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 STUDENT, a minor, by and through FINDINGS OF FACT

His/Her Legal Guardian AND DECISION

Against CASE ID NO

The PUBLIC SCHOOL DISTRICT

___________________________________

PAUL T. BUMBALO, ESQ,

IMPARTIAL HEARING OFFICER

THE PROCEDURAL POSTURE

This impartial hearing officer was appointed to preside over a due process hearing request filed on June 15th 2012. A resolution session was held on June 27th 2012 that did not result in a resolution to the fast satisfaction of the parent. A scheduling order was issued on June 29th 2012 to the district and on July 5th 2012 to the attorneys representing the parties. The parties were notified at the start of the 45-day timeline and a prehearing conference was held on August 3rd 2012. During the course of the prehearing conference, this IHO suggested hearing dates of August 29th and 30th of 2012; however, a consensus was reached to schedule the hearing dates on September 11th and 12th of 2012 due to the availability of witnesses. Extensions were requested and granted as evidenced by IHO Exhibits 1, 2 and 3. The hearing was commenced and completed on September 11th 2012. The district admitted Exhibits 1 through 27, the parent admitted Exhibits 1 through 2, this IHO marked and admitted IHO Exhibits 1 through 7 which documented extensions granted and Exhibits in this matter. The following witnesses testified TV, DM, KB, NT and JS. The due process hearing was held, and a decision in this with matter is being rendered, pursuant to the Individuals Disabilities Education Act Hereunder

(IDEA) 20 USC 1400 et seq., and its implementing regulations, 34 CFR 300 et seq, and the New York State Education Law Educ Law 4404 and its implementing regulations 8 NYCRR 200.5 et seq.

ISSUES

The district argues that the May 2012 IEP needs to be evaluated as of the time of its drafting, that when considering a residential placement you must proceed cautiously when evaluating a program. The inquiry is whether the student’s conduct outside of the school building impedes the student’s ability to derive academic benefits from a day treatment program, and academic progress must be viewed in light of the limitations imposed by the student’s disability. The district also argues the student’s day treatment program is appropriate to enable the student to make progress. The student has made significant progress in managing his behaviors since being placed at TW’s program was less frequent and less intense behaviors and better transitions. The student’s lethargy or fatigue were not reasons for the CSE’s recommendation to the ’s day treatment program, plus there is no evidence to support that residential placement would affect an educational change by eliminating or reducing fatigue, nor would consistency and expertise of a residential staff result in reduction of medications. Also, the opinion of JS is that student needs residential regardless of educational progress. The student needs residential because the student is difficult to control at home.

The parent argues that the district failed to refer the student to a residential placement resulting in the student failing to meaningfully benefit from his educational placement that the district must provide an IEP likely to provide progress, not regression, and affords the student an opportunity greater than mere trivial advancement. The parent relies on the history of the amendments to the IDEA to demonstrate that the goal should be for self-sufficiency. The parent also argues that when the medical, emotional or social problems of student are intertwined with education problems then a residential is appropriate. The student has not progressed towards his academic goals and that the lack of independence and skills of ADL’s are not addressed in a manner that the student can generalize outside of school. The parent argues the student has the cognitive ability to make academic gains, but he has not made meaningful progress. The PLEPS have not changed much. Regarding knowing his upper and lower case letters pre-primer sight words, the student has failed to master the first short-term objectives in reading, math, and herapy. The parent argues that the relationship between home and school is such that the student needs the medication levels he is currently prescribed, but with the staffing structure, training of a residential unit the student could be less medicated increasing his focus to facilitate learning which is different than allowing lethargy, disinterest, and lack of progress to continue. The parent agrees for consistency and continuity a residential placing would be beneficial to the student by facilitating the carry over services from residential to educational programs which would increase progress. The parent argues the CSE chair stated that she needed the staff to say that the day treatment was not appropriate. Also, the parent argues that the student’s special education teacher’s testimony is contradictory.

SUMMARY OF FACTS

The district’s first witness was TV who is the CSE chairperson and is responsible for IEP and 504 plans. She has been with the district for nine (9) years T16; and before that she was employed by BOCES as a special education teacher in an 8:1+1 program, the in the 6:1+1 program, and has experience with students with ADHD and behavioral issues T17. Her educational background includes; a BS degree in Elementary Education, a Masters in Special Education from Lemoyne, and she is certified as an Advanced School District Administrator SDA. She is certified K-12 Special Ed, Preschool – 6 Elementary Ed and is a School District Administrator.

She is familiar with the student who is classified with multiple disabilities, and is diagnosed with and He is prescribed, and is taking various medications. He has severe behavioral outburst which are difficult for the student to control. He is currently in a 6:1+3 program at The witness indicated they have not seen severe behavioral problems recently and is uncertain if it is because of the medications he is on or because of the BIP T20. The student has exhibited severe behaviors including hitting on a daily basis T21. Initially when the student was in the district’s class he was in 12:1+1 with a shared aide which was increased to a one on one aide, and was provided by the district’s social worker T21. There were incidents on the bus where the student did not want to go to school T21. He would tantrum / cry, it was believed that it was unsafe to transport. The recollection of the CSE chair is that there have not been tantrum or transportation problems since October of 2011 T22.

The student was placed in 8:1+1 at the H BOCES program and was only there for approximately fifteen (15) days and was placed in a for evaluations. The student was at FW T22 for diagnostic purposes. This occurred near the end of the school year so after his discharge, the student was home instructed for the remainder of the school year T23. The witness indicated that the BOCES program did not object to the student returning T23. The witness reviewed D8 behavioral charts from April 25, 2011 through May 16, 2011 which documented the student’s behaviors in which were reviewed by the district’s CSE in an IEP meeting on October 2, 2011. The school year started on September 6, 2011 T24. At that point the mother complained of issues at home where the student was being aggressive with family members after a new sibling entering the home T25. They were having very difficult times at home T25. The CSE recommended a day treatment program as being appropriate T26. The CSE considered residential placement as suggested by the student’s pediatrician. The CSE’s consensus was that the student did not need residential placement because the student’s educational needs did not require a more restrictive environment T26. The witness also reviewed D19, the IEP from April 24, 2012 CSE meeting which was an annual review, reviewing progress notes and planning for the next school year T27. Also reviewed at the CSE meeting was D15 the evaluation, D16 the evaluation, D17 behavioral support and intervention plan T28. The CSE reviewed quarterly progress reports from TW, D25 was the reports from the first quarter, and D26 was the progress reports from the third quarter which were received after the CSE meeting of April 24, 2012 T29. The witness next reviewed D19, the IEP from the April 24, 2012 CSE annual review which recommended a special class at TW in the 6:1+3 T30.

The witness recalled that no one from TW at the CSE meeting said that the day treatment program placement was not appropriate T31. The witness next reviewed D23, the IEP from the May 15, 2012 CSE meeting. In the comments portion of the IEP, it was reported during the CSE meeting that there was some regression with hand slapping, hitting himself in the head, and other self-injurious behaviors T31 which peeked in February and March and was described as related to a change in medications and the introduction of a newborn sibling into the family household but decreased in April or May T32. There were incidents of non-SIB behaviors in May where the student pushed the same student twice and an incident where he hit himself in the head, but overall it appeared to be a decrease in behaviors T33. Again the witness did not recall anybody from the day treatment program indicating during the CSE meeting that the student was not appropriate for the day treatment program. It was believed that the student would benefit from the residential placement because the consistency would help, but there was not a consensus that the student needed the more restrictive environment. The witness indicated that the CSE did not review P1, P2 since they were not available for review by the CSE.

TV the witness indicated the student’s disabilities included and cognitive impairment. According to a evaluation done by the district in October of 2009, the student’s full scale IQ was approximately T36. The student was originally placed in the R elementary district building exhibiting behaviors on a daily basis. The CSE provided a 1:1 aide as a result of concerns about safety and were working on developing a BIP T37. The student did have difficulty getting on the bus at R Elementary when the student was in a 12:1+1, T38. The student was exhibiting behaviors at home and an 8:1+1 BOCES placement was recommended because it was difficult to calm the student down. The witness reviewed a D9 CSE committee meeting information from a meeting on June 8, 2011 as an annual review which indicated that all BOCES staff agreed with and it was recommended that the student be placed in the TW program T37. The witness was quizzed regarding the comment notes that indicated it was a lengthy discussion whether the 15 days the student was in the program was long enough to determine progress T40. TV offered an extended school year; the witness claimed that the mother & JS were not in favor due to difficulties with transitioning. The student’s class room teacher voiced concerns about behaviors. According to D4 the IEP from the May 27, 2010 meeting, the ESY was not recommended for the summer of 2010 T38.

The witness did not believe the student was in a honeymoon phase with the new placement at TW preceding the October, 2011 CSE and that the student’s increased behaviors indicated the phase was ending, even though there were similarities to the student’s behaviors while he was at R elementary school and the BOCES adjustment class. Also the witness testified that no one from TW expressed that a residential placement at TW would be beneficial T44. The witness reviewed D25 which were progress reports for the first quarter at TW for the 2011-2012 school year which indicated on particular on page 2 the student was graded as a CST continued to work on short term objectives which means that the short term objectives are not mastered but did not provide information concerning the amount of increments of progress while working on said short term objectives or how close the student was to mastering that STO, T47. The witness reviewed D23 page 1, the IEP from May 15, 2012 in which LU, RK, MP, KB were participants from the TW program. The witness recalled that there were continuing and escalating behaviors at home and during the meeting TW described the student’s demeanor as sleeping more, he was difficult to engage, he lost interest in favored activities, required prompting to complete tasks independently, regressed in abilities to engage in social situations T48, was lethargic and had difficulty working T49. No one from TW at the CSE meeting said the student “is making progress” T50. Overall the student’s progress through February and March was difficult.

The witness did not indicate recall RK the behavioral specialist saying that the home environment was a negative impact upon the student’s school environment T50. The witness was questioned regarding whether the three (3) witnesses from the TW recommend a residential placement, but believed they indicated that it would be a benefit. However the witness felt that placement should be based upon the student’s needs. No one from TW at the CSE meeting said residential was not warranted, T52 or that it was warranted, T53. The witness indicated that JS was the Medicaid services coordinator and whether the student would benefit is not the criteria because of the fact of LRE. On redirect, the witness indicated that the student had made overall progress while at TW. Overall the student’s violent outbursts and aggression towards others had decreased significantly T53. The student‘s behaviors at the BOCES 8:1+1 and at home are not seen at TW program, T56.

The district’s next witness was DM, has worked at the TW program in both residential care and in the day treatment care for 3 ½ years. She has a degree in Elementary Education and is taking Special Education courses with 18 credit hours towards her BS in Special Education. DM is currently taking a break from her studies due to her two (2) small children which resulted in her taking disability leaves in 2011 and in 2012 T60. She is currently filling in for a maternity leave for RK Behavioral Specialist, D.M. was assigned to the student on July 13th and signed off on a Progress report dated July 29th identified as D27 T61, and specifically page 10 there were no reports to this witness regarding difficulties neither with targeted behaviors nor with reports of same provided to D.M by RK or JB, the behavior specialist assistant. T65. There were no reports of aggression D27 p3 T68.

It was revealed that the she was subbing for RK, that JB was the student’s BSA for the past year and left the program near the end of July, that she has briefly glanced at the BIP but has not seen the student this year T69, except passing in the hallway T70.

The next witness was KB, the student’s Special Education teacher who has been with TW for the past seven (7) years and was a Special Education Teacher in the student’s TW program. She has a BS in Elementary Education, a BS in Special Education, MS in Literacy, is New York State certified Elementary Ed 1-6, Special Ed 1-6, and reading through 12, T72. The age groupings in her class are from 8 – 14 years of age with multiple disabilities including autism. This student is within the 8 – 14 age groupings and the students have multiple disabilities; Autism, MR, Behavior Disorders T72, five (5) of the students do have BIP’s, T 73. The role of Behavioral Specialists is to make up the BIP plans, assist in supervising the Behavioral Specialist Assistant, identifying target behaviors, but does not meet with the students. The BSA works in the classrooms and is shared between two (2) classrooms. The BSA is there if you need a consult, assistance with the students’ behaviors, call them and they help you work through the crisis, and implementing the BIP T74. The student was assigned to the witness’s classroom December of 2011. There was some shuffling of students and the student fit within the age grouping there and was moved into her class from the classroom next door T75. Since 2011 there had not been a need to call in a behavioral specialist or a behavioral specialist assistant. He would not really exhibit violent behavior, although at times he would need to be calmed down. The BIP was revised in February 2012 that the BIP was working efficiently T76.

The student would use 2 or 3 swear words lasting less than a minute, engage in hitting behaviors, hitting, slapping at staff approximately three (3) or four (4) times while the student was in her class, but not other students T77. The behaviors occurred when it was attempted to engage the student in activities that he did not want to do and refused to do. The staff would persist in encouraging the student to complete the activity T78. The incidents were mild in intensity one (1) or two (2) hits to one (1) student within the same day T78. There were no escaping or safety concerns. However, there was swearing or verbal aggression of 2 or 3 swear words, T79 primarily occurring during the hitting incidences of less than a minute T80. The staff would re-direct the student to “Be quiet”, “Be nice”, “and Stop hitting”. The behaviors would lesson after 1 to 2 minutes and they would encourage the student to return to tasks. A severe outburst would take at least 15 minutes to calm T80. There was no biting T80. The student would have tantrums approximately 1 – 3 times, cry and refuse to do work, try to sleep and want to be left alone T81. The witness was not aware of difficulties getting on the bus, T81. Verbal prompts to re-direct the student would work. The self-injurious behavior, punch hand, hit head with book; both were describe as mild T82 and does not hurt him. Staff would re-direct the student and the student did not know why he would do these things. There was one period when there was a change in frequency and intensity. None of the other students exhibited self-injurious behavior, however the level of supervision for this student was 20 feet where as others in the classroom was 5 or 10 T83. On the academic level many times the student’s behaviors would be an attention seeking activity. Academically the student was on the Pre-K – K level T84. The student’s writing is at the Pre-K level and is working on pre–writing skills, T84. The student is progressing and has met some of his short term objectives, T85, 86. Not all students were progressing towards short term objectives. The student’s reading was at the pre-primer level and the student was bad at the math solving. The student was continuing to work towards but did not meet social skills short term goals; i.e. spontaneous use of communication the student was making progress, and number 3 progressing by performing correctly with prompts T87. The witness reviewed D26, pages 2 and 3 that the student would go to specials in music, art and phys ed. He would enjoy going; engaged in music and did what he was asked to do T89. Regarding goals on district 23 pages 7, 1, 2, 10, 11 and 12 were prepared by the witnessT90 social emotional goals were prepared by the counselor. Regarding the social emotional goals that he is making progress towards; he is interested in some students and some preferred staff, T97 but not others. Academically the student was not progressing much lately due to sleeping and was prompted to keep awake, and to keep focused T91. The BS was not contacted and the student was not a behavioral concern. Student’s medications were not taken in school T92 but the witness would communicate with the mother regarding sleep patterns, T92.

On cross examination it was revealed that of the 6 students in the witness’s classroom, 2 are residential students, T94 however she has never observed the student perseverate T94. He would not play with toys, however he would engage in a favored activity, primarily talking about fishing or using his Ipad but had recently lost interest in that. The witness reviewed D23 the IEP from May 16, 2012 CSE meeting, in particular the short term objectives. The short term objective for reading, set an objective for pre-primer sight words with 100% accuracy for 5 consecutive days at 10, 15 and 20 words because the student was almost at 10 words TT95. The witness was asked to compare that to D14 which was the IEP from the October 20, 2011 CSE meeting and a review of the short term goals for reading indicated the student’s objective, was to identify 50 pre-primer sight words T96 and solve three single digit addition problems with stated accuracy T97. In particular page 3 it was reported that for the four quarters for the 2011-2012 school year the student was continuing to work on short term objectives and not mastered the short term objective or annual goal of the reduced target of number 20 pre-primer sight words. The witnessed next reviewed D19 which was the IEP from the April 24, 2012 meeting. The witness stated that LU from TW was the curriculum specialist, does not have any contact with the student but meets with the teacher administrators, provides training consults with said teachers and behavioral specialists T99. She was not very involved with the student because there are not a lot of problems with the student T99. The witnessed was quizzed regarding the parent’s description of the student’s behavior and that the student made it difficult for the mother to get him up, ready for school and picked up after school. He would be aggressive to all the household members T100. The witnessed communicated daily with the mother through the communication log regarding self-injurious behavior T101. Regarding academics the student needed 1:1 attention with verbal prompts, some hands on hand, and finger pointing. The last few months the student would sleep a lot and fall asleep which would occur frequently multiple times during the day it was hard for him to keep awake and he continues to be sleepy T103. The witness did not speak with the nurse or any other individuals regarding his sleeping. The student was withdrawing from his preferred activities which included discussing fishing. The student had regressed so he was not the same student he was in May T105. The witness was questioned regarding the continuity that residential program would provide that the student would be exposed to the same regiment and structure with trained staff T107. The witness currently has two (2) students that are residential students T108. At quarterly meetings, the witness spoke highly of the TW program and that the student would benefit from it and the witness was not aware of any guidelines regarding recommendations for residential placement by any staff members at TW T108. The witness indicated that JS was the Medicaid services coordinator who worked closely with the mother and witnessed the including difficulties the mother had at home T109. The witness observed the student in school dropping to the floor, refusing to get up even when prompted to do so T109. The witness indicated that the staffs’ role at the CSE meetings was to provide progress reports which were reinforced by in-service educational programs at TW. In response to questioning by this IHO, the witness gave a rundown of the day activities which started at 9:00a.m. with breakfast until 9:30 a.m. and followed by a morning meeting, review of the calendars, specials, pull out therapies, then academics with reading and math followed by lunch. After lunch T118 they worked on ADL’s which included hand washing, face washing and toileting. There were no patterns when this student’s sleepiness would occur T120. The witness indicated that she would never use SCIP moves on the student and there is no social progress the days when the student was sleepy T121 lately, which I find to be during the 2012-13 school year, the student was not progressing academically due to sleeping T91. There was no biting observed and hitting was described as swatting, T120. The student was making incremental progress but has not met the goal, T122 or mastered it. The student is non-independent of ADL’s, T125 including toileting which requires step by step prompts T125. Including dressing and undressing as part of toileting, T125. The aggressive behaviors the student exhibits at home do not carry over into school, T127.

The district rested.

The parent presented her case with the parent being the first witness and it should be noted that the parent is not the biological mother of this student but the legal guardian having been appointed by the court as legal guardian after the father dropped off the student to be babysat and never to return T129. The student is 4 foot 7 inches, 154 lbs., and 9 years old and when he drops to the ground it requires a wheelchair to transport him T130. He is diagnosed with and The parent T131 went through student’s educational history at the district which commenced at kindergarten level and there were issues in first grade with hitting, throwing things in which the student would be difficult to control T131. The student would fall, pull hair, plop to the ground, hit, swear T132. At first he was okay and then his behaviors would become worse and there was an issue about safety to the other students T132. There were problems with the student getting on the bus in the morning, T132. The parents would take him to school, using a separate entrance and leave him between two doors with the student flailing and pulling the mother’s hair, T133. The Parent has accessed services at the Center T134 and the service of a Dr. J. who prescribed medications to the student. The medications prescribed to the student to the student included and for behaviors. The parent was visited by a SPFI investigator who believed the student was too young to be on medications and requested that the parent change which was complied with T137. The student’s medications currently are being monitored by Dr. R. from

T137. Currently the student is on (500 mg. twice a day), , . The mother received the services from an outside agency and its behavioral specialist whose recommendations have already been implemented T140.

In second grade the CSE recommended that the student go to a BOCES 8:1+1 program because of behaviors T140. The student had an inpatient evaluation at FW because the student had lost control, pulling out the mother’s hair. She took the student three times to the Emergency Room. Finally the mother admitted the student herself at FW which confirmed the diagnoses of . The mother indicated that the student currently has only a ten second attention span T142. mother reviewed P2, P3 which listed the student’s medications upon discharge from FW T143. The student was home instructed following discharge until the end of the school year T145. The mother reviewed D10 the third grade IEP T145. The mother wanted the student placed at TW. The CSE chair had concerns that the BOCES program which preceded the admission at FW because of difficulties in evaluating the appropriateness of the BOCES placement because the student was only there short time, T140. The mother claimed that BOCES did not want the student since it was at the end of the school year. It was decided that the student would be homebound instructed to eliminate additional transitioning issues. It was believed that the 8:1+1 BOCES program at H was not appropriate because of the student’s low IQ and his severe behaviors T142. In D10 the June 8, 2011 annual review it was reported in the comment section that JS, the Medicaid service coordinator and the advocate indicated they were not in favor of an extended school year summer program due to difficulties in transitioning. All believed that the TW day treatment program would be appropriate although the mother questioned whether residential would be more appropriate upon the belief that there was a honeymoon phase initially, and that the pediatrician suggested a residential placement because the student was too large for the mother to manage safely due to the severe behaviors and size T147. The student continued to have behaviors at home and the mother requested the October, 2011 IEP CSE meeting which is D14, the mother’s request for a residential placement was shot down because they were concerned not with what happened at home, T148. The mother discounted reports by the district that the student’s February and March included increased frequency and intensity of behaviors due to the recent addition of a newborn infant into the home T149. The mother claims that the student is very fond of her newborn and does not create an intentional safety issue with the newborn T161. The mother believes that residential placement would be appropriate, due to other family commitments she cannot commit to a routine regiment schedule that the student needs which he will be provided in a residential placement T150. The issue of residential placement was tabled from the April meeting in order to have present an attorney for the parent and have an attorney for the district. At the May, 2012 CSE meeting there were reports that the student would benefit from the TW residential placement and, that the student’s behaviors at home effected his education at school. JS was surprised the request for residential placement met with resistance due to the lack of independence and the student’s needs make him totally dependent; i.e. lack of toilet training. It was believed because the residentially trained staff would be better for the student due to structure and function, provided by the residential placement. The student had been screened and was accepted by TW residential T157.

Upon cross examination of the mother, it was revealed that medications are continued with only the following changes that the a.m. dosage of had been increased T159. The that had been initially prescribed by FW T159 that there had been incidents with aggression going back to the first week of school refusing to enter the school bus so the parent’s would transport him frequently T160. The only one slight incident with the newborn which was an accident T161. The student is on T163. The mother accessed services at the K center as a result of difficulties encountered in Mrs. S’s. class T164. The school provided counseling but the student did not cooperate with counseling. The mother indicated that they had implemented the plan at home as recommended by the behavior specialist T166 though there has not been a return visit, an inspection, or revised plan to deal with the worsening behaviors by the student T167. JS the Medicaid Service Coordinator attempted to arrange a respite but could not because of the student’s behaviors. The mother was leery of another SPFI T168 visit because the student was only at BOCES for a short period of time and that the honeymoon period had phased out. The mother was familiar with JS the Medicaid services coordinator arranged for the residential intake which was completed. Also the mother felt that in a residential placement, the student’s medications can be reduced minimizing the lethargy, T173.

The next witness was JS who is a Medicaid Service Coordinator at TW, who has been employed at TW since her graduation in 2002. She started her employment as a residence counselor assisting staff working with the residents and ADL’s T174 for approximately two (2) years ago, where she had daily contact with the educational component T175. The goal was to decrease target behaviors and to work on ADL’s, dressing, showering, toileting T176. She took a position as an integrated aide starting at the residential unit and transitioning with the student to the educational component T177. The witness would assist at the school in the educational placement; she did have contact with the staff. The witness was questioned regarding role of the private physicians and psychiatrists of the students. The students go outside the unit for primary care services but the providers could come into the facility T179. The staff can coordinate but the parent’s always decide healthcare providers. Her next position was a program services specialist, T179 which is a Case Manager. There are two (2) ICF’s run by TW T180, which design program services according to the student’s strengths and needs and there is an umbrella agency that runs

TW. The witness has been the Medicaid Service Coordinator T181 and has known the student since April, 2007 through ODD the Office of Developmental Disabilities. The student engaged the services from the C Center T184 for early intervention T182. The witness had monthly face to face contacts which were recently reduced per new regulations with three face to face meetings per year T183. She has met primarily with the student at the home of the student though she has observed the student both at home or in school T183. She observed the student in Mrs. S.’s second grade, the student was very active, though compliant, T184. At home said the student became more aggressive. He was consistently eloping from the home; he would eat constantly and go forging at night. He would get aggressive if you would try to stop him T185. The student was evaluated at FW after the BOCES program. The student’s levels of aggression and needs were too much. The witness reviewed D14 the October, 2011 IEP in which she participated in and expressed an opinion that the student should be placed at TW residential

T186. When the CSE did not result in a recommendation for residential placement, JS attempted to arrange services through the HRC respite giving mother a break but the student’s behaviors were so severe in 2010 that the mother was unable to leave the home T188. She believed and recommended TW. The student had a hard time with the bus and getting to school.

There was an annual review CSE meeting on May 27, 2010. They attempted respite but the mother was unable to leave do to the physical aggression of the student. The mother is always compliant and makes all the appointments. She had observed the student in the classroom and home too. The student continues to have behavioral outbursts even in May of 2012. The student would elope without warning, walk around the complex foraging for food, entering the unlocked doors T192, steal toys, would flop on the ground, refused to walk and would need to be placed in a wheelchair T192. The witness attended the May 2011 CSE meeting. There were additional services provided from community rehab but that lasted less than 2 months because it increased his behaviors and the student was not willing to have his schedule changed, T195 Respite was tried in May 2011 TW reported at the Oct 2011 CSE meeting that the student was making progress The student has recently been very lethargic. There has been no significant progress. The student’s home environments impact his educational program and he had lost interest in favorite activities and was withdrawing T194. The student’s self-injurious behavior has increased T197. The mother attempts to place herself between the student and the mother has been hit and had her hair pulled. The witness did acknowledge that the student was screened for the residential unit and approved which was about the same time as the application for day treatment program and the witness indicated that she did not anticipate the difficulties in having the district place the student in the residential unit. The witness felt that the student was not making significant gains. “The witness felt that the residential placement was necessary and no one at TW disagreed, T194. Consistency between residential and educational; was a key to making progress overall T194. The training of the staff at TW would decrease his behaviors,

T194. The psychiatrist said with more structure in the residential unit could decrease dosage and improve focus, T195

The cross exam of the witness it was revealed that the head agency has a children’s residential program in U that consists of 4 intermediary care facilities and 6 in R. The residents are placed there by their districts, T199. There are no services being provided currently by ISP,

T201. The student had more intense behaviors foraging for food between 2007 and 2009 T201. It was just TW at the time because they were advocating for what the mother wants. T202. D13 program review in October 2011 witness was not asking for a residential placement but he was screened in Sept 2011 for residential even though the day program had not yet started, T204. The witness’s opinion would be in favor of a residential placement even though the student was making educational progress because he needs to be placed in a residential regardless of progress because of behaviors at home, T205.

DECISION

LEGAL STANDARD

The second circuit has set the standard in

51 IDELR 91 LRP 58991 M.H. and J.H., on their own behalf and on behalf of their daughter L.H., Plaintiffs-Appellees, v. MONROE-WOODBURY CENTRAL SCHOOL DISTRICT, Defendant-Appellant296 F. App'x 12. U.S. Court of Appeals, Second Circuit

07-1571-cvOctober 7, 2008 stated

“In reviewing this case, we are aware that "IDEA's statutory scheme requires substantial deference to state administrative bodies on matters of educational policy." Id. (citing Bd.

of Educ. v. Rowley, 458 U.S. 176, 205-08, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)).

Although we "must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence, the Supreme Court has cautioned that such review is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Id. at 191-92 (internal quotation marks and citation omitted). Accordingly, we give "due weight" to these administrative proceedings, "mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy." Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (internal quotation marks omitted). Judicial deference to the administrative proceedings "is particularly appropriate when, as here, the state hearing officers' review has been thorough and careful," id., and "the district court's decision is based solely on the administrative record." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 113 (2d Cir. 2007). “ The second circuit also set the standard regarding residential placements:

“The standard for when a school district has to place a child in a residential setting was established by our Circuit in Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 (2d Cir.

1997), which held that the state has to fund a residential program when it is necessary for the child to make "meaningful educational progress." Id. at 1122. Courts have held that "when the medical, social or emotional problems that require [a residential setting] create or are intertwined with the educational problem, the states remain responsible for the costs of the residential placement." Id. at 1120 (internal quotation marks and citation omitted). As a result, the central inquiry is whether the student's conduct outside of the school building and outside the normal hours of the school day is such that it impedes her ability to derive an academic benefit from a day program.”

The Second Circuit also stated:

“To answer the question of whether the child is likely to make progress or regress under a proposed day-program, a court must examine the record for "objective evidence," such as test scores, grades, and other similar "objective" criteria. Walczak, 142 F.3d at 130; see also Cerra, 427 F.3d at 195 (cautioning that to avoid impermissibly meddling in state education methodology, a district court must examine the record for objective evidence indicating whether the student is or is likely to be progressing or regressing in the proposed educational setting). In general, the Second Circuit requires that a court point to objective evidence of a child's regression in a day-program before finding that a residential placement is required by the IDEA. Walczak, 142 F.3d at 131-32 (citing examples of Ninth, Third, and First Circuit cases that take the same approach).”

The Second Circuit also stated the following in Mrs. B regarding progress:

“M.M.'s history in the public school system before her placement at Devereux was marked by very limited academic progress, and serious regression in the year prior to the placement. She failed to meet nearly all of the objectives set in her IEP and nearly all of her grades were unsatisfactory. It is an inescapable fact that over the course of three years, despite being of average to slightly below-average intelligence, M.M. did not advance more than one grade level in any subject. In the face of M.M.'s decline, the Board offered no plan to deal with her worsening behavior, in spite of a clinical evaluation concluding that M.M.'s debilitating emotional problems could only be properly addressed in a highly structured residential setting. Based on the evidence of

M.M.'s stalled academic performance, and the failure of the Board to deal with M.M.'s problems, the district court properly found that the residential placement was necessary.”

The next question pertains to where and in what location should progress be monitored. The parent argues that the difficulties the parent was encountering at home are a relevant factor in determining the appropriateness of the district’s placement.

SRO 04-21, the SRO stated:

“The record shows that the student primarily displays difficult behaviors at home and not at school. The record also demonstrates that the student's behavior at home does not adversely impact upon his ability to gain meaningful benefit from his educational program. Therefore, the record does not afford a basis to conclude that the student requires a restrictive summer residential program to receive educational benefit or prevent regression. (Application of a Child with a Handicapping Condition, Appeal No.

92-27). The fact that a residential program may address a student's regressive behavior both at home and at school does not relieve the school district of its obligation to provide the program, as long as it is necessary to insure that the student is properly educated

(Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997]). Conversely, a residential placement is not appropriate where a student can make meaningful social and academic progress in a less restrictive day program (see, Walczak, 142 F.3d at 131-32).

Although petitioner testified that her child engaged in difficult behavior at home, the record does not indicate that the behavior at home impacted the student's ability to benefit from respondent’s non-residential educational programs. Further, because the evidence does not show that the student would experience substantial regression in social skills over the summer, I find that the summer program as recommended by respondent's CSE was appropriate.

In SRO 04-037, the SRO stated

“Here, the impartial hearing officer determined that the student was eligible to receive special education, did not address what special services and programs would meet the student’s needs, and improperly decided placement. Placement should not be determined prior to the determination of needed special education services (id.). Furthermore, the impartial hearing officer's order for residential placement is unsupported by this record.

The record reveals that the parent only sought residential placement for her son, after he was arrested. Since the CSE failed to classify him in the first instance, there has been no CSE discussion of any programs or placements along the continuum of services (8 NYCRR 200.6), nor does the hearing record demonstrate a basis for making such determinations.”

To further clarify, the focus needs to be directed as the SRO stated in SRO 10-106

“The greater weight of the testimonial and documentary evidence contained in the hearing record demonstrates that the student's medical/psychiatric conditions, although extremely serious, did not adversely affect her educational performance to the extent that the student required special education and related services in order to learn, or that the student was unable to attend school and access the general curriculum without modification of the content, methodology, or delivery of instruction (C.B. v. Dep't of Educ., 2009 WL 928093, at *22 [2d Cir. Apr. 7, 2009]; N.C. v. Bedford Cent. Sch. Dist., 2008 WL 4874535, at *13 [2d Cir. Nov. 12, 2008]; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 297-98 [S.D.N.Y. Feb. 9, 2010]; E.D. v. Bd. of Educ., 679 F. Supp.

2d 299, 308-11 [E.D.N.Y. Jan. 8, 2010]). Furthermore, the evidence contained in the hearing record establishes that under the circumstances present in this appeal, a residential placement was not intended or designed to be responsive to the student's learning needs, but rather, was designed to address medical and social/emotional problems severable from the student's learning process (see Mary T. v. Sch. Dist. of

Philadelphia, 575 F.3d 235, 246 [3d Cir. 2009] [discussing Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 694 [3d Cir. 1981]]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997][noting that district's may be responsible to pay for residential placement when medical needs are created by or intertwined with an educational problem])”

BEHAVIORS AT HOME

The question then becomes whether behaviors at home meet that element. The physical confrontation would occur when the student would confront the mother attempting to leave to go to other households seeking food. It is unclear if mother has the training or skills to redirect the student so that a physical confrontation can be avoided. Confrontations are partly to prevent the student from foraging for food at night outside of the home. The student’s behaviors at school have declined and are less intense and less frequent that earlier reported. Also another question whether there is a correlation between the lethargy and the student’s medications. The pediatrician recommended a residential placement based upon the testimonial explanation that the student is larger and would appear to be intended to protect the mother’s physical safety and not as a goal to make the student less prescription dependent and more focused in school. There is no medical evidence linking the pediatrician recommendations to the student’s educational needs.

The MSC JS provided hearsay evidence that the pediatrician believed that reducing the student’s medications would facilitate increased focus. The MCS testified that the mother’s position changed regarding whether she would seek a residential placement which resulted in the mother at first accepting the day treatment and then seeking a residential. This change in position resulted in a change of the position advanced by JS. The MSC works closely with the parents and it is unclear if JS can be totally objective or unbiased. Another factor in assessing testimony of JS is whether she can be unbiased or whether she would be inclined to attempt to fill the residential facility due to her closeness, familiarity to the program it would appear that the role of JS is one of an advocate to the desires and needs of the mother. It does not appear that the opinion of MSC is based totally upon the student’s educational needs, and I so find. I also do not find that the student’s needs are such that they are intertwined with his educational needs.

That however does not end the inquiry. The next step in the analysis is to determine, the level of progress in the areas of behaviors, ADL's, academics. The student was originally classified due to his behaviors. The student had difficulties transitioning to school via the bus and then entry into the building when transported by his parents

PROGRESS

BEHAVIORS

A review of D5, the FBA of March 23rd 2011 shows behaviors occurring one time per week from September 10th through October 22nd. There are no incidents from October 29th through December 3rd; one incident on December 10th; three on December 17th, the last day of school before recess; two on January 14th; two on January 28th; two on February 11th and March 4th; three on March 11th. It is reported that most of the incidents occurred near the end of the school day when it appeared that the student’s medications were wearing off. The IEP of December 6th from the March 28th 2011 CSE meeting includes reports from the classroom teacher, Mrs. S, that the minutes from the May 7th 2010 CSE meeting that behaviors are violent on a daily basis. There are questions about the students’ medications. The sub-CSE recommended home instruction pending placement at the BOCES 8:1+1 adjustment class with the 1:1 aide, OT, PT, speech and counseling.

A review of D8, the behavioral chart from the BOCES adjustment class, reported incidents where the student hit the teacher on April 12th, on April 20th hit staff and lethargic, April 22nd hitting and kicking teacher. The student had good days on May 2nd and 3rd but hit the teacher on May 3rd hit aide and May 4th; on May 11th and 15th, on May 5 hit aide and chased student; on May 6 hit staff; May 9 swearing and tongue sticking; May 13th hitting teacher; May 16th hitting. The D14, the IEP from the October 20th 2011 CSE meeting includes that mother was having difficulty transitioning the student onto the bus in the morning but TW reported no problems with the student getting off the bus, the student transition well in school and had no behaviors at school. During the CSE meeting of April 24th 2012, it was reported that aggressive behavior occurred three times per month. The management needs of the same portion of the IEP stated that the student had minimal disruptive behaviors during the day, transition well, and with the BIP has decreased target behaviors. The special education teacher indicated that the behaviors were down except for period when a newborn was introduced into the family. However, the events are less intense, short in duration, i.e., tapping head, slapping hand, but behaviors were not sufficient as to cause injury. Overall, they reported that student’s behaviors had decreased indicating progress.

LETHARGY

D4, the committee meeting information notes from the CSE meeting of May 27th 2010 had reported that based upon the PT report the student had gross motor skills quotient of 73. The CSE meeting of March 28th 2011 was focused on the student’s behaviors which were difficult to control but question whether the student’s medications were controlling his behavior. It was reported that the student at the CSE meeting of June 8th 2011 in D9, the committee meeting information of June 8th 2011, CSE meeting that the student was at FW having his medications adjusted but is on a mood stabilizer, sleeping medication, and ADHD medication.

A review of D10, IEP from the June 8th 2011 CSE meeting included a special alert that the student is on medications to address anger concerns, mood stabilizers and medications for sleep at night. In the PLEPS for physical development, it was reported that the student shows low muscle tone and has difficulty performing activities against gravity. He lacks good reciprocal movements and trunk rotation when attempting to complete gross motor skills. Regarding D14, the IEP from the CSE meeting of October 20th 2011 contained the same special alerts as in the previous IEP. In the comments portion, it was reported that during the first week of school, the student was lethargic, not sleeping at night, behaviors inconsistent at night but is highly energetic. It was reported in PLEPS that the student has side effects from medications and will get over hyper and his pupils will change. Contained in D14 is a PT evaluation of 02/07/12, the summary indicates that the student’s tolerance remains poor for prolonged cardiovascular endurance-type activities. Regarding the IEP from April 24th 2012 CSE meeting, it contained the same special alerts. As reported on PLEPS for physical development, the tolerance to activity remains poor to prolonged cardiovascular/endurance-type activities. Also that the student has gained weight due to medications and will tire easily during physical activities. Regarding D23, the IEP from the May 15th 2012 CSE meeting contained the same special alerts. In the comments’ portion, it was reported that the student’s dosage for medication has been increased to keep the student safe at home but the student is lethargic.

There is not any medical proof to support the assertion of the MSC that with proper supervision of trained staff at a residential facility apply consistency to the student that there would be a reduction of the levels of prescribed medicine, and I so find. The only support was hearsay evidence from mother and the MCS and without an opportunity to cross examine and without any basis that said statement was made based upon reasonable degree of medical certainty. As a result this IHO is unwilling to assign much weight to a crucial element of the dispute. Furthermore, I find that that the TW does not administer the medications prescribed by the student’s private treating psychiatrist, the parents do at home.

TOILETING

The CSE during the June 8th 2011 CSE meeting recommended the TW 6:1+3 program. Home tutoring was recommended for the remainder of 2010-2011 school year. It was reported that the student was not yet toilet-trained and is having toileting accidents. The PLEP's for the physical development indicates the student is having one accident per week. An overview of the comments portion of the IEP from the CSE meeting of October 10th 2011 reports that the student had one accident this school year which shows progress over the frequency of accidents reported at the June 8th 2011 CSE meeting. The evaluation of February 7th 2012 speaks of issues, indicates needs in increased coordination and motor planning, increased strengths and gross motor, increased tolerance to activities but is silent regarding toileting issues. The IEP from the April 24th 2012 CSE meeting indicates the student is able to use the restroom with reminders during the day, the student can wash hands independently with prompting. The special education teacher indicates that the student would undress and dress with prompting but did not report any accidents, which shows progress. Furthermore, D18, the OT evaluation of April 23rd 2012, based upon evaluations on February 6th 2012 and February 8th 2012, reports the student was not independent but did not report toileting accidents.

It should be also noted that the students’ progress should be based upon the students’ needs which are based upon the present levels of performance which take into consideration the students’ disabilities and as it was noted the student was and is classified as and the progress should be based upon that starting point.

ACADEMICS

A review of D27, the TW report card for the 2011-2012 school year, records progress as continuing work on short-term objectives, master short-term objectives, mastered annual goals. The student has, based upon D27 progress reports, mastered short-term objectives and mastered annual goals which clearly documents growth. The last category is continues to work on short term objectives is inadequate and insufficient in providing of information of recording the student’s progress. The academic short-term objectives pertain to identify pre-primer sight words and solving ten single digit addition problems. Regarding sight words, the goals were reduced downward from 50 pre-primer sight words. The progress reported for the fourth quarter is that the student is continued to make progress towards identifying 20 pre-primer words. This is an admission that the student has not mastered the short-term objectives or mastered the annual goals. D27 does not identify that the student is making progress while continuing to work on short-term objectives. The student was at 10 words as identified by special education teacher. The report does not provide any additional information regarding in relation to the distance from or towards mastering the short-term objectives so it is difficult to measure progress. The same would be the case for solving single digit math problems. The student was reported as working towards and continuing to work on short-term objectives. It was reported that math is an area of need. The special education teacher KB had daily contact with the student since he was placed in her class. The special education teacher testified that the student was making progress; however, there were no contradictory evaluations, documents or testimony to show otherwise. I find that there was progress towards these objectives.

FINDINGS

1. I find a factor in assessing testimony of JS is whether she can be impartial or inclined to favor the residential facility due to her closeness and familiarity to the program, and based upon the actions of JS, she views her role as an advocate to the wishes and needs of the mother as evidenced by JS advocating for day treatment then residential within weeks of each other because the mother changed her opinion. The opinion of JS the MSC is not based totally upon the student’s educational needs, and I so find. I also do not find that the student’s needs are such that they are intertwined with his educational needs.

2. I find there is not any medical proof to support the assertion of the MSC that with the supervision of trained staff at a residential facility would led to consistency for the student with a reduction of the levels of prescribed medicine. I find the hearsay evidence from mother and the MCS is without an opportunity to cross examine and is not based upon reasonable degree of medical certainty.

3. I find that that the parent administers the medications prescribed by the student’s private treating and TW is not responsible for the student’s lethargy.

4. I find the testimony of KB the student’s SET to be credible and based upon a daily contact with the student should be given deference.

5. I find the testimony of KB the student’s SET to be highly relevant and in particular that the student did not really exhibit violent behavior, although at times he would need to be calmed down; the student is progressing and has met some of his short term objectives T85, 86.

th

6. I find in the comments’ portion of D23 the IEP from the May 15 2012 CSE, it was reported that the student’s dosage for medication had been increased to keep the student safe at home but the student is lethargic.

7. I find that although understandable, the inability if the mother due to other family commitments to commit to a routine regiment schedule that the student needs is not a basis to recommend residential placement which he will be provided in a residential placement T150.

8. I find that the district has met its burden of proof that its IEP from the October 20, 2011 CSE was reasonable calculated to provide educational progress in the least restrictive environment.

9. I find the pediatrician’s recommendation, as described by the mother since the record did not include a written report, for a residential placement was based upon the student getting bigger, is never going to get better with his behaviors, and is going to get stronger, is based on the mother’s needs. I also find that the pediatrician does not prescribe the student’s medications.

10. I find that since the May 27, 2012 CSE meeting there have been no any programmatic changes, the Due Process Complaint was filed on June 12, 2012 containing a proposed solution of a residential placement.

11. I find that the IEP recommended by the CSE meeting of May 27, 2012 was reasonably calculated to provide an educational benefit in the least restrictive environment.

12. I find that KB the Special Education Teacher testified that lately there has not been progress due to the student sleeping in class., however there is no credible medical scientific proof establishing a cause for the shift from being lethargic to sleeping.

13. I find that the District provided the student FAPE, based upon the overall progress of the student however should the student be unable to participate in the academics of the class and be unable to participate in engaging in social interaction because of sleeping for prolonged periods of time then there will not be overall progress.

14. I find that the CSE should reconvene with 30 days of the date of this decision to recommend a pharmacological evaluation to determine if the student's medication and dosage are appropriate and whether alternate medication could be considered to address the student’s sleepiness which is preventing the student from being engaged in school.

ORDER

IT IS HEREBY,

ORDERED, that the District’s CSE reconvene within 30 days of the date of this order to identify a pharmacological evaluator to review the student’s current prescriptions and dosage in order to decrease the student’s sleeping in school; and it is

FURTHER ORDERED, that the District’s CSE shall reconvene to determine if any additional accommodations are appropriate to minimize the student’s sleeping in the classroom; and it is

FURTHER ORDERED, that the CSE shall reconvene upon completion of the evaluation to review the evaluation and make a recommendation based upon said evaluation. 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.”

The rules of procedure are found in Part 279 of the Regulations of the Commissioner of Education (http://www.sro.gov/part279home.html)

Dated: November 12 , 2012

PAUL T. BUMBALO, ESQ.

IMPARTIAL HEARING OFFICER