating the contrary. The record simply does not sustain any conclusion that the Parents had offered consent to the District’s program.

From March 9, 2010 to June 3, 2010, the absence of a District program was directly related to the M.’s unfounded accusations of child abuse and their refusal to accept Ms. 3 as F.M.’s teacher, even if the latter had not tendered her resignation. Notwithstanding the “support and integrity” demonstrated by Mr. 1, during this “painful situation,” Ms. 6 clearly indicated that she could no longer “continue to entrust our child to your care,” wished to see District personnel in jail and “hoped to see whoever did this arrested,” Exhs. 26, 29 at 2. It was, moreover, the Parent who terminated transportation arrangements for F.M. on March 10, 2010 despite clear conviction as early as March 12, 2010 that the District should continue their program. Exh. 173, 27.

Shortly thereafter, on March 16, 2010, Mr. 1 had identified Jim Spock as Ms. 3’s replacement. Mr.

is an appropriately certified special educator with eight years of experience with the emotionally disturbed population. 8 NYCRR 80 et seq. Nevertheless, Mr. Spock admittedly had little, if any, specific experience with the autistic population, a concern of both the Parents and As a result, Dr.

agreed that Mr. could participate in the three day ABA training at the with the proviso that he participate in regularly scheduled supplemental training as determined by the clinic. May 17, 2010 Tr. at 216-217.

When a newly scheduled training session was offered on April 13, 2010, the Parents testified that they were unavailable due to Mr. M.’s employment commitments. Although indicated that they would be able “to accomplish all of our training objectives with one of the parents in attendance,” Ms. 6 insisted that her husband attend. Exh. 35 at 2.50 In response, the Parent suggested training dates during the School District’s Spring intersession when personnel were on vacation.

50 The baby-sitting issues for their older child appear irrelevant as Ms. 6 testified that she could make arrangements if both she and her husband attended together. Ibid. at 2675. The Parents’ testimony regarding Mr. M.’s need for Mr. 6to participate at the is torturously inconsistent with themselves and everyone else. District personnel uniformly testified that Mr. 6was present at the initial training intermittently while baby-sitting for his other child, despite Dr.

request that W.M. not attend. Exh. 19. In contrast, referencing his expertise as to whether Ms. 3 was instructing F.M. properly, Mr. 6stated that “I was there for all meetings, all the discussions.” October 22, 2010 Tr. at 4062- 4063.

Notwithstanding email, Ms. 6 insisted that her husband attend, aware that the next available training session was scheduled for June 2, 2010. Although the District offered to provide Ms. 6 with a 1:1 full-time paraprofessional to assist her, this was automatically rejected, although the rationale is unclear. Exh. 35 at 2.51

The Parents’ testimony regarding lack of concern for F.M.’s absenteeism is circuitous, evasive and unpersuasive. August 30, 2010 Tr. at 2681-2684. Aware of limited availability, the Parents’ refusal to attend the April training session militated against the District’s attempts to reconstruct the program in a timely manner. Although the Parents indicated that they had non-consensually taped several conversations with and others, neither Mr. 6nor Ms. 6 could provide these tapes upon District request at the time of hearing. August 3, 2010 Tr. at 1893-1899; August 30, 2010 Tr. at 2676-2677; August 31, 2010 Tr. at 2886-2887, 2889, 2893, 2896. As a result, I am constrained to draw a negative inference regarding concern about F.M.’s absenteeism. October 22, 2010 Tr. at 4159-4166. Ultimately, the denial of FAPE was a product of the Parents’ actions.

Given the deferred June 2, 2010 training session, Mr. however, was no longer a logical replacement as pursuant to contractual obligations Mr. would be “excessed” effective June 30, 2010. Again, but for the Parents’ refusal to attend the April training, Mr. would clearly have been a reasonable replacement until the end of the 2009-2010 school year. Mr. Spock was duly licensed as a special educator, had been employed in this capacity for several years and was denied the opportunity to receive ABA training.

Thereafter, Catherine retained as Mr. replacement and was available as of June 10, 2010. From June 9, 2010 through June 21, 2010 the Parents repeatedly expressed concern about Ms.

competency for the position, citing her lack of familiarity with the autistic population, her lack

51 The baby-sitting issues for their older child appear irrelevant as Ms. 6 testified that she could make arrangements if both she and her husband attended together. Ibid. at 2675. of ASL fluency, her unfamiliarity with 8 NYCRR 200.22,52 her recent certification as a Special Education Teacher and her lack of data tracking experience. September 15, 2010 TR. at 3860-3861; Exhs. 56-65. Although Ms. had considerable experience with ABA and was certified as a BCBA, in the absence of “answers” to their concerns, the Ms. were uncertain of the District’s ability to “properly implement the child’s IEP.” Nevertheless, subject to State teacher certification standards, a board of education may hire whomever it chooses to teach children with disabilities (Application of a Child with a Handicapping Condition, Appeal No. 91-19). Special education instruction must be provided by appropriately certified personnel (8 NYCRR 200.6[b][4]). Believing the Ms. would not send F.M. to school, the District initiated a new referral to CPS.

On June 24, 2010, the Parents brought F.M. to school pursuant to the District’s CPS referral. Given the Parents’ objections to Ms. Bryson and their failure to offer any notice that they would be sending F.M. to school, the District was clearly unprepared to offer F.M. a FAPE. Thereafter, F.M. did not attend school until July 6, 2010, the first day of summer session, where the child remained in attendance for two days. At this time, the Parents again alleged that F.M. had been physically abused and, as a consequence, retained their son at home.

While federal courts within the Second Circuit have held that compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).

In his opening statement, Parents’ counsel argued, “I don’t care and none of us should care in this type of case whether or not the parent is Charles Manson because Charles Manson’s child is still entitled to those special education services, irregardless (sic) of their conduct (emphasis added).” September 14, 2010 Tr. at 3757. This is essentially the Parents’ position and the basis for their objection to what they consider ad hominem attacks on the Ms. While the Parents’ brief recounts many lapsed educational opportunities in which the District acknowledged they were unable to provide FAPE for F.M., there is not one reference to the testimony regarding the Parents’ involvement in the circumstances leading to these admitted lapses. Consistent with the Parents’ propensity to offer half truths and mis-statements,

52 Ms. 6 described 8 NYCRR 200.22 and the use of aversives as the “legal cornerstone of any FBA or BIP and one of F.B.’s only legal protections.” Exh. 57 at 2. the Parents’ Closing Brief disingenuously suggests that the District’s failure to offer FAPE is exclusively a factor of its precarious financial status. It neglects any mention of Parental consent or the equitable responsibilities attendant upon the Parents.

The record clearly indicates that the Parents’ intrusive behavior, their hostile and accusatory approach to personnel as well as their preference for keeping F.M. home without services have contributed synergistically to the District’s inability to provide FAPE. While the District’s burden is absolute, a Parents’ utter lack of cooperation must enter the equation where equitable relief is sought. The Parents’ “strict liability” analysis of the District’s obligations is an erroneous interpretation of its obligations and is ignorant of the equitable nature of this remedy. Under this analysis, I find that there is no merit to their claim for special services. Given the District’s early offer of compensatory education in their Answer, a remedy eschewed by the Parents, the Parents have gained little in this litigation, other than, presumably, a financial obligation to their attorney.

Equitable Factors

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-

01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). In furtherance thereof, the "core of the statute" is the collaborative process between parents and schools in planning and providing appropriate special education services (see Schaffer, 546 U.S. at 53; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-93 [2d Cir. 2005]). One of the main policies behind the IDEA is to encourage the prompt resolution of disagreements about the education of children so that such children will not be harmed by long delays before being placed in appropriate educational settings (see 121 Cong. Rec. 37416 [1975] [remarks of Senator Williams]), and to prevent the child from falling hopelessly behind in his education (Janzen v. Knox Co. Bd. of Educ., 790 F.2d 484, 488 [6th Cir. 1986]; Dep't of Educ. of the State of Hawaii v. Carl D., 695 F.2d 1154, 1157 [9th Cir. 1983]; see also Evans v. Bd. of Educ., 930 F. Supp. 2d 83, 94 [S.D.N.Y. 1996]. This has clearly not happened in the matter sub judice. While Ms. 6 has undoubtedly been cooperative, these relatively limited overtures are grossly undermined by the consistent, relentless and baseless accusations wielded by the Parents. Nevertheless, there is no question that Ms. 6 has willingly traveled to the far corners of New York State in search of evaluations and medical opinions. She has researched placements, treatments and providers and has generally attended CSE meetings when asked. These cooperative actions are dwarfed by the Parents’ predilection for litigation over resolution and are memorialized through their repeated filing of administrative, criminal and civil complaints, sometimes before any communication with the District taken place. Clearly, the Parents’ behavior militates against any entitlement to equitable relief.

For example, their March 9, 2010 initiation of criminal charges prior to any conversation with personnel was disturbingly irresponsible. While the police had already determined that there was no basis for Ms. 6’s conclusion that Ms. 3 intentionally assaulted F.M., Ms. 6 nevertheless wrote that she would not return F.M. to class until you “fire whoever did this to him.” adding that she hoped “whoever hurt F.M. will be arrested.” May 17, 2010 Tr. at 253-254; Exh. 26. Displeased with the Sheriff’s conclusions, Ms. 6 nevertheless attempted to file a new complaint with SED who declined to hear the case. Exh. 168. Their persistent nonconsensual taping merely underscores their lack of trust.

The Parents’ administrative complaint regarding the February 5, 2010 injury was similarly dismissed, notwithstanding Ms. 6’s description of the scratch as a “ligature” like injury and Mr. speculation that the injury, “. . . kind of appears to be a rope/string friction burn to me. I had a similar injury once from some hand-to-hand combat training in the Marines learning how to deal with an attack from the rear of this nature. It makes me wonder what type of experiences F.M. is having on his first few days in a new program.” In fact, Randall Holloway, on behalf of the New York State, commended the manner in which the District had addressed this issue. August 30, 2010 Tr. at 2512, 2518-2519; 2524; Exh. 166.

Following the events of March 9, 2010, the Parents alleged that F.M. had been severely traumatized and would be unable to return to campus. Nevertheless, the Ms. refused District access to F.M. for any assessment of the child’s instructional readiness, claiming they could not permit an observation by Mr. 1 as he was not an expert in In the interim, a Notice of Claim was filed on their behalf, seeking damages in the amount of five million dollars for personal injuries sustained as a result of the District’s negligence. Curiously, the Notice of Claim, prepared April 28, 2010, references the Parents’ February 5, 2010 complaint to the New York State Commission for Quality Care, but does not indicate its dismissal on March 15, 2010. Exhs. 166.

Seeking an assessment of their child’s trauma, the Parents requested additional District evaluation by a pediatric expert versed in the assessment of trauma in non-verbal autistic children. The Parents objected to the District’s psychologists and, although specifically designated in the Consent Decree as the consulting behaviorist, Ms. 6 asserted that the family could no longer avail themselves of Liz services as they “had lost confidence in both Ms. and Dr. through the evaluation and IEP process.” Exh. 40. In fact, Ms. 2 credibly testified that Ms. had refused to presume the existence of abuse at 8, a fact reiterated in the Parents’ email of April 12, 2010. Ibid. The Parents’ objection to Dr. s unclear. When offered the District’s list of independent educational evaluators, the Parents declined all of them, stating they had already made an appointment with Dr.

August 30, 2010 Tr. at 2704; Exh 42.

Beyond, at a minimum, the appearance of impropriety, the retainer of Dr. as a psychiatric expert on trauma is, moreover, a troubling selection. Most unsettling, is a proponent of the use of aversives, an intervention the Parents have vigorously opposed and which is specifically prohibited in the Consent Decree. Exh. 4 at 5; September 13, 2010 Tr. at 3183-3184.

A close review of report, a report typed on personal stationery and shared with indicates a “current history” based upon unverified Parent report and selective documentation offered by the Parent. Exh. 120. Much of it inaccurately suggests that F.M.’s negative behaviors developed post March 9, 2010. In fact, District personnel uniformly observed F.M. repeatedly scratching himself, hitting and otherwise engaging in self-injurious behaviors. Toileting has always been associated with negative behaviors, a fact memorialized by the decision to defer a toileting protocol. . August 2, 2010 Tr. at 1651-1653; 1711, 1718, 1744-1745, 1748-1763; July 1, 2010 Tr. at 435-438, 446458, 571; July 2, 2010 Tr. at 707-708. While there are extensive records memorializing repeated incidents of abuse dating back to 9 III, there are no reports from the District or its personnel, individuals with the most current information. Although by March 12, 2010, readily agreed that F.M. should return to campus, his opinion changed dramatically by May, and it is likely that the Parents’ preference for home instruction was bolstered by review of the April 25, 2010 report. Exh. 120.

In fact, a decision to retain F.M. in school on March 9, 2010 was based, in part, upon Mr. 1’s subsequent observation that, despite the morning’s earlier events, the child was appropriately engaged later on that day. August 23, 2010 Tr. at 2320-2321. Again, on March 19, 2010 while meeting with the Parents to discuss F.M.’s program, Mr. 1 noted that F.M. did not appear stressed, did not offer resistance to the campus or classroom and played uneventfully with Mr. 6and himself. September 14, 2010 Tr. at 3498. It was determined that F.M.’s negative behaviors should not be rewarded by a trip home.

Clearly, both Ms. 3 and Ms. 4 viewed the Parents’ initiation of a criminal complaint as a betrayal of their loyalty and commitment to F.M; neither wished to continue servicing FM in a direct capacity. Fearful of administrative challenges to her license, Ms. additionally withdrew from the District’s employment following the Parents’ second round of criminal charges and threats in July. Not surprisingly, given their ultimatums and threats, even District personnel facing certain unemployment as of June 30, 2010, declined offers to work with the Ms. and their child.

The Ms. have a long history of creating adversarial relationships with their son’s educational providers. Not only have they raised repetitive accusation of child abuse at 9 III as well as 8, but they have continued this pattern with the District through their baseless claims, contrived civil litigation, meritless criminal allegations as well as a “knee-jerk” like preference for IDEA litigation, as evidenced by the initiation of a new Due Process Request in April 2010 immediately following their refusal to participate in an emergency CSE convene which they had sought.

With little knowledge of the Ms., even The Center preemptively withdrew their acceptance of F.M., having concluded, during an interview, that the Ms. single minded and accusatory preoccupation with 8 NYCRR 200.22 precluded them from developing a trusting and collaborative relationship. Likewise, the Parents have now polarized personnel from the School by equating Liz cynicism regarding the issue of abuse with a lack of professionalism. Incredibly, even the child’s former pediatric group, has terminated their relationship with F.M. following conflict of interest and failure of due diligence allegations lodged by the Ms. July 30, 2010 Tr. at 1221-1223; September 13, 2010 Tr. at 3377; Exh. 151.

In fact, in his email of January 13, 2010, Mr. 6accused his own expert, Dr. of lying. Exhs. 22-

24. subsequent request that all further communications with the Parents be limited to those witnessed and held within the context of “formal educational planning,” is a likely result of the repeated “misunderstandings” and accusations between the Parents and himself. July 30, 2010 Tr. at 1420-1421; Exh. 23. Given these communications and (1) the fact that the Ms.’s ignored his instruction to leave their other child home during training [Exh. 19]; (2) the Parents accused of lying about providing both home-based and school-based IEPs [Exh. 24]; (3) there was repeated “confusion” as to whether both Parents required training [Exh.35]; (4) the ongoing confusion as to an interim truncated program, given F.M.’s protracted absenteeism [August 30, 2010 Tr. at 2590-2595; Exh. 46]; (4) the confusion regarding F.M.’s need to return to campus and the indications for implementation of an “all or none” approach [August 30, 2010 Tr. at 2592; Exh. 35]; (5) F.M.’s newly developed state of “trauma” [ Exhs. 33, 120] and (5) awareness of the adversarial nature F.M.’s education had taken, it is not surprising that the Parents’ expert indicated he would no longer be able to service the District. Exh. 1953. 53 had additionally lost the services of his ABA assistant, Claire. While Ms. 6 has, on occasion, graciously thanked District personnel for their integrity and professionalism, the record is more frequently laced with the Parents’ vitriol, name-calling and vile language. Exh. 30. Independently and through their attorney, they have (1) accused the District of bribery; (2) suggested that an occupational therapist was using “crack; ” (3) threatened to post photos of their child on the internet; (4) filed criminal charges prior to discussions with District personnel; (5) filed repeated administrative claims with SED and the New York State Commission of Quality of Care and Advocacy; (6) initiated an apparently contrived and suspect claim for personal injuries; (7) delayed much needed training so that the District program could be resurrected; (8) grossly exaggerated injuries sustained by their son; (9) demanded that staff be fired (10) slandered and libeled personnel; circumvented CSE opportunities for collaborative decision making by initiating Due Process Requests and (11) threatening protracted litigation when their requests are not met. Exhs. 43; iii passim.

The Parents have intimidated the District into underwriting independent evaluations and their considerable travel expenses through persistent threats of litigation. They have, moreover, requested inappropriate and inconsistent evaluations including an occupational therapy assessment whose approach was subsequently rejected by In furtherance thereof, I note Ms. 2’s testimony that the Parents were seeking a SIPT evaluation, testing which was not even performed by therapist possibly based upon its inappropriateness for F.M. Similarly, the Parents now rely upon Dr. despite their long standing objection to the use of aversives. July 30, 2010 Tr. at 1402-1411. On other occasions, they have withheld consent to release F.M.’s records so that alternative placements could be identified and accused the District of “breach of contract” in failing to adhere to the Consent Decree. Exhs. 52, 53, 66.

These actions are entirely inconsistent with an equitable claim to corrective services. Exhs. 40, 43, 48,49. The Courts have long held that, in “fashioning discretionary equitable relief under IDEA” one “must consider all relevant factors, including the appropriate and reasonable level of reimbursement upon a finding of unreasonableness with respect to the actions taken by the parents” (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005] aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]).

3. Does the January 27, 2010 IEP constitute a viable pendency? Pursuant to the Consent Decree issued October 9, 2010, the child’s pendency provisions were initially set forth in the August 5, 2010 Impartial Hearing. The Decree states as follows,

“12. Until such program and placement as set forth herein is identified and secured, the student shall receive services in accordance with his pendency placement as agreed to at the hearing on August 5, 2009, or by further written agreement of the Parent and District.” Exh. 4 at 53.

Thereafter, the parties mutually agreed to the IEP of January 27, 2010 as the Parents maintain their present objection is to the implementation rather than to the substantive contents of the document. On May 17, 2010, a pendency hearing was held. Despite their reiterated insistence that F.M. remain home due to the unsafe conditions at school, the Parents now insisted that safety was not an issue. Exh. 29, 33,

35. In furtherance thereof, the Ms. were now seeking reinstitution of the January 27, 2010 IEP on-site in District.

On May 19, 2010, two days later, the CSE convened with participation. At this time, Dr. Carbone unambiguously indicated that the January 27, 2010 was unsafe. The record is clear that Dr.

no longer believed the three day training period at his clinic would serve any purpose in the absence of a full-time BCBA, hired by the District, who could provide a minimum of three to four hours of direct supervision F.M.’s program. In fact, opined that the program had “drifted” and was no longer a safe option for the child. A certified copy of the transcript indicates the following query:

Ms. 2: OK. And in the mean time I guess I had another question if we’re in a position of having to return F.M.

here without the type of infrastructure you talked about and without the type, do you have any concerns?

Mr. 1: He already said he said yes, don’t do it.

Ms. 2: What did …

Ms. I’m concerned about safety. I’m concerned about safety.

Ms. 2: You had said things though before about safety bringing him back to school.

Ms. Yeah I think safety basic safety.

Yeah. I don’t I don’t think you ought to ought to bring him back to the school under the circumstances . . . .

I think the model that we initially adopted shows that it’s not an effective service delivery model.

Ms. Norlander: I’m not even asking effective or appropriate. That’s not that’s really not my question. My question is if we were to return to that . . .

Ms. 2: Is is safe?

. . is it safe for F.M. Is it safe for staff for us to resume that program?

No I don’t think so. Exh. i at 60-61. Notwithstanding irm and straight-forward opinion at this meeting, a meeting in which Mr. representative participated, Parents’ counsel persisted in denying that Dr.

had indicated in any way that this program was unsafe and that the child should presently be educated at home. Exhs. iv-vi. It is clear that everyone present was addressing the viability of the ABA program initially developed with the assistance of Dr. the physical plant was irrelevant.

The Pendency Order’s language including its use of the word “location,” was prepared by Mr. It is, regrettably, no more than a mischaracterization of the parties’ intentions, suggesting that physical location was the linchpin of objections. Exh. vii. This could hardly be further from the truth as the physical plant was not even discussed at this time. opined, “I’m of the opinion . . . that I don’t think the District has the capacity given its resources to deliver and given recent experience, to deliver an appropriate educational program for F.M.” Ibid. at 23. Mr. distortion of the record is diametrically opposed to the well established understanding that pendency provisions reference programmatic considerations rather than those tied to any particular site or location. (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980]; Application of a Student with a Disability, Appeal No. 08107; Application of the Bd. of Educ., Appeal No. 07-125; Application of a Child with a Disability).

As such, the initial service delivery model was contraindicated. clearly recommended, at a minimum, the addition of a full-time on-site BCBA whose duties included the dedication of four supervisory hours per week to F.M. Even Ms. 6 recognized the dangers of reverting to the January 27, 2010 IEP. recommendations were clearly an alteration of the very infrastructure of F.M.’s program, and as such, it is an IEP driven requirement.54 In evaluating the substantive program developed by a CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the student to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002] [quoting MS. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). The specialized training, supervision and individualized consultations recommended for F.M are programmatic elements integral to development of an IEP “reasonably calculated to enable the student to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002] [quoting MS. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]. These specific elements must be provided via IEP mandate.

54 Curiously, as is frequently the pattern with such intensive ABA programs, provision for staff rotation every 20-30 minutes was not incorporated into the program. The rotation serves the interests of preventing staff fatigue and generalizing skills across personnel. Beyond a clear mischaracterization of remarks, the Parents failed to avail themselves of the provisions articulated in 8 NYCRR 200.5 (m)(1). The regulations specifically provide that, “. . . unless the local board of education and the parents otherwise agree, the student shall remain in the then current placement of such student.” This would have been an ideal opportunity for the parties to work collaboratively towards incorporating recommendations, but was rejected out of hand by Parents’ counsel. In fact, had counsel not taken the position that the January 27, 2010 IEP was safe, a subsequent agreement recognizing the need for BCBA supervision could have served as an interim agreement between the parties independent of the Parents’ right to pendency.

Both State and federal laws and regulations allow parents and school districts to make agreements regarding a student's pendency placement during the adjudication of an IDEA claim (see 20 U.S.C. § 1415[j]; Educ. Law § 4404[4][a]; 34 C.F.R. § 300.518[a]; 8 NYCRR 200.5[m][1]). In cases involving stipulations between parents and boards of education, the determinative issue when deciding whether a stipulation becomes the basis for a student's pendency placement is whether the stipulation was explicitly limited to a specific school year or definite time period (Zvi D., 694 F.2d at 907-908; Evans v. Bd. of Educ., 921 F. Supp. 1184 [S.D.N.Y. 1996]; Application of a Child with a Disability, Appeal No. 04-064; Application of the Bd. of Educ., Appeal No. 03-028; Application of the Bd. of Educ., Appeal No. 02061; see Mayo v. Baltimore City Pub. Schs., 40 F. Supp. 2d 331, 334 [D.Md. 1999] (finding that a student did not have a “then-current educational placement” at a unilateral placement where a series of settlement stipulations provided tuition reimbursement for that placement, but did not provide that the settlements would constitute the student's "then current educational placement"). In fact, the record is clear that the Ms. had a mistaken view of pendency, based upon counsel’s representations. As counsel stated, “I am the person in the driver’s seat of how to do this and my recommendation to the Parents was that testimony was not at all relevant to the issue of pendency which we wanted resolved in a timely manner.” October 22, 2010 Tr. at 4007-4008.

More disturbing than counsel’s misrepresentation of recommendations, is the fact that, through their attorney, the Parents rejected the unbiased opinion of their own expert, in assessing the safety of F.M. in school. In fact, Ms. 6 had earlier opined that her child “would probably end up dead” if the District implemented the January 27, 2010 IEP as written and without the additional infrastructure was recommending. Exh. i at 31. The Parents’ actions are entirely inconsistent with the best interests of their child and, as such, the question inescapably arises. Are the Parents capable of managing their child’s education?

4. Are the Parents capable of managing their child’s education? To this question, I resoundingly respond that the District must expedite the appointment of a guardianad-litem over all current and future educational matters for F.M. The Parents’ actions have been distinctly incompatible with the best interests of their child, either through their own actions or those they have sanctioned through their attorney. In furtherance thereof, they have threatened to post photographs of F.M. on the Internet and withdrawn him from school repeatedly such that during the 2009-2010 school year, F.M. was in attendance only 22 days.

Moreover, there has been a lack of collaboration and a pattern of gratuitous hyperbole in which tensions are escalated through name calling, extremism and threats, much of this by their attorney. While it is unclear to what extent the Parents are aware of Mr. actions, the Parents’ interests are clearly compromised by the level of belligerence generated by his unfounded criminal accusations and threats. Curiously, on at least one occasion, the Parents clearly recognized the potential damage which might be created by Mr. assertions and sought to minimize its impact. Exh. i at 9, 10.

On a second occasion, rather than encourage their cooperation by assisting the District with its search into alternative placements until the District’s ABA program could be resurrected, the Parents were cautioned about entering into any agreement with a “pit of vipers.” Exh. i. at 19. Mr. further states, “Any interim or pendency services will alleviate any pressures on the District to begin complying with the law and implementing the IEP we went to great lengths to secure.” Ibid. As had occurred previously before IHO Ziev, and relying upon counsel’s directives, the Parents opted for the total absence of educational services over those they deemed imperfect.

While the Parents had clearly evinced an interest in working collaboratively with the District at this time, Ms. 6 quickly retracted her offer to assist, based on her attorney’s counsel. Ms. 6 wrote, “I’m sorry that it was inappropriate for me to discuss these exploratory options because we understand now from discussion with Mr. hat taking these kinds of actions could be harmful to F.M. . . . . as I know they cannot implement the ABA IEP. At this time, we must decline to pursue any options except those where F.M.’s IEP can be delivered full time. I apologize for the inconvenience and hope you understand.” Exhs. 70,71.

Following the initiation of their due process complaint, it is, likewise, unclear if the Parents were aware of the District’s offer of interim services without prejudice to the child’s right to pendency. August 3, 2010 Tr. at 2590-2595. Strangely, Ms. 6’s circuitous testimony (referencing her “subconscious”) suggests that this offer may not have been communicated by Mr. to the Parents. August 31, 2010 Tr. at 2752-2757; Exh. 158. Assuming it had been discussed, the failure to provide F.M. with any interim program stands in violation of the child’s right to FAPE.

As a whole, the Parents’ single-minded acceptance of counsel’s advice, even when doing so is inconsistent with the best interests of their own child, suggests that they are incapable of managing F.M.’s education appropriately. Regrettably, their rationale for rejecting even that part of F.M.’s program to which they have no objection suggests a preference for strengthening their legal claims over providing their child with an education.

Finally, notwithstanding the recommendations of Ms. 5 and others for “total communication,” Ms. 6 has persisted on excluding all forms of communication other than

ASL. This is particularly egregious in view of the fact that Ms. 5 testified that the child exhibits poor fine motor coordination which compromises the intelligibility of his signs. In fact, the record indicates that by age five, F.M. had begun to develop language. Exh. 120. More currently, speech pathologist 5 similarly opined that F.M. was capable of developing speech. Exh. 120.

Enumerating her objections to Ms. Ms. 6 testified, “One is that his IEP is sign language dependent. And that as a matter of fact there’s no expectation at this point for him to develop at this point a verbal vocabulary, the expectation is for him to develop a reliable sign language vocabulary in order to have some reliable language base.” September 13, 2010 Tr. at 3092-3093. In fact, the child’s IEP does not articulate any requirement for an ASL interpreter and many of its goals reflect the acquisition of verbal approximations and speech. ASL is viewed as an adjunct only. Exh. 3.

The Parents’ opinion is further at odds with Ms. 5 who had been documenting the child’s ability to make verbal approximations from January 28, 2010 through March 9, 2010. Moreover, Ms. 6’s position is inconsistent with Ms. 5’s recommendation for total communication, including the use of assistive

In fact, the child’s IEP indicates that, “According to his recent evaluation, F.M. demonstrates strong potential to develop speech as a primary method of communication.” Exh. 3 at 4. Nevertheless, rather than enlarge upon F.M.’s ability to communicate with others, the Parents have insisted on debilitating him by narrowing the population with which he can express himself.

The record is rife with examples of drama laden confusion, even for the simplest of things such as obtaining a signed script for physical/occupational therapy. Indeed, easily resolved matters such as the exchange of raw data or the development of an ASL book are characterized by a lack of communication and malevolent accusation. However, even if none of the events alleged by the District were true, a position I do not take, their allegations alone inexorably underscore the absence of the collaborative relationship envisioned by the IDEA. This is particularly true when considering the Parents’ request for ongoing videotaping of F.M.’s class. Although thinly veiled as an instructional aide, their request for continuous videotaping evidences little more than unmitigated suspicion. Given the Parents’ propensity for non-consensual taping and the mysterious disappearance of these recordings, it is obvious that the requisite trust upon which a collaborative relationship is founded does not presently exist.

While no one disputes the presence of scratches and marks about the child’s body, the Parents’ reactions constitute little more than extremism, distortion and misconception. Although Ms. 6 may genuinely be too frightened to send F.M. to school due to the District’s “failure to implement his IEP,” her actions have deprived F.M. of the education to which he is entitled. These motives may be well-intentioned, but their effects are destructive.55 As sole arbiters of whether the IEP is implemented correctly, the Ms. have sabotaged the possibilities an education can offer and F.M. has spent an enormous amount of time home without services. As such, F.M.’s education has been characterized by little more than protracted absenteeism. It is shocking that a child described as a bright, “one-trial” learner, capable of verbal language has been reduced to fewer than 50 ASL signs and diapers.

Conclusion

The Parents’ request is denied.

Wherefore, it is hereby ordered that:

Pursuant to 8 NYCRR 200.5(j)(3)(ix), the District shall immediately expedite the appointment of a guardian ad litem over all educational matters relating to F.M., both past and future.

The child’s pendency shall revert to the provisions as set forth at the impartial hearing of August 5, 2009 and articulated in the Consent Decree. Exh. 4 at 6.

The District shall have no liability for the absence of FAPE from January 28, 2010 through the end of the 2010 school year. Similarly, the District shall have no continuing liability for the absence of FAPE until the date upon which the child is placed in a 6:1:1 program as set forth below.

The District shall make immediate efforts, consistent with the child’s IEP, to place F.M. in a 6:1:1 classroom, accompanied by a full-time 1:1 paraprofessional. As such, F.M. shall be placed in the first accepting facility which maintains a full-time BCBA. Pursuant to New York Education Law §4402[4][d], the District shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition

55 Although there is absolutely no diagnosis in the record, much of Ms. 6’s behavior appears consistent with Munchausen’s Disorder by proxy. the District shall provide “suitable transportation” and shall extend its search of placements to those requiring a one and one half hour trip each way. The District shall be deemed the prevailing party.

Dated: January 31, 2011

___________________________________________ Leah Botwinik Almeleh, Esq. New York State Certified Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 30 days of the receipt 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 notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Footnotes

[1] This included three days of intensive training requiring over-night accommodations for the Parents and their two children, expenses underwritten by the School District.

[2] Negative behaviors included bolting, poking, spitting, dumping of materials, tearing off wall materials and urinating on the floor. July 1, 2010 Tr. at 328-329.

[3] The child’s program is described as a 6:1:1 program, supplemented by a 1:1 paraprofessional. As F.M. was the only student enrolled, services were offered within discrete trial parameters. There is no IEP mandate for this. Exh. 3. approach,

[4] Training at the Carbone Clinic was provided by Clare Hess, BCABA.

[6] Ultimately, Ms. 4 testified that she had sustained multiple injuries as a result of the events of the day, including a black eye and multiple scratches. Notwithstanding this, she remained in class with the child.

[7] The witness noted that she had asked the District to research the use of “arm guards” which could protect her arms from some of the child’s behaviors.

[8] It should be noted that the witness often lost her composure while testifying and frequent breaks were required in the course her statements. July 1, 2010 Tr. at 271-543 and July 2, 2010 Tr. at 555-740, passim; July 2, 2010 Tr. at 603-606.

[9] A compilation of F.M.’s ability to make requests

[10] Following some investigation, the District suggested a bean bag zipper may have injured the child.

[11] The child was observed flopping on the floor, jumping on the window ledge, throwing himself on the rug, bolting and disrobing.

[12] Mr. Spock was a current District employee and certified special educator who had volunteered for this position.

[13] The Parent testified that the child had not been in school since May 6, 2009. May 17, 2010 Tr. at 137.

[14] As with all previous evaluations, the request included all travel, lodging and related expenses.

[15] Ms. 6 described 8 NYCRR 200.22 and the use of aversives as the “legal cornerstone of any FBA or BIP and one of F.B.’s only legal protections.” Exh. 57 at 2.

[16] This included speech, psychological observation and record review.

[18] Counsel for the Parents indicated that the family had been “bullied” into accepting the pendency agreement while the District stipulated that it did not have a placement for the child. July 2, 2010 Tr. at 808.

[20] It should be noted that Parents’ counsel maintains a residence and office in or about the suburbs of the Buffalo/Niagra region.

[22] The Parents specifically rejected the December 14, 2009 IEP.

[23] The physical lay-out of the school includes staircases and an open second floor atrium.

[24] Despite outreach efforts through 9 for Rensselaer, Columbia and Greene Counties, the District received no student referrals.

[6] wrote, “We do not consent to release F.M.’s records and we expect the District to uphold the consent decree.” On May 19, 2010 the CSE convened for a program review as the child had been removed from the current program, there was no program in place and the District was seeking direction as to how to move forward. Ibid. at 1105. Although everyone agree that the child had made significant progress, Dr. indicated that he did not believe the District could continue to provide a program for F.M as it did not have the necessary resources and infrastructure. In particular, he believed the presence of a was critical, although this had not been his recommendation originally. In sum, Dr. indicated that he could no longer continue his involvement with F.M.’s program. July 29, 2010 Tr. at 940. Ms. 2 opined that Dr. decision had not been based upon any of the day-to-day documentation as he had not seen this or even made any inquiry for this. August 2, 2010 Tr. at 1500.

[26] Massachusetts Connecticut New York Pediatrics, located in Great Barrington, Mass. The practice employes one physician who is licensed in NY.

[27] Ms. 2 noted that subsequently expressed reluctance to continue as the District’s physicians, a situation she opined was related to the failure of due diligence alleged by Ms. 6

[28] According to documentation supplied by the Parent, F.M. has been physically abused since age five by various educational providers including the BOCES- 9 III program. Exh. 120.

[29] Although personnel referred to “eczema”, the District has not been furnished with a diagnosis.

[30] Following some discussion about the child’s irritated skin, the Parents provided personnel with moisturizer.

[1] The following day, Ms. 3 provided a statement to the Columbia County Sheriff’s office who advised her that charges of abuse had been filed by the Parents. 34 August 2, 2010 Tr. at 1634-1641; Exh. 91. In sum, the witness testified that, following Mr. 1’s actions, she resigned from her position, an action which she had considered earlier, due to the stress of the job. She stated, “We were with F.M. from 8:45 in the morning until almost 3:45 in the afternoon. There had to be . . . two people with him at all times and when there were no therapists in the room - that meant Christina and I. There were no breaks; there were no lunches much of the time . . . I was taking two hours of data home every night. I was spending 32 Ms. 3, Ms. 4 and at times, a physical therapist, speech therapist or occupational therapist providing related services. 33 This includes the use of planned ignoring and physical blocking. 34 Ms. 3 believed that the Sheriff’s office ultimately chose not to pursue the Parents’ complaint.