NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
IN THE MATTER OF THE IMPARTIAL HEARING CONDUCTED ON BEHALF OF X
BY Mr. Father and Mrs. , FROM THE ACTION OF THE COMMITTEE ON SPECIAL
EDUCATION OF THE SCHOOL DISTRICT
SED #
INTRODUCTION
This hearing is governed by 8 NYCRR 200.5, IDEA and Section 504 of the Rehabilitation Act. Parents requested this hearing by letter received 04/08/11 (Ex. 1), and amended 05/20/11 (Ex. 3). I was appointed by the Board of Education on 04/12/11. The 45-day limit for a decision [as per Part 200.5 (i)(4)] was extended after joint request of the parties. (T 7-8)
This hearing was held on 08/01/11 and 08/02/11. Five witnesses testified: the Pupil Personnel Director, the School the Classroom Teacher, the CSE Chair and Mrs. . The transcript contains 240 pages. Exhibits entered into evidence numbered 1 – 49, and all were joint exhibits. (T 7, T 12, T 163-165) Written closing arguments were submitted with postmarks dated 09/16/11. The record closed on 09/16/11.
My findings of fact and conclusions of law are attached hereto and have been mailed to by certified mail, return receipt requested.
PLEASE TAKE NICE! Within 35 days of the receipt of this decision, the parent and/or board of education has the right to appeal this decision to the State Review Officer of the NYS Education Dep't under Education Law Section 4404 and IDEA.
"The nice of intention to seek review shall be served upon the school district n less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35- day period." 8 NYCRR 279.2(b)
Directions and sample forms for filing an appeal can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm. YOU WILL WAIVE YOUR RIGHT TO
APPEAL THIS DECISION IF YOU FAIL TO FILE A NICE OF INTENTION TO SEEK
REVIEW or if you herwise fail to follow the procedures set forth in the Commissioner of Education's Regulations Part 279.
Impartial Hearing Officer: Date: 09/30/11
PARTIES’ POSITIONS
PARENTS: The School District (School) has n made reasonable efforts to accommodate or manage X in the general education classroom. Its recommendation for a self-contained 8-1-1 class is n appropriate and is n the least restrictive environment (LRE). The School has n: (1) put in place a full-time or a part-time 1-1 aide or paraprofessional, (2) offered an appropriate intervention plan (), (3) revised or revisited the that was implemented, (4) hired an independent consultant to assist in developing an appropriate , or (5) cooperated with the Parents in adjusting and testing out a new course of prescribed medication. The IEP: (1) has no al or management goals, (2) offers little insight into X‘s needs or issues, (3) contains little information concerning his present levels of performance, and (4) repeats all of X‘s goals from the previous year (Exs. 7, 33). Parents allege that X progressed in the general education , but struggled in the general education .
SCHOOL DISTRICT: Over the past few years, X has received interventions and accommodations, but his needs are more severe than what the School can reasonably provide in the general education classroom. X does n stay in his seat, and X crawls on the floor, growls, and exhibits her maladaptive s. The CSE recommended a self-contained 8-1-1 class, where X could receive extensive intervention designed to help him improve his , focus and attention. The CSE determined that X was n receiving any educational benefit in the general education setting, and that X‘s s were disrupting the learning of his classmates. An 8-1-1 class will address X‘s and attention issues because it is smaller and less stimulating than a general education classroom, and X will receive more direct instruction.
ISSUES
Is the CSE recommendation (Ex. 7) appropriate? Does the IEP provide X with FAPE?
ORDER
The CSE recommendation is n appropriate and does n provide X with FAPE. I find for the Parents. I order the CSE to place X in a general education setting, and to meet within 15 calendar days to develop an appropriate and a new IEP with updated present levels of performance, new goals that address X‘s identified needs, and increased supports, which may or may n include a 1-1 aide, staff training, a diet, a classroom aide and/or the services of an outside consultant.
FINDINGS OF FACT
Introduction
X is a boy, now entering grade, who has . (Ex. 3 at 1; Ex. 8, T
134) X exhibits s which impair his ability to function appropriately in the general education classroom. (T 135, 137) X is sometimes hyperactive, disorganized or impulsive. (Ex. 3 at 1; T 68, 135) X has been classified as (Ex. 7 at 1, 134). X has processing difficulties (T 32; Ex. 7 at 4; Ex. 3 at 1), a delay in mor skills (Ex. 7 at 3), and problems with focus and attention (Ex. 3 at 1; T 67-68, 108 – 109, 135-136; Ex. 43). X has difficulty with social interactions with bh peers and adults (T 109, 137; Ex. 7 at 4).
X was initially provided with early intervention services and then preschool services in a general education setting, and there were no concerns. (T 134, 178-180)
On page 4 of his evaluation dated 05/13/09, the School Psychologist wre: ―Observations and checklist results indicate difficulties with self-control, attention span, and social skills. X will need as much external structure as possible next year, as well as crystal clear expectations, repeated regularly. He will also benefit from frequent feedback on his and work, bh positive and negative. Because he seems to constantly seek stimulation, a ‗ diet‘ established by the therapist may also assist in reducing the interfering s that have impeded X‘s success. A Functional Assessment / Intervention Plan should also be established.‖ [1]
During the 2009-2010 year, X attended at the School District in a general education class with related services, but without program modifications and without testing modifications. The IEP (dated 07/15/09) provided (2x/week 30 minutes each, pull-out, individual) 2 and (2x/week 30 minutes each, pull-out, small group). (Ex. 46 at 1; T 181)
In , X was generally successful. (T 131, 182; Ex. 43) The teacher ned some concerns. (Ex. 43; See also Exs. 17-23, 47)
On 05/26/10, the CSE determined that X had made progress in , but needed supports for the 2010-2011 year. (T 182) The CSE again recommended (2x/week 30 minutes each, pull-out, individual). (Ex. 33 at 1) The CSE also recommended services (5x/week 30 minutes each, pushin, large group), and a general education class. (T 183; Ex. 33) Program modifications were: (1) refocusing and redirection, and a positive reinforcement plan, to assist with , (2) pair auditory and visual input, and (3) a plan to assist when X gets frustrated and needs to be active. Testing accommodations were a special location with minimal distractions. (Ex. 33 at 1, 2; Ex. 47) The CSE did n discuss an 8-1-1 or a self-contained classroom. (T 183)
and goals, which had been listed in the IEP (Ex. 46 dated 07/15/09), were dropped from the IEP (Ex. 19; Ex. 33 dated 05/26/10). that services were continued unchanged from the IEP to the IEP, but goals were changed in recognition of his progress. (Ex. 23; Compare Ex. 33 at 5-6, goals #3 - #6 with Ex. 46 at 5, goals #5 - #8, and please refer to fone [2].) (2010-2011) was X‘s teacher. (T 25 - 26) PPSD was X‘s Elementary School Principal, and the School‘s Pupil Personnel Services Director. PPSD knew X for several years as one of his Elementary students, and observed s classroom for about 30 minutes/week, almost all year long. (T 132-137) The School knew X from providing: (1) individual once/week for 30 minutes for 6 – 8 weeks starting 04/11, and (2) during the 2d semester, push-in to assist X in his classroom. (T 66-69, 94-95) The CSE Chair knew X from chairing his CSE and CPSE meetings, and from classroom observations. (T 108) described X as a sweet, loving boy who gives of hugs and who can be funny. [3] However, some of X‘s : (1) toward his peers was inappropriate, and as a result, it generated negative reactions from his peers, and (2) was n directed at anyone in particular but was distracting, and as a result, it interrupted the lessons. X had trouble staying in his seat, and he made animal noises (including hisses and growls) toward children and adults, and sometimes crawled on the floor.[4] X sometimes invaded the personal space of his classmates by mimicking an animal clawing (i.e., he moved his hands close to their faces), and by tapping on their desks. His distracting varied, and sometimes occurred while: (1) sitting on the rug when he should have been listening to a lesson, (2) sitting at his desk when he should have been working on an assignment, (3) getting up from his seat and walking around the classroom when he should have been working on an assignment or listening to a lesson, and (4) playing with objects in the classroom that weren‘t being used in the instant lesson. His peers reacted by complaining about him to their teacher ( ), PPSD and the School , and by avoiding X. Toward adults, X was overly clingy and needed constant attention, and he sometimes acted out just to get that attention. On the other hand, X had some positive relationships with children and adults. (T 26 -31, 37, 47 – 48)
PPSD and the School agreed with about X and his s, and also described X as ―likeable‖ as well as sometimes ―physically threatening‖. (T 71-76, 134 - 135, 137, 140-141, 144-146)[5]
X once threw a small Unifix block in the classroom, but he didn‘t aim it at anyone and it didn‘t strike anyone. (T 58, 63) described one instance when X hit student with a toy, and a second instance when X pinched student and ―kind of‖ drew ―a tad of‖ blood. (T 57) Parents of X‘s classmates expressed concern to the teacher (CT) about X‘s . (T 28 - 29)
Academically, X performed below grade level. (Ex. 16; Ex. 33 at 3; Ex. 43 at 1, 3; Ex. 46 at 2) His interfered with his learning, and X was referred for discipline on many occasions. (Exs. 35 – 41) The academic and social gap between X and his classmates was significantly larger at the end of than it had been at the end of . (T 144-145) X had the ability to perform better than he did. (T 31 – 32, 135; Ex. 34)
In response to X‘s s, tried the following academic interventions and social supports: modified instruction in that X‘s assignments and tests were shorter and less demanding than those given his classmates, support from the classroom‘s aide up to 2 hrs/day and usually oneon-one6, use of manipulatives, hands-on activities, assistance with tasks including tracing over the aide‘s writing and ―dictating‖ to the aide during writing exercises. (T 32, T 35 – 37, 66-67, 80-81)
The aide‘s only training in how to handle X was through conversations with (T 60) However, herself was never formally trained in how to handle disruptive . (T 44-45) and provided no details about the number or nature of said conversations with the aide.
In response to X‘s s, tried the following accommodations: a ―disco‖ seat with tactile stimulation, a ball so that X could bounce while seated, a leaded weighted vest, velcro for his pencil and a. (T 32-33) PPSD observed those, and in addition, crouch or ―crab walking‖ and ―controlled‖ running in order to get out X‘s excess energy. (T 138-139; Ex. 32) The CSE (Ex. 47, dated 05/26/10) recommended, and the IEP called for a plan (Ex. 33 at 2, dated 05/26/10). There is no evidence that a plan was ever established. (T 46, 156, 196)
In January, 2011, implemented a positive system in which X was rewarded with his choice of activity if he completed some tasks.[7] (T 33 – 34, 79-80, 117, 141-143; Ex. 25) tried several strategies (T 71), and consulted with the CSE Chair (T 110, 117) and School (T 80).[8] Most of the strategies worked for a few weeks, but then they didn‘t work. (T 81) Generally, ‘s interventions didn‘t improve X‘s . (T 34, 111) PPSD stated that informal management tools were ―scaffolded‖ during the school year as the need arose (T 138). School witnesses provided few details about management tools and interventions. (T 52, 112, 140-141) implemented informal interventions as part of her overall classroom management. When asked for examples, testified that she gave X a choice of whether he wanted to sit on the rug or in a chair next to the rug. (T 39, 47, 112) further testified that when X made an animal noise to a classmate, would go over to him and ―kind of steer him away‖. It usually
6 The had an aide 2 hrs/day to help students stay on task during reading and writing activities. (T 35) Even though the aide was present to assist all students, the aide spent most of her time with X. (T 35 - 36) Although the aide helped X to complete assignments, her presence did n consistently alleviate X‘s miss. (T 37, 78, 111) wouldn‘t stop the animal noise, and would have to intervene again. Then, would document (in writing) that X made a distraction. (T 46 - 47) [9]
In February, 2011, Mrs. that X‘s attitude toward school went from being very enthusiastic and happy to crying that he didn‘t want to go. (T 185-186) Starting in late January, 2011, and continuing into March, 2011, the School told Mrs. that X was experiencing al problems. (T 184, 195-196, 212, 219)
In early March, 2011, Mrs. was invited to School for a meeting. The Intervention Plan () was developed: (1) immediately after that meeting by the School Psychologist (who didn‘t testify), the School and and (2) as a result of a functional assessment (). (Exs. 14, 15; Ex. 3 at 2) Mrs. wanted to participate in the development of the , but she wasn‘t permitted to do so. (T 93, 100, 118, 186, 188, 191-192)
When Mrs. saw the , she complained to the School that it was vague. She was told that the would be revised if it didn‘t work, but it wasn‘t revised. (T 126, 193, 201) Furthermore, at the (above) March / meeting, the CSE Chair said that the 8-1-1 placement would n be appropriate for X (T 192), but the CSE Chair recommended the 8-1-1 placement at the 04/05/11 CSE meeting.
The was successful only for two weeks, but it was implemented unchanged for an additional (i.e., a 3rd) week. (T 93, 126) It consisted of a flip chart placed on X‘s desk. The chart showed the subject areas, so that X could flip over from one subject to the next, and see clearly how the day was scheduled, and where in the schedule the class was working. (T 138) In addition, there was a al chart, where X would complete tasks, be rewarded with a choice of personal activity, and then rejoin the class activity. (T 37 - 38, 44, 78)
Later in March, 2011, Mrs. remained concerned about X‘s s. Mrs. started X on medication in the hopes that it would eliminate some of his undesirable s and allow him to focus more in class (T 197). Mrs. the District of this and subsequently received reports from stating that he was having better days, starting to get on task and should be rewarded (T 197-199).
As often as once per week or more, when the teacher aide was n in the classroom, called the School Disciplinary Liason, the CSE Chair (T 115), the School (T 70-71) or PPSD for help in addressing X‘s . (T 48 - 49, 53 – 54, 116) More frequently during the 2d semester than during the 1st, X would misbehave and would call for help from anher adult. (T 34, 52, 111) ‘s her students didn‘t require this level of intervention. (T 53)
Starting in 04/11, the School worked with X on following directions and staying on task. (T 67- 68) During the 2d (but n the 1st) semester, X was a significant distraction to his classmates. Lessons had to stop whenever X acted out. (T 74) Students would get upset whenever X g into their personal space, acted aggressively towards them, or prevented them from doing their assignments. (T 75)
The District did n seek the assistance of a specialist to help the staff develop the or (T 127, 158, 196; Ex. 49). Despite testimony from the School and PPSD that X‘s s were connected to social deficits, intensive social skills training was never provided. (T 95-99, 103, 144)
The School never provided X with a full-time one-on-one aide, and never provided with a full-time classroom aide. (T 43, 129, 196) The CSE Chair, PPSD and all acknowledged that some of X‘s s (i.e., staying off task, distractibility) were of a type that could be addressed by an aide. (T 37, 130, 159) Please see 8 NYCRR 80-5.6 re aide‘s duties.
There was no evidence concerning the triggers of X‘s, or whether, in fact, the School concluded that no triggers existed. her than the 04/10 report, and a flip chart of daily activities, there was little evidence concerning classroom interventions intended to improve X‘s that were or were n successful, or were or were n modified. Exhibits 25 – 32 were admitted as School records, but the authors weren‘t identified and none of the witnesses explained, discussed or referred to those exhibits. Those exhibits contain some specifics about s and interventions during the 2d semester.
There was no evidence concerning the development of the or , her than the exclusion of Parents (TR 186) and the identities of those School staff who contributed. There was no evidence about the classroom aide‘s qualifications or experience, the aide‘s attempts at modification, or their nature or when precisely they were used.
The 04/05/11 CSE
On 04/05/11, at the request of PPSD, the CSE met. (T 113-114) PPSD, and the School were among the 8 persons who attended the meeting. (T 39 – 40, 82; Ex. 7 at 4) X‘s was addressed. (Ex. 6; Ex. 7 at 1; T 93) The CSE determined, and and the School Counselor agreed that: (1) X was n benefitting academically from the general education classroom, and (2) X would benefit from a smaller setting structured around children who have al needs similar to his so that he could get intensive support. (T 41, 83, 114)
Mrs. was present at the CSE meeting, and disagreed with the CSE. (T 42, 118, 201) The CSE considered only the 8-1-1 setting, and no her placements. The CSE did not discuss: (1) the concept of LRE, (2) additional classroom supports or services (i.e., social skills training for X, staff training in management, 1-1 aide), (3) revising the , or (4) any options her than the 8:1:1 class. (T 42, 126, 201-204) The CSE Chair and the School Psychologist disagreed with each her at the CSE meeting about X‘s . (T 186, 193-194)
The 04/05/11 IEP stated that the CSE: (1) considered a general education placement with support and related services, but then (2) rejected this option because of X‘s high level of al needs (Ex. 7 at 5). However: (1) there is no proof that the CSE actually considered anything her than an 8:1:1; and (2) there are no al goals in the IEP aside from #6, which is attention to task (T 127-128, 162; Ex. 7 at 5, 6).[10] There is no 15-1 class or 12-1-1 class for X‘s age group in the School District‘s elementary school, or in the School District‘s BOCES. (T 44-46, 124-125, 159-160, 203-204)
The ―Present Levels of Academic Achievement, Functional Performance and Individual Needs‖ in the 04/05/11 IEP (Ex. 7), with minor exceptions, are precisely the same as those in the 05/26/10 IEP (Ex. 33), and in the 07/15/09 IEP (Ex. 46). The goals in IEPs (i.e., Ex. 7 dated 04/05/11 and Ex. 33 dated 05/26/10) are precisely the same. (T 162)
All 3 IEPs defined X‘s management needs as merely: ―
With respect to X‘s social development, the 3 IEPs only: No specifics are provided with respect to the inappropriate interactions, and no social skills training is provided to assist X in improving his social skills.
With respect to X‘s academic needs, the 3 IEPs only: ―
The most extensive observations on the IEPs dated 05/26/10 and 04/05/11 were provided in the Report, dated 04/10. (Ex. 23) During her push-in sessions, the sometimes observed X when he was more active. The Therapist assisted X ―at a side table to help him focus on task at hand‖ (Ex. 7 at 4; Ex. 33 at 4). She that there were times that he needs to engage in calming activities ―so he can sit at the table and complete his class work‖ (id.). Of significance, she that ―[l]ately he has been able to stay with the rest of his group and with some verbal cues is able to carry out his work as directed‖ (id.) and when frustrated, ―[h]e is able to be redirected to task at hand with some calming techniques‖ (id.). Clearly, the was able to redirect X.
The School and the CSE Chair testified that the 8-1-1 class was specifically designed for students like X—students who had difficulty maintaining focus and appropriate . (T 86, 127-128) They testified that the 8-1-1: (1) would be beneficial to X because it would provide a smaller, more individualized setting where X would receive more attention, (2) would be more flexible and consistent with instruction, and (3) allow support services to be pushed into the class, rather than having X pulled out. (T 83)[11] The third factor would allow X to stay in the classroom and n be pulled out for services. (T 83) In addition, in the 8-1-1, they testified that there are individualized and classroom s that allow each student to receive thorough and consistent intervention. (T 86) Almost all of the testimony about the 8-1-1 was conclusory; facts were n presented.
The School provides group and individual n the 8-1-1 class, and testified that students like X have been very successful in the class. (T 86 - 90, 102, 120-121) She didn‘t explain what she meant by ―students like X‖. About 50% of the students in similar 8-1-1 classes eventually transition into a general education setting. (T 90)
The School conceded that there was a risk that placing a student in an 8-1-1 may lead to the child picking up s from her students. (T 102) Mrs. observed the 8-1-1 proposed for X, and among its students. (T 203)
The CSE advised Mrs. that the 8-1-1 placement would start the day after the CSE meeting (i.e., 04/06/11) and would remain in place for the rest of the 2010-2011 school year. (Ex. 3 at 1; Ex. 7 at 1) Mrs. testified: ―the school didn‘t take every approach possible. They let things get out of control and then said there‘s no options but this.‖ (T 205) X‘s Parents disagreed with the CSE‘s recommendations, (T 42, 118) insisted that X remain in the general education setting, and commenced a due process hearing on 04/08/11. (Exs. 1, 3)
Among those who might have testified, but weren‘t called at the hearing were: the, the, the aide and the 8-1-1 teacher. The School‘s witnesses testified generally to their conclusions about bh the appropriateness of the 8-1-1 class and the age range of the students in that class, but the School presented few facts to support those conclusions. There was little evidence re the students in the proposed class, i.e., their academic, physical, management or social needs, ages, or genders.
CONCLUSIONS OF LAW
The School has the burden of production and persuasion for all matters in this hearing (Educ. Law § 4404[1][c]; SRO 10-129).
When recommending an educational placement for a student with a disability, the CSE must assure that the placement provides ―personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.‖ See Bd. of Educ. v. Rowley, 458 U.S. 176, 203. The recommended placement must be reasonably calculated to provide educational benefit. See id.; Mrs. P. v. Milford Bd of Educ., 103 F.3d 1114, 1120 (2d Cir.
2008) A student is n in an appropriate placement if s/he is receiving no educational benefit.
In s classroom as it was described by School witnesses: (1) X was n receiving educational benefit, and (2) X‘s placement was n appropriate. X exhibited difficulties with attention, focus and peer relationships. His negatively affected his academic progress and was sometimes disruptive to his classmates. The School argued that: (1) it provided extensive supports and services to X in the general education setting, (2) the supports and services in the general education setting were n sufficient to provide X with educational benefits, and (3) the 8-1-1 class was specifically tailored to X.
The School did n meet its burden of proof. (1) the IEP contained insufficient and outdated information about X‘s current levels of performance, strengths and needs, and about appropriate goals (Please see p.8 herein, paragraphs 2-5), (2) the IEP‘s description of present levels, needs and goals were substantially the same as in the 2 prior IEPS, and because of that similarity, the IEP didn‘t support or justify a change in placement, (3) the CSE did n provide reasonable supports and services to X in the general education setting (i.e, 1-1 aide, staff training re management, social skills training for X, outside consultant, plan / ‗diet‘), (4) the CSE didn‘t timely or properly develop the or , invite Parents‘ participation, or methodically revise the , and (5) the CSE did n properly consider LRE.
Current & Complete Descriptions of Strengths, Needs & Goals Are Required in the IEP
An IEP must contain detailed descriptions of a child‘s present levels of performance (8 NYCRR §200.4 (b)(5)(ii)(b)) including, but n limited to ―academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive , expected rate of progress in acquiring skills and information, and learning style‖ (8 NYCRR §200.1(ww)(3)(i)).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services‖ (SRO 08-052; SRO 08-060). The goals must be ―sufficiently specific and measurable‖ (SRO 07-108, p. 12) and the IEP must contain goals to address identified needs (Id.; SRO 08-060; see also, SRO 05-049). The goals must be ― sufficiently described so as to allow the student's teacher or therapists to understand the CSE's expectations with respect to each goal‖ (SRO 07-108, p. 12). 8 NYCRR 200.4(d)(2)(iii)
Here, the District didn‘t meet the above standards. The IEP‘s present levels, and needs insufficiently described X in 04/11. (Ex. 7) As a result, the IEP failed to provide a sufficient basis for the CSE to develop appropriate program and placement recommendations. In addition, the goals were incomplete. There were no goals addressing any of the s which the School, at hearing, described as problematic (her than attention to task). Given that is the entire basis for the District‘s argument that X should be removed from the general education setting, this omission renders the IEP substantively inappropriate.
Standing Alone, IEP Doesn‘t Justify Restricted Setting
The IEP does not warrant removal to a self-contained setting. Educ. Law 4402[1][b][3][b] states that a CSE is required to make recommendations based upon a written evaluation that sets forth the reasons for the recommendation to the parent and the advisability for the continuation, modification or termination of the special class program or placement. The CSE‘s placement recommendation must be based upon the child‘s IEP. 34 CFR §300.116 (b)(2)
There is nothing in this IEP that could n be implemented in the regular classroom with supplementary aides and services. In fact, there is no testimony whatsoever that the IEP could n be implemented in the regular classroom. And, certainly, there is nothing that rises to the level of justifying or compelling a change to a more restrictive environment.
IEP Didn‘t Provide Appropriate Services and Supports in General Education Setting
I agree with X‘s Parents who argued that, among her things, the District should have considered assigning a 1:1 aide to X before recommending him for the 8-1-1 class. As stated, there was a classroom aide 2 hours per day. The aide was present for the benefit of all of the students, but spent most of her time working exclusively with X. The aide modified work, assisted with organization and focus, and redirected X, all without training from the School Psychologist, the CSE Chair or the School . Her only source of training was conversations with , who herself couldn‘t manage X. It is no surprise that the aide did n significantly assist X to the point where he was receiving educational benefit. Based on this experience, the CSE unreasonably rejected the assignment of a 1:1 aide to X.
I agree with X‘s Parents who argued that the District should have arranged for staff training in dealing with X‘s s. The need for training is exemplified by the contradictory manner in which School staff responded to and handled certain of X‘s s. In particular, the Therapist encouraged X to ―animal crawl‖ in the coat room in order to calm himself (Ex. 23), but and the CSE Chair treated ―animal crawls‖ as miss. (T 37, 109, 184) This reflects inconsistency and confusion by School staff, and demonstrates the need for staff training. Clearly, School staff should be consistent in disciplining X and appropriately addressing his needs.
I agree with X‘s Parents who argued that the District should have considered contracting with a private specialist before recommending the 8-1-1 class. The Parents submitted an affidavit from a local area offering to contract with the District and its staff, and to work with X concerning his s. An outside consultant, whether private or hired via BOCES, should have been discussed and considered by the CSE, but it was n. There is no requirement that a school district must utilize a private consultant before recommending a more restrictive placement. 8 NYCRR 200.6 However, a school must contract out for services which it can‘t provide in-house, if those services would provide FAPE to a student. I don‘t know for sure that the School can‘t provide both staff training and for X in-house, but the proof demonstrates that it hasn‘t yet done so.
CSE Didn‘t Timely or Properly Develop or Revise /
I agree with X‘s Parents who argued that the District did n properly: (1) develop the /, (2) allow time for the / to work, and (3) revise it. The District claimed to have been using positive reinforcement and al intervention plans before the and (i.e., before March 2011), and might have actually done so, but it presented no facts to support its claims. (T 141-144) The District‘s did n work, X‘s s did n mitigate, and it is n clear whether the failure of the was due to its design or execution.
[T]he failure of the CSE to review the interventions actually used with the student or to develop a revised that was designed to measure and monitor the student's self-injurious and aggressive s, as well as the student's response to strategies implemented by the district, or herwise ne appropriate supplementary aids and services, in the IEP resulted in the denial of a FAPE (citations omitted). (SRO 11-049 at 14)
CSE Didn‘t Consider LRE
The CSE‘s placement recommendation must be based upon the needs of the child. The LEA has an obligation to make available a full continuum of alternative placement options that maximize opportunities for its children with disabilities to be educated with nondisabled peers to the extent appropriate. In all cases, placement decisions must be individually determined on the basis of each child‘s abilities and needs and each child‘s IEP, and n solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience. (Comments to Part 300 Federal Regulations, 71 Fed. Reg. 46588 (Aug. 14, 2006)).
In SRO 11-002, the CSE was affirmed when it removed a student from a general education setting, and placed her into a 1:12+1 self-contained class. That student was diagnosed with Pervasive Development Disorder (PDD-NOS), and exhibited difficulties with attention, focus, and organization. That student had difficulty interacting socially with peers, and displayed physical aggression when frustrated. The CSE determined that there were no supplementary aids or services in the general education classroom which would sufficiently address the student‘s needs. See id. at 20-21. The School cited SRO 11-002 as authority for its position here. I find the instant facts clearly distinguishable from the facts in SRO 11-002.
At p. 18-19, SRO 11-002 held:
―The District must offer X a placement in the LRE in which he can get an appropriate education. (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428).
In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are n disabled and that special classes, separate schooling or her removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cann be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; Newington, 546 F.3d at 112, 120-21; Oberti, 995 F.2d at 1215; J.S. v. North Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008]; Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]; Mavis v. Sobel, 839 F. Supp. 968, 982 [N.D.N.Y. 1993]). The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with her students who do n have disabilities; and (3) be as close as possible to the student's home" (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 C.F.R. § 300.116). Consideration is also given to any pential harmful effect on students or on the quality of services that they need (34 C.F.R. § 300.116[d]; 8 NYCRR
200.4[d][4][ii][c]). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 C.F.R. § 300.115; 8 NYCRR 200.6). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 C.F.R. § 300.115[b]).
To apply the principles described above, the Second Circuit adopted a twopronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if n, (2) whether the school has mainstreamed the student to the maximum extent appropriate (citations omitted). A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but n limited to "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the her students in the class" (Newington, 546 F.3d at 120; see North Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also Oberti, 995 F.2d at 1217-18; Daniel R.R., 874 F.2d at 1048-50). The Court recognized the tension that occurs at times between the objective of having a district provide an education suited to a student's particular needs and the objective of educating that student with non-disabled peers as much as circumstances allow (Newington, 546 F.3d at 119, citing Daniel R.R., 874 F.2d at 1044). The Court explained that the inquiry is individualized and fact specific, taking into account the nature of the student's condition and the school's particular efforts to accommodate it (Newington, 546 F.3d at 120).‖
Before a child with a disability can be placed outside of the regular educational environment, the full range of supplementary aids and services that could be provided to facilitate the child‘s placement in the regular classroom setting must be considered. (Comments to Part 300 Federal Regulations, 71 Fed. Reg. 46588 (08/14/06)). The District did n do that here.
The CSE must consider various alternative placements along a continuum ranging from the least restrictive to the most restrictive, but the CSE did n do so, here. SRO 08-102; SRO 07-
015; SRO 99-7; 34 C.F.R. § 300.115; 8 NYCRR 200.6. (SRO 08-150)
Unlike in Newington where ―[t]he school utilized a variety of supplemental aids, including several additional professionals,‖ and where the child required multiple pull-out services, X received his education in the regular school classroom and was n provided with a variety of supplemental aids – thus, the District‘s recommended self-contained placement should be rejected (see SRO 02-032 [―Absent evidence that CSE had attempted to maintain the pupil in a regular education by increasing the level of supplementary service, I am unable to find that the proposed placement is in the least restrictive environment‖]; SRO 06-132 [―the CSE failed to consider whether the child could be satisfactorily educated in a regular education environment with the use of supplementary aids and services, and … the CSE failed to consider the continuum of alternative placements and services in making its recommendation for the 2006-07 school year"]; see also, SRO 90-16, SRO 90-19).
In determining whether a student can be educated in regular classes, it is n necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids or services (citations omitted) The fact that a student with a disability might make greater academic progress in a special education class may n warrant excluding the student from a regular education program (Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]). (SRO 06-132)
Even if X could n be adequately educated in the regular classroom with supplementary aids and services, the District is still obligated to recommend placement in the LRE in which X could receive an appropriate education. The NYS Education Department addressed the particulars of the various placement options in an April 2008 memorandum (CONTINUUM OF SPECIAL EDUCATION SERVICES FOR SCHOOL-AGE STUDENTS WITH DISABILITIES, http://www.p12.nysed.gov/specialed/publications/policy/schoolagecontinuum.html#sc
This memo dictates, in relevant part, the maximum class size for those students whose special education needs consist primarily of the need for specialized instruction which can best be accomplished in a self-contained setting, as follows:
47. What maximum class size ratios are allowed by regulation?
―The maximum class size for those students whose special education needs consist primarily of the need for specialized instruction which can best be accomplished in a self-contained setting cann exceed 15 students (15:1), or 12 students in a State-operated or State-supported school (12:1), except that:
The maximum class size for special classes containing students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom to assist in the instruction of such students, cann exceed 12 students, with one or more supplementary school personnel assigned to each class during periods of instruction (12:1+1).
The maximum class size for special classes containing students whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention, cann exceed six students, with one or more supplementary school personnel assigned to each class during periods of instruction (6:1+1).
The maximum class size for special classes containing students whose management needs are determined to be intensive, and requiring a significant degree of individualized attention and intervention, cann exceed eight students, with one or more supplementary school personnel assigned to each class during periods of instruction (8:1+1).‖
There is no evidence that the CSE considered less restrictive options than the 8:1:1. The above-cited authority distinguishes the need for a 6:1:1 vs. an 8:1:1 vs. a 12:1:1 according to the intensity of management needs. For the child whose management needs ―interfere with the instructional process,‖ a 12:1:1 class could be appropriate. For the child whose management needs are ―determined to be intensive, and requiring a significant degree of individualized attention and intervention,‖ an 8:1:1 could be appropriate. There is no evidence that the CSE made an effort to determine whether a 12:1:1 might be appropriate.
Without conceding Parents‘ position in support of a general education setting, I agree with Parents‘ argument that the evidence does n justify the more restrictive over the less restrictive special class option. In fact, the CSE Chair misconstrued the criteria for appropriateness of a 12:1:1 testifying that ―an 8:1:1 is certainly more appropriate for the al concerns‖ and a 12:1:1 is ―more towards students who have academic difficulties, possibly a lifeskills type situation‖ (T 121).
Footnotes
[1] There was no evidence ever of a diet. There was no evidence of a or until March 2011.
[2] The 2009-2010 IEP provided X with individual and pull-out 2x/week (Ex. 46 at 1). However, the annual review, dated 05/10, that stated that X had been provided with in group 2x/week, one pull-out and one push-in (Ex. 23; Ex. 7 at 4; Ex. 33 at 4) This non-compliance was n addressed at the hearing.
[3] The School agreed, and added that X wants to please adults. (T 67) The CSE Chair agreed. (T 108)
[4] The stated in her 04/10 report (Ex. 23), and the IEPs repeated (Ex. 7 at 4, Ex. 33 at 4): "At times when he is more active...he may need to go to the coat room and complete some animal crawls to help calm him down so he can sit at the table and complete his class work". (emphasis supplied) considered ―animal crawling‖ as mis, but the considered it therapeutic!
[5] X is about the same size and has about the same physical abilities as his peers. He was sometimes annoying and/or aggressive. That he was ―physically threatening‖ should be considered in this context. (T 71-74)
[7] the number and nature of the tasks were unspecified.
[8] the number and nature of the consultations were unspecified, as were s strategies and interventions.
[9] Said documentation was n presented as an exhibit. In her testimony, provided no details about her documentation, her positive system (see paragraph above) or her informal al interventions.
[10] That goal was identical to Goal #6 on the 05/26/10 IEP (Ex. 33) and similar to Goal #7 on the 07/15/09 IEP (Ex. 46).
[11] her than the School s push-in, there were no details about the push-in services already in place.