Impartial Hearing Decision

IMPARTIAL FORMAL HEARING PURSUANT TO

EDUCATIONAL LAW SECTION 4404(1) AND

COMMISSIONER OF EDUCATION REGULATION

SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,

IMPARTIAL HEARING OFFICER

_________________________________ In the Matter of the Complaint of DECISION Student Against the XXXXXXXXXXXX

CASE IDENTIFIER NO

___________________________________

Preliminary Posture

This Impartial Hearing Officer was appointed to preside over an impartial hearing request filed on June 24th, 2011. A pre-hearing conference was held on July 15th, 2011 during which hearing dates of August 18th and August 19th were selected with a possible need for a third day of testimony on August 22nd.

The hearing commenced on August 18th, 2011 with a stipulation by counsel for the admission of exhibits. IHO Exhibit 1 and 2 were marked as the district exhibit list and the parent exhibit list respectively. The following exhibits were admitted by stipulation district exhibit 1 through 28, 30 through 41, 43, 44, 46, 47, 48 and 50 through 54. Parent exhibits were admitted by stipulation as follows: an exhibit 3, 4, 6, 9, 11 through 25, in addition, exhibit 12A was entered by stipulation that included additional pages not contained in the original exhibit of 12. It should be noted in an attempt to render a decision at the beginning of the school year; this IHO was provided rough draft of the transcript which was utilized in the preparation of this decision so there may be discrepancies of the page references with the final transcript.

Summary of Testimony

This is a testimony of -

was the parent’s first witness and was taken out of order to accommodate the witness’s schedule. currently is the student’s therapist and is a clinical social worker employed at He is a licensed clinical social worker having obtained a Bachelors of Science degree in Education, a Masters degree in Psychology and achieving the level of a Masters in Social Work.

He has treated the student for five years and the student has an diagnosis. The witness for the past 20 years has been working with students with disabilities, in particular which is a diagnosis under DSM-IV. To qualify for the diagnosis you need impairment in social interaction, a restrictive repetitive set of interests, behaviors or activities and do not have a diagnosis in significant language delay or significant cognitive deficiencies. The witness has been treating the student since 2006, approximately 5 years, and is of the opinion that the student meets the diagnosis for The student’s manifests itself in marked symptoms including impairment and non-verbal cues such as gestures, postures, eye contact, and body language. The student also has difficulty with peer relations, making and keeping friends, the difficulty in distinguishing between joking and serious behaviors. The student often takes the behaviors of other students to be threatening or insulting requiring a response. The student, like most with , tends to befriend children younger than him and older but does not engage appropriately with peers. The student also becomes preoccupied with completing items. The student has deficits in social, emotional reciprocity as evidenced by his monologues with an inability to respond to what he hears. He takes charge in play and makes up his own rules. He has several interests that he pursues in depth but his knowledge is not broad based or valuable. The student exhibits sensory sensitivities in the area of sensory integration or sensory processing and tends to overreact, which is typical of As a result, the student has difficulty with a lot of noises, distracted by noise resulting in the student’s attempts to get away, leave the classroom or flee the building T24.

The student is in 4th or 5th grade and chances resulting in physical altercation in or out of the class have been building. Triggers usually are when there is a lot of activity such as recess or lunch, or where there is noise and children. Another trigger is where there is one particular student who agitated the student. The behaviors of the other student were annoying to the student herein because of a lot of motor behaviors. The witness believed that a one on one aide was necessary to calm the student down thus using the adult as a safe zone maintaining the situation, eliminating outbursts or aggressions. An adult working closely with the student would be able to determine when the student’s behavior were exacerbating, becoming frustrated, and could intervene to deescalate the student before the student’s behavior became extreme. The student also has great difficulty with transitions and takes comfort in things being the same such as same seat and same classroom routine. Witness indicated that normally sensory integration issues are within the realm of and deferred to same.

The witness was questioned regarding a transfer from the elementary building to the middle school and the witness indicated his recommendations were consistent with the beliefs of , the students certified social worker, at the Elementary building. The witness believed that to facilitate the transition there would need to be a plan involved with the future middle school teachers and to allow the adults to react appropriately to the student’s behaviors. Witness believed that this student would have difficulty for a period of longer than one week in becoming acclimated to his new surroundings. The witness had seen the student’s B.I.P.

The witness felt that the student would need strategies and peer interventions and that general group therapy would be more beneficial if it included role playing, teaching proper socially appropriate responses that simply focused on group discussions or group talk. The witness also indicated that it was important to have consistency throughout the day. People, adults, teachers, providers and the mother should be properly trained in dealing with students with .

In cross examination the district’s counsel revealed that the witness worked for , a private not for profit, rendering therapies primarily to families and children. He has worked at the past 5 years and prior to that he was employed in for 15 years in a clinic. For 5 years one of his positions included 3 to 5 days in the school district providing therapeutic c services to students and providing support therapies.

The witness was questioned regarding the extent of the mother’s involvement in the therapy sessions and she would frequently more often than not join the sessions for 5, 10 or 15 minutes informing the witness as to current events or incidences that would be relevant regarding therapy issues and topics T43. The witness has communicated with the district’s school social worker and they appear to be on similar minds regarding the student’s disability levels and needs T46. He was asked by the mother to attend a CSE meeting but he did not nor did he ever provide any formal written reports to the CSE T46.

The witness also indicated that the student’s behavior during the course of the 5 year treatment had become less intense and less problematic T49. His behavior and outbursts were getting better with meltdowns less frequent. The witness also distinguished between speech as being different than language. The student’s deficits were in the give and take of conversation. The student was profiting from the therapies but did not remember specifics of the student’s current level of academic performance T51. The witness acknowledged that all children are faced with the transitions from elementary to middle school and they can be viewed as a challenge or opportunity for growth. In redirect the witness has indicated that he has not seen the school social worker rendering services or treatments.

is the student’s special education teacher, who is certified in special education and elementary education, and has a Masters in LiteracyT58, 7 years prior experience teaching in Hawaii, and has been with the district for 2 years. She is familiar with the ETP room which is used to deescalate students T59, provide group counseling, and is basic classroom but very empty and void of most sensory stimulus and lack of furniture. She has known the student for approximately 2 years and has provided direct consultant services for writing in the general education classroom and provided indirect consultant teacher services to the general education teacher for behaviors.

In 4th grade the student was able to function in the classroom, but some behaviors were an issue. The triggers were when others would enter into his space or when he believed others were taking advantage of him T61. He would for the most part tell them to leave him alone but often not very politely. On one occasion he put his hands on another student. At times he would be escorted to the ETP room to deescalate T62. She also noted that the student had a one to one aide in the 4th grade T62.

The witness reviewed D44, a special education annual report dated September 13th, 2010 prepared by the witness who indicates that the student is above grade level in Reading maintaining an X or grade level T63, that the student’s writing scores and assessments were above benchmarks T66 and in Mathematics the student obtained an , which is district-wide average. The witness spoke with the mother intermittently but was making satisfactory academic progress in the 4th grade; meet with general education teacher but team meetings were implemented in 5th grade. She attended the parent teacher conference and the mother did not ask for evaluations or more services T67. The witness believed that the student made appropriate academic progress and that the 5th grade team meeting occurred once a month. Topics discussed were writing, but the witness was not providing direct consultant teacher services for writing but was providing indirect for some of the student’s behaviors. The witness believed that it was not necessary to provide updated academic evaluations to work with student, which is the piece of the evaluation, that as academic provider she was responsible for.

As part of the transition for the student from elementary to middle school, the witness met with the SET at B Middle school even though was aware that the mother had indicated that she may be pursuing an open enrollment for the student in the non-neighborhood middle school at the The witness did meet with the SET teachers to review the student’s strengths and weaknesses in preparation for the transition to the middle school T69.

On cross examination of the witness was aware that the mother was aware that the mother was considering open enrollment at but at the time of the May CSE meeting the student was only eligible for enrollment at the B middle school T72. The witness reviewed the IEP from the CSE meeting of May 6th, 2011 and it was noted that the student services, the resource room SEATS started on September 7th, 2011 and ended on September 15th, 2011 T74. The issues that were discussed were the classification change to from T75. The witness reiterated she did not believe was appropriate and necessary to provide updated evaluations for the student. Notwithstanding the fact that the last evaluation was performed in 2006 and even though the student should be evaluated in all areas of disabilities, this witness was only responsible for the evaluations in the academic areas T78.

The Witness also reviewed the P4, the IEP from the September 14th, 2009 and January 20, 2009 CSE meetings. In reviewing the IEP from the earlier CSE of January 20, 2009, the witness stated the services provided as “Consultant teacher and direct, for two hours a week, and integrated. And resource room, once a day, for 30 minutes, nonintegrated” T80.

The witness next reviewed Sept14th, 2009 IEP which was part of P4 was the 4th grade IEP. The direct consultant teacher services provided by the witness was for 30 minutes per day for writing and indirect was to provide support for the student’s behaviors in the mainstream setting T81, plus an aide in the classroom throughout the day when needed, plus counseling one on one for 30 min and 5:1 for 30 min per week. The witness did admit that the student’s goals were not changed.

As part of the indirect CT the witness discussed behavioral issues related to mainstreaming the student form of pullout for reading and placing back into the class roomT81. If there was an incident, since the witness is not a certified behavioral specialist, she would report it to ME the school social worker, and report back instructions to the classroom teacher. She was aware of the triggers. On occasion the student would advocate for himself asking for more space T82. The student would yell and on rare occasions the student would be physical. One of the triggers would be loud noise to close physical proximity, unfairness; the student did have a one to one aide in the 4th grade. Another trigger would be academic frustration caused by writing assignments which is why the witness was working on writing and chunking.

The 5th grade IEP initiated team meetings based upon P3 CSE meeting of September 4th, 2010. The one on one aide was removed and the support was modified to show an aide in the classroom for four hours support in the classroom. The witness reviewed P4 the IEP of January 20, 2009 which provided a 1:1 aide in classroom when needed throughout the day for 6 hours in an integrated setting T89.This was continued with the IEP from the CSE meeting of Sept 14, 2009 which is part of P4.

However in the IEP from the CSE meeting of September 14, 2010 the 1: 1 aide was removed and instead the student was provided adult support in the classroom four hours daily. This was partly in response to the student enjoying his physical space and being in close proximity to the one to one aide may act as a trigger T92, however the 1:1 aide was later reinstated when there was an increase in behavior at the end of the 5th grade school year T93. The witness was not exactly sure as to when that occurred, however, the student did use the ELP room more frequently. The student was subject to more stressors thus utilizing the room more often working on assignments and the ELP room would act as a de-escalator. On occasion he would talk to EL or ME T94. There was a discussion regarding logs as to the frequency of the visits to the ELP room and steps were put into place to obtain same. Further on, in regards to the IEP study skills on P3, page 7, second marking period comment which indicated in the comments portion of the annual goal for study skills of the student would need intensive adult prompting to start and maintain efforts to finish his assignments as of February, 2011 T108. The witness was questioned about which indicated progress towards the goal but the witness indicated the student still needed the goal, even though the student relied on prompting was moderate a student’s progress reports whether there was satisfactory progress as compared to the progress reported in November, 2010. But still needed the goal T109. The goals were developed from his PLEPs. The witness also indicated that the student had deficits in organizational areas but he rejected a graphic organizer and rejected technology T114 and preferred prompting on the verge of being nagging and that the was not discussed. The student was encountering stressors in the music curriculum. It was also discussed that the FBA was revised in May of 2010 T122 though not provided to the parent and there was some question of whether the evaluation was consented to by the parent. The existing FBA was developed in 3rd grade. The witness was trained but certified in spring of 2011in therapeutic crisis therapy T123.

Next witness- - The district’s next witness was he district wide CSE chair who has performs over 500 CSE meetings per year, responsible for 300 students T 126. This will be her 3rd year at that position with the district in September, 2011. Her educational background is a B.S. from UB in English, elementary education degree from Cortland, a B.S. in Education; she is certified in special education N through 12 and is experienced from Pre-K through High School as an aide substitute special education teacherT127.

She is familiar with the student; having chaired his CSE meetings, is aware he is in the Elementary Transition Program, and the witness participates in a monthly ETP meeting which monitors social and emotional behavioral students providing support through the program. There are approximately 8 to 12 students in the ETP program T128. Also on the team is the Assistant Principal, the school director of special education, student’s special education teacher and the schools social worker T129. It is reported the student is progressing through his programming. He struggles a bit with anger and aggression not knowing how to respond acceptably to other students but is very bright and a quick learnerT130.

The witness reviewed in District the minute meeting notes from the district wide committee on special education meeting of September 14th, 2009. The previous annual review meetings took place in September. T131. It was the witness’s belief that the mother preferred the September annual review T136. The witness also reviewed P4, the IEP generated from September 14th, 2009 CSE annual review meeting. Based upon the CSE meeting it was reported that the student was making progress and doing well, came in to discuss reduction of services, eliminated services T139.

The mother has participated in all meetings and the witness has talked to the mother outside the CSE meetings and the mother did not object to the reduction of services and/or request further evaluations T139.

the student’s special education teacher in 4th grade and the student was pulled out for . It was reported that the student was making very good progress based upon classroom, district and state assessments T127.

The witness next reviewed D46 the IEP from September 14, 2010. It was the consensus that the student was progressing nicely and it was appropriate to continue the student in ETP T129. The witness felt there was no need to request updated evaluations nor did the mother request updated evaluations, T137. P3 was the September 14, 2010 IEP and was based upon the student’s PLEPS and during the meeting the reports were reviewed and was reported that the student had success in 4th grade and it was felt that the committee had sufficient information based upon their existing evaluation reports and comments and additional testing was not necessary. The student was not provided any direct services. Direct consultant teacher services were removed because the CSE felt the student did not need them because he was progressing nicely T138. Services were eliminated based upon LRE considerations to provide for eliminating of the one to one aide and was provided adult support in class room to provide the student additional space. There was no remembered request for an updated FBA or BIP T139 thought that the student was doing well in 5th grade progressing. “He was making friends, and, generally, doing well in the classroom, able to stay in there for the day.” However, there were some behavioral issues in 5th grade but those issues were pertained to a specific student. There were some concerns by the parent that the student would be removed from the program or building T141 and was told by the team that removal would not be appropriate. There was a meeting between the adults and the social worker mediated the dispute between the two students T143.

The witness also reviewed the minute meeting notes from the district wide committee on special education of May 6th, 2011 which was the transitional meeting from the elementary to the middle school. The witness did not have any more concerns about the student transitioning than any other student but felt it would be challenging for him. T143. At that point in time the focus was the student’s neighborhood middle school which was the B middle school, since there was no formal application to place the student in middle school. The student was subsequently placed in middle school based upon an open enrollment application of the parent that was granted in July 2011 T145. There was no difference between the B and middle school special education programs so it was not a special education decision.

The witness also reviewed P2 and the IEP from the May 6th, 2011 CSE meeting which placed the student in the SEATS resource room program at the commencement of the student’s 6th grade school year commencing on September 7th, 2011 and extending through September 15th, 2011 with a projected annual review of September 10th, 2011 T139. SEATS stands for Social Emotional Academic Transition Services. The IEP continued one time weekly for individual and group for 30 minutes each, one on one aide was provided through September 15th, 2011on a daily basis throughout the school. The witness was not sure if the student needs it but wanted to start with one and then after he had had a chance to settle in, review it T149. There were no request for an updated FBA or BIP but there was some discussion about needing it for middle school T150.

The witness also reviewed D50 at the due process hearing request filed by the counsel for the parent on behalf of the parent dated June 23rd, 2011 T150. Subsequently, thereto the witness sent D51 to the parent requesting the parent’s consent to evaluate and a follow up request was sent on July 18th, 2011. The consent was received as evidence by District 53 and dated July 18th, 2010 the same date as the follow up letter. The witness wanted to perform the following evaluations: “Updated the evaluations, Functional Behavioral Assessment, Behavior Intervention Plan, , evaluation, evaluation, and evaluations.” T152.

The witness next reviewed District 54 they have approval of the open enrollment of the student placed at the middle school. It was also noted that at the May 6th, 2011 CSE meeting the mother did not question the goals or request parent counseling, modified music, adaptive physical education modified music T154-155.

On cross it was admitted that the witness may not recall all the details from the 500 CSE meetings she chairs each year and that she does not personally record the minute meeting notes T156. The minute meeting notes of CSE September 14th, 2009 states the purpose of the meeting as annual review and re-evaluations and states there no updated evaluations which was explained to mean that “We were doing a reevaluation review with no updated evaluations.”T156. The BIP was discussed in general without specifics but the annual review progressed without discussion of any reevaluations. The minutes reflect that the aide felt that the student needed her services during specials and academic times T160.

The witness indicated that for his fifth grade that his special education services were removed because all he needed was the and the team meeting and the adult support.

The witness was quizzed regarding P3 the IEP for 5th grade in which it was stated that the student will organize his materials and time as evident as starting, maintaining, and finishing the work within the time given, with minimal adult prompting unfortunately this was to be provided by a consultant teacher which he did not have

T154.The witness indicated that the year prior to the reevaluation year, we review the reports and materials, and we make a determination if we need any updated evaluations in order to program appropriately for the student.

The witness indicated that each member review the reports in their field the psychologist for the need for an updated evaluation etc. The last psycho educational evaluations were done in 2006 when the student was in first grade.

It was conceded that the FBA was completed in June but consent to evaluate was sent out in July of 2011.

The witness also reviewed D40, the classrooms teachers report for the district CSE meeting dated September 13th, 2009. Witness reviewed P3, page 6, in regards to goals and what the teacher reported as progress towards goals and there was a discussion of study goals. The witness also reviewed D7 and D32, D48 and D30.

It was also conceded that the witness knew that the mother was applying for open enrollment but the transition meeting occurred when was still registered in the Middle school and before the open enrollment application was not accepted.

Day 2- Hearing

Districts witness was , is the school certified social worker currently at the district’s high school but has been the social worker was at the C elementary for 7 years running the ETP program T190. He has a Masters in Social Work and is licensed as a Master Social Worker T191 and is a certified social worker providing counseling and therapy case management psycho educational training since certification 2000 T192. He has previous experience in a clinic in a community-based mental health program T192 doing family and individual counseling.

The witness described the ETP program as an integrated interdisciplinary program where all students are mainstreamed and are expected to follow directions. The team includes a full time special education teacher, speech language, OT aides, and adult supervisors, outside providers, classroom teachers, and principal. The elementary transition program room provides a base and is used as a chill-out room T1199. The student has been in the program for 5 years since 1st grade. The student has progressed academically the past 5 years T196.

-CSW, reviewed D9 T197, the student’s 1st grade IEP from a CSE meeting of September 26th, 2006 which provided direct consultant teacher services for 30 min daily to for support in the area of writing. Indirect consultant teacher one hour weekly to address behavioral concerns, a one on one aide for 6 hours per day, one on one 2 times weekly for 30 minutes, group herapy 5:1 two times weekly for 30 minutes.

The witness provided for the past 5 years and initially dealt with naming feelings, articulating frustrations, anger management, frustration tolerance T197. As the years progressed when he started to master some of those skills then we moved towards social skills, organizational skills, work completion, appropriate words, alternative strategies for releasing frustration, the give and take of a social relationshipT198.

The witness was familiar with the student’s private mental health provider. He knows him as a colleague and has discussed the student and his needs once every couple months or more when something was going on T198-199.

discussed with the student’s disability which is , which is a clinical classification on the The characteristics include restrictive world view, self-referenced world view, and difficulty in empathizing, difficulty understanding social cues, rigid concrete thinking T199. In the student’s case there was sensory integration, discrepancies between academic and cognitive functioning, excellent memory and recall difficulty, difficulty with abstract thinking T200. The witness was under the opinion that he and were aligned in thinking and did not disagree with the strengths, weaknesses and strategies to be employed with the students and that they were in sync and aligned with their thinking T200.

The witness next reviewed D15, the report annual review after 1st grade and entering 2nd grade T201. It was reported that the student was making progress with peer relationships but still had difficulty tolerating peers in his space T201, problems with noise and misbehavior of others. The student visited the ETP room quite often in first grade, T202. It was hard for the student to make friends and was often antagonistic and had a difficult time staying in the classroom or in the school building but was making progress with peers. His behaviors included threatening and physical aggression, tipping desks and chairs T202.

The witness next reviewed D21 the student’s FBA from October 8th, 2007 while the student was in second grade. The student was in 2nd grade identified as District 21. The FBA was formulated by the student’s special education teacher. D21 was formulated with input from the mother, classroom teacher, special education teacher and the social worker T203. The witness also reviewed an updated FBA identified as School District T206 which was updated on February 3rd, 2009. The update was triggered by the 3rd grade being a difficult year for this student because there was a big jump socially, academically there was some difficulty with the 3rd grade teacher, composition of other students in the class room T206, noise level and the lack of predictability.

The BIP was distributed and filed while the student was at C elementary school until it was updated at the end of 5th year. Before then however, it accurately reflected the student’s behaviors T207. The witness thought there was a need to update before the student transitioned into the middle school. The witness noted that the mother did not ask for an updated FBA and the updated the FBS to include additional information i.e. the medical condition of The witness felt that he had sufficient understanding to provide services and did not need evaluations to provide services T209. The witness reviewed P3 the IEP from the CSE meeting of September 14th, 2010 in which the witness provides individually, group and participates in team meetings. The witness felt that they had sufficient information and the mother did not request updated evaluations. The witness did not feel there was sufficient information to prepare and develop an IEP T210, nor did the neither parent nor school psychologist request updated evaluations. Overall, academically the student was at grade level. It should be noted that P3 classified the student with an as had all the previous IEP’s.

The witness believed that the student had made progress with behaviors in peer relationships, making friends in the school and out T212. It should be noted that P3 did contain a change of support for school personnel on behalf of the student in that the one on one aide was removed and soon was provided with adult support in a classroom daily for one hour with a frequency of 4 times.

The witness went on to indicate that in 5th grade there were additional stressors T213 including a profoundly impacted student with special needs T213. The student had difficulty understanding where that student was coming from and the student’s behavior became antagonistic when other students did not respect the students space he made threatening gestures which is typical of people with T213. There was some discussion about the parent’s impression of the district’s intent to remove the student from the program. This was never considered T214 but instead the witness mediated a dispute between the parents and the students where the students agreed to respect the needs of the other T205. The student herein apologized and informed the other student of the things that were sensitive to him.

The student consistently had difficulty in music class probably because he likes consistency; he likes quiet and predictability T216. There was some exploratory learning which was difficult for someone with sensory issues though he did appear to develop an appreciation to music T217. It was noted that when the student does become stressed, the student would go for a walk with his aide or go to the ETP room where the student would read or catch up on his homeworkT218. He would be transported by the one on one aide or the witness or the student’s special education teacher.

It should also be noted that the student had IEP listed group 5:1 one time weekly for 30 minutes, however, the student preferred to go to lunch with peers and not be pulled out T218. The witness believed that the student would benefit from group but did not necessarily need group.

The witnessed stated was utilized to begin preparing the student to transition to the middle school, exploring feelings and expectations about the transition, reviewing the same skills he applied in elementary could be applied in the middle school and explore the higher probability of more students like him there is a greater pool of students T219. There was some difficulty in preparing the student to the eventual placement since there was some question as to which of the 2 middle schools the student would be enrolled in, the mother having expressed a preference toward middle school whereas the B middle school was the student’s home middle school T219.

The witness discussed the CSE meeting of May 6th, 2011 which was described as a transition meeting to facilitate an IP to transition the student from elementary into middle school T225. The meeting went forward and based upon the existing placement of the student in his home middle school which was B middle school . In attendance was , the district wide chairperson, , the school psychologist, a parent representative, the witness as the student’s social worker, the middle schools building special education coordinator, , the special education teacher, the mother and the social worker from the middle school. The witness reviewed D48 the minute meeting notes from the CSE meeting for the IEP from the May 6th, 2011 CSE meeting which listed a classification as with a projected annual review of th September 10 , 2011. It listed the student’s educational program as resource room (SEATS) T222 listing a start date of September 7th, 2011 with an end date of September 15th, 2011 on a ratio 5:1 one time daily for 39 minutes in a non-integrated setting and continued individual and small group . The SEATS program was housed within the resource room and was described by the witness as the middle school version of ETP. The witness indicated that the student needed the resource room not much for the academics but for the opportunity to deescalate and was not set up for a specific period T222. The student does however need organizational skills development. The witness has not seen the SEATS program yet the witness believed it was available in either middle school but because of the uncertainty of which middle school the student would attend however the witness felt it was appropriate to update the FBA based upon his familiarity with the student incorporating the because the pain did effect his emotional state T225. It was felt that the student did need a one to one aide in the middle school and thought the middle school could offer the student an appropriate educational program.

the cross examination- On cross examination it was revealed that the witness did not received training as part of his formal education but has received specific education training in areas of treating of those on the spectrum through formal workshops reading research T227. The witness attended 2 workshops- one in the district and one at an undisclosed location. The workshop was a full day workshop T228.

The witness was examined regarding Therapeutic Crisis Intervention (TCI) and the witness acknowledged that the program was developed at Cornell providing a continuum of interventions from understanding the need looking at the context and environment including understanding the triggers of verbal strategies, de-escalation strategies, and physical intervention. The witness had been trained as a provider and a trainer which included a 4 ½ day training session with a written and performance examination with 2 year recertification requirements T229. Also certified are special education teacher and principal pertaining to the 5th grade program T230.

Initially during the 2010-2011 school year the witness saw the student one time per week and the ELP room was used for breaks, working T231. He would often see the student in the ELP room since the witness’s office was within the ELP room as was the special education teacher, EL T232. Again the components of TCI are recognizing the triggers, verbal de-escalation and physical intervention. With the student it was important to notice the agitation when it was at the low level by shifts from his baseline T 232 for example, harsh voice, eyebrows, disparaging remarks towards others, snapping. There was a previous incident where another student bumped into the students table and the ELP room was used to calm things down. The witness acknowledged that the commissioner’s regulation require a reevaluation every 3 years T236.

The witness was quizzed regarding the students sensory integration issues which include a sensitivity and irritation to sounds, lights, activities. The student had difficulty integrating sounds and filtering back and there was a pattern of these items triggering the student’s behaviors. There was no discussion of environmental factors in evaluating the student’s middle school placement either B or which has approximately 750 students in each building T239. A tour was offered to them but the witness was unsure if this took place. The witness acknowledged that there was difficulty in setting specific times for adult supervision.

The witness reviewed parent P2 and described adult support as similar to a previous designation of a classroom aide. The mother raised concerns that the student need a one to one aide in the middle school but there was no disagreement at the CSE meeting. The witness indicated that at the May 6th, 2011 CSE meeting it reflects that a one to one aide was provided commencing on March 31st, 2011 and was extended into the September 15, 2011 the first week of the academic school year 2011-2012. It was not clear whether the adult aide would assist in either math or in writing or during which period the SET would be providing same.

The witness was next quizzed regarding District -the minute meeting notes of the CSE transitional meeting of May 6th, 2011 in which it was reported under academic classroom for the student “writing is very challenging for him” T243. It was further noted that when the student was engaged in writing he would become frustrated. It was noted that going back to 1st grade the student had difficulty in conveying ideas to paper. In District the committee recommended that the student be placed in the SEATS program, however, the ETP program was discussed and there were approximately 6-10 students in that program and that the mom had requested diagnostic evaluation at the Center T248 specializing in students on the autistic spectrum.

In 5th grade, at the witness’s recollection, there were 18 to 20 removals into the ETP room for 30 to 45 minutes. The witness further reviewed P2 and at the end date of the services being September 15th, 2011 it was noted that there was a projected CSE meeting on or about September, 2011 which could change the student’s current IEP.

The FBA BIP update was discussed with the witness and the witness was unsure if the mother was aware of said update T256. The witness was not sure if either middle school was trained in TCI but the purpose is to avoid injuries to the staff and the student T257. Witness was quizzed regarding the IEP and whether the student could use another 39 minute period as designated within the IEP. The witness was not sure. The witness believed he had a good working relationship with the mother. Also, due to the school schedule it is not uncommon to have provided during lunch during which the student would eat his lunch with . It was felt that the student needed a one to one aide in the middle school because it was a new environment, more transitions and more people. It was also discussed that the IEP provided for an adult scribe with the teachers discretion. Also it was unclear if the aide or SET would provide support in writing, T265.

The witness was quizzed regarding evaluations and did not remember whether or not it was raised at the meeting T267. The student did have in the past an with word processing but later preferred not to use it. However, it was noted that at the January 21st, 2009 CSE meeting D30 it was stated in the minutes that evaluation be requested however this witness was not at said meeting.

The witness felt it was important that an aide recognized the triggers and be trained in ICT T269. The witness also reviewed P26, P27 and P28. The parent exhibit P26 being the student use of the ETP room based on classroom restrictions which required a determination by an adult the student be removed for safety concerns or safety reasons. Parent 27 shows the use of the ETP room was normally involuntary or was suggested by an adult but did not involve a safety issues. P28 was the student’s home school notes log. It is to be noted that in the 2010-2011 school year there were only 2 uses by the student of the ETP room based upon classroom restrictions.

The parent’s next witness was , the music teacher, who has a B.S.M.S- was aware of the students IEP but did not recall the student’s diagnosis other than emotional concerns T280 nor did the witness had some training regarding students with T281. The witnesses used the following strategies: try to connect, see what they like what makes them tick, and incorporate those into instruction so that they feel compelled to participate, but the student was not particularly responsive T282. The witnesses reported that the student came with an aide who stayed the entire time with him, T282.

It should be noted in District page 4 social development levels and abilities it is reported that the student is easily frustrated by ambience noise, people misbehaving, or people to much in his personal space. As a result he loses his temper with both peers and staff when he perceives his environment to be too noisy, too crowded or too chaotic. Mrs. is the student’s music teacher and she described her efforts to seek to have the student engage in the music curriculum. She described the student as distant and removed until she assigned a task and responsibility to the student to maintain certain musical equipment which only the student found pleasing and assisted in his involvement in the class T284.

The witnesses reviewed P11 the progress report which indicated in November the student was arriving with lingering frustrations and in March the student was having quite a bit of difficulty, T284 and that the student needed one on one attention T285. The student could be quite a disruption if he came to class in a bad mood.

The student stopped coming to music class in late March, T285. The witness reviewed P14 a behavioral referral form. The witness described the incident as follows. The class was working on a video project which required the teacher to spend a short period of time with the group of 6 students in the hallway for the purpose of taping a 30 second segment for the school project. Upon the witness’s return to the classroom, she found the class in somewhat of a chaotic state with the student playing the piano and other students huddled around him. The music teacher found this to be a direct contradiction of her specific orders of not to touch any musical equipment and chastised the student. Another student left the classroom with her aide T286. The witness pulled the student aside to discuss what had happened. The classroom teacher told the music teacher not to engage the student one on one, T287 and removed the student from the situation to the ETP room. The student did not return to class after that incident, T289.

The witness filed a disciplinary behavioral referral marked as parents 14. The behavioral referral form was completed by the music teacher with a notation that the student was sent to the ETP room instead of discussing the situation further because he was considered dangerous.

There was no cross examination.

The parent’s next witness was , the student’s 1:1 aide. The witness is familiar with the student and has 5 years in the elementary building. The witness has been in the district in various capacities for approximately 20 years T290. She had previously worked with the student in 1st grade as an aide replacing or relieving the student’s full time aide on breaks T291. It should also be noted that 1:1 aide attended the September 14th, 2010 CSE meeting. She was the student’s 1:1 aide from the beginning of school up until the September 14, 2010 IEP when the student was provided adult support in the classroom including lunch special hallways but not recess, T293. The support was for four hours a day so there were times the student was not with an aide, T294 and could be assigned to give another aide a break. The adult supervision support was for all day; however, she would leave 5 or 10 minutes early in music to relieve other aides T295. However she was in that classroom for most of the period.

The witness reviewed P14, the disciplinary report from March 21st, 2011 which pertains to the incident that occurred in the music room. The witness acknowledged that she was not present T296, however when she left there was nothing really going on with the student or she would have taken him to ETP room, T297. The witness responded to questions regarding the student’s needs which include in the classroom and other areas where it is loud, the hallways- a place where there is a lot of interactions among students that tend to upset him, transitions that are more difficult in the morning then in the afternoon, passing in the hallways when noisy T298. She is able to read the student’s body language so she can control the situation before it gets out of handT299. She was not invited to the CSE.

stated as the 1:1 aide providing adult support and supervision that the student would need a 1:1 aide in the middle school because there are more teens, pre-teens, and more noise and more rambunctiousness.

She has worked with and children T301 but no formal training. She has been trained in ICT T301. The middle school hallways are not as controlled as in the middle schools, she has concerns about the locker room where there is not as much supervision as in the middle school, but has not been in the middle school, T303.

After the incident of March 21st, 2011, he preferred not going to music class. They would walk around, go to the computer room, and do other homework T303.

In physical education he would participate as much as possible but sometimes it would be too noisyT304 or competitive or single him out. The witness was not sure if there were an alternative to music so the student wouldn’t have to participate in a tug of war game-much too noisy but sometimes the student would be singled out. At times it was only the perception of the student T305.

The witness indicated that she had a good rapport with the student and when she knew of his indications, he would follow her requests to remove himself to the ETP room T305. She was familiar with his anger issues and the focus on the triggers.

The witness reviewed the daily log, the last entry being made for 2011 and she did not recall the student going back to music class after the March 21st incident. The witness was questioned as to how the incident in the music class affected the student social emotional present levels of performance and it was indicated that the student wanted to stay in the ETP room more often. Staying there, he had less interaction with his peers and the student did not want to return to the class. After the incident the witness returned as the student’s one on one aide.

In terms of his social needs-he needs help with peers, however, most of his classmates know him and accept him the way he is.

In one situation, one time at the end of the school year, they were working on a mural in the hallway and he was putting his handprints on the mural, he was becoming agitated and the aide gave him her personal electronic device and he played with the device and other students crowded around him watching him play T311. In the beginning of the year he would not have been able to handle this but his progress has allowed him to do so. Her relationship with the student has developed over a period of time.

The witness assists in the classroom bringing the student focus when changing to another topic. The student has the need to finish what he starts and if drifts off the witness would redirect the student to the task, T314.

On cross examination it was revealed that eh student progresses with his peer relationship and academically, T316.

Next parental witness was was the student’s general education teacher in 5th grade who will be starting her 3rd year in the district with two and half years of high school experience in high school T317. She reviewed the student’s IEP at the beginning of the school year, his and ETP programming plus she has not received any training in from the district T317. She reviewed the BIP T318. The witness acknowledges that the student interacts differently with others and the student tends to be grumpy or moody in the winter T318 and tended to remove himself from interacting with “the other student”. Although if there was a topic he was interested in he would talk and reciprocate the other student, T319. The student had a 1:1 aide except the aide would leave for the last 15 minutes of specials and not for recess, T320 which was caused by a schedule change. After the music class incident the student would have coverage during breaks and specials T320.

The witness is familiar with the P14, the incident report from the music class filed by the music teacher. The witness was escorting a class of students to the music room when she entered the music room she saw that the student and the music teacher were very close, the student was crying, and he looked ready to lash out, and there was no aide T321. The student was giving off all the signs of being very upset and volatile, T325. She instructed the teacher to give the student some room, escorted him to the ETP room after giving instructions for another aide to escort her students back to the classroom. After the incident the student stopped going out for recess, T327. Early in the school year he would go out with a book but not necessarily read, T328.

the SET intermittently worked with the student with writing. The IEP calls for team meetings which help facilitate and exchange information and strategies. Academically, the student has always had difficulty in getting started with writing assignments and the witness had tried various strategies including graphic organizers, however, none of them have seemed to be effective. It is of acknowledged that the student needs support in writing because he felt that he needed to know what he was going to write before he could write it down, T329. A computer was tried without much success. The witness was invited to the student’s CSE meeting of May6, 2011 but could not attend because of a class field trip, T324. Not sure if it will B middle school or middle school but both programs are similar.

The student did make academic progress during the school year but at end of year still had difficulty getting started in writing, T329. The student was assisted by a tutor which the witness felt was provided by the mother, T330. The witness hoped that he student would open enroll into middle school because he has friends there who understand his quirks, T331 making transition easier.

On cross examination of the district employee by the counsel for the district it was revealed that the student was reading above grade level, but had some trouble in math with word problems.

This is based upon review of the district wide writing assessment the PEELS the student scored at or above grade level. The student also tested at grade level for reading, T335.

The mother was called as the parent’s last witness who provided historical background and data. The student was suspended during the first day of school for first grade as a result of a meltdown in class T338. He received a 5 day suspension and referral to the CSE. The CSE met on September 22nd, 2006 classifying the student as , assigned the student to the elementary transition program and assigned a 1:1 aide D9 T342. The mother reported that she indicated at the CSE meeting that she uncomfortable with the classification but was passed over because the student would get more benefits. T332. The witness reviewed D12 the program review of February 8, 2007 which reported that the student was making small social emotional gains since September T344. Noise seems to be a cause of frustration, becomes verbally aggressive if people are unable to predict his needs, and is most successful with consistent one on one adult assistance, T333. Also, D13-the IEP from February 8th, 2007 CSE meeting which provided direct and indirect consultant teacher services T334 and D14-the minutes from the CSE meeting which indicated a sensitivity to lights T336 and a diagnosis from the student’s private physician Dr. of T337. The witness also reviewed D15, a annual review which reported an incident of aggression toward the music teacher earning him a suspension. The mother reported the incident was triggered by chaos, lights, bumping and the student does not like silly songs T349.

The mother reviewed D17, the SET's program review of September 19th, 2007 which indicated that the student had struggles with peer relationships but has made good progress but continues to struggle with peer relationships, has less patience with peers but is beginning to form some appropriate friendships, has made progress but continues to work on appropriately expressing his needs in the classroom. The mother indicated that he can develop friends but can only maintain one or two T 350. The mother reviewed D19, the IEP from the CSE meeting of September 19th, 2007 which provided a one to one aide for 6 hours daily in an integrated setting T340. The mother reviewed D21, the FBA of October 8th, 2007 when the student was in 2nd grade. The mother noted that the 3rd grade was difficult for this student because he was switched back and forth with different aides T352 and he engaged in inappropriate behaviors with other students. 4th grade was much better. He had the same aide for most of the day. 3rd grade, a meeting and something was requested. The student’s IEP prescribed an adult scribe based upon the teacher’s discretion T353. The mother brought up issues about noise and lights noise and lights bothered the student, acting as a trigger but did not know there were evaluations for that. The mother suggested an evaluation at the xxxxx Center. The mother relied upon the district to determine what evaluations were needed T 354. The mother indicated that the student continued to have problems with sensory issues such as noise, lights, food, was socially awkward, difficulty in following social cues, he had difficulty with handwriting and theses concerns were expressed at the CSE meetings T356. The mother also has expressed concerns about the transition to middle school for two years, T347.

The mother reviewed the IEP from the September 14th, 201 CSE meeting which was P3. The CSE recommended continuing the classification as and removed the one to one aide and in place added adult support in the classroom for academics and specials T348. The mother claimed that she and were against the removal of the1:1 aide, T348. A team meeting was added as a program service in the aforementioned IEP. The mother indicated that there was no discussion of updated evaluations at the September 2010 CSE meeting. The mother next reviewed the IEP from the CSE meeting of May 6th, 2011 which was described as the transitional meeting from elementary school to middle school and was the only staff from the C Elementary building the rest were from the B Middle School, T352. The IEP recommended a resource room in the SEATS program, which is described as a comparable program to the ETP program in the elementary school. The issue rose as to the planning which was earmarked for the B middle school even though the mother had expressed an interest in the student attending the middle school due to the fact that the student had some friends that would be assigned to that neighborhood middle school. The mother indicated which middle school was never discussed by the CSE T353. There was a tour to B Middle school but the student did not attend since he was suspended, T354. The mother also indicated that she did not see the new FBA or the updated BIP nor did she provide any input into same T356.

The mother next reviewed District and the district determination dated July 29th, 2011 granting the parental request for open enrollment into the middle school. The witness reviewed D51 the consent to evaluate dated July 7, 2011 T357. Next the mother indicated that there was a death in the family which caused a delay in responding to the consent to evaluate. The delay resulted in D52 a follow up letter of July 18th, 2011 seeking consent. The mother was concerned about the transition to the middle school due to the student’s sensitivity to noise, commotion, light, and felt the need for a one to one aide for the entire school year where she was informed by , the district wide CSE chair, that the aide would be provided for 30 days with a subsequent review T363. The district sent out the consent to evaluate after the parent filed the due process hearing request, T360. The mother also reviewed D 41 the minutes from the DCSE of September 14, 2011 which indicates that under annual review /evaluation that there was an entry that stated no updated evaluations. In D 41 the mother indicated that the student had sensory issues with paper and pencil; prefers pen and paper because erasing bothers him, T361. The mother would like to see updated evaluations cross the board, T364.

In cross examination, it was revealed that the mother is self-employed as a companion aide to seniors T365 with a high school diploma and some additional college credits 366. The mother admitted there was stress outside of the classroom in 5th grade for this student caused by the death of 3 significant people close to the student T366. The mother acknowledged that it has been difficult for the student to write thought on paper, he wanted to make sure there were no mistakes and the mother felt he had textile issues with erasing and texture of the paper after erasures T382. The mother is still waiting for a plan for the transitioning to the middle school as of today's date but could attend the middle school at any time, T.

The witness admitted that the student has progressed over the past 5 years,

I. PROCEDURAL VIOLATIONS

POINT 1. The District’s Failure to Properly Comprise the CSE Meeting.

The district contends that the CSE meeting of May 6th, 2011 was not properly comprised because there was no general education teacher. First, the district argues that this does not deprive the student of FAPE. Secondly, the district argues this did not deny the parent the opportunity to participate in the CSE. This second argument will be discussed in Point 3.

The parent contends that the presence of the general education teacher with knowledge of the student interacting in a general education setting is critical to the formulation of an IEP when the student is transitioning between programs such as elementary to the middle school rendering the IEP of May 6th, 2011 is a nullity.

Pursuant to Part 200.3(a)(ii) which states

“The membership of each committee shall Include, but not be limited to: (ii) not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment.”

The parties do not dispute that the CSE was not properly comprised however they dispute the consequences of this. The District argues that there was no denial of FAPE due to this single procedural violation. The parent contends that there was a denial of FAPE. The SRO stated in 01-044; “Respondent has the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). In meeting its burden of proof, respondent must show that the CSE which prepared the IEP was validly constituted (Application of Child with a Disability, Appeal No. 95-8; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Handicapping Condition, Appeal No. 90-16).”

The parent relies on SRO 03-15 in supporting its argument that the district denied the student FAPE. The SRO stated

“In its interpretation of the regulations, the U.S. Department of Education has indicated that "the regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP" (see, 34 C.F.R. Part 300, Appendix A, Section IV, Question 26;

Application of a Child with a Disability, Appeal No. 02-080).” However the SRO in 03-015 found a denial of FAPE because of the lack of familiarity with the future program and ordered the CSE to reconvene.

I find that there was an improperly comprised CSE but that by itself does not lead to a denial of FAPE.

POINT 2. The Failure to Timely Evaluate the Student Pursuant to Part 200.4(b)(4)

The district makes the following arguments. The district discussed whether updated evaluations were necessary in planning for the student’s triennial review. The district references District 27, the minute meeting notes from the September 2010 CSE meeting indicates under triennial decision “update in 5th grade before he goes to the middle school.” The district also argues that the CSE recommended updated evaluations were only necessary prior to the beginning of the middle school year and the evaluations are currently being completed. The district argues that the CSE discussed an evaluation but the did not feel it was necessary at the time of the September 14 , 2009 CSE meeting. The district also argues that there was simply a procedural oversight that they did not obtain the mother’s waiver of updated evaluations in writing. The district argues that and did not need updated evaluations to provide services and IEP. The district argues that there can be no proof that the mother requested updated evaluations. Also, the district argues that the student was progressing academically and behaviorally.

The parent contends that the district violated Part 200.4 (b)(4) by failing to evaluate the student on a timely basis.

Based upon the review of the record the following is clear: that the minute meeting notes contained in District 27 indicates that the evaluations where to be completed when the student was in 5th grade meaning during the 5th grade school year. This did not occur. Evaluations were not available to the CSE meeting and the transitional meeting from the elementary school to the middle school. The record is clear that the did indicate that an evaluation was not needed as of September 14th, 2009, however the basis of this recommendation from the is not clear. There was testimony provided by the teacher and aide that the student did not readily accept technology other than “ ”. Also, the record is clear as to the difficulty the student had in initiating writing assignments in both organizing his thought and transcribing that thought process to paper and overcoming his preference of pen over pencil and avoidance of paper pencil and erasures.

The record is also clear that both the special education teacher and the school social worker testified that they did not need updated reports to work with the student. Nonetheless, the school social worker felt it necessary to update the FBA to provide the middle school staff with a clear picture of the student. The district also argues that there is no proof that the mother requested updated evaluations and the district argues that it was simply a procedural oversight that they did not receive a written waiver from the mother and that the mother never orally requested updated evaluations. In contrast, the record is also clear that the mother relied upon the expertise of the members of the CSE having expressed multiple concerns over multiple CSE meetings pertaining to classifying the student as as opposed to the classification of and the need to deal with the student’s sensory issues of noise, light and tactile sensory issues relating to music and writing. The record is also clear that the mother did not formally request these evaluations though expressed concerns about the student transitioning into the middle school.

The student was classification as through the students 1st five years of school. The change of the classification from to raises questions whether the student was properly classified initially. The record is not clear was what the basis for the change of classification. The change of classification is especially intriguing when the district argues that no new updated evaluations were necessary.

Part 200.4(b)(4) states

“A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student’s IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.”

Furthermore, relying upon the mother to request evaluations is misplaced. There is a significant distinction between requesting and identifying an evaluation and making a knowing informed decision to waive evaluations required by regulation. It is an unrealistic burden to place on parents in general and this parent in particular. As a result of the aforementioned, I find that the district failed to timely evaluate the student. POINT 3. The Mother’s Participation at the CSE meetings.

The district contends that the mother’s participation at the CSE meetings was not affected by the lack of a General Education Teacher. It is always beneficial to have as a member of the CSE a provider who will be rendering services or providing instruction for the student’s upcoming program. However the absence of a general education teacher and more particularly the absence of a general education teacher with familiarity of the student is worsened when there are no updated evaluations. As a result I find the mother was denied meaningful participation in the CSE meeting formulating transitional program and placement for the student entering middle school.

The cumulative effect of the findings in point 1, 2, and 3 is that the student was denied

FAPE.

POINT 4 MOOTNESS

The district argues that there is no basis for which to grant a relief except to the extent that the IEP was implemented from the May 5th, 2011 CSE to the extent that the May 5th, 2011 IEP for the remainder of the 5th grade school year. To support this position, the district references the student’s annual review CSE meeting which is to take place pursuant to the IEP prior to September 10th, 2011 and scheduled by the CSE to take place on September 1st, 2011. The district also argues that a procedural violation provides a basis for relief only if it has denied the parent an opportunity to participate in the decision-making about the child IEP. The district takes the position that the mother fully participated in the decision-making process of the CSE. This IHO has previously found to the contrary.

The parent’s legal brief did not specifically address the issue of mootness but has raised several forms of requested relief. The relief requested by the mother includes the following: compensatory special education as a result of the missed classes by the student, that future services for this student require adaptive physical education, a modified music program, parent training and counseling, and a full time aide. It is clear that should there be a finding that the student is entitled to get compensatory education; that issue would not be moot and would survive a subsequent CSE meeting generating subsequent IEP. This issue is dealt with in II. Substantive Issues Point 2. Music Class and Compensatory Services

A determination concerning whether the issues raised in the parent’s due process hearing request requires an examination is necessary to examine the scope and the intent and purpose of each CSE meeting. The CSE meeting from May 6th, 2011 was for the purpose of transitioning to the middle school. The purpose of the September, 2011 CSE was for an annual review.

The district raises the issue of the parent’s participation in the CSE process. The district also argues that no relief can be granted in respect to the updated evaluation since the district has conducted full evaluations during August, 2011 for preparation of the 2011-2012 school year, however, this could only be true if the district has fully evaluated the student in all areas of suspected disabilities. The mother has raised concerns regarding the student’s transitioning to the middle school for several years according to her testimony. In addition, the mother has discussed with the school social worker an evaluation by the Center and a sensory evaluation. Although it is true that the CSE meetings function by arriving and obtaining a consensus of the members of the CSE, the mother has raised issues about a composition of a transition team into the middle school and the absence of members at the CSE meeting that were familiar with the student. The mother has also raised issues about the length of the program described as the SEATS and when the student can access it resources. The impact of an incident occurring in the music class cannot be disputed. The testimony is clear that the student did not return to the music class, that the student withdrew from active participation at the levels before the incident while at recess. In addition, the testimony was that the student was somewhat withdrawn impacting his social relationship with his peers and other settings.

A review of the record reveals the following: a delay in providing the triennial evaluations, the failure of the CSE to address the issues raised by the mother, the incident that took place in the music class in March, 2011 notwithstanding a long history of student difficulties in the music classes, a transition meeting without the benefit of updated evaluations and a general education teacher, the consequence of an another incident resulting in prolonged withdrawals from programs and social interactions. The district relies upon the upcoming annual review to rectify the deficiencies aforementioned implying the annual review can be utilized to rectify the shortcomings with the transition meeting. Conducting an annual review in September when the transition meeting was at the end of the school year is flawed.

This raises the questions whether these flaws are cured by the evaluations conducted over the summer but which reports are not yet available. The evaluations what have been a key element of determining the students' strengths weakness, and levels of performance but they were not available for the transition meeting. The evaluation as that were performed were in response to the due process hearing request. Dealing with transition issues at the annual review meeting CSE meeting provides the CSE at the September 2011 meeting with approximately 4-6 weeks of class room observations and class room performance. A key element determines the student’s PLEPS and level of social interaction.

The district has initiated evaluations of the student which are identified in District 51 as; a social history, psychological evaluation, an FBA if the student displays interfering behaviors, an educational assessment that assumes academic achievements, physical examination, observation of the student in the classroom, if needed speech and Language evaluation, if needed an assessment of motor abilities that maybe influence performance. It is further identified in District 52; a evaluation, a functional behavior assessment, a behavior intervention plan, evaluation, therapy evaluation, evaluation and evaluation. Absent from said list is a sensory evaluation and a evaluation that the mother had discussed with district staff.

I find the district’s re-evaluation for the student over the summer of 2011 did not evaluate the student in all areas of disability because the student is in need of a sensory evaluation. As result the sensory issues and incidents are capable of being repeated. I find the issues raised and the parent’s hearing request are not moot.

In 07-039, he SRO stated in reciting the appropriate standard

“Upon review of the pleadings and the evidence contained in the hearing record, I am not

Persuaded by the district's arguments that this matter is not moot or that the parent's claims should be adjudicated on the underlying merits of whether the district offered the student a FAPE for the 2009-10 school year. It is well settled that the dispute between the parties in an appeal must at all stages be "real and live," and not "academic," or it risks becoming moot (see Lillbask

v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; Patskin v. Bd. of Educ., 583 F.

Supp. 2d 422, 428 [W.D.N.Y. 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Chenier v. Richard W., 82 N.Y.2d 830, 832 [1993];

Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]; Application of the Dep't of Educ., Appeal No. 10-066; Application of a Student with a Disability, Appeal No. 10-064; Application of a Student with a Disability, Appeal No. 09-077; Application of a Student with a Disability, Appeal No. 09-065; Application of a Student with a Disability, Appeal No. 08-104; Application of the Dep't of Educ., Appeal No. 08-044; Application of a Child with a Disability, Appeal No. 07-139; Application of a Child with a Disability, Appeal No. 07-085; Application of a Child with a Disability, Appeal No. 07-077). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No.

00-037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37). Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040

[5th Cir. 1989]; M.S. v. New York City Dept. of Educ., 2010 WL 3377667, at *9 [E.D.N.Y.

Aug. 25, 2010]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).

The substantive issues such as one on one Adie may be not be appropriate to be reviewed herein, however issues such as compensatory time and evaluations by their very nature deal with the future and the conduct of the CSE is not moot because it is subject to repetition.

II SUBSTANTIVE ISSUES

Transition support services are not appropriate should receive should get a special musical class adapted to his needs Parent counseling and raining Full time aide Goals are not appropriate Point1. Transition Support Services The parent argues that the transition plan of the CSE of May 6, 2011 is inappropriate. The mother had raised concerns about the transition into the middle school in September of 2-010. The student had an incident in music class that impacted the remainder of the student’s school year. The mother had raised an issue of placement of the student at the DW middle school because the student had friends in the school, and the general education teacher expressed a belief that having familiar faces in the building would be help in transition to the middle school. By insisting that the issue of placement was a general education issue that could be addressed by open enrollment procedures dramatically impeded the student’s transition planning into the middle school. The issue of transition planning is not rectified by the district granting open enrollment in this situation. But the failure of the CSE to address this issue opened the student unnecessarily to an incident similar that had happened in music class. Likewise, the district by placing the burden on the mother to request a tour of the Middle School is shirking its responsibility and is a denial of FAPE. Point 2. Music Class and Compensatory Services

There is no factual dispute that the student did not attend music class after the music class incident. The student’s IEP that was being implemented and in place at the time the incident took place in the music room provided for the student to be placed in a general education setting with supports. The general education placement was recommended by the CSE in the IEP of September 14, 2010. The student missed all of the music classes for the remainder of the year. I find the student is entitled to compensatory education for the missed music class. I direct that the CSE reconvene to determine the number of music classes missed and develop an appropriate program for the music class for the upcoming school year. Point 3. Adaptive Physical Education The parent argues that the student requires . The aide reported the difficulties that the student encountered in physical education class. It is unclear that the difficulties were of a significant level that other program modifications would be sufficient to address them or if counseling could be utilized. I direct that the CSE reconvene to determine if is appropriate for this student or if other program modification or supports are appropriate for this student. Furthermore the CSE should reconvene to determine how many group sessions that student missed and provide compensatory sessions for the missed sessions. Point 4. Parent Training and Counseling

It is not clear from the record if the mother requested parent counseling and training at the CSE meetings. The school social worker indicated that at times he did provide advice to the mother evidencing an existing need. The CSE should reconvene to determine if parent training and counseling is appropriate. Point 5. The IEP is Appropriate Because the Student Needs a One on One Aide, and an Upadted FBA and BIP

The parent argues that the recommendations contained in the IEP are inappropriate because the student requires a one to one aide. The IEP from May 6, 2011 CSE meeting provided a 1:1 aide commencing from September 7, 2011 until September 15, 2011on or about the next Annual Review CSE meeting. It is interesting to note that the transition meeting services for the middle school program only extends one week into the school year and the annual review occurs one week into the school year. The specific provision of services would be reviewed by the CSE with the benefit of updated evaluations. It is also interesting to note that individual counseling services ends on September 15, 2011. I find that the IEP of May 6, 20-11 that provides 1:1 aide at the middle school and counseling is appropriate and any change would be subject to the provision of part 200.5. Likewise the student needs an updated FBA and BIP which the district is in the process of preparing, The CSE should reconvene to review this decision and any updated or new evaluations

Point 6. Annual Goals

The parent argues that the annual goals are out dated and as a result are inappropriate. The goals have been continued from previous IEPs and I direct that the CSE reconvene to review the annual goals upon completion of the evaluations directed herein. Point 7. Attorney Fees

The district raises issue concerning the award of attorney fees. In light of the lack of jurisdiction regarding the award of attorney fees I will not review said issue.

FINDINGS

I find that there was an improperly comprised CSE but that by itself does not lead to a denial of FAPE.

I find that the district failed to provide FAPE to the student failing to timely evaluate the student.

I find the mother was denied meaningful participation in the CSE meeting formulating transitional placement for the student entering middle school.

I find the cumulative effect of the findings in points 1 2 and 3 is that the student was denied FAPE.

I find the issues raised and the parent’s hearing request are not moot because they are subject to repetition.

I find the student is entitled to compensatory education for the missed music class. I direct that the CSE reconvene to determine the number of music classes missed and develop an appropriate program for the music class for the upcoming school year.

I find that the IEP of May 6, 20-11 that provides 1:1 aide at the middle school is appropriate and any change would be subject to the provision of part 200.5.

I find the student needs an updated FBA and BIP which the district is in the process of preparing, the CSE should reconvene to review this decision and any updated or new evaluations.

ORDERED

1. I direct that the CSE reconvene to review the annual goals upon completion of the evaluations directed herein.

2. As a result of the denial of FAPE the district should within 30 days of the have the student evaluated by the center and reconvene its CSE to consider the results of the district evaluation, the x evaluation and the directions contain with in his decision. It should be noted that he CSE was to conduct the Student’s annual review after the close of proof but before the decision herein, as a result this CSE should when it reconvenes review the IEP from the annual review meeting of the CSE for the 2011 -2012 school year when it reconvenes pursuant to the direction of this decision.

3. The CSE should reconvene to determine if parent training and counseling is appropriate.

4. I direct that the CSE reconvene to determine if education is appropriate for this student or if other program modification or supports are appropriate for this student

5. I find the student is entitled to compensatory education for the missed music class. I direct that the CSE reconvene to determine the number of music classes missed and develop an appropriate program for the music class for the upcoming school year. Furthermore the CSE should; reconvene to determine how many group sessions that student missed and provide compensatory sessions for the missed sessions. 6. The CSE should reconvene to review plans for transition in the student into the middle school upon the completion of the evaluation ordered herein and to review the annual goals upon completion of the evaluations directed herein.

7. As a result of the denial of FAPE the district should within 30 days of the have the student evaluated by the center and reconvene its CSE to consider the results of the district evaluation, the evaluation and the directions contain with in his decision. It should be noted that he CSE was to conduct the Student’s annual review after the close of proof but before the decision herein, as a result this CSE should when it reconvenes review the IEP from the annual review meeting of the CSE for the 2011 -2012 school year when it reconvenes pursuant to the direction of this decision. 8. As a result of the denial of FAPE the district should within 30 days of the have the student evaluated by the center and reconvene its CSE to consider the results of the district evaluation, the evaluation and the directions contain with in his decision. It should be noted that he CSE was to conduct the Student’s annual review after the close of proof but before the decision herein, as a result this CSE should when it reconvenes review the IEP from the annual review meeting of the CSE for the 2011 -2012 school year when it reconvenes pursuant to the direction of this decision.

9. The student needs an updated FBA and BIP which the district is in the process of preparing, the CSE should reconvene to review this decision and any updated or new evaluations.

PLEASE TAKE NOTICE:

Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 may be obtained by either the parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states:

“ 279. (2)(b).13 Notice of intention to seek review.

(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:

Notice:

(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice. (b) The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25‐ or 35‐day period. ( c ) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35‐day period.”

Dated: September 12, 2011

PAUL T. BUMBALO, ESQ.

IMPARTIAL HEARING OFFICER