Impartial Hearing Decision

Dear Sirs,

Dear Sirs, I was given this site to file my decision in a recently concluded hearing. If this is an improper place to file this decision, please indicate the correct address. Thank you for your help. The case has been purged you can just omit page one if this is improperly forwarded to you. The decision is below

TO:

DR.

SCHOOL DISTRICT

FROM: PAUL M. ROSEN, ESQ

IMPARTIAL HEARING OFFICER

IN THE MATTER OF THE IMPARTIAL HEARING UPON THE REQUEST OF AND

ON BEHALF OF

PETITIONERS,

AND

THE SCHOOL DISTRICT,

RESPONDENT

HELD PURSUANT TO PART 200.5, SECTION (I) OF THE REGULATIONS OF THE

COMMISSIONER OF EDUCATION AND SECTION 4404 OF THE NEW YORK STATE

EDUCATION LAW

Dear Sirs,

BACKGROUND

The undersigned was contacted on or about June 27, 2011, to act as an Impartial Hearing Officer to hear the application of ****** *******AND ****** *******, the Parents of ******* ******** (hereinafter referred to as

**), with respect to their request for a hearing in writing dated June 27, 2011 from their Attorney Esq.

The request was contained in a nine page document. The School District appointed the undersigned as the hearing officer by an e-mail received on or about June 27, 2011. On June 28, 2012, the undersigned sent a letter to the parties advising them of my appointment as hearing officer and the date by which the resolution session must be held. An

Answer from the School District, dated July 7, 2012, was received by the undersigned. I was advised by e-mail on July 12, 2012, that the resolution session had been held and that no settlement was reached. The undersigned, after consultation with the attorneys for both parties, set the matter down for a conference to be held at the school on August 9, 2012, the first available date that all the parties could assemble. The purpose of this initial conference was to discuss the issues, narrow them to the extent possible, and established a hearing schedule. An e-mail to that effect was sent by the undersigned to the parties on July 12, 2012.

At that conference the School District was represented by, LLP, Mrs.

, Esq., of Counsel and the Petitioners were represented by LLP, Mrs.

Esq. of counsel. After that initial conference, the hearing was begun on September 8, 2011, and testimony was taken on that date. The hearing was continued for testimony on October 20, 2011, October 24, 2011, December 5, 2011, December 8, 2011, February, 3, February 10, 2012, and concluded on March 9, 2012.

At the conclusion of the testimony, the parties agreed upon a schedule within which the parties might submit briefs on the issues presented. The final portion of the transcript was received by the parties, and by agreement based upon the date of the receipt of the final day’s transcript, the date for submission of briefs was to be calculated.

Thereafter at the request of both parties the undersigned extended the date of the close of the record until on or before May 9, 2012, and the Decision date was extended until May 30,2012. The undersigned received the memorandum from counsel for the School District on May 16, 2012 and from the Petitioners counsel on or about May 11, 2012. The record was therefore deemed closed on May 16, 2012. The time to render a decision was extended until June 15, 2012. This time was later extended until July 1, 2012 and thereafter until July 30, 2012.

The undersigned Hearing Officer entered Hearing Officer Exhibits 1-7A and 7B into evidence, at the outset of the hearing, to establish jurisdiction and define the issues as outlined by the parties in their papers.

Appearing as witnesses on behalf of the School District in their case in chief were the following witnesses:

Services, S.D.

Ms. Special Education Teacher , C Central S.D.

Dr. , Independent for Parent S.D.

Ms. Middle School Special Education Teacher, S.D.

In rebuttal the School District also called or recalled:

, CSE Chairman, School District

Dr. , , Independent for Parent Central S.D.

Introduced into evidence by the School District during the course of the hearing were exhibits:

School District 1-48.

file:/// Dear Sirs, Appearing as witnesses for the Petitioners were:

Introduced into evidence by the Petitioners were exhibits: Parents A-O At the hearing the Petitioners, ** and **, were represented by LLP, Esq. of counsel The Respondent School District was represented by, LLP, Mrs. Esq., of Counsel At the conclusion of the hearing, the relief requested by the Petitioners was as follows:

Reimbursement to the Petitioner for tuition costs at the , the school attended by The reimbursement to be for the two school years 2010-2011 and 2011-2012.

FINDINGS

** is a male student, born on October 14, 2001, and thus was 9, and then10 years of age at the time of this hearing. ** was diagnosed with the age of three. He received services as a preschool student with a disability. His services included SEIT, herapy, therapy, and He was classified as as he transitioned from the CPSE to the CSE and into kindergarten. Until he was removed by his parents to attend the for the 2010-2011 school year, he has always been a student in the School District.

Testimony was taken with respect **'s third grade year to have sufficient background to assess the appropriateness of the proposed IEP for the 4th grade 2010-2011 school year. The IEP for the third grade developed at a meeting on March 24, 2009 was entered into evidence as S.D. 2 and shows on page 1, the classification as That IEP shows the results of a number of educational tests that ** had taken at an earlier date, some over a year old, to include the Differential Ability Scales which showed his Verbal Ability to be in the 86% ile; Non verbal reasoning 66%ile; Spatial Ability 81%ile; and General Conceptual Ability 81%ile. Clinical Evaluation of Language Fundamentals showed a scatter from 50%ile to 99%ile. Most of the subtests 7/14 were in the 90%ile. The BASC- TRS(C) showed the following: Hyperactivity and Somatization-both showed Clinically Significant, Attention Problems and Learning Problems-both showed at risk. The Test of Early Reading Ability-3 showed: Alphabet 84%ile, Conventions 63% and Meaning 9%ile with a total score of 50%ile. The Test of Early Math Ability-Third Edition (TEMA-3) indicated 68%ile. The Test of Early Written Language showed, Basic 70%ile, Contextual 37%ile and a Total score of 55%ile.

The IEP for third grade, which was developed in March of his 2nd Grade indicated Social Development needs as follows: 1. Raise his hand and wait his turn without calling out; 2. get a teacher's attention without interrupting the lesson; 3. take turns sharing ideas with peers. Management needs indicated that: 1. The student has a difficult time learning abstract concepts and may need to be provided with direct instruction when learning these concepts for the first time. 2. The student needs clear rules and routines in place in order to decrease anxiety around school work. 3. He should sit in close proximity to the teacher during large group instruction as he does become distracted during whole class lessons. 4. Visual support have been very successful throughout the school year. Incentives such as sticker have been an effective tool to help promote independence and to build stamina in academics. 5. Structured choices should be provided to the student when he feels overwhelmed by academic tasks in the classroom.

The program provided for the 3rd Grade provided for a program in an integrated Co-teaching class with a ratio of 6-1 weekly for two hours a day. In included Related services of Parent Counseling and training 2-1 2 times a month for an hour at home. 5-1, 1 time per week for 30 minutes in the classroom. Additional file:///Z|/ PM] Dear Sirs,

Therapy 5-1, 1 time per week for 30 minutes in a Therapy room. It provided for a Teaching Assistant 6-1, 5 times a week for 2 hours a day in the classroom.

As an explanation the IEP indicated "Special education services in the co-taught class will support the student in math, writing, reading and organizational skills, social skills, and additional behavioral supports." It went on to indicate," Special language instruction will take place in small groups in the general education classroom for a minimum of two time a week for 30 minutes and three time a week for one hour." It further indicated that, " Speech/Language intervention will provide support to improve expressive and social language skills."

In the Program Modifications/Accommodations/Supplementary Aids and Services section of the IEP the program went on to provide that there would b a Positive Reinforcement Plan implemented throughout the day in all classes. He would be refocused and redirected throughout the day in all classes would be given breaks throughout the day. ** was to be given preferential seating which meant close to the teacher during whole class instruction.

I have indicated all of the above program to show the extensive nature of the thought that went into planning the IEP for the 3rd Grade school year. In spite of all that planning it appears that ** did not experience a good year in third grade. Because of behavior being exhibited by , the CSE reconvened on February 23, 2010. The 3rd Grade IEP was amended at that meeting and the resultant IEP entered as S.D. Exhibit 3. Although she didn't chair this meeting, Mrs. who did chair the meeting that developed the first IEP for 3rd Grade, testified about that IEP meeting. This second meeting was in fact chaired by Mr. Mrs. indicated, " * was having some behavioral challenges so the CSE convened to consider the Functional Behavioral Assessment that had been done and discuss and develop a Behavior Intervention Plan to address some of the behavioral needs."(Tran. P. 50.) The data for the Behavioral Plan had been taken in January. A Functional Behavioral Assessment was entered as S.D. Exhibit 6; it was dated March 1, 2010. It indicated off task behaviors such as, "head on desk, looking away from area of instruction, fidgeting with hands or materials, talking off topic or with inappropriate volume, inappropriate responses to directions, leaving the workspace for inappropriate purposes, making inappropriate noises or gestures, calling out". (P.1). It goes on to state in the Disruptive Behavior section, “It is notable that over the past six weeks, has engaged in more serious behaviors. Anecdotal records regarding these incidents indicate that such actions not only prevent him from work completion, but also significantly impact his adaptive functioning in school". Examples indicated include: " licking hands, picking nose, placing his hands down the back of his pants (several times daily), leaving the classroom, without permission (up to three times a day), leaving the school building, unaccompanied by an adult (2 incidents), spitting on a bathroom mirror(1 incident), throwing his shoe (1 incident) and bringing a plastic knife out to recess(1 incident)" .

The testimony conflicts as to whether the parents had been told that a 1:1 aide or assistant teacher was going to be provided to **. The term “aide” and “assistant teacher” was used by the none school personnel as if they meant the same thing. The undersigned notes that School District apparently uses only assistant teachers, who have more significant educational requirements than does an aide. Mrs. indicated in her testimony about who would implement the behavioral plan, "What was said was that a person, a 1:1 or some person like that would be with directly implementing that plan."(Trans P. 608). This was reinforced by Mr. s testimony, "The smaller part was that after a series of red marks or negative things happening that he would be taken out of the room and he would do work in another room, but the bigger part was that we were told that a 1:1 aide would be given to * as a way to implement this program."(Trans P 739-740). It was indicated to Mr. that Mrs. indicated that ** was the most difficult child she had ever had (Trans.P. 731).

It was clear to the undersigned from all the testimony and documents admitted into evidence that ** was intellectually capable of doing the work (See the testing indicated above in this decision). What is also clear to the undersigned, after a review of all the testimony and all of the exhibits was that ** was progressing, although at a progressively slower pace. His behavior problems were escalating at an increasing rate and interfering directly with his progress. A review of the Behavior Plan and the Plan Update, as well as the Behavioral Assessments upon which the Plan and Update were based, indicate that the Plan and Update provided that if the behavior escalated beyond a certain point, was to be removed from the class setting (See Exhibits S.D. 6, 7 P.3, 8, 9 and 10). This could not be accomplished without additional personnel being provided to accomplish that part of the plan. The teacher or co-teacher or teaching assistant all had other student responsibilities during most of the school day (S.D 2, S.D.3). Thus the undersigns believes that a 1:1 assistant teacher was required to implement the Behavior Plan.

It appears that sometime after the February 23, 2010, meeting the School District retracted the parentally perceived commitment to a 1:1 aide or assistant teacher and retreated to the position that they would study it further. The Behavioral Intervention Plan dated March 1, 2010, was entered as S.D. Exhibit 7. It was the document that formalized what was discussed at the February 23, 2010 meeting. The plan did not contain within it how various parts file:///Z|/P12/ Dear Sirs, of it that plan were to be implemented. It did not indicate who or which personnel would implement the plan when it required removal from the room. Only part of the day would there be personnel available for ** to be removed for the ultimate steps required for behavior remediation. It is also clear to the undersigned that the testimony indicates that there were times when **’s behavior escalated to the need for such removal. It was reported that there were times when he left the class or even the school building. He obviously could not be left to do either of these things without someone being responsible for returning him to a safe environment either in the class or his quiet room. I do not have to find as a matter of fact whether the parents were indicated that a 1:1 assistant teacher was promised at that meeting. What I do find is that the plan could not be put into effect without such a person so the student was not provided FAPE during the third grade by reason of this failure once the shortcomings of the IEP became self evident.

Entered as S.D. Exhibit 8 was an Update to the Behavioral Intervention Plan. The updated plan dated June 15, 2010 still did not address how the plan and its objectives was to be accomplished without additional man power being assigned to **. In the Summary & Interpretation it states: "Overall, the data indicates that M's disruptive behavior improved modestly over the course of the last three months. While this suggests that the strategies implemented were generally effective, M's behavior continues to present notable challenges in the classroom. It is important to note that the behavior intervention plan developed in March 2010 has not been implemented in its entirety." (Emphasis Added by the undersigned). It then goes on to state, " *'s teachers note that he is more available for learning and instruction; however, he continues to require intensive one-to-one support to complete assignments. His attention and focus remains a significant obstacle in his ability to navigate a classroom environment with a measure of independence."

A review of the plan and its update leads the undersigned to believe that the plan cannot be fully implemented until such time as * has a one-to-one full time aide or assistant teacher. This need is fully indicated in the document itself.

As indicated most of the above constitutes background for the IEP's that are actually before the undersigned in this hearing.

The IEP for ** for the 4th Grade that was entered into evidence as S.D. Ex 4. It was indicated in a cover letter dated August 18, 2010 that it was a corrected IEP purportedly developed at a meeting held on June 15, 2010. The original IEP received by the parents for MS's 4th grade was entered as Parents Ex F and was sent to the Parents with a cover letter dated June 30, 2010. The time lag between the IEP received by the parents on June 30, 2010, and the corrected version sent on August 18, 2010 is significant to the undersigned. The correction made in this corrected version of the IEP by the School District changed Related services from a Teaching Assistant 6:1, 5 times a week in the classroom for 5 hours per day to a Teaching Assistant 1:1, 2 1/2 hours per day 5 times per week and a Teaching Assistant 2:1 for 2 1/2 hours per day, 5 times per week. This difference is a significant difference to the undersigned.

This is especially true in view of the undersigned's belief that the behavioral plan and its update placed in evidence herein can never be fully implemented unless a full time aide or assistant is assigned to **. The absence of the full time aide or assistant is what prevents the plan from ever becoming fully operational. The testimony indicates that told by the Parents on or about August 16, 2010 that ** would not be attending schools for **’s forth grade school years (Trans P 123). I note that this information was provided before the correction was made to the 4th Grade IEP. It might have been this call that prompted the review of the IEP that was \previously sent out to the S’s.

The parents submitted an application to have their son attend the dated April 27, 2010. To eliminate confusion in this decision, this School later changed its name to the and will hereafter be referred to by that name. Thus, this application was submitted before the CSE meeting for the 4th Grade and prior to receiving either version of the IEP for 4th grade. It was however submitted after the parents believed that their son was going to have the assistance of a 1:1 aide or assistant teacher, this based upon the February meeting on the behavioral plan and after receiving the formal Plan document in March which did not provide for a 1:1 aide for their son for the remainder of 3rd Grade and into the 4th Grade. The School District maintained that the additional personnel would only be needed when the Special Education teacher was not present (Trans. P. 134). The undersigned notes however, that the Co-Teacher had d 6:1 special education student responsibility and for at least 2 ½ hours per day and the Teaching Assistant had a 2:1 student responsibility (See S.D. Ex. 4; Program). It was impossible for the School District to fully implement the Behavioral Plan with the contemplated personnel assigned to **.

This program deficiency was corrected in the second IEP that is before the undersigned (S.D. 5). That file:///Z|/P12/ Dear Sirs, is, in the IEP for 2011-2012, **'s fifth grade year in the School. In the Comments section it states, "The committee discussed additional supports needed for this student. Given the goal for independence, the Committee discussed the possibility of a shared teaching assistant. However, it was recommended that this student receive individualized support from a teaching assistant. Based on this student's current needs, the Committee recommended Consultant Teacher services in the core academic areas. It was recommended that this student receive Consultant Teacher support 10 times within the four day cycle for forty minutes. The 1:1 teaching assistant would serve as a facilitator rather than an enabler.” This personnel assignment is exactly what was missing from the IEP for 4th Grade. It should have been apparent to all concerned, as it was to the undersigned, that this personnel assignment was required for the 4th Grade as well as for the 5th Grade.

The evidence with respect to the program at was supplied by the parent’s testimony, Progress Reports and Report Card from the and the administrator of the PALS (Special Educational) program. She has approximately 46 years in special education as either a teacher or administrator (Trans.P. 924). She described the program as a program ( meaning it adhered to no single sect of PALS was an acronym that stood for “Providing Alternative Learning Strategies. She was hired to start the program approximately 6 years earlier (Trans.P. 925). The School has approximately 230 students with 55 of them in the PALS program (Trans.P. 928). The class itself was a combined 4th and 5th grade class for both of the years that are in question before the undersigned (among other places, Trans.P 999). The class had approximately 8 students for 4th grade (Trans. P. 940). In 5th Grade there were 13 students in the class (Trans.P. 1009). The curriculum is grade appropriate (Trans P. 1011). MS attended mainstream (called Core Classes) in Science and Social Studies. That is he was mainstreamed in a class of approximately 20-21 students in those two classes (Trans P. 1011 et.seq). The Report Card (Parents Ex. L) shows that ** was taking Language Arts which included: writing skills, reading skills, oral skills. The Report Card also provided information in a second set of marks **’s behavior and work habits. ** also took Mathematics, Science, Social Studies, Art, Physical Education and Technology. In addition to these core courses he also took: writing and oral skills, that is and ( ) (see Trans P. 1017-1018). This indicates that close to ½ the day is dedicated to studies rather than providing additional help in the areas of need in the core curriculum. At one point it was noted that these classes occur at the start of the day.

** returned to the Academy for 5th Grade as well and as indicated this was also in a combined 4/5 grade class as was his initial entry into the Academy for 4th Grade. His teachers remained the same. The nature of the program was described by Dr. as, “very small nurturing tight-knit little community that’s really run by teachers who all have special education degrees, and in each classroom is a very, very, very small class size anywhere between six and eight kids, at most ten kids, with two special education teachers.” (Trans.P 1215). She went on to state, “Also there is a team of alternative service providers, there is a language therapist, there is a speech therapist, and there is an occupational therapist, physical therapist, social workers and psychologists all there to provide ongoing support every day all day within the child’s school.” (Trans P. 1215 et.seq.)

Once again for 5th Grade, Ms. indicated that was in an integrated class for social studies and science. That integrated class had two staff members, a regular education teacher and a special education teacher with approximately 20 students.. Not unlike the integrated program in ’s proposed program. It is interesting to note that the school has a 17 acre campus that requires ** to transition between three different buildings in 4th grade and four different buildings in 5th grade. He has adult assistance during these transitions (Trans P. 1021-1023). The provision of this adult supervision during such transfers appears to the undersigned not to be very dissimilar to the very objection that the parents expressed with respect to ** having a full time aide while attending the School. I have no way in evaluating whether progress was being made at a rate less that, equal to, or greater than that which the program would have enabled ** to progress. I can not compare the academic equivalence of the program given at to that which was anticipated at The nature of the grading system does not allow me to make a comparison. I have been provided with no work product or objective testing results to enable me to make a finding on the educational progress being made during these two years by I am advised that progress is being made socially and academically but I am unable to determine that from the information being provided. I do not doubt the Parents when they tell me that he is much better place and with less social and emotional problems than while he attended a Schools during his 3rd Grade school year. The IEP for 5th Grade provided for a program that included, Consultant teacher services direct, 10 x 4 day cycle for 40 min; teaching assistant individual, 5 x week for 6 hours; therapy small group (5:1) 2 x weekly for 30 min.; Parent counseling and training individual file:///Z|/ Dear Sirs, 1 x weekly for 1 hr.; small group (5:1) 1 x weekly, 30 min.; and Parent Counseling and Training individual 2 x monthly 1 hr. The plan at appears thorough and they indicate that it is individualized (Trans P. 1027). I am unable to evaluate the and other services that the Academy indicate that are available. I was provided with no set schedule but rather a general rule that the personnel was available and that he used the psychologist on a regular basis.

DECISION

Now to the merits of the case before me.

The undersigned finds that this program differential could and should have been made for the fourth grade as well.

THE ISSUES SUBMITTED TO THE UNDERSIGNED

A review of the pertinent sections of the Rules and Regulations of the Commissioner of Education will allow for a more orderly discussion of the issues presented to the undersigned for decision in this matter. In pertinent part the Regulations state in section 200.4 (c) (2): “If the student has been determined to be eligible for special education services, the recommendations shall:

(i) report the present levels of performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(kk) of this part…

(ii) indicate the classification of the disability; (iii) list measurable annual goals consistent with the student’s needs and abilities including benchmarks or short-term instructional objectives and evaluative criteria, evaluation procedure and schedules to be used to measure progress toward the annual goals and to be followed during the period beginning with placement and ending with the next scheduled review by the committee. Such benchmarks or short term instructional objectives shall be measurable, intermediate steps between present levels of education performance and the annual goals that are established for a student with a disability. The measurable annual goals, including benchmarks or short-term objectives, must relate to:

(a) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general curriculum; and

(b) meeting each of the student’s other educational needs that result from the student’s disability;

(iv) indicate the recommended special education program and services from the options set forth in sections 200.6 of this Part, the class size, if appropriate, and supplementary aids and services to be provided to the student, or on behalf of the student, and the extent to which the student will participate in regular education programs… (v) provide:

(a) an explanation of the extent, if any, to which the student will not participate in regular education programs;…” Section 200.6 Continuum of services, states in pertinent part:

“(a) A student with a disability shall be provided with appropriate special education.

(1) To students with disability shall be provided the special education in the least restrictive environment, as defined in section 200.1 (x) of this part.

(2) A student with a disability shall be provided the special file:///Z|/P12/Special_Ed/IHO/IHO%20Decisions/Decisions/TO%20BE%20POSTED/2012/Originals-2012/64311.Chappaqua.7.30.12.htm[6/29/2015 3:23:31 PM] Dear Sirs, education determined by the board of education to be necessary to meet the student’s individual needs…”

A student with a disability is defined in Section 200.1 (mm). All parties have conceded the current classification of Autism is correct so no definition or discussion of the classification will be included herein because the undersigns agrees with the classification pursuant to the evidence presented.

Florence County School District Four v. Shannon Carter, 510 US 7, 126 L.Ed 284 (1993) adopted the criteria established by School Comm. Of Burlington v. Dept. of Education of Mass, 471 U.S. 359 and established guidelines for reimbursement cases where there has been a unilateral private school placement of classified students whether that placement is in an approved or unapproved school. The criteria established by those cases are now well fixed in the law. The guidelines enumerated in those cases and cases that have followed have established a three part test for reimbursement: First: Was the child’s special educational program as offered by the School District properly determined and was it an appropriate educational program? In this instance it means, was the program as contained in the IEP Parents Ex F as amended by S.D. Ex. 4 for **’s 4th grade an appropriate programs? And secondly was the program as contained in the IEP for **’s 5th grade an appropriate program (S.D. Ex. 5)? Second: If the School program was inappropriate or procedurally improper, was the parents’ unilaterally selected program or placement appropriate to meet the child’s needs? Third: Do equitable considerations support he parents’ claim for the reimbursement of the costs incurred in the unilateral placement of their child?

I find that the School District has failed to establish that its program as contained in the IEP for **’s 4th grade was an appropriate program. I find that the School District’s program as contained in the IEP for s 5th Grade year was an appropriate program.

The Rules and Regulations Section 200.4 (d) (2) provides,

“If the student has been determined to be eligible for special education services, the Committee must develop an individualized education program (IEP). In developing the recommendations for the IEP, the Committee must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; as appropriate, the results of the student's performance on any general State or district wide assessment programs; and any special considerations in paragraph (3) of this section. The recommendation shall:

(i) report the present levels of performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww) of this Part, including:

(a) how the student’s disability affects involvement and progress in the general curriculum; or

(b) for preschool students, as appropriate, how the disability affects the student’s participation in appropriate activities;

I find that the evidence produced at this hearing leads me to the conclusion that ** is intellectually capable of doing the class work that has been assigned to him in his various courses. The evidence indicated that at the beginning of the 3rd Grade school year ** was participating in class and did the work as well as the homework required of him. Within a relatively short period of time, however, his behavior deteriorated to the point that his work in class began to suffer. His attitude also began to suffer. It appears little has been done to address this behavior and deterioration in his work product until a meeting in February of **’s 3rd grade school year. It is clear to the undersigned that it should have been evident to the School that ** required a full time aide or assistant teacher to address the problems that had been escalating throughout 3rd grade. The IEP for 4th grade did little to change the direct assistance that ** required to keep him on task and help him with his behavior and thus be able to access the curriculum. The School District did not implement the behavior plan in its entirety during the 3rd grade, but it was imperative that the 4th Grade IEP address the apparent short comings of the prior years IEP and support provided therein. The School District failed to do this despite what I find was their apparent recognition of the problem in the meeting of February, 2010, and then their failure to make the necessary changes to the program required by the Behavior Plan of March 2010.

Part 200.1 (r.) provides: “Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior file:///Z|/P12/ Dear Sirs, (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.” They could not perform the assessment and then ignore its results.

The nature of the behavior displayed which are a direct manifestation of **’s handicapping condition are such that they had to be addressed in a meaningful way because they were directly and demonstrably effecting **’s ability to benefit from his educational program. It appears that despite the School District’s careful attention to developing a functional behavioral assessment and a Behavioral Plan from that assessment, the School District never put into full effect the plan that was developed. This was true for the 3rd grade and also true from a review that is before the undersigned for the 4th grade. I am unable to say that a Behavior Modification Plan properly implemented could and would not have addressed **’s emotional resistance to his being educated. If the School District could not accommodate such a plan or after a period of time proved it to be ineffective than a more restrictive program or services might have been required. The Plan was more appropriately implemented and addressed in the 5th grade IEP, ie. the second IEP before the undersigned. Accordingly, as indicated above, I find the program for 5th Grade could and would result in an educational benefit to **. I do not accept the Parents position that a 1:1 aide in the middle school would be so stigmatizing to ** that it would be untenable for his emotional and thus educational progress. I have indicated above that there is a similar use of personnel when ** moves from building to building at the

It appears that **’s resistance to his education is in part emotional in nature. I have insufficient information to assess the degree to which the emotional shut down is a result of **’s or if it is a result of emotional reasons or a combination of the two. The student’s behavior clearly impacted his ability to benefit from his educational program. If there is a direct causal relationship from either of these paths, I fault the CSE for not fully addressing the issues presented in the 4th Grade IEP when little changed from the unsuccessful 3rd Grade program which they ultimately did address in the 5th Grade IEP.

In a helpful discussion of a Behavior Plan the SRO has stated,

“An IEP need not include a detailed description of the methods and strategies that will be used to assist the student in achieving his goals and objectives in the area of behavior. That function may be performed by an adequate BIP. However, this student's BIP does not provide sufficient detail about what will be done to improve the student's behavior that interferes with his academic performance, such as his absenteeism and difficulty maintaining self-control. It also fails to include the use of positive reinforcement. It is based upon an FBA that does not adequately detail the nature, frequency, and duration of specific problem behaviors. In the absence of adequate information about the nature and extent of the student's emotional disability and the practices and procedures that could be used to ameliorate its effects, the CSE did not have sufficient information to prepare the student's IEP. Accordingly, I find that petitioner has not demonstrated the appropriateness of the educational program that its CSE had recommended for respondents' son. I agree with the hearing officer that the student's BIP needs to be revised, but before that revision occurs, an adequate FBA should be performed.” Application of the Board Of Education Of The Wallkill Central School District Appeal No. 02-039).

In this instance the FBA and the BIP was fully, competently, and professional done and was appropriate for the but the Plan was not fully implemented for 4th Grade but was implemented for the 5th grade in that year’s IEP. For that reason I feel that the program developed by the CSE does not address **’s needs for 4th grade but does for 5th grade. Accordingly, I specifically find that the CSE failure in this respect is itself a reason for me to find the program of the District is insufficient to satisfy the first test of Burlington and Carter with respect to the 4th Grade but not with respect to the 5th grade. Additionally, I do note that updated evaluations were done for the 5th Grade IEP and it shows that ** has the intellectual capacity to gain benefit from the program proposed for the 5th grade with the behaviorally plan fully implemented as anticipated in the IEP. The School District has finally put in place the necessary personnel to effectuate the plan.

file:///Z|/ 31 PM] Dear Sirs,

For all of the foregoing reasons, I find that respondent School District has failed to meet its burden of proof with respect to the appropriateness of the educational program recommended by its CSE for 4th Grade . Application Of A Child With A Disability Appeal No. 00-074 for 4th grade but has met its burden with respect to their 5th grade IEP.

Because of the above indicated Decision I need only address the second prong of the Carter decision with respect to the 4th Grade IEP but my finding apply to both years should my above Decision with respect to the 5th Grade IEP be incorrect.

As indicated the second prong of the Carter test is whether the program chosen by the parents is appropriate. The burden of proving the appropriateness of that program is upon the Petitioners. As indicated in Child with a Disability, Appeal No. 01-109 “Petitioner bears the burden of proof with regard to the appropriateness of the services to be provided to her son by the during the 2001-02 school year (Application of a Child with a Disability, Appeal No 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the petitioners must show that the private school, in this instance, the Carmel Academy, offered an educational program which met the student’s special educational needs (Burlington Sch. Comm. V. Dep’t of Educ, 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor are they required to have their own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20). They must, however, have an appropriate program given **’s specific needs. I do note that the teaching staff at had special education credentials and appear to be qualified to teach a special educational program. I again note that approximately one half of the school day addresses It appears that, that part of the program is addressed in the morning, long believed to be an important part of the day for educational content. To the extent that the program is religious in nature I do not believe that it can be reimbursed. As it applies to this case the nearest estimate I can make is that half of the tuition is not subject to reimbursement.

I find that the Petitioners have not proven the appropriateness of the program to the degree required. It is not sufficient to state that the student is happier or less oppositional in the private school setting.

The Petitioners have provided me a report card from the . I hereby indicate there is no objective way for me to judge the grades indicated on that report card and therefore I am unable to compare it on an objective bases with his work or proposed program in the Without the ability to compare apples to apples, it is essentially meaningless for the purposes of this hearing’s issues. I have presented with no work product to allow an objective comparison to be made by the undersigned to assess the effectiveness of the education now being received by ** at the . To say it another way, I have been presented with no objective method or standardized testing to allow me to determine whether educational progress is being made at the . The fact that the delivers its program in a nurturing atmosphere with small class sizes often with one on one instruction does not in and of itself mean that the program is appropriate. What I do know is that one half of the school day is dedicated to what can be called This is a portion of the program that the parents have a right to have provided to their son but for which they clearly do not have a right to obtain reimbursement I concede that it has been reported that the objectionable behavior has lessened and that the report card presented shows passing grades, or areas of progress or mastery. All report that the objectionable behavior exhibited by ** has not been eliminated and therefore I can not state that the program has even been successful in this sphere either. Based upon anecdotal evidence, it does appear that the behavioral approach used at the has had better results than did the partial behavioral plan implemented by the . The testimony does indicate that the staff teaching ** has had sufficient educational accomplishments and possesses sufficient credentials for me to determine and thus feel secure in their abilities but I can not pass upon the content or curriculum being taught to **. I believe the discuss on the Applicable Standards and Parents Unilateral Placement as well as the case cited therein as contained in SRO 11-011 are instructional on this aspect of the case. As indicated therein,” A review of the hearing record indicates that the parents failed to paresent sufficient evidence regarding the student’s academic functioning, his specific program at during the 2009-2010 school year, or ;how the educational program at special education needs was specifically designed to meet the student’s unique needs (P 11). In this instance I was told most of the program was applicable to all the sudents in the class and it was individualized to ** without telling me how it was file:///Z|/P12/Special_ 6/29/2015 3:23:31 PM] Dear Sirs, individualized. Accordingly, the Petitioners have failed to prove the second prong of the Carter decision to the satisfaction of the undersigned. Had I reached a different result on the second prong of the Carter test, I would have found that equity considerations do favor the Petitioners with respect to the 4th grade IEP but not with respect to the 5th Grade IEP. I feel that the failure to provide the School District with a longer period of advance notice of the unilaterally place ** in the is justified by the tortured road that the Petitioners had to travel with respect to the implementation of the Behavioral Plan as it applies to the 4th Grade. The School District’s failure to provide a 1:1 aide justifies their seeking to educate their son in an alternative setting. It is not objection enough, however, to finding the equities in their favor with respect to 5th Grade. With respect to the 5th grade I do find that the school district has finally addressed the short comings present in the earlier. Again, I state that I do not find that the parents’ fear of the stigmatization that ** will suffer by reason of having a 1:1 assistant teaching in the Middle School is an equitable reason for not attending . This is especially true because the same appears to be present in the .

ACCORDINGLY, THE PETITION MADE ON BEHALF OF IS DENIED AS INDICATED

HEREIN.

YOU HAVE THE RIGHT TO OBTAIN A REVIEW OF THIS DECISION BY THE STATE

REVIEW OFFICER PURSUANT TO THE PROVISIONS OF THE EDUCATION LAW 4401, AND PUBLIC LAW 94-142. IF YOU DESIRE TO APPEAL THIS DECISION A PETITION SEEKING REVIEW MUST BE FILED WITHIN 40 DAYS DROM THE RECEIPT OF THIS DECISION AND A NOTICE OF INTENT TO

SEEK REVIEW MUST BE SERVED UPO THE BOARD OF EDUCATION NOT LESS THAN 10 DAYS

BEFORE THE PETITION IS SERVED AND WITHIN 30 DAYS AFTER RECEIPT OF THIS DECISION.

FOR FURTHER DETAILS, PLEASE CONSULT PART 279 OF THE REGULATIONS OF THE

COMMISSIONER OF EDUCATION.

DATED: NEW YORK

July 26, 2012

PAUL M. ROSEN

file:///Z|/P12/