Impartial Hearing Decision

Cover Sheet for electronic submission of impartial hearing decision

To: VESIDIH@MAIL.NYSED.GOV

From: PAUL T. BUMBALO

Pbumbalo1@verizon.net

IHRS Case number: 63737 District: Lake George CSD

Attached is a redacted, electronic copy of the (choose one): X Final Decision

Pendency or

Amended final decision for the above case.

IMPARTIAL FORMAL HEARING PURSUANT TO

EDUCATIONAL LAW SECTION 4404(1) AND

COMMISSIONER OF EDUCATION REGULATION

SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,

IMPARTIAL HEARING OFFICER

_________________________________ In the Matter of the Complaint of DECISION Of the Parent of a Student with a Disability Against the XXXXXXXXXXXX

CASE ID NO 65737

___________________________________

PAUL T. BUMBALO

Impartial Hearing Officer _______________________________________________________

5476 Broadway, Lancaster, New York 14086

Telephone: (716) 685-2640

FAX: (716) 681-7247

INDEX

I. PRELIMINARY POSTURE –Pgs. 3-6

II. SUMMARY OF FACTS- Pgs. 13-82

III. ISSUES- Pgs. 7-12, 83-89

IV. DECISION

1. STATUTE OF LIMITATIONS – Pgs. 89-91

2. FAPE /REIMBURSEMENT

a. PRONG 1- Pg. 91

b. CLASSIFCATION- Pgs. 92-99

c. CHILD FIND – Pgs. 99-100

d. SAFEGUARDS NOTICE- Pgs. 100-102

e. IMPLEMENTATION- Pgs. 102-104

f. PROGRAM- Pg. 104

g. PRONG 2- Pgs. 105-108

h. PRONG 3- Pgs. 108-111

i. 504- Pgs. 112-117

j. BULLYING- Pgs. 118-124

3. Miscellaneous

a. FERPA- Pgs. 125-127

b. ADA- Pgs. 127-128

c. 14th AMENDMENT- Pg. 128

d. ATTORNEY/ADVOCATE FEES- Pg. 128

IV. FINDINGS- Pgs. 129-131

V. ORDER- Pgs131

PRELIMINARY POSTURE

This IHO was appointed on September 9, 2011 to preside over a due process hearing request that was filed by the parent on September 9, 2011 and subsequently amended without objection by a due process complaint notice dated September 15, 2011. The district responded by means of a letter from counsel dated September 15, 2011.

The parent’s due process hearing request and amended due process hearing request sought as a remedy reimbursement for the parent’s unilateral placement at TAS for the 2009- 2010, 2010-2011, and 2011-2012 school years for tuition related costs and fees which they broke down as follows:

1.2009-2010- $7, 450.00 tuition

$510.00 related costs

$1, 385.00 transportation

Total-$9,345.00

2. 2010-2011- $7,450.00 tuition

$460.00 related costs

$4, 510.00 transportation

Total- $12,420.00

3. 2011-2012- $7,450.00 tuition

$460.00 related costs

Transportation to be determined

Total- $7,910.00

Cumulative total for 3 years- $29, 675.00 The parent’s Due Process Hearing request sought six items of relief:

1. A finding that the District denied access to the student’s educational records.

2. A finding that the District denied the student FAPE for the 2009, 2010, 2011 school years.

3. Direct reimbursement for the tuition, fees and transportation.

4. Reimbursement for the parent’s advocates Patricia Allen and Education Consultant,

Marge Schneider.

5. Fees for Patricia Allen and Marge Schneider for the hearing.

6. Reimbursement costs of photocopying and similar activities.

The District in its response denied that it failed to provide FAPE and alleged that it provided FAPE and pursuant to an appropriately developed and implemented 504 Plan. The

District denied the parent’s request for the tuition reimbursement for 2009-2010 and 2010-2011 school years and denied the request for transportation expenses as a matter of law denying associated fees and costs and denied the basis for seeking money damages.

Pursuant to a pre-hearing conference and subsequent e-mails communication, the first date of the hearing commenced on November 18, 2011. The district was represented by Tracy

Bullett, Esq. of Tabner, Ryan and Keniry, LLP. The parent was assisted in the hearing by

Educational Advocate Patricia Allen and Margaret Snyder.

Prior to the commencement hearing, a lengthy conference was conducted regarding exhibits seeking to eliminate duplication in the hearing record exhibits. This fact was complicated by the fact that several exhibits of the district and the parent were similar but not the same. In order to facilitate a smooth hearing the determination of this IHO was that the exhibits that were similar but not different would remain individually marked as district exhibits and/or parent exhibits. Based upon the aforementioned, the following district exhibits were admitted by stipulation 1 - 19 inclusive, 21-40, 42, 45, 46. The parent objected to the following exhibits

District 20-41, 43,44,47,48, and 49. Of the district exhibits admitted by stipulation, the following exhibits were deemed to be similar but different; 2-7, 9-12, 15-18, 22, 23, 25-29, 36-40.

Regarding the parent exhibits, the following parent exhibits were admitted by stipulation; A,C,D

F, I, J, N, P, T, W, X, Y, Z, D1, E1, I1, J1, K1, L1, M1, N1, O1, S1, U1, V1, W1, X1, Z1, B2,

G2, I2, J2, L2, N2, O2, P2, S2, U2, X2, A3, B3, D3,E3, G3, I3, J3, L3, M3, N3, O3, P3, R3, S3.

The district objected to the following exhibits based upon what appeared to be hand-written notes that were from an unidentified writer in which were not on the original district produced records. Those included the following; B, E, G, V, A1, F1, Q1, R1, Y1, R2, Z2, K3, Y3. During the course of the testimony that was conducted on November 18, 2011 B was admitted with modification by redacting a handwritten portion and it was admitted by stipulation. F was admitted conditionally upon a foundation concerning a chain of possession.

In total the following exhibits were introduced into evidence:

DISTRICT’S EXHIBITS: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 45, 46, 47, 49, 43, 44, 48, 50, 51, 52, 53, 54.

PARENT’S EXHIBITS: A, B, C, D, F, I, J, N, P, T, W, X, Y, Z, D1, E1, I1, J1, K1, L1, M1, N1, O1, S1, U1, V1, W1, X1, Z1, B2, G2, I2, J2, L2, N2, O2, P2, S2, U2, X2, A3, D3, E3, G3, I3, J3, L3, M3, N3, O3, P3, R3, S3,Y2, Z3, G1, X3, Y3, B3, F, R2, P1, G, H, K, L, M, R, S, V, A1, Q1, R1, T1, Y1, R2, F1, U, H1, A2, C2, D2, E2, F2, E4, F4, G4, Q2, T2,V2, F3, H3, Q3, C4.

IMPARTIAL HEARING OFFICER EXHIBIT’S:1, extensions granted herein.

It should be also noted that to accommodate the parent and the parent’s need to pick up and transport the student at the end of the student’s school day at the unilateral placement, the hearing was stopped at approximately 2 pm and reconvened upon the mother’s return which was approximately 4pm. This caused a difficulty in scheduling witnesses due to the collective bargain agreements terms ending the school day by contract and as a result it was attempted to have district administrative staff testify in a 4-6 pm session.

As a result of the aforementioned, multiple hearing days were requested this necessitated a request for a 30 day extension of the date of the hearing which was granted herein. It should be noted that this Impartial Hearing took place over 8 days, the length of the hearing and multiple extensions were based in part upon the parent’s need to break the hearing to pick up the student and the second portion of the hearing would start later in the afternoon. This resulted in a less than efficient hearing process because the advocate would become fatigued. However, it was an accommodation that this Impartial Hearing Officer provided to the parent. Another factor was the parent’s retaining an expert witness after the commencement of the testimony and scheduling difficulties encountered in order for the expert witness to testify.

The first hearing date was November 18th, 2011, at which time the parties agreed to a mutual 30 day extension for availability of witness’s parties and a shortened hearing day. This was confirmed by a letter dated October 7th, 2011. The hearing date scheduled for December 8th and 9th cancelled as a result of a medical emergency to a family member of the parent and this served the basis for a mutual request for an extension as contained in this IHO’s letter dated December 20th, 2011. The third request and extension was based upon the availability of the witnesses that the parties felt the need to transport the student to and from the private placement which was confirmed in a letter from this Impartial Hearing Officer dated January 20th, 2012.

The fourth request for an extension was confirmed in a letter from this Impartial Hearing Officer dated February 24th, 2012 which was granted based upon the availability of expert witness. The next hearing request was confirmed in a letter dated March 19th, 2012 by this Impartial Hearing Officer which was based upon the mutual request of the parties to await delivery of the transcripts for the proceedings herein. The next extension was confirmed by this Impartial Hearing Officer by means of a letter dated April 23rd, 2012 to allow time for the parties to submit the requested post-hearing briefs. It should be noted that there were additional requests for an extension of time to submit briefs which would impact the compliance date and regulatory guidelines of this matter to provide for the submission of rebuttal briefs. Another extension was requested and granted to allow for rebuttal briefs and then an extension was granted to allow the parents additional time to submit a rebuttal brief.

ISSUES

DISTRICT ISSUES

The District argues that tuition reimbursement is unwarranted in this matter and denies the following: that the student was denied FAPE when 1.) The District failed to classify the student with a disability under IDEA; 2.) The District failed to provide adequate accommodations to her under 504; and 3.) The District failed to provide a safe environment free from peer bullying to access her education. The District argues that the tuition reimbursement is for 3 separate school years and that each year should be considered individually as the needs of a child can change from year to year.

In terms of the relevant facts, the District argues that the student became a student in the fall of 2000, beginning with kindergarten. When the student was in 2nd grade as a result of the student’s behaviors in classrooms, AM began seeing the student to handle her frustrations and meltdowns. This counseling continued through 3rd and 4th grade. The student was in the Young

Scholars group and at no point in time was the student’s learning affected by any of her deficiencies as she was performing well in school and on standardized tests. The 504 referral in the fall of 2006, the 504 committee determined that the student needed counseling and consultant teacher services to provide organizational strategies permitting the student to take frequent breaks to address her sensory issues.

In junior high, it was a transition for the student as students have more freedom and independence. The student was taught organizational strategies to prevent her from becoming overwhelmed and anxious. The student was allowed to have sensory breaks to decompress. The student did not always take advantage of organizational strategies. The student was an active participant in the social skills class but rarely spoke of her own personal struggles. There was a CSE referral in April, 2008. An evaluation by SC, the school psychologist, indicated that the student had a difficult time transitioning and that counseling should continue and she should be allowed breaks to refocus. The services were being provided under the student’s 504 plan. SC indicated that there was nothing in his evaluation that supported the determination that the student had a learning disability and that the student required interventions to address organizational skills but the student did exhibit poor social habits but was improving in both areas but none of the student’s deficits were effecting her school performance and that the student was not eligible for classification because there was no adverse effect on her education.

The student’s junior year in 8th grade, the 504 plan was reviewed on June 20th, 2008. It appeared that the student was making progress. She was taking fewer sensory breaks in the nurse’s office; she was performing well in class, did not require as much redirection and was improving socially and becoming more able to handle her stress and frustration.

In 9th grade, the District’s 504 committee determined that her 504 plan should continue.

The student was expected to obtain an Advanced Regents degree. The parents did not express any concerns of the student being placed in an advanced placement or AP course. The program for 9th grade was discussed at the annual review. The student was to receive counseling once every 4 days to address social development and organizational deficiencies. The student would be provided a TA to help implement and reinforce the organizational skills that she was taught.

She would be assigned a priority locker and be able to take breaks at her discretion. The mother was in attendance at the meeting and at no point during the student’s annual review, did the mother state that she was unhappy with the student’s program for 9th grade or informed the 504 team that she was rejecting its recommendations but then there was a letter to the superintendant indicating that she would not return and that they were seeking reimbursement.

While the student was in 10th grade, the District’s 504 committee convened to perform the student’s annual review. PD from TAS indicated that the student had done well academically but continued to struggle with social interactions. She had meltdowns on a regular basis and was absent from school for 22 days through the first 3 quarters of the school year. At TAS, the student received the accommodations that were recommended by the District. The 504 plan was to update her current needs and there was no indication that a classification was necessary under IDEA since there was no adverse effect on her education.

In high school for the 11th grade, the 504 plan was continued partly because there were no progress notes received by the District from TAS. There was a problem with counseling services where the provider wanted to be placed on payroll and the District sought to look for a replacement. The District argues that it attempted to reevaluate the student and their efforts were thwarted by the parent and TAS as was the District’s attempt to provide the parent access to the student’s educational records. At the 504 meeting in October, 2011, the 504 plan could not be updated because they did not have additional information as to the student’s current level of functioning. The District requested to observe the student at TAS and this request was not allowed.

Regarding the placement at the TAS, though TAS is not a certified school it does not employ Special Education teachers. It is strong in Arts, Drama and Music courses, it does not offer Regents diplomas and at many times she was the only student in her class and they rarely had more than 5. The student was not given tools to grow her independence but instead became completely dependent upon the teacher to organize her life and keep her on task. In addition, the student continued to have difficulties with peer interactions. Again through the 11th grade, the student’s 504 plan was continued because the 504 committee was unable to update said plan.

The District then addressed the reimbursement issues twofold; first under the IDEA and second under the 504. Under the IDEA, the District argues that the District’s program was appropriate, TAS was not appropriate, and equitable considerations do not favor reimbursement because the parents did not provide appropriate notice under IDEA. The parents unreasonably delayed, and any procedural violation by the District was de minimis. Under tuition reimbursement under 504, the District’s program was appropriate but TAS was not and there was no evidence of a denial of FAPE. Also, the District argues that the District did not discriminate against the student who was not bullied. Disability was not a factor. Educational environment was not effected and they had no actual knowledge of deliberate indifference.

PARENT ISSUES

The parent argues the following:

The District denied the student her rights to further evaluations, classifications under IDEA and an IEP and FAPE for 2009-2012.

The District denied the student further evaluations and FAPE under IDEA 504 and ADA for the 2009-2010 school year, 2010-2011 school year and 2011-2012 school year.

The District cannot deny the student benefits of FAPE without due process and the parents have rights to advocate for them. The 14th amendment protects the student’s right to FAPE and its benefits to the IDEA, 504, ADA and specific rights to FAPE including access and due process.

Bullying, harassment, taunting and teasing may violate these civil rights when peer harassment based upon a disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated and not adequately addressed or ignored by school employees. To support these claims, the parent states the following: the elementary school years were instructive, 7th grade brought trouble, trouble and more trouble. Bullying and more serious harassment began escalating in the first few weeks of the 7th grade. The parents argue that the District denied the student FAPE under IDEA for 2009-2010, school year 2010-2011, school year 2011-2012 and that the District should have further evaluated, classified the student for 2009-2010 year and developed an IEP for the 2009-2010-2011 school years.

The parents argued that the District failed to meet its obligation under Child Find even though the student’s grades were slipping in 7th grade which triggered a request for a CSE meeting which sought a formal reassessment and an update of the student’s 504 plan.

The parent acknowledges that the District held a CSE meeting but failed to test in all areas of disability and did not consult Dr. F, the Behavioral Specialist, did not request updated information from Dr. Z or Dr. D. The CSE denied classification because of a lack of significant academic difficulties based upon assessment and testing. The parent argues that the District provided no specific programs, services or interventions to meet the needs that were discussed and determined to be appropriate. There was no consideration for the exacerbation of bullying and harassment and the parents argued that the CSE’s focus was on general academic performance.

The District failed to have a CSE meeting 2009-2010, 2010-2011 denying the student’s right under IDEA.

The parent also argued that the record reflects the District denied rights to access FAPE, did not provide appropriate or further evaluations or an appropriate 504 plan, did not implement agreed upon appropriate 504 plan, did not provide a safe, non-hostile educational environment placement under 504. The parents claim that the District must be equally effective, must afford an equal opportunity to obtain the same result and the School Districts cannot use policies or procedures that result in discrimination.

The parent argues that the June 2008, 504 meeting removed Resource Room. The parents claim that the District failed to provide a priority locker and there is no support for organizational skills. The parents claimed that the District failed to provide support for organizational deficits.

Bullying and harassment were not addressed at the CSE or 504 meeting. Throughout the school year, bullying continued although not as blatant but the student was shutting down more and more. The student was communicating less with the parents and the District was saying that the student did not need organizational assistance but the report cards reflected otherwise. The parents claimed that organizational problems were not improving. The parent claims that she told the Superintendent about the student’s suicidal thoughts.

The parents were critical of the May 27, 2009 504 meeting, the use of a TA for 40 minutes once a day to help with organization. There was a lack of concrete plan to end bullying.

Expert Dr. D stated that organizational issues were related to the student’s disability. The parent met again with the Superintendent and requested tuition reimbursement for TAS.

The late spring the student, because of bullying, became resistant to school. The parent claims that the District violated FERPA by failing to provide school nurse logs to account for the student’s resistance to school. The parent’s claim of cyber bullying, the student was fearful of contacts with students in the community.

The parents initiated attendance at TAS but would consider the District if there was a district wide policy to address bullying. 504 procedural safeguards did not inform that they could ask for a hearing. The parents were denied access to educational files. There were no records of meetings or telephone conversations.

SUMMARY OF FACTS

Districts first witness was AM, the district’s elementary school social worker, T32, who is licensed as a Master Social Worker and New York State certified as a school social worker,

T34. Previous experience includes working in a hospital in Ohio. She first met the student in the fall of the student’s 2nd grade as a result of the teacher’s concerns about behaviours of the student, T36. She would cry a lot and become upset and this was interfering with her school work and with school. The witness met with mom and dad to obtain consents for counselling and support in the classroom, T36. She established a plan for the teachers and provided counselling one day for thirty minutes on a 6 day cycle, T37. The student did not have difficulty in the academic areas but she struggled as a result of her perfectionism, T38. She provided counselling for the student from 2nd to 5th grade providing counselling 1 x for 6 days and as needed. The schools are designed as follows; primaries are grades1st and 2nd, intermediate 1 is 3rd and 4th grade, T39, and intermediate 2nd is 5th and 6th grades. The student struggled with poor organizational skills as the advanced grades became more difficult. She also struggled with executive functions, planning and organizing, T35. In 3rd and 4th grade it became more difficult and there were more student outbursts, T40. The witness talked to the mom, met with teachers, providing organizational support and she recommended that the parents seek medical attention as the student was diagnosed with ADHD and significant anxiety, T41. She worked with mom, tried medications and the student was evaluated by a pediatrician and obtained a diagnosis of

Asperger’s disorder, T65. The mom was in favour of the additional support, the father was concerned about having a mental health classification, T43. The student was deregulated and was impulsive, T42, and eventually the father came around. In 5th grade, there was more of the same with counselling provided and the witness was working with the teachers. The student was encountering difficulties in gym class in 4th, 5th and 6th grade. The witness worked with the student attempting to provide tools for keeping things in perspective, T44. The student was referred by AM to IST in September of 2005 P-A. The witness referenced P-A T46. As a follow up and review, the student was placed in a young scholars program because of her high academic performance, T49. The student also had outside interests in music, choir, chorus and clarinet,

T51.

The student exhibited sensory problems such as chewing on hair, T51. The student would go home and sit, spin and swing, T51. The student also had difficulty in large assemblies, large groups and noisy areas, T52. The student was provided with O.T., de-sensory regulation including wall push, chair push to get regulated and get out “angry energy”, T53.

Academically the student was doing well with the exception of organizational skills and executive function deficits, T57. The student was interacting with peers, T54; she would engage peers in peer interaction and had friends inside and outside of school. She would gravitate towards certain types, T54. She had a big heart and was drawn to students who struggled and empathized with them. Her peers respected her because of her intellect and this continued into 6th grade, T55.

The witness was asked about bullying in elementary school. She did not feel the student was a target; she was a person who looked out for others, T56. She would stand up for her friend who was less privileged who was the target of harassment, T56. The witness observed the student participating in the classroom, T57, and participating and knew that there was an O.T.

consult, T57. The student did have difficulties with school routines and transitions, T58. She also had problems with poor social cognition, with difficulty in understanding how her conduct was viewed by others. For example, she is not concerned about her own personal appearance, T50.

The witness did know the student had a diagnosis of Asperger’s Disorder and acknowledged that the student did have a mood disorder with anxiety issues, T59. She would pick at her skin, T59.

Her desire to be a perfectionist may be related to anxiety, T59. Of course the student would become overwhelmed, would go see the school social worker in the medical office. Also there was the school nurse, O.T. for adult supports, T60. The student continued having difficulties with organization. The witness attempted to provide support using the agenda planner but the student resisted organization strategies, T62.They would clean the backpack but it would never stay organized.

In 6th grade the student came before the 504 Team on November 29, 2006 in a meeting based upon the diagnosis of Asperger’s disorder, T65. The 504 plan was recommended providing counselling 1:1 for 30 minutes 1 time per day for 6 day cycle SD3. They would deal with her issues of being embarrassed about her crying behaviour, focusing on recognizing her frustrations to take a break, T68, she would leave when she became stressed but would need teacher prompting.

The student was talented and stood out in the Christmas party doing origami, T69. The student was prepared to transition to the 7th grade middle school which was a new school. The student was prepped as in all other students with conversations and activities from the school counsellors, T71. The staff would watch for any extreme difficulties, the student would break down in assembly, T73.

The witness reviewed District 6 and 7, the 504 plan, which provided counselling and resource room. In 7th grade the student came before the CSE, the student was deemed ineligible for the CSE classification. The student continued to receive social skills group intervention which included 2 other participants, a boy and another girl, T71. The student’s concerns included her girlfriend being picked on, T79, unaware that the student put herself in the situation and it was hard for her to recognize that her behaviours affected others behaviours. The witness did not recall the student ever complaining of bullying, T80, and was more concerned about her girlfriend being picked on and would stand up for her, T80.

It was revealed on cross examination that the witness’s hospital experience provided good overview of neurological issues. However, exposure to Asperger’s issues was limited to attending seminar workshops provided by CARD and FWinds, T83, The witness also acknowledged that based upon an informal assessment of the student she recommended and the parents seek medical evaluations on their own but did not refer her for any assessments, T84.

The non-scheduled counselling took place during the student’s lunch and at other times, T85.

The goal of the counselling was that the student would connect her feelings with her body and self-regulate, T86. The witness was quizzed regarding whether the student struggled with executive function but the witness did not recall any specific recommendations, T88. The witness identified PB as red CCC representing the team of teachers, T91.

The witness reviewed P-B which was a behavioural consultant’s report of Dr. F relating to a meeting on September 29th, 2005. The witness admitted that the student would perseverate on her laundry list of issues, T94. It was a collaborative effort to support the student by the whole team to allow the student to regroup and regain self-control, T95, as per Dr. F’s recommendation, T96. The witness reviewed P-C a behavior screening report from KP a report from the school psychologist at the elementary school grade intermediate 2. The witness acknowledged that there was trouble due to her perfectionism i.e. being tagged out in gym class, (plus these did not appear to be a problem based upon counsel rating scale, T100) group assemblies based upon observations, T103. The student was involved in other little theatre.

There was a referral to the IST and the witness reviewed S33 page 2 the neuropsychological report from August 31, 2006. The witness did not disagree with PF when she read it in 2006

T111. The recommendation included a 504 or an IEP, 3 in-service training on Asperger’s, peer buddy, social skills development. The student is at risk for bullying it should be monitored, counselling to teach preparation against bullying, T117. The witness also reviewed P-5 page 4 for IEP plan which targeted behaviours through counselling during group sessions the student shared what was happening to the girlfriend but not the student, T118. Also all interpersonal conflicts are not bullying, T120.

In grade 5 and 6 the parent complained of difficulties that the student was very distraught over things that were happening in school and the witness indicated that she instructed the mother to speak with the principalT124. The witness did not recall being informed by the parents that the student was being harassed. However, in 7th grade there was a meeting where the mother complained that the student was being harassed, intimidated, bullied or fearful of going to school, T128. The witness did not recall discussions about the student being afraid to take the bus. Angry energy was when the student would become physically agitated, T129. The student socialized in her church, Girl Scouts and had sleepover, T130. A discussion was had regarding

Cluster 1-2, 3-4, and 5-6 but the clusters were not mixed limiting social interaction but there was in lunch. The student continued to have sensory issues, T131. She would pick her face. The witness suggested referring the parents and student to JL, an outside counsellor for anxiety issues

T133, a private CSW. The counselling progressed toward trying to make the student aware of tendency to catastrophize things, T133. The witness did not recall attending in services on

Asperger’s, T137.

The next witness was RE, Director of Guidance with 15 years experience, a Junior High counsellor for Grade 7-8 with 20 years experience; she is also department chair K-12, T154. Her education background includes a BS from St. Lawrence University in 1984; she received her

Masters from the College of St. Rose and is NYS certified K-12 guidance and counselling, T156.

She has met the student through the church and elementary school as she entered 7th grade, T157.

She met with the student’s teachers as part of the general transitioning from elementary to middle school and the student has strong academic skills but had problems with social interactions, T158. The mother met with the 7th grade team in October of 2007 concerned about transitioning into 8th grade and, concerned about behaviours at home, however, some of the behaviours were not seen by the teachers, T160. The student would de-stress at home; sitting, spinning, and playing piano, T161.

Organizational skills were an issue and was attempted to be addressed through the resource room, T161. The mom felt that the student was not challenged enough academically,

T162, which was causing stress at home and the witness did want to cause more stress, T162.

The student struggled with peer relationships to some extent with some difficulty with organizational skills and continued to de-stress at home, T162. In 7th grade, the purpose of the guidance class was getting to know the students and teaching communications skills and reflective listening, T164.

To avoid conflicts, basic communication was taught, T164. The student participated in the classroom like everyone else. The student never expressed that she had peer problems. The issue of bullying came up as a topic which is defined as repeated harm and verbally aggressive behaviour over and over. The student saw SC for counselling in April 2008 there was a meeting about bullying, about transitioning to 8th grade, T167. The mother was concerned about de-stressing behaviors at home but they were not seen at school, T169. There was a fear of academics and teachers; there was some academic acceleration, peer interaction with personal frustrations. There was an October meeting discussing the student’s de-stressing.

In 8th grade it was thought the student would do well but a social worker was added. There was a

6/09 a meeting where the student needed help with organizational skills but no leaving DB

T171CSE the witness reviewed D17.The witness did not recall the student talking about self-degrading and bullying was discussed with the student. There were changes to the plan. The witness thought she had a good rapport with the student. In elementary school the student who had a difficult time in the classroom, rubbing forehead because of stressors, but in the 7th grade the kids looked up to her in the classroom and the witness thought the student had a great year.

The witness reviewed a checklist to help her keep organized, T174, however, it was not useful,

T180. The 4 year plan-student was that the student would get a diploma, T182. The witness reviewed D41, T187; the student had interest in the medical field, T184. She had AP class in high school medical programs in senior year. Also the 4 year plan can change over time the student would be placed in AP challenging classes, T186. The mother did not mention bullying but outside there were concerns about it, disorganized for overnight visits. She needed support in her life. In 8th grade there were no concerns academically. There was progress with organization, and the student was doing better. The witness reviewed D25 the 504 in 9th grade helping her keep organized for 9th grade, T190.

The district’s next witness was FC, who is the Principal of 7-12 grades-tenured and was the prior assistant principal at a local district, T193.He taught history at another local district, has a BA from Sienna and a teacher’s certification 7-12. He also has a Master’s degree and a Certificate to be an administrator, T194. He was hired in December of 2007 and generally does not participate in 504 CSE meeting unless the parent is dissatisfied with the process, T197.

Witness described his definition of bullying which included a repeated power or dominance exerted over another individual on a regular basis, T198.

The witness reviewed D46 the district policy from April 2011, T199. The prior conduct was dealt with based upon the existing code of conduct, T201and when there is an allegation of bullying generally they investigate, find out the what, why, how, sit down with the victim, try to piece together the story, T203. The circumstances were brought to the attention of the witness in January and February relating to an incident that occurred regularly in gym class involving the student’s behaviour with another girl, T204. There was not any positive interaction by the other student and EB; the other student did not interact with other students in a very appropriate manner based upon the witness’s observations, T201. The other student who was dealt with through the code of conduct and in gym class there was an effort to keep the 2 students separated. The matter was thought to be resolved, T207 and there were no continuing issues. The witness does not believe every incident with a negative reaction is bullying, T207. The student did well academically. The student was in the honors or high honors program, T209.He spoke with the mother near end of 7th grade, generally about transitioning into High School building,

T211. It was not a one way street there was a negative reaction from the student to the other student, T212. Behavior at home was not discussed, T213 but it was reported that student had difficulty with stressors, T213, but 9th grade typical peer interaction can be insensitive peer interaction. Witness did not see any evidence of the student being bullied T216, the witness was aware of the student’s disability, T226. It was never reported student was afraid to come to school during the 7th grade year. The witness reviewed track attendance sheets 07 and 08- attendance track by periods SD47. Said document was admitted over the objection of the parent advocate. Total absences were 8 days which were not in the range of chronic absenteeism and did not affect academics, T224. The witness discussed moving up day from middle school to high school in which there was a meeting because all who needed to attend were in attendance.

The incidents that were relayed to the principal, not reported prior, T231. Some incidences were never reported and they were completely unbeknownst to the witness. There is little that can be done at the end of the school year. One of the first things the witness did when he came to the school was a needs assessment; an additional social worker was added to the staff. Also in 8trh grade the student would have access to the guidance room support, T234.

The witness testimony was continued at a later point but is summarized herein for sake of continuity. The witness described the team meetings as informal sessions where there were no notes, minutes or other documentation, T487. The witness did not recall receiving any progress reports from TAS, T487. The guide room provides an opportunity to mentor with an adult, T488.

The student was assigned to SS, the school social worker. The witness described the student and

SS relationship as a very positive, functional relationship, T7490. The student was consistently on the honor to high honor roll. The witness had observed the student appeared to be well adjusted, sat during lunch at the loud table, and observed her in the hallway. He also described her as at times looking as if something was weighing on her mind but thought it was typical ups and downs, T491. The witness also described having conversations with the mother at the beginning of the 8th grade school year. The mother was concerned about the student and social interaction, T492. The witness thought the student was having a successful 8th grade and the student had friends. Although the student did have problems with putting herself in situations such as defending her friends, making awkward or socially unacceptable comments at times, other students’ responses would be a typical teenager response, T493. The witness was familiar with standardized tests and the student did extremely well on said tests. The witness reviewed SD 31 which is the mathematics NYS assessment which the student scored 727, a solid level 4,

T495. The witness also reviewed SD 32, a NYS assessment 8th grade Science test, in which the student scored a 98 of a possible 100, T496. The witness also reviewed SD 49, which had been previously marked for identification and was subsequently admitted SD39 was the student attendance record listing for the ’08-’09 school year. In the report it indicated 18 excused absences, 1 unexcused absence which the witness described as not significant and does not affect the students academics, T502. In terms of social extracurricular activities, the witness approved the Anime Japanese Comic Book Club, T503, which provided a safer environment for reviewing design and enjoyment of comic books which was monitored by SS, T504. The witness also indicated that 70% of the students in the high school did not use their lockers, T505. The witness recalled a meeting with the superintendent when the parent told the district that they were planning on removing the student from the district. The witness was totally shocked, T506, felt blindsided and thought the request for tuition reimbursement was totally inappropriate, T508.

The witness reviewed SD 34, which was a response from the school board president to an e-mail request from the parent dated July 1, 2009. The witness did not recall the contents of the July 1st letter to the parent, T510.

On cross-examination, it was revealed that prior to April, 2011 there was not a specific anti-bullying policy in the district but based upon the state education directive one was established, T515. Prior to April, 2011, such issues were dealt via the school’s Code of Conduct,

T516. The benefit of the Anti-Bullying Policy was that it also establishes steps to address bullying actions. The witness discussed the ADIR report, which is data collected and recorded identifying disciplinary behaviours of students, T527, the type of activities dealt with herein were primarily listed under "other" category. The witness was quizzed regarding policies and procedures for staff to respond to reports of threats. The witness explained that the mother should be referred to administration but there was no specific policy, T527. The witness was quizzed regarding the student’s activities which lead to negative responses, T544, but he felt that the student was making progress with result of the counselling being received from SS. The witness did not have any specific knowledge of a social media interaction with the student and others, other than what was told by the parent and recollection was that it only dealt with an individual older than the student, T545. The witness also reviewed SD 49 and the excuse by the nurse that the student had left the building however does not indicate if the student had re-entered the building, T540. The witness indicated at a school board meeting that the student stated she was bullied in 7th grade but not anymore, T554.

Regarding the testimony of RME, it should be noted that the witness was quizzed by the parent advocate as part cross and the witness was also under the parent’s witness list so part of the questioning dealt with questions that would have been covered under the direct testimony of the parents’ case. The witness was quizzed regarding statements that she felt her role was to try to help the student. One day at a time she would be an advocate for the student, working with the counsellor providing direct services to the student. The student did well in the 7th and 8th grade with the counsellor’s help; SC in 7th grade and SS in 8th grade. The witness acknowledged that the student’s disability was based upon Asperger’s Disorder and that such students have difficulty socially with peers, however, this student had a group of friends in junior high school

.The witness admitted the student did have difficulties with topics which manifest itself which is typical of normal peer interaction with the exception that the student would get worked up trying to help friends, T254.

The student was very bright but had organizational issues and she had difficulty with homework assignments, turning them in on time, T255, but did very well academically. There was a specific guidance class, T256 where the student worked on communications skills which were basically listening, eye contact, body language. The witness also discussed the CSE and the initial eligibility meeting in which SC, the school psychologist issued an evaluative report. The witness also indicated the student had deficits in her organizational skills, T261, but sometimes resisted her efforts.

On re-direct, it was indicated that the 7th and 8th grade teachers would help get the student’s homework in on time and created a system with folders and reinforcements and offered to meet several times after school, T263. The CSE met to review the student’s eligibility and SC did the evaluation, T263.

The next witness was GL the 7th grade ELA teacher with 22 years experience, T267, with a Master’s in Education and certified ELA and familiar with the 7th grade curriculum and NYS standards, T269. He had the student in the ’07-’08 school year and remembered the student as being very bright, T270, had Asperger’s but lacking in organizational skills. The witness reviewed SD 6 the 504 plan and did not recall the student taking breaks in class, T271. The student was a very good creative writer but at times suffered with organizational problems searching for homework in her backpack. T273. He would notice that she would be getting upset and would allow her opportunity to calm down, provide the homework then or at a later point in time, T273. Other students would want this student in their group because she was very bright and would contribute. The witness did not see the student in the hallways. The witness did not see any bullying, T275. The 7th grade team met to address the concern about academics. The student was doing very well academically but the mother was concerned about whether she fit in socially, T276. The mother had fears whether the student was progressing, but the team felt that she was progressing nicely, T278. The witness did not recall in any of the journal entries of the student that the student was indicating that she was being bullied, T279 and it appeared that the student was looking forward to 8th grade, T280. They met in preparation for same, T281. The witness did not recall the student using a locker but she was finishing strong in the 4th quarter but sagged a little bit in the middle 2 quarters. The witness also reviewed SD 17. The comments were that the student was headstrong, willing to express her opinion, and not afraid to express her opinion, T283. She did need help with organizational skills so that she would not become frustrated. The witness also reviewed the standardized test in SD 33 in which the student scored a high 3, T284 and believes the student scored a 4 the year before. The witness opined that the state assessments were a snapshot and does not predict the student’s overall abilities. The witness had a complicated grading system at approximately 70% being homework as he would give the student flexibility regarding same. The witness also reviewed SD 9, the report card and that the student’s final average was 85% which is very respectable for his class, T283.

On cross examination, the witness could not recall a lot of details from the 504 meeting but that the student had Asperger’s Syndrome and the student had connection with grownups but the syndrome, which affected her ability to interact with her peers. As far as the witness was concerned, the student was just one of the kids, T291. Although the student was just one of the kids, the witness would notice her symptoms when becoming frustrated. She would become physically excited and he would sense when she would start spiralling but its “OK” he would reassure her, T291. The other kids did not pay much attention, T292, when the student would get frustrated but the concern was that it would impact a focus but the witness did not see it. The mother’s concern was social appropriateness and academics and this was discussed in the October 2007 meeting, T294. She was also concerned about transition to the 8th grade and the yearend meeting it was agreed to talk to the 8th grade teachers, T296. The witness had some general recollection of a bus incident but no specifics, T295.

MB was the next witness and is employed by the LG CSD, has been there for 4 years and is currently is a PE teacher and Director of Athletics, T441. He has been the Athletics Director for 2 years and prior to that he was the assistant principal to junior high, 6 years at a neighboring district in the PE department and 3 years as a Math teacher. He has his BS and MS, SAS and

SDA and is certified Physical Education K through 12, T443. He knew the student as her 504 case manager was on a special education 504 team although NL was a CSE chair and 504 coordinator, T444. The witnessed had acknowledged the student because of her disability that she had problems with friends and social interactions but she had typical junior high conflicts with friends and social issues, T446. In 7th grade, there were reports of bullying. In 8th grade, it appeared to be a non-issue, T447. The witness had meetings and he understood that the student had issues in gym and in the lunchroom but hoped the student was doing well and progressing since 7th grade. He thought she was acting more appropriately but overall was very intelligent and was doing well academically although the mother had concerns about organization of the backpack, T441 and guide room, T452. The witness also reviewed SD 25 regarding the 504

meeting.

The witness also helped form along with SS, a bullying committee, T454. The witness viewed bullying as a major issue and one reason for a bad high school experience. The approach was to have a student driven mechanism which would minimize bullying. The witness invited, based upon a review of the yearbook ,various segments of the student population trying to involve all different groups, approximately 40 to 50 students were invited, T456, and the idea was to identify student groups and bullying. There was some role playing strategies and they tried to invite all the different stakeholders from the different groups, T457. The witness did not see any signs of bullying directed at the student. He would observe the student smiling in groups of peers and did not recall any specific incidents, T459. The witness also explained his participation at a board of education meeting as the assistant principal he had discussed the anti-bullying committee. The witness was proud that the student stood up and admitted that she was bullied before and that she was no longer being bullied, T461. The witness was disappointed that the student was leaving the district, T465.

On cross examination, the witness did not recall or remember specifics about being bullied although there was a difference between being bullied and conflict. One of the reasons that he left the administration was because he enjoyed coaching, T446. The anti-bullying program was a volunteer program for students during the 10th period when other students could go home if they so decided to, T446. The recognizable signs of bullying in the witness’s opinion was being withdrawn, alone, would often have attendance issues, T469. The witness also reviewed SD 21 the addendum to the 504 plan. The student did not want to go to a specific location for test-taking. The witness did not think the student was engaged in any cyber bullying.

In the witness’s opinion of bullying it is when someone uses power and control over another and uses that power repeatedly to harm, injure physically or emotionally and does it over and over again, T482. A single threat would not be considered bullying, T483.

The next witness was S.N., the Special Education teacher at the district for 5 years and has worked at other districts. She has her BS in Psychology and her MS in Special Education,

Certified K through 12 Special Education, T302. She had the student in 7th grade for the ’07-’08 school year and she was also the student’s case manager providing resource room services through the 504,T303. She provided these 2 times in a 4 day cycle and assisting with organizational issues noting that the student had backpack and binders and organizational deficits, T304. At times she attempted to assist the student but she was resistant as she was not comfortable dealing with these organizational issues, T305. The witness talked to the mother about the organization, T305. The student felt she was doing fine, T307. She also dealt with stress control. The witness discussed the meetings that took place. The mother was concerned about how the student was doing in 7th grade. The mother was curious as to whether some of the behaviour she was observing at home were also being exhibited by the student in school such as what the witness described as unloading and spinning, T308. The student did have friends and the witness observed her socially but as far as she could see the student would get upset with disagreements with friends which is common amongst girls of this age and is typical, T310.

However, the student would become upset and would often take on the role of the helper, T312, to fix things which would often place her in the middle of disputes. The witness also reviewed SD 17, T312, and the eligibility determination from the CSE meeting of June 9, 2008. The witness worked on skills with the student and attempted to carry them over to the classroom,

T314. It appeared as though the student was doing better in 8th grade than in 7th grade but was still in need of organizational improvement in the classroom, T315. In 8th grade, the witness would assist the student in ELA since she was assigned that classroom to provide services to another student, T315, but the student did very well. The witness attempted to provide assistance to the student after school which was not utilized. The witness reviewed P-I1, T317 the student was not interested in staying. She was resistant to staying. She was resistant to organizing her backpack and at times would become upset and say no, T323

On cross the witness did acknowledge that the student had problems with friends, T327, and teasing, picking. She was informed by the mother that the student wanted to go home and spin and decompress and de-stress, T329. At times she would notice that the student would be upset and that her voice would be louder and she appeared to be agitated. She would become upset when her friends were upset and including their responses. In the 8th grade she would keep an eye on the student but there were no reports.

Parents 1st witness taken out of order by the consent of the parties. P.D. testified. She has a degree in music education and Masters in educational psychology but no NYS certification,

T343 and is currently in a new position as of September, 2011, prior to that she was the director of TAS, having been with the school since its formation in 1996. She described the campus of six acres which includes school houses, buildings, renovated building converted to a theatre, a chemical lab, art complex, T344. She is involved in curriculum which includes history, art technology, global and has been the director since 2005, T345. She has met with the student and family in August 2009 as prior to the application process and the student enrolling at the TAS in September 2009, T345. Part of the application process included some drawing of selves and parent, T347, a student questionnaire, T347, including likes and dislikes. The student’s self-portrait was having difficulty with peers but was very intelligent and difficult to read, very expressive about a thought but had difficulty relating to peers. She had difficulties with friends but good with adults, T348. She felt she belonged to no group and was very isolated at the district school, T349. The student made academic progress and her homework was adequate but the student was very disorganized and forgetful, T349. The student, with her peers, viewed herself as a peacemaker, a moderator but a loner. Transitioning to TAS was initially awkward.

The student was not always concerned about her hair or her clothing but she always wore her backpack, T350. The witness had 2 classes with the student and relayed an interesting story how the student was having difficulty focusing and the witness made the student take 2 laps around the building and she felt so much better that she took a 3rd lap, T351. As the year progressed she started feeling better and not as hesitant. The day is a long school day from 7:45am to 3:15pm and quite often the students get there at 7:15 a.m., T352 there are academic classes in the morning. Music, Drama, Art and PE are in the afternoon, T353. The school has a provisional charter through 2012, T353. The witness reviewed SD 36, a letter from the district’s 504 coordinator and case manager indicating that they would provide services to the student while she was at TAS through the ’09-’10 school year. The witness also reviewed P-Y2, a report from the witness to the district’s 504 committee dated May 10, 2010 the contents which indicate that the student was still physically awkward but attempting to fit in and becoming better adjusted since she is no longer around bullying. The student was accelerated in music because of her mathematics talent, T365. The witness stated after an initial period she started joining sports, drama, choir, T365. When asked about organizational PLEPS, the student was still disorganized, everything would end up in the bottom of the backpack, and it was a challenge to get her to clean out backpack one time per week. The student was also doing well in art. The student wrote all the time and her handwriting was improving, T366. The school has approximately 20-21 students with approximately 2-3-4 students in the student’s classes, T367. She was getting individual resource room like attention yet there was always room for improvement. In TAS they do not tolerate bullying. It is a small school and little goes unnoticed compared to the district where the student was teased on a regular basis, T370. At TAS there is a zero tolerance policy,

T370. Anxiety was an issue as the student would take on problems of others, T372, but she was so bright and expectations were high obtaining 99% of everything. The student did continue spinning to de-stress, T373. An issue arose regarding the Regents exams which were not provided by the school and a question was raised that some districts allowed students to take the Regents exam either by providing the exams to be given at the TAS or allowing the student to take it in the district building, T376. The witness reviewed SD38 an issue also arose regarding counselling. It was originally attempted to be obtained through the district in which the TAS is located however, they relayed that obligation to the district herein and after being provided names was able to provide counselling through an independent contractor JR, T378, since they were informed by BOCES that they had no one on staff to provide those services. The witness reviewed P-F3, e-mails to the mother indicating attempts to provide the counselling. The witness also reviewed Z 3 the 9th grade senior high report card for ’09-’10 school year. Page 2 was a narrative report and emphasizes a Laramie project which was a drama class which the student body put on as said play and the witness made emphasis of the fact that the student knew all the parts of all the characters in said play. As the year progressed, the student got better, related better with peers, opened up, T397, which carried over into 2010-2011 the student’s second year at TAS. The witness felt the student was becoming successful based upon a feeling of safety at the TAS school which is not a special education school.

In cross examination, the witness left the school in February of 2011. It was also noted that the mother is currently on the board of TAS currently the president and as a voting member establishing school policy and fundraising, T407. The witness acknowledged that the student’s disability included ADHD and Asperger’s and it is not uncommon that children with Asperger’s tend to relate better to adults, T411. In addition, the witness reviewed D 36 and the witness indicated that she had sent the progress reports to the district, T412. The witness reviewed P Y-2 which indicates that the student was still suffering from anxious periods as evidenced by a faster speech, physical appearance, by language and redness in the face, T415. The witness acknowledged that the music class the student was in is a mandatory class however theatre was an elective. Approximately 21-25 students in the entire school and each class period is 45 minutes and the student continues to take on problems of others, continues to spin at home as a de-stressor, T419. The witness did not inquire with the district about the Regents. Witness reviewed SD 38 which is viewed as the district not wanting to place the student at TAS, T422.

The student continued to have meltdowns in May of 2010, T423. The witness also acknowledges that there were 22 absences through 3 quarters because of anxiety, T425, while the student was at the TAS in the ’09-’10 school year and up to 27 while the student was at TAS, T426, and that in 9th grade there were 5 students graduating however, the student’s class was the largest with approximately 7. There were 5 students in ELA, 2-3 in Bio, 2 in Global, and 3-4 in French, 4-5 in Algebra T427, T429. The witness acknowledged that in November 2010 there was a change in the music program but when the witness taught the student there wasn’t tests just worksheets and performances, T431. A music teacher was hired and there was a new drama teacher. Overall, some were certified teachers, T432 and some were not it was acknowledged that TAS has a strong emphasis on arts and that they do have an Anime Club. The witness reviewed P-Y2 and it was viewed that the student would be susceptible to exploitation as she is a rote learner and occasionally does not understand the realities which make her a target, T436. The student acknowledged that she wanted to get away to TAS from the district as she was afraid of being thrown into lockers, raped and killed, T440.

The next witness was NLD who is no longer with the district but was employed by the district as the CSE chair and 504 coordinator, held that position for 3 ½ years. Her duties included managing the referral process, 504 and CSE meetings T578. She has experience as a Special Education teacher, has a BS in elementary education and a MS in reading and her administrators certificate, T579. She met the student in June of 2007 who has a disability of

Asperger’s syndrome, ADHD and anxiety. The witness described her understanding of

Asperger’s syndrome which is on the Autistic spectrum. Those with the disorder have social deficits, communication difficulties; do not understand abstract concepts, intricacies of language, difficulty comprehending body language use age of unwritten rules that are not taught, T581. It is not uncommon that they have anxieties and difficulties with theory of mind in which they think that all people think the way that they do, T582. As part of the social deficits, they like rote routine, deviations from the routine cause’s anxiety, T582. It is hard for them to understand abstract thoughts, humor and sarcasm. They tend to focus on small details and not see the big picture. They have better interaction with adults than with their peers but sometimes they are a better with youngsters, T583. The witness reviewed SD 6, the 504 plan from May 11, 2007 meeting, T583, for the 7th grade. It included the student’s difficulties with emotions and organizational skills for which the student was receiving resource room services every other day for organizational skill development and 1:1 counselling 1x30xweek, T585. The program notes that the goal was to teach strategies which could be used throughout the school day with breaks providing an opportunity for the student to calm herself. There was a separate location for Math tests to help deal with anxiety, T586. In 7th grade no reports of bullying were brought up by the mother. No teachers or administrators reported same, T587. Academically the student had problems with homework, finishing and turning in and the 504 plan was implemented, T587.

One of the strategies the teachers utilized was color coated binders but it was discovered that the student was no longer using the strategies that she was taught but intellectually understood them and the student did not carry these strategies over, T589. The witness reviewed SD 11 the level 1 assessment which is utilized to begin the students' transition plan for the future and to give teachers a better understanding of the student's goals and needs to help the teachers help the student, T590. At a point in time the mother filed a referral seeking that the student be evaluated by the CSE which lead to a psych educational evaluation performed by school psychologist

SCSD-15and it was determined that the student does not have a learning disability because there were no delays with academic areas, T592. The report also did not find the student with an emotional disturbance and the anxiety did not affect the student’s academic performance, T593.

The CSE met in June of 2008 and the outcome was determination that the student was not eligible for special education classifications. The witness next reviewed SD 19 which is a program review of the 504 plan dated June 20, 2008. The resource room was removed since it was ineffective because the student had learned the skills and strategies but did not implement same, T596 and to remove the feeling of isolation. The thought was that she needed counselling to learn to accept her deficits and shortcomings, and utilize the strategies that she had been taught to overcome same, T596. A priority locker was provided as an accommodation T598. It is viewed that the backpack dependence contributed to the student’s organizational difficulties. In

8th grade the student was provided a mentor SS who also would provide indirect consult to teachers as the school social worker, T598. In the spring of 2008, there were discussions regarding the student’s difficulties which prompted the witness to attend the team meetings,

T600. Although it remained an issue that the student was not getting her homework handed in on a consistent basis, especially when school days were missed. It did not affect her academic performance and the mother thought the student should not be penalized for missing or missed assignments because of her organizational deficits. Her mother was afraid it would hurt her grades, T601. The witness did observe the student at a school dance all alone looking isolated.

The witness sought to intercede however, the situation was rectified by the student being rescued by friends and off they went. Some of the additional organizational deficits were addressed by having extra textbooks placed in the classroom so the student could have access to same. The witness next reviewed SD 21 an addendum to 504 plan that eliminated the accommodation for special location for future math assessments to accommodate the mother’s wishes that the student be administered the NYS math assessment in the classroom, T604. This was approved after discussion with the classroom teacher who thought it was in the student’s best interest. The witness next reviewed SD 23, a series of e-mails. The witness did not understand the timing since it was late in the school year, T607. The witness next reviewed SD 25 a 504 committee’s recommendation after an annual review on May 27, 2009 in which a teacher assistant was discussed to utilize and implement organizational strategies, T609. This was to address the concern the student refused to implement organizational skills in the resource room, T612. Also the 504 plan included counselling, 1:1, and counselling group, T613. The mother expressed frustration, T611; it was hard to understand since it was felt by the teachers that the student had a better year than 7th grade and the students social interaction was improving. The mother reported that the student was still anxious, would sit and spin when she got home, T610. The witness opined that the spinning is not uncommon to decompress at the end of a school day. It was also reported that the student was reluctant to go to school based upon the mother’s reports, although the teachers did not see such reluctance and it appeared that the student was doing better. The witness next reviewed SD 25 and there was a discussion regarding implementing a behaviour intervention plan, T616 based upon a functional behaviour assessment and it was anticipated that this would be done in 9th grade so the student would derive the most benefit from the BIP and the FBA. Also at the meeting there was a review of doctors notes, the written reports were received by the committee however the content of same were not accepted and the committee sought additional information from the providers. The witness next reviewed SD 29, the district progress report card dated May 5, 2009, T619. The mother reported bullying at a meeting but none of the staff recall observing same, T622. The witness relayed an incident that had occurred in which the student was very distraught as a result of the student’s friend being picked on, harassed and/or teased and the witness thought it was odd that the student appeared to be more upset than the student that was being picked on.

The witness next reviewed SD 36, a letter to the TAS which was followed up by a phone call, which the district acknowledged responsibility for implementing the students 504 plan and requested updates from TAS which the witness acknowledged not receiving, T625 but the mother never asked to consider TAS. The witness next reviewed SD 38 in which the PD, teacher and the director the TAS, participated by phone, T626. The witness indicated this was acknowledged that there was some attendance issues, some anxiety issues and the student was missing days at the private school, T627. Also, it appears that there were ongoing problems with organization and it was hard to determine exact specifics as to the contents of the students program. It was reported at the 504 meeting that the student was continuing in a private school for 10th grade, T628. The consensus was that the private school was not appropriate due to the size and lack of services as compared to the district T629. The witness also reviewed SD 42,

T632 acknowledging the receipt by the district of the mother’s request for a record review and also was reviewed SD 43 a notification to the home district from BOCES that they were not able to provide counselling to the student at the private school and the witness undertook steps to locate an appropriate provider, T634.

The witness referred to the 504 plan which provides a combination of sensory breaks to the student based upon the student’s sensory issues, T640. The student at times would become over-sensitive to tapping of pens in conjunction with other noise sensitivities but there was no sensory evaluation, T641. There is an implementation of the 504 accommodation in research room, T641. It was thought that it was not being utilized by the student. According to the witness the 504 plan was being implemented because she did not hear any information to the contrary, T642. Level 1 assessment provides feedback for transitional services which are required to be on the student’s IEP on or about the student’s 16th birthday and was not applicable to this student’s age and 504 status, T651. The witnessed referred the CSE referral to the principal and the witness does not recall whether there was a need for outside evaluations, T651.

The witness reviewed PF and there evaluation of August 31, 2000 and May 11, 2007, T654. The annual review 504 plan identifies the evaluations that were considered and reviewed, T653, although the witness does not specifically remember the document. The document recommended in-service training for all teachers and staff to increase familiarity with Asperger’s, T654. This was not done however the witness indicated that in services are provided on Asperger’s and it’s upon the teacher as part of their professional development if they feel it is necessary and appropriate, T655. The counsellor did provide social skills training, T656. The witness reviewed

PF 1from Dr. Z review of recommendations in which it was felt that the student did not utilize the organizational strategies consistently. The mother reported frustration and anxiety and there was a meeting with the principal and others but family counselling was not offered. The witness was surprised to receive an email from the mother indicating that the student was going to TAS and seeking tuition and transportation, T670. The witness also reviewed SD 17 which is the June 9, 2008 CSE meeting determination that the student was not eligible for classification as a special education student and it was felt that the student’s organizational deficits did not affect her educational performance, T675. It was felt that the student should not be classified as autistic since this was not a significant impact upon her education CSE classification that requires substantial impact, T663. The witness also indicated that it is not uncommon for students in the middle school to not want to stand out by getting services, T686. The witness reviewed the

SD25, T675, on redirect which is the annual review and that the visual schedule was not implemented because the student was attending TAS, T684, and was uncertain how much information MB had regarding Asperger’s. The witness reviewed P-G1, information regarding

Asperger’s Syndrome provided by the parent, T691

The next witness for the district was BB, she has been with the school for approximately 1 year, she is a 504 coordinator and CSE chairperson and her role is to manage and evaluate programs and conduct meetings, T693. She has been with the district for 6 years originally as a resource room teacher, she was an instructor in the areas of early childhood development

T695and she has a BS in Elementary Education and Special Education, an MS and is certified

SET and SDA, T695. She became the CSE chair in September 2010 and there was a lapse of several weeks between the prior witness’s leaving the district, T696, and this witness assuming the position. One of the pending items on her desk was a letter from BOCES denying availability of counsellors as partial explanations as to why it was not in the student’s file, T700. The witness reviewed SD 43 the letter from BOCES which said that they currently do not have any counsellors to provide services. The witness explained the confusion surrounding the counsellor and testified as to conversations with the CSE chair from the district where the TAS is located and indicated that the counsellor that was providing services as an independent contractor sought employment and the services were discontinued by the provider, T703. The witness offered to meet with the mother in March of 2011 to discuss the counsellors and provision of services at

TAS, T705. The witness described to some extent her efforts to identify the school district’s obligation and responsibility towards providing services based upon the 504 plan to parentally unilaterally place students attending a school outside the geographic confines of the district. She initially thought that the district was not responsible; however, she has since altered that position.

There was also discussions about SD 44 the letter consent form purpose of that the content of the letter and release may be confusing to the parents but there was no response from the parents either, T707. Also the witness reviewed PL 33 a series of emails from February 11-15, 2011 regarding the parent’s determination to continue the student at TAS, T708. The district also sought to have the student observed at TAS, T709, and perform a record review determining progress based on teachers reports and others. However, the district was denied access based apparently on some confusion whether the parent had consented to the classroom observation at

TAS. The witness next reviewed SD 45 which provided copies of quarterly reports from the counsellor JR, T710, to the parent and also reviewed 504 from 2010 and 2011 and based upon the fact that there was no new information the 504 plan was continued without change ,T711.

There was additional conversations regarding offering to hold a 504 meeting in November but that request was turned down since it was too close to the hearing. There was a request to the district to place the student at TAS, T713, and the witness indicated in the interview that it was difficult to assess the student’s current needs, T714, and felt that it was difficult to get past the conclusory statement that the student needed TAS. In order to determine the student’s levels and needs the committee requested an observation of the student, T715, and a request to talk to the physician, T716. Both of these items were denied because it was too close to the hearing, T718.

In addition, the student was never re-evaluated because the parents did not consent, T715.

Overall, the witness felt that the district could provide an appropriate plan for the student, T718.

Due to the student’s high academic functioning, the district had a lot to offer and the disability affected the student socially but felt the district could provide a more appropriate academic placement, T719. Also, there are concerns that the TAS’s focus is arts and the student would not get the academic instruction from non-certified teachers, T720. TAS would not be appropriate for the student because of the small number of students, 20 to 25, T720 and because of LRE considerations, T720, TAS would not be appropriate because the district had additional resources to offer, T721, and the witness was told that the student refused to return to the district, T722.

On cross examination, the following was probed. The witness believed that the mother was seeking a record review of other student’s records, whereas the mother was seeking reports of the student being bullied, T726, one of the topics probed was the issue of not providing a counsellor as a related service under the 504 plan to the student attending a private school in the district placement, T726. The witness reviewed P-M3, the reference book relied upon and the witness made the determination that she later changed her initial conclusion was that the district was not obligated to provide counselling while she was attending TAS. The witness identified

BM as the rep from the TAS who did not talk about the student’s needs, T735. The doctors’ reports speak for themselves. The team accepted them and reviewed them but not necessarily agreed with the contents P-X3 T737. The P-Y 3 to 2011-2012 504 plan, T753, was a carryover from the 2010-2011 and there were no changes because there was no new information and currently the student is not fearful of school, T757. The witness reviewed N3, the request to consent form which did contain some confusing language perhaps explaining why the parents did not respond, T731. The witness reviewed L3 an evaluation to the mother whereas the district will not be providing counselling services, T732. The witness’ recent understanding is that the district is a responsible, T737, regarding SD 44 the letter is sent to 504 and IEP students, T762.

The districts next witness was SC; the school psychologist with 20 years experience,

T775, whose responsibilities includes evaluations, individual counseling, building level committees, and referrals to504 committee. He has a MS in School Psychology and is permanently certified by NYS as a school psychologist, T776. He knows EB as a 7th grader with a disability of Asperger’s Syndrome and ADHD, T777. He explained that Asperger’s Syndrome is on the autistic spectrum but is not a root cause. It impacts social interaction even though it is about mental disability. Students with this syndrome are cognitively high functioning, T778. He is familiar with other students who have had Asperger’s Syndrome and in such is aware of its impact upon the ability to interact with others. He was able to observe the student at different times socially interacting with others. Other deficits of individuals with Asperger’s include deficits in social interaction, reading social cues, socially acceptable responses, political acumen,

T779, reading body language and responding. He was aware that the student had pressures at school and at home but did not find it affected the student from performing at high academic levels. She was friendly to kids, she needed time to process 7th grade and benefited from processing social data. She was a wonderful friend to others but would become involved in every day drama because she wanted everyone to get along and it was necessary that she take in the 7th grade experience, T780. 7th grade is a transition from a more structured regimented elementary school where there are lines and tables and lunch assignments to a less structured, T781, 7th grade which was initially difficult transitioning from the oldest in the building to the youngest. Transitioning in the hallway where there would be more freedom for interactions. She made the transition because she is brilliant and that came across in classrooms which she needed to adjust throughout the fall. Her disability of ADHD impacts the ability to sustain attention to task for long and some overly focus, T782. There are environmental triggers that impact as well as organizational deficits, T782. The witness observed the student busy looking for papers, moving quickly through the halls, would tell her to slow down and offered to help, T783. He was familiar with the student’s 7th grade 504 plan and he was providing counseling which was scheduled weekly and the student would come in for counseling if struggling which was on a crisis-oriented basis and/or as needed basis, T784. They worked on coping strategies, T785. The student was tuned into herself and what was on her mind to slow down, self talk, she wanted every grade to be 100%, she struggled when low 90’s and would get upset, T785. After the Christmas holiday she began doing self talk on her own, T786. She encountered 7th grade growing pains, different teachers, and different colored notebooks and became a strong self advocate regarding her social skills when two friends were in conflict, T787. He would work on constructive messages helping the student out to not get in the middle and working on strategies as to what her role would be,

T787. He described the conflicts as situational requiring different solutions. The crisis counseling occurred when the student was emotionally distressed and the student’s grades were a frequent topic, T788. She did not hide her emotions. She would seek the witness out and did go through the book bag with her, T789. In 7th grade he spoke with the classroom teacher. There were two periods per day for team planning. He informed the teacher that the student was stressed about assignments, T790. The team would indicate that the student could do test corrections right after school. He didn’t recall the classroom teacher coming to the witness, T790. Following the Christmas vacation, the frequency of the crisis counseling was reduced; the student was slowing up and would feel OK, T791. It was common in 7th grade for students to jockey for social position within peer groups, T791. The student had self-confidence in the classroom and with her own group. Regarding interactions with peers, she developed relationships, provided support to friends and he worked on skills to become involved and what she can control for the people she cared about, T794. The student did use the term bullying but the witness described it as negative social interaction. She would become involved in her friends negative social interactions, T794.

They worked on dealing with these situations and smoothing the waters. The witness described it as typical junior high drama and did not feel that the student was a repeated target, T795.

Bullying involves a powerful individual singling out or targeting one of lesser power and was not aware of the student being singled out or targeted because of her disability. He was aware of the mother’s concerns which are common junior high parent concerns. The student was close to her mother. He did not see any sign of depression with the student, T797. He did not recall any incidents indicating she was a cutter which is a habitual occurrence and there were no signs that she was hit or physically abused, T797. The student progressed in 7th grade and had a wonderful year, T798. The witness reviewed SD15, the May 5th, 2008 psychological evaluation of the student to determine if the student needed special education services, T799. The witness reviewed the background folder which included SD2, the social history, which reported that the student was very dedicated in class, T800. The report indicated that the student had transitional difficulty initially but improved throughout the year, T802.If she demonstrated any attention issues, the student would be directed back to task, T803. The student used the phrase bullying a lot which the witness viewed them as negative social interactions, T803. The WISC-IV the student has a 128 superior IQ and the Woodcock Johnson the student scored a 99.9% of academic achievement, T805. The witness felt it was a valid test. Regarding the student’s social and emotional levels, the student had difficulty with changes of routine T806 and needed a significant amount of help from staff especially in the fall when there were frequent visits with the witness or the school nurse, T807. His recommendation was to continue the 504 plan and the student would benefit from counseling, T808. In reviewing the eligibility determination by the CSE, according to the witness considered classifying the student as LD but the student had no academic deficiencies being in the 99.9%, T810. The student was not ED because she was functioning well in the classroom, T810, and she had no emotional issues impacting learning.

Resource room was not an option because the student did not need academic skill development,

T810. She was so bright that it would be a shame to have her not in mainstream. The witness recommended continuing the 504 plan, T811. She was brilliant but needed assistance in organizational skills so the classroom teacher was aware if the student lost papers they would give her special attention and the classroom accommodations would help her be organized,

T812. In 8th grade, the witness had little contact with the student since she was being provided counseling services by SS. He would see her in the hallway, T813.

On cross-examination, it was revealed that the witness had in-services on Asperger’s, attended seminars in Syracuse, T816. The witness reviewed SD15 which referenced Dr. Z’s report and the witness had no reason to disbelieve the diagnosis. The witness questioned the validity of the recommendations since the report was several years preceding his evaluation,

T823. The witness reviewed PF, the student entry into 6th grade had difficulties with emotional regulation however, it was pointed out that Dr. Z’s report was based upon an evaluation as the student was entering 6th grade in 2006 and the witness’s evaluation was done in May of 2008.

The witness was asked whether the student had emotional regulation difficulties in the 7th grade and whether there were a list of rules and expectations, T826. The witness observed the student in an agitated state with cheeks flushed; looking exasperated she would visit him based upon his open door but never saw directly loss of control of emotions. They would work on what was in the way of getting 100’s T829 and no one was perfect but he saw no consistent pattern, T830. He explained it as 7th grade growing pains, T830, and most found 7th grade difficult but the witness did not feel it was exacerbated by the disparity in cognitive functioning. Students with

Asperger’s do have difficulty with executive functioning. Students with ADHD also have difficulties with management of time and organization, T833. The witness described bullying as repeated acts of verbal or physical aggression directed at person of weakness for a prolonged period of time and did not see the student singled out, T839. One act of a single aggression would not be bullying, T840. The witness did not see the student targeted as a result of her disability. She would find herself in the midst of conflict or negative social situations which he described as usual 7th grade drama, T840. He did not use the term bullying because it was crisis between girls and described it as situational and was not happening consistently. Situational was unique to the situation, not predictable., T842 There were discussions about the student at home, what she did at home, computer, role-playing, her interests in homework, T843. It was reported by the mother that the student was overwhelmed in school. The school did provide safe places so she could leave the classroom if overwhelmed and needed a break, T845. He thought the sit and spins a unique coping mechanism for Asperger’s individuals, T846. If the student wanted to talk about something she would get on a roll, T851 and would not but was not resistant as a CSE classification and does not recall discussing autism or OHI, T852. D17 provided possible services as a 1:1 individual and a 1:1 in group potential for 504 or CSE, T854. The witness reviewed SD25 page 4, which was the annual review of the 504 committee on May 27, 2009. It was apparent that the student did not need an intervention plan, T863, as there was no sign of the student cutting in 7th grade, T865.

The district’s next witness was SS, the school social worker assigned to 7-12 grades and he has been with the district for 4 years and is tenured, T877. He has previous experience as a contract provider at the youth center, the local school district and also at a child center, T818. His education includes Empire and a double degree of English and theater, a Masters in elementary education and social work and is certified as a school social worker and licensed MSW, T880.

He is familiar with the student, being her service provider 4 years ago when the student was in 8th grade. She was assigned to his guide room which has groups of 5-10 children which lasts 6 minutes at the beginning of the day where attendance and announcements are provided, T881.

Students would come at different times based upon their bus schedules and walking. He observed the student would speak to the witness, T882. The student’s interests included Science and Anime, T883. She looked happy, enjoying herself, she looked awake and she was interacting with other students and one girl in particular. In addition, another student would visit the student that was not assigned to the witness’s guide room, T884. The three would talk and interact more than any other students in his guide room. The student’s disability includes Asperger’s. He is familiar with Asperger’s Syndrome which effects how individuals interact with others, T885.

The witness was pleased with what he saw. Asperger’s is on the autistic spectrum and includes the high cognitive functioning. Those typical deficits, the social difficulties, the ability to read non-verbal language, turn taking, eye contact. The witness did not see, T886. The witness was familiar with the student’s 504 plan providing counseling individually and group. The student was-somewhat inflexible when he talked to her about stuff and they would not as frequently talk about serious things such as the quality of relationships, T887. This age group of girls feels each other’s pain, T888. They would review issues and teach reviewing role and limits of a power of a friend, for example, when 2 friends are in conflict, T888. They discussed coping strategies when the student would become overwhelmed. The strategies included removing yourself from the situation and the student would quiet herself. She would become overwhelmed with academic issues, T890. They worked on learning and teaching from the moment. One time the witness recalled being called by the classroom teacher because the student was upset. By the time the witness was able to go check on the student she was no longer there but saw her leaving for the day and she appeared to be fine, T891. The group counselor is set up as a friendship group working on socialization and interaction, T893. The student did very well in the guide room and in counseling. There were organizational issues. The student had difficulty in focusing on issues that she did not want to focus on, T894. The witness did not recall working a lot with the student, organizing her back pack, T895. The student would show up at her scheduled times on occasion to come and say hi and let him know how things were going. One time there was an issue and a conflict with a kid with a strong presence. The conflict was either student’s friend or both. This occurred in physical education class and he informed the student, T896, to stand up for herself which started as a verbal situation because the student was not treated well. The student showed up later, agitated, but she was happy that she had stood up for herself, T897. The witness opined that by standing up for herself it was not bullying plus she did not look scared but rather angry,

T900. He would see her in the hallways and she seemed as though she was doing well, not looking fearful, cowering, but focused to get to school. The witness did talk to the mother in 8th grade regarding the presence of the female friend and did recall one specific e-mail that was back and forth regarding the issues of the bullying in PE class. The mother had reservations about the student’s girlfriend. The witness did not share those reservations. The girlfriend was intense and was a hugger, T903. In the 8th grade, the witness had another discussion with the mother. She was very concerned about the student her happiness in school, T906. The student looked happy and the witness did not see it. The witness was part of the student anti-bullying committee, and

Anime, T906.He did not recall the specifics of the 504 meeting, T907, but felt that the student made progress in 8th grade. She continued to do well through the year, T909. For a student with

Asperger’s she had friends so she went in her comfort zone, she made eye contact and did not interrupt, T910. Her friendship is based upon people power. He recalled the student attending a Board of Education meeting on the bullying issue and she indicated that she was not bullied any longer, T912. He thought that was awesome. There was mixed feelings because the student felt another student was being bullied. He was bummed when he found out that the student was leaving the district, T914.

In cross examination, the witness admitted that children with Asperger’s sometimes have an interest bordering on obsession, T918. The student wanted to do well in school, grades was a source of stress and mostly caused the student to be upset, T919. He recalled a discussion about the student being placed at TAS at a 504 meeting. The gentleman partaking in the telephone meeting was the student’s science teacher and he had indicated that it was a small class size and the student would leave the classroom on a more frequent basis than she did at the district, T934.

The witness did not understand how the evaluator, Dr. D and the therapist could comment upon the student’s acts in the school when they did not observe the student in a school setting, T936-

940.

The district’s next witness was JB, the student’s 8th grade Social Studies teacher, T942.

He has been with the district for 14-15 years as tenured, obtained a BS in History, a Masters in Education, is certified secondary level Social Studies teacher for the past 15 years and also coaches basketball and football, T946. The curriculum for the 8th grade Social Studies is U.S. History from reconstruction to present, T945. The student was one of the witness’s better Social Studies students. She got along with peers. She would participate and a lot of times would be the first to have her hand up She interacted with students as any other typical student, T946.She was very intelligent with good knowledge of current events. He has observed the student being overwhelmed and having a bad day, T947, he would let her get up to get a drink of water and put her head down, T948. The student would have difficulties with the back pack and organization,

T949, and he would give her extra time to get her materials out of her back pack. She did well in his class even though 20% of the grade is homework assignments thereby indicating that she turned in most of her assignments, T949. The student did have an extra text book at home and he communicated with the mother either by e-mail, phone or team meeting, T950. The mother requested a quiet time with the lights off so the students can relax before the class started, T951.

The witness said he could not do that since he only had 40 minutes of instructional time and he used other techniques such as water breaks, putting head on desk and he also used humor in his classroom. The student had a good sense of humor, T952. He didn’t see any negative social interaction in the classroom, T953. The student scored a 5 in the NYS assessment which was one of the best students he ever had, T955. She sat with peers at lunch and reacted normally with her peers, T956.

On cross-examination, the witness was quizzed about PF PR-2 the 3rd quarter progress report that indicated the student had a 75% because of missed assignments, a letter from the witness’s team dated April 21, 2009, which indicated that no late homework would be accepted in Science and student would receive a 0 which appeared to be inconsistent with the witness’s testimony who indicated that if the student was absent, he would allow them to submit the work and thereby collecting the grade, T903. The witness also reviewed F1and did not recall getting the e-mail but his practice is to return parent e-mails, T903.

The district’s last witness was MF, the students 8th grade ELA teacher who has been with the district for 6 years, T1066 and is tenured. She has prior experience as a junior high school

ELA at another district, has a BA in English, a MS in Education, and is NYS certified ELA 7-12,

T1068. The 8th grade curriculum focuses on writing, reading comprehension, short stories, novels, instructional texts, listening skills, part of the curriculum includes journals, projects, independent reading, T1068. She had a student 5 years ago in the 08-09 school year which includes group and individual settings. The witness allows the students to choose their own groups to create a comfort zone, T1069. The witness will put students in different groups and there are no exclusions, T1070. The student participated in groups. The other students treated this student very well and no one has ever excluded her, T1071. The witness cannot recall any issues. The student volunteered often although at times it was necessary to re-direct her back to the topic because it was beyond the other students’ knowledge but she was a very good student,

T1071. The witness was familiar with the student’s 504 plan, which allows for breaks from the classroom, and acknowledged that organizational skills were the student’s area of weakness,

T1072. The student had difficulty finding items in her binder though she was reluctant to let others into her back pack. If an assignment were missed or late, the student would get partial credit because they would review it the next day, T1073. She attempted to assist the student with organization with separate binders and at times would assist the student utilizing a check off list.

The witness reviewed SD20, the check off list; there were several attempts by the student to utilize this sporadically, T1075. The student would not follow through. The student was not comfortable conforming to that protocol, T1076. The student resisted efforts though was never verbally or physically oppositional although would appear to become anxious, T1077. SN was in the classroom providing CT direct instruction which would assist with the curriculum and make sure the student was on tract, similar to co-taught classroom, T1077. SN would help the student find things. The witness discussed the journal which includes free writing and pre-writing for specific assignments which was the majority of the journal entry, T1078. The witness did not recall reading any journal entries regarding stress or anxiety, T1079. The classroom contained smaller groups. The students were receptive to the student. There were no outbursts from the student and the witness had observed the student outside of the classroom in the hallways and the student seemed like the other students, T1080. She acknowledged receiving the mother’s e-mail and that the mother attended a team meeting. The witness reviewed SD22 emails and the student was a B student had good comprehension of the materials though some homework was not legible or partially done which would detract from her grade, T1082. She did observe the student being stressed near the end of the year with the approach of NYS assessments and exams, T1082.

During the team meeting that the mother attended, the mother suggested strategies to help the student deal with the stress, implemented organizational strategies and assisted in homework checklist, T1083. The witness reviewed SD29, which was a particular page to the progress report at the year end. The student’s final average was an 89, almost an A, a 93 on the final exam though she had an 82 in the 4th quarter, T1085. The witness also reviewed SD30, the student’s

NYS ELA assessment which she scored a 717 within the level 4 range which started at 715,

T1086. The witness also reviewed SD28, e-mails from the mother who she felt they good communication and there is no animosity or resentment about the student attending the TAS,

T1088.

On cross examination, the witness was quizzed regarding how the student was treated outside the classroom and the witness indicated that there were no reports of problems, T1090 though the student was reluctant to organize her back pack; she would become anxious and tense up as a result of someone invading her space, T1091. They attempted to use the checklist; the student used it early on but then inconsistently as it was not in her comfort zone. The witness offered to allow the student to keep papers and materials in the classroom but the back pack was her life line and the witness indicated that the student thought that the student was doing fine.

The witness indicated that SN could gauge if the student needed help. The witness did not recall having any 1:1 conversations with the mother. Regarding SD22, the e-mail exchange with the mother, the witness informed the mother that she felt that the student was being challenged enough, T1098. Regarding the 504 plan the witness indicated that they reviewed the plan at the beginning of the year, T1099. The student was very bright but did not struggle with materials,

T1100. Late or missing assignments did impact her grades, T1101. The homework was factored in a lesser degree than larger projects. The witness acknowledged receiving P-G1, information regarding Asperger’s but did not receive any specific training on Asperger’s, T1104. The witness responded to questions from the parents in the form of P-O1 page 5, T1104, the witness reviewed

P-1, an 8th grade team letter to the parents regarding a change in homework policy, there would be no late homework or incomplete assignments would receive a zero, T1107. The witness reviewed PR2, the supplemental report for quarter 1 which indicated that the student was exhibiting excellent effort to do her homework and page 4 of PR2 which indicates the student was working well in the class, T1111, and was downgraded slightly because homework was not completed on time or done completely, T1112. The witness did not know why the parents chose to enroll the student at TAS, T1113.Regarding knowledge of the team, expressed at team meetings the team was aware that there were concerns about bullying in the past but no classroom teachers had any academic concerns regarding the student, T1115. The witness indicated that at open house they told the parents about the policy regarding grades and homework, T1116, and the student. . The witness also reviewed SD19, the program of the 504 plan of June 20, 2008 which provided no special accommodations for late homework nor did she recall that request coming from the mother, T1120. The witness indicated that on P-O1, the graphic organizers assisting the student in the writing process, a rough draft is handwritten, the final draft is typed, T1123. After concluding this witness, the district rested its case.

The parents 1st witness was a school district employee LH, the student’s 8th grade French teacher, T1131. She has been an employee at the district for 14 years. The witness has a BS and a

MS and NYS certified 19 years ago, T1135. She had the student in 8th grade French class,

T1136. She was very bright, pleasant and talkative; always a chatty hello did well in French, and she was aware of the student’s 504 plan but did not attend team meetings since she had teaching assignments in the elementary and the junior high buildings, T1135. She was aware that the student was disorganized, had difficulty finding papers and assignments, T1135. She usually gives 2-3 assignments per week; homework is part of the grade based upon completeness and timeliness, T1136. The witness observed that in the classroom the student would often work alone instead of with other students, T1137. At times she would become frustrated to the point of tears indicating that there was too much going on. The student would be frustrated, in tears,

T1138, holding head. The witness indicated that the student would ask to go to the nurse when she did not feel well but didn’t remember if the student was crying first. The other students did not react in a negative fashion because the student liked to be up front in the classroom, T1139.

The groups were in 3 or 4 or worked in pairs depending on the assignment, T1140. The student would join some groups but liked to work alone if the teacher allowed it. All the students were eager to work with the student because she was good in French, T1141. The witness was quizzed regarding P-F1 page e-mail to the mother commenting upon the student asking frequently to go to the nurse because she didn’t feel well and also that she observed the student run her hands through her hair and hold her head as if she was very frustrated . The witness would allow the student to go to the nurse if she asked. T1151. There is a difference between sending a student to the nurse and allowing a student to go when asked, T1140.

Cross examination by the district. Student did well academically, obtaining a 96% on the

French proficiency exam which was both oral and written, T1152. At times she had difficulty finding homework assignments. She granted the student leniency because of the 504 plan and knew that she struggled with organizational issues and would try to be flexible with her and not take off for late assignments but would if they were not turned in, T1153. It was not unusual for students to work alone. The witness did not know if the student was stressed because of academics or other things, T1154. Her peers were eager to work with the student because she was good in French, T1154. The student volunteered in class and shared information and does not recall any negative comments from other students, T1155. The witness did not recall prior e- mails, P-F1; she did not know why the student was stressed. The witness also reviewed PR2 and was unsure as to why the student went from a 92% to an 80% from the 3rd to the 4th quarter.

Also, trips to the nurse were not tracked in the classroom, T1159.

The district’s next witness was CH who has 31 years with the district and soon to retire.

She is responsible for 7th grade Math, NYS certified through 9th grade Math, T1165. She is familiar with the student as she was in the accelerated Math class, was unsure if she had a 504 or an IEP but she did very well with materials, no difficulties, T1166, did not observe any difficulties outside of the classroom, T1167. There were reports at the team meetings, the mother spoke at the team meetings but the witness never saw any of those problems in Math class. She grades homework, tests, quizzes, notebook checks, T1168. The student on occasion had missed assignments. She would become upset when she could not find them. She indicated that it was not a problem since the student could give them to her when she would find it, T1168. The mother expressed concerns about organizational deficits at the team meeting and possibly bullying incidents but the witness never saw them in the classroom, T1169. The student’s peers truly respected the student because she was very bright and they wanted to pair with her, T1170.

She sat in the 3rd or 4th row. She didn’t recall the student needing to go to the school nurse,

T1171. The student was most of the time prepared and did not recall back pack issues, T1172.

Regarding homework assignments, the class would review the assignments the next day which made it necessary for the student to submit her homework assignments on time. The witness was lenient with the student’s disorganization deficits, T1174. The student always knew answers so the witness knew that the student did the homework but could not locate it, T1174. The witness did not observe any bullying. She would not tolerate it and would address it if she had observed it. In the team meetings, it was not reported that any teachers witnessed any bullying, T1176. The student always participated in the classroom; however, bright students do not always show the necessary step by step, T1177. If the student had difficulty, the witness would address these issues on homework assignments and would not impact the student’s test scores, T1178. The witness reviewed P-A1, which indicated 3 absences, T1179. The student could do better work, in particular, page 11 was referenced pertaining to turning her work assignments in on time, T1180.

The next witness was CC, the Vice Principal of the junior high school, 504 case manager and was on the anti-bullying committee, T1288. The job responsibilities include discipline which includes controlling students and their safety. As a 504 case manager he is the liaison between the committee, teachers and students, T1289. He has prior experience as a 6th grade teacher for 6 years, grant director and 5th grade teacher for a year; NYS certified Pre-K-6, Special Education

K-12, has his SDA and Reading K-6, T1291. His education includes a BS and MS. He is familiar with the student because she is on his 504 case load, T1292. There was a 504 meeting in July, 2010 regarding this student being unilaterally placed by the parents at TAS, sent a letter of introduction to follow up on the plan. The 504 meeting, a representative of the TAS spoke. The witness reviewed PA3, a letter to the parents asking for updates for the 2010-2011 school year,

T1294. The witness also reviewed SD38, the 504 plan for grade 10, 2010-2011 school year in which counseling was offered. It was not provided because of some confusion regarding obligations by the district. There was a follow up meeting approximately 2 months ago, T1298to gather information about the student and her placement and the student’s placement to TAS was discussed, T1300 because of bullying, T1306. On cross examination by the school district attorney, the witness did not see any progress reports and there was discussion at the 504 meeting about reevaluating the student including a classroom observation of the TAS, T1314.

The next witness was VG the eighth grade math teacher. The witness was aware the student had a 504 plan, T1184.The witness reviewed P-F1 page 3, e-mail from the witness to the mother indicating that the student’s organizational deficits are getting in the way progressing to high school and college whereas it would make it difficult at those levels as the materials get more complicated to staying on top of tasks, T1180. She observed the student being red-eyed, teary eyes. The class was after lunch, the student would sometimes visit with SS, the counselor; she would come back all right but she appeared down, T1187, meaning quiet, become frustrated when she couldn’t find her homework but was unhappy less and less as she was maturing and becoming more comfortable with the 8th grade expectations, T1188. In the 3rd grade, the student was having difficulty staying organized and staying on top of longer assignments. Although she had a hard time accepting if she was wrong, would argue a point but would eventually accept reasons why, T1190. The witness also reviewed PG1 page 3, the mother was at a team meeting, and information was shared about Asperger’s, T1191. The mother expressed concerns about her performing to her best ability, completing homework, doing tests and quizzes, interacting with other students and what other her teachers were noticing, T1192. Witness was quizzed regarding manifestations of Asperger’s which includes disorganization; student would go off task requiring the student to be redirected and to focus on the topic at hand. Regarding observations of the student’s social interactions, T1193, the witness indicated that being an 8th grade teacher she was in tune to what was inappropriate in conversations between students, T1194. The witness was pleasantly surprised that the other students were very mature and respectful toward the student and does not recall any problems brought to her attention that those students were being mean because she would have addressed it, T1194. She is proactive, informing the students what her expectations are and most students tend to follow them, T1195. The witness reviewed P-M1, regarding a day long workshop for selected students at the Q Hotel which was considered an enrichment activity, T1196. There were students from different districts, approximately 40-50, sat at long tables approximately 10 each, T1197. The student would raise hands and sometimes discuss topics she did well in morning, T1198. At lunch, which was in a large ballroom setting, the student t sat with other students from the district. Another student who the student had difficulties with made inappropriate comments and the teacher separated them into 2 groups,

T1199. There were groups of 10 and classroom teachers acted as facilitators. Regarding a geometry topic, the student did not want to listen to other student’s ideas, T1203. She became teary eyed and removed herself from the group and paced. She was asked to rejoin the group,

T1202. In the classroom, the student would become frustrated about grades and 4-5 times went to see SS, the counselor. She was unsure as to the cause of the frustration.

They were accepting of the student and they were very good class of 16-18 students and it was not unexpected knowing how the student could be vocal about her ideas, T1203. It was not new and that was why the witness made sure that she attended the field trip session, T1204. The witness was quizzed regarding her familiarity of Asperger’s which primarily in college was although there were some in-services provided by prior CSE chair, T1206. The witness reviewed

P-P1, page 2, e-mail there were some missed assignments because some came in late but she gave the student more leeway, T1213, due to the student’s disability acknowledging that she was in 8th grade taking a high school level course but there were firm guidelines and the policy was discussed at the beginning of the school year. The witness also reviewed PA P1, the team letter discussing a late and missing assignment policy which is a different policy that was in effect at the beginning of the school year plus she still gave the student leeway for time. The witness reviewed Y1, the notebook check list, T1214, which is done periodically during the course of the year but was graded in May. The concept was that the assignments should be organized to assist in the studying. The student received 4 out of 5 receiving 100 points which is treated as a test score, T1127. In the 504 meeting P-B2, the witness participated as a general education teacher,

T1218. She did not recall if there were specific incidents from the team but she would have brought those up at the meeting, T1219. She did speak with the mother regarding after school activities, sitting and spinning at home, topic of bullying, although it was discussed at the 504 team meetings, there were no specific incidences observed by the team members. There was one difficulty with another student which she became aware of based upon the team meeting, T1221.

The student would go to the nurse and the witness would allow her to when the student asked,

T1222. She would appear to go in cycles, a couple days in a row, then stopped, T1222. The witness reviewed SD29 page 1, the progress report accelerated in 8th grade Math, the witness did prompt the student to stay on task because the student loved to read and write; she would have to put those things away and return to Math.

On cross examination by the school district counsel, the student scored an 89% in regents was above the 85% mastery level. The student scored 4, the highest level in NYS assessment.

There were some social issues that were being handled by the counselor SS but she observed the student red eyed weekly but after the student settled into the higher expectations of the 8th grade, she seemed to settle down and it occurred less and less. Seldom as the year progressed, it appeared to be related to academic frustration, not being able to find homework or unhappy with a grade. She came into the class 3 or 4 times upset after speaking with the counselor SS.

Frustration in the classroom came from being disorganized and the new expectations which is a difficult transition for all kids, but she was given leeway, T1231. The acceptance of the accelerated Math program is based upon recommendation of the teachers and s based upon the student’s performance on a specific test. Regarding the homework letter, the student rarely if at all stayed after school would make up work in study hall, T1231. The student volunteered to attend the workshop, T1232. The students were mixed at the tables but most sat with their own school students, T1233.The afternoon session the student was with Lake George students and the student became frustrated but removed herself from the situation to calm herself T1236. At the team meetings strategies to help were discussed with the mother. The student would often go off task and be required to re-focus, T1235. Regarding P-F1 page 3, the witness tended to modify the groups and allowed the student to work alone, T1236 if she wished. It was an option that she sometimes took advantage of. An issue of homework was to practice what they learned, to stay on pace since they were covering 3 years of curriculum in 2 school years. The witness reviewed that the purpose of homework was to practice and assess understanding, T1247.

The next witness was the school nurse, PS. She has been with the district for 10 years,

T1251. Her duties include triage of injuries, sports physicals, and mandated exams, T1251. She is licensed by NYS as an RN with 30 years experience, T1252. She was not involved with the student directly and did not recall how frequently the student reported to the school nurse office.

The witness reviewed the student school attendance record SD-47 which is maintained by the school attendance clerk, T1256 and the student’s accumulative health record that include gym notes, physicians notes, immunology, parent contact and demographic information. If the student was excused from school by the nurse, T1256, she would call the parent to determine who would pick up the student, T1260. The student then signs herself out with the attendance clerk or if the student demands to go home, she would call the parents who would determine whether they would pick up the student. Information for maintaining the cumulative health records was provided by a state education website, T1270. On cross examination, the witness reviewed

SD48, prescriptions that were in the student’s file that related to dietary issues, T1278, the student had stomach aches. It was a separate log book which was not kept in the student’s cumulative health records but records who enters the health office.

Mother testified that the family moved, T1319, from Vermont to the LG school district for the student’s kindergarten year, T1322, after sensing that the student was different. LG was selected because of the impression that LG was not a standard operated school. The student, at an early age was not typical, T1324. She had exceptional language, deficits in mobility, easily frustrated sensory overloads, processing information, T1325. There was no diagnosis but the mother thought that the student was different, T1325, based upon the parents O.T. background which included pre-med classes, anatomy, physiology and others. She sought a school program that provided flexibility, academic challenges with support to the student. In elementary school, the grades are clustered or looped so the moving year was difficult, T1328. The student had meltdowns for various reasons, would cry, the kids would call her crybaby, poke and throw things at her, T1329. As school progressed, the student had a hard time transitioning between grades, T 1330. The structure of the school’s 1-2 are the same, 3-4 are the same and 5-6 are the same but transition between the clusters was difficult. Anything new would be hard when the student could not predict. The student was developmentally delayed. In motor skills, T1322, she would internalize problems more and the mother knew that they called the student crybaby,

T1322 because the student said she heard these things at school and at birthday parties outside of school. As the student progressed to 6th grade, these issues became more internalized. Physically, the student was having anxiety and mood issues, T1331. The student was better in class with peers. The student worked with AM, the social worker, in the 1st and 2nd grade because she was stressed out at school, T1331. The student was evaluated by TF, T1332, the school behaviorist. The school consult met with AM observed the student, provided impressions and recommendations for 7th grade, T1334. The witness reviewed P-A page 1, the student was screened at GF Hospital for OT, T133, is aware of the sensory over loads, PG2 TF gave feedback to AM a classroom teacher. TF did not make any written recommendations, T1335 but

AM referred to what TF had told her but there were no reports in the student’s academic file. The witness next reviewed P-B, a psychiatric report from the fall of 2005 from Dr. D, a private evaluation. . The witness next reviewed P-H IST meeting of October 26, 2006 which recommended the student going to the O.T. room which had a calming effect, T1337. The student was not provided a 504 plan until 6th grade which provides support and assistance. The witness reviewed P-I, the 504 referral to Dr. Z for psychiatric neuropsychological evaluation, T1140 and consent to evaluate, T1341 P-J invitations to the 504 meeting for the November 29, 2006 eligibility meeting. The witness also reviewed P-K, a social history which provided the child’s characteristics, T1342. The witness next reviewed P-N, the recommendation of the 504 committee to provide a 504 plan and the minutes of the 504 meeting which involved evaluation by KP, T1346. School psychologist did the behavioral screening. His report is P-C which was done on October 18, 2005. The witness next reviewed P-M, the draft 504 plan from the November 29, 2006 meeting and P-N, which was a cover letter attaching the 504 plan for the meeting of November 29, 2006 which provided tutoring, T1349, which the mother was not aware of, breaks for sensory input in a special location which allowed the student to exercise wall lean engaging in larger muscles to de-stress, T1350. The witness next reviewed P-R page 3, which was a transitional Level 1 assessment and the witness did not know who Lisa B. was. The witness testified that the parents were never asked to complete the parent interview nor were they interviewed and had no knowledge of the teacher interview portion, T1354.

The mother reviewed P-S1 self-made notes reflecting bullying incidents reported to mother by the student occurring on February 6th, 2008 and February 5th, 2008. The mother related history that B, the primary bully, physically attacked the student’s girlfriend, T1364and threatened to physically attack the student and others throwing them into lockers and cornering them, T1366. The difference between teasing and bullying is that bullying is ongoing repetitive and the goal is to harm, T1367, belittle, put down. After the physical incident the student was afraid of being beat up and these things can cause emotional harm and one incident can be bullying. The mother indicated the ongoing incidents of bullying; intentional infliction of emotional harm is all collected in the student’s mind, T1368. There was another locker incident in which bully B threw a fist at the student stopping inches from her face and student was reported to the principal and the PE teacher, T1369. The PE teacher did not go in the locker room because she was providing the girls with privacy but it was agreed that she would keep an eye on the situation, T1370. The student reported the incident to the principal and he said he would look into it, T1378 and he informed the mother that he did and the mother gave the notes to the principal. The witness next reviewed PU, T1372, a letter to the student’s case manager in 7th grade from the parents enrolled the student in private Tae Kwon Do classes. The requirement was a letter from the school that the student was in good standing and was a good citizen. The mother stated the reason for enrolling the student in Tae Kwon Do lessons was for physical exercise, building self-confidence; the student felt powerless and was not attempting to defend herself, T1374. The mother indicated that the student was not able to de-escalate herself or identify her emotions accurately and she would cower. SE’s plan was to identify feelings, triggers for melt-downs and frustrations. Also in P-U-page 1, a letter to JL which was an attempt by the mother to understand the CSE evaluation process and development of an educational plan.

Page 2-was an e-mail was trying to implement a talented program for disabled children, T1377.

The mother next reviewed P-V, a letter to NL requesting a re-assessment of the student’s 504 plan and formally requesting a formal reassessment, consultation with the behavioral expert, additional testing evaluations, regular re-evaluations of the effectiveness and changes in the plan,

T1383. As a result the student was referred to the CSE. The mother reviewed P-W, the letter invitation to the CSE meeting and she did not understand the process or if there was going to be additional testing, T1388. Also, the letter contained consent for an evaluation, guide to Special Education and procedural safeguards notice. The mother also reviewed P-Y, page 2 which was an invitation to the annual program review inviting the mother to the CSE meeting even though at the time the student only had a 504. The mother indicated that there was constant confusion between the 504 and the CSE in the school’s district paperwork. The mother reviewed P-Y page 4, the draft of the CSE report and also P-Y page 11, the CSE’s recommendation of June 9th,

2008, the student was not eligible for Special Education services. The mother reviewed the comments from SC, SN and GL as to the supports for the student’s organizational difficulty because the student has difficulty filtering out external stimuli, T1389, for example, noise. In 8th grade there was a problem in French class with a flickering fluorescent light which was subsequently fixed at the mother’s request T1390. The test accommodation for separate location for Math, the mother felt that the change in routine could be a cause for embarrassment and the student would be uncomfortable because she doesn’t want to be singled out, T1391. The mother informed that because of Asperger’s, the student gets caught in a moment and cannot identify what is going on around her, T1391, she should calm down and it could take several days to process this information, T1393. The student was uncomfortable about being the center of attention, T1392. There was a gray line between the mother stepping in and helping or letting things progress without interfering, T1393. The mother felt that too much intervention on her part could be detrimental to the relationship that she had with the student and she thought it was important that they maintain good lines of communication because of the student’s Asperger’s and inflexibility of thought, T1394. This was especially in 6th, 7th and 8th grade, when the mother would be careful how to word things, T1397. The student would not become defiant or belligerent but she would shut down, T1392. Timing was always important when giving the student instructions because she would get stuck on a certain thought and could not be interrupted easily, T1396. This relates to the executive function deficits, the way the brain processes certain things, T1399. The witness believed that people in the school did not understand the student’s deficits or Asperger’s Syndrome, T1399. She wanted the school personnel to know better how the student’s disability impacted upon school organizational skills, anxiety, T1400 and concerns about bullying. The mother testified that she never really was informed why the student was not eligible for classification, T1401 by the CSE other than that her grades were too high and does not recall discussing either autism or OHI classifications,

T1401. The witness next reviewed P-Z, which was the student’s 504 plan from the June 20, 2008 meeting, which was a program reviewed for the upcoming 8th grade, T1402. The 504 plan continued counseling 1:1, one time for a 4 day cycle, 30 minutes and group 1:1 for a 4 day cycle for 30 minutes. The mother reported that the student was frequently missing counseling in 7th grade, T1404. Also, there was a notation that the student needs sensory release for anxiety,

T1406. However, the location provided was the student’s health office and did not accomplish the same thing as a physical activity to address the anxiety because the student would just sit there and do more thinking, T1406. Also, there were no updates or further O.T. evaluation.

Regarding organizational skills, it was acknowledged that the color coded binders did not work.

SN tried other organizational strategies that did not work, T1408. They tried several different things with not much success at all, T1409. The sensory break was at the school nurse office however, a change in schedule could lead to a meltdown based upon the student’s accumulation of stress built throughout the day, T1410. The priority locker was not provided to cope with the

Asperger’s Syndrome related time management difficulties, T1411. The student becomes anxious if not enough time to get to her next class. The locker visit at lunch did not happen often,

T1412. The mother does not recall SC’s report being discussed nor Dr. Z’s, T1413. In 8th grade, the mother attended team meetings in March and April 2009 to see how things were going because the student was not making many gains, T1415. The student wanted to leave school the last half or quarter of the year because the student could not handle school anymore and there were several concerns regarding bullying, T1418. There was some in 7th grade but was not as intense in 8th grade. The student was constantly on alert to see if someone was coming at her.

She was mentally prepared. She was taking meds for anxiety but still the anxiety was affecting her. She brought these concerns up to the 8th grade team and NL. The mother noticed that the student was cutting at that point, T1420. She would remove the eraser from her pencil and drill her pencil into her leg. It was consistent in the past when picking her scabs on her forehead,

T1421. This was her method of dealing with the ongoing stress. The school addressed the issues by teaching strategies for identifying stress, self-talk, T1427. Some techniques were working.

SC continued to teach strategies to the student, T1425, elementary grades; positive talk.

Sometimes it worked; sometimes depending upon the severity of the incident she would not meltdown, T1422. She was crying at home, especially in February of 2008. In 8th grade, SS was providing counseling. Being new to the district and the school and the student, SS indicated he needed time to get a feeling for the student, T1423. She would continue to sit and spin, T1424, the organizational skills became worse because there was no resource room, T1424. SS did not have time because he was new to the school, T1424. The student would sit and spin sometimes, but the physical exercise and neurological benefits creating stress management and relaxation,

T1425. The student would continue to sit and spin which was related to school stress. On less stressful days, she would wait before sitting and spinning, T1425. There was another CSE in 8th grade; there were the 504 annual reviews in May, 2009. The mother reviewed P-D1, the invitation to the annual review referencing the CSE, for example, confusion of the district’s paperwork between 504 and CSE, T1428. The Child Study team indicated that the student was not eligible for Special Education services, T1430. The mother reviewed E-1, addendum to the 504 plan removing special location for Math examinations, T1430. The witness reviewed, P- F1, e-mail to the 8th grade informing them the student was seeing a psychiatrist Dr. D for medication management, T1431. The witness reviewed P-F1, page 3, an e-mail from VG. The mother felt the same concerns, her fears were reinforced when the teacher indicated that the student’s organizational deficits could impact education in higher grades either high school and/or college,

T1433. The mother expressed concerns to the 8th grade team that Math class was after lunch and that the student would be rambunctious and needed additional time to focus. That was the reason that it was suggested 30 seconds of time with lights out which would have physiological benefits of reducing external stimuli, T1435. She felt this would assist all students in transitioning from lunch to Math class. The student continued to have red eyes in the beginning of the school year although this report was never reported to the mother by the teachers, T1437. The student had a hard time accepting that she was wrong and she had a difficult time accepting information outside her set ideas. She had very little flexibility processing information. The mother reviewed

P-F1, page 2, an e-mail report from the French teacher. The student seemed stressed at the end of the day when the class was held, T1439. The mother reviewed P-P1, the homework letter from the 8th grade team. The mother was concerned whether this policy would apply to the student and she did not get a response and she noted that the team indicated that they provide flexibility to the student by providing 50% of the grade. The mother felt that the lack of insight by district personnel of the student’s deficits made it hard to be fair. The mother worked hard to get the student on a more level playing field. She could participate and not get penalized, T1441. There was nothing said that the late or missing homework assignment rule would not apply to EB. It was not defiance but deficits in organizational skills and the student does not have the proper assistance to enable her to move forward and gain mastery at any level of managing her homework assignments, T1441. Her concerns were more about school than grades. She always wanted to be a better parent, T1442 but could not always understand what was going on with the student, T1443. The mother was not babying the student and was cautious not to overload the student so she wouldn’t shut down, T1443. The mother also reviewed P-G1, a letter to NL from the mother, informed her that the 504 plan was not working and critical of the failure to seek out what else they can attempt because the student continued to have problems, T1445. She was concerned about the appropriateness and effectiveness of the strategies used year after year with little progress which prompted the parent to provide to the district with P-G1 page 3, information that she obtained online dealing with Asperger’s Syndrome. The mother next reviewed P-H1 e- mails back to and from Ms. H P-I1, e-mails to SM and the mother and teacher did not want to push the student to stay after school for fear of over-stressing her, T1450. She was fed up by the end of the school day, T1451. It was too stressful and she did not want to stay after to get caught up. With all her deficits, the student does not realize how long things take to get accomplished and it can be overwhelming, T1452. When the student does her homework, she lies on her stomach in the living room and she has stuff all over the floor including the dog and she does not want to use a desk, T1453. The student does not use a locker so it was difficult to know what was important, T1455. Time management was very difficult for her and stressful since there is only 3 minutes in between classes, T1456. She found it overwhelming and that is the reason that the mother felt that the student needed assistance in organizational skills to be accomplished through counseling to address the executive function deficits the student has, T1450. The witness discussed P-K1, e-mail with SS dealing with the negative impact from student K being in the student guide room. SS said he felt the student handled the situation very well but the mother felt it placed extra stressors on EB to help the needy student, T1460. There was also the issue of the field trip at Q Hotel, an accelerated math enrichment program. The student appeared to handle it well by leaving the table. The witness also reviewed P-M1 regarding the Math field trip. The witness also reviewed P-O1, T1465 regarding communications with the Physical Education teacher specifically regarding make up classes for the student when she was absent or left school early, T1466. The student found it very stressful to do it after school where there were older girls who intimidated her, T1467. The accommodation was that the student would make up classes in the cardio room. Pages 3 and 4 dealt with making up homework assignments, T1466 and the mother acknowledges that the student did not do much homework over spring break. The witness also reviewed P-R1, an e-mail to NL seeking the report that states the student is ineligible to receive CSE services, T1474. The witness also reviewed P-S1 regarding meetings and P-T1,

T1475, which was a self-prepared note by the mother dealing with certain issues because the mother was not sure if the teachers understood the absences are stress related, T1479 or because the student was afraid to go to school T1479even though the bullying was not as intense in severity as it was in 7th grade, T1480. The bus had been a continuing problem because the student felt afraid or unsafe over the years. There was a threat of physical contact to be beat up after school by bully B, T1481. This was reported to the staff. The student went to Dr. D who indicated that the student was emotionally fragile; T1481 and the mother wanted a meeting with the Board of Education to deal with her educational experiences at the district, T1482. The witness also reviewed P-U1 a hardcopy of an e-mail that was made at home on the computer,

T1483. The witness also reviewed P-D1with-mail to NL requesting basis for the determination that the student was ineligible for CSE services. The witness reviewed P-V1, an e-mail exchange with NL in which NL stated according to the mother that there is nothing more that can be added to the student’s 504 to assist her with homework issues. The mother discussed the homework check list which the student did not understand and the mother did not understand, T1487. It appeared to be a general check list for homework and not individualized for the student and/or her disability. The stress increased however and the student began missing classes, T1488. She still sought a solution for the backpack. The mother reviewed P-Y1 page 2, an e-mail response from the mother from VG acknowledging that she does give reminders, T1493 and checking in if they have been absent and making sure work is turned in. The mother also reviewed P-A2,

T1494, which was a list of topics prepared by the mother to be discussed with the superintendent and as far as she recalled she did discuss every item listed. The superintendent could see that the mother was frustrated, T1445, and did not disagree with the view that the school is like an assembly line producing students and it was difficult providing services for a student who was like a round peg in a square hole, T1485, and the district failed to provide proper allowances for an individual such as the student. The mother seeks to have a level playing field between her student and other students based upon the services and accommodations and modifications provided by the 504 plan. The mother sought a level playing field so the student could “equally access educational opportunities in the school.” T1499. The mother acknowledged that there have been small gains but not significant enough to deal with the student’s deficits or to be on a level on pace with the other students. She indicated that the student had suicidal ideations. The following year was not any easier. The student was not emotionally or physically safe because of the impact of the Asperger’s. The mother opined that the former CSE chair NL could not make decisions because she does not understand Asperger’s and she seeks equal access and equal opportunity at school for her daughter, T1499. The mother also reviewed P-B2, page1, 504 sign in sheet for the May 27, 2009 annual review, T1504, as well as page 3, the procedural 504 Safe guards notice and page 4, the CSE annual review of the May 27, 2009, which erroneously listed the student as present, T1505. The mother reviewed the recommendation that the student be provided a TA to help with assistance for organizing to begin the school day. She thought the recommendation was incredulous, T1506, and that the best way to organize would be to remind her at the time of the occurrence. The student’s skills are below peers and she needs to be treated at levels she is at, T1507.The district needs to understand that there is a lack of insight as to what is going on in an Asperger’s’ child, T1508. Staying after class makes no practical sense. The mother was frustrated. She has spoken to the school about an appropriate plan to access all the student’s educational needs at school, T1510, and to get the classroom teacher more involved consistently. The mother reviewed P-B2, page 6, T1513, the consent, the mother believed she was consenting to the 504 meeting and she did not consent to the recommendations contained on page 7, P-B2 7-10. The mother has stated that she believed she received the 504 plan sometime in July and the recommendation, T1515. The mother was disgusted with the proposal of the TA and she also asked about more follow-ups, T1516, the district as a group and did not know why things were not working. The group counseling could work if done right, but it was not because

SS did not know enough about kids with Asperger’s, T1518. The mother indicated that it was clear that the student’s needs were not being met. She investigated to see if the student would benefit from other public schools, T1520. The other public schools did not have enough to offer.

The mother was seeking a smaller school without cliques and bullies, looking at private school schools but they did not seem a good fit, T1521. The TAS provided a small school pace set to the student’s levels, academic events must be closely supervised, positive constructive there was no more resentment, and a different approach to students, T1522. The mother was not concerned that the student would not get a Regents diploma from the TAS school because they administered a national admissions test. The mother even thought about home schooling. The mother also reviewed P-C2, a request that the student’s records be forwarded to TA school, T1525, as well as P-D2, an e-mail letter. The mother wanted the others to know the problems so that they can correct the situation. The mother next reviewed P-E2, a letter to the superintendent informing the superintendent that they will be removing the student from the school, T1527, and that they will be seeking reimbursement. The mother also reviewed P-F2, a letter from the student’s pediatrician supporting the mother on her decision to change schools and seeking transportation, T1530. The witness also reviewed P-G2, T1537, a letter to the district seeking information about changing placement and P-M2 procedural safe guards’ notification, T1538.

The mother testified that AM told her to have the student evaluated by medical personnel,

T1657, while the student was in 3rd and 4th grade, T1658. She granted AM permission to talk to Dr. D, T1658. The mother talked about the student’s social and emotional issues in elementary grades. The teachers were easy to talk to. They were good, informal communications, T1659.

The mother was able to talk about the student’s stress and treatment by peers. In 7th and 8th grades, the communication was not as good, T1659. It was difficult to communicate and difficult to determine who to communicate with, T1660. The majority was with the Resource Room teacher and the 504 coordinator, who she spoke to about bullying and harassment, T1660. The

7th grade team indicated that there were issues regarding missing homework. The mother would often go back to school to drop the homework off, T1660. The mother had one meeting with SC, the school psychologist, regarding the student’s interaction with peers, T1661. The mother informed SC that the student was cutting and expressed suicidal ideations. SC told her that he did not see a problem and that is what some girls do, T1662. The mother got the sense that SC did not feel as though it was important, T1662. The mother had a lot of conversations with SS, the school Social Worker, T1663, regarding social interaction with peers and how the student perceived things. SS was a very optimistic person. There were issues concerning making improvements but school was taking a toll on the student, T1664. The student would come home completely drained, requiring a great deal of energy to get through the school day. The common denominator was how it affected the student at home, T1665. The student would come home depressed, pale, and distraught and occasionally would have a bad day, T1666, and would sit and spin. The mother told the following personnel that the student was being bullied; SC, SS, FC,

RE, NL, AM, T1667 and classroom teachers. The mother was told that the student was getting a priority locker, T1668 but the student received hate mail in October and was afraid to use her locker, T1669. The mother brought this up to the Assistant Principal. The mother felt that it was very difficult for the student to get to class with the three minutes allotted, T1670. Transitions were a difficult time for the student, and the student had become more anxious. The response at the 504 meeting was to get the student a priority locker, T1672. Regarding the anti-bullying committee and the speech the student gave to the Board of Education indicated that she was bullied in 7th grade and was not as bad in 8th grade but some of her friends were still being bullied. There was no feedback to the oral presentation given by the mother to the board and/or the handouts to the board but the mother was approached after the meeting and was provided apologies by some members of the board. The written summary was admitted as P-H2, T1682.

The witness reviewed I-2, the e-mail trail, which the mother had not responded to but had agreed to release records, T1686. The witness reviewed K-2, T1687, the mother was not sure if Dr. D’s report was sent to school. The mother indicated in P-L2 that she was saddened, T1689, that the student was leaving because of acknowledgment of a lost potential for education at the public school level, T1890. The witness reviewed Q-2, T1695, T-2, T1701, S-2, V-2, and T1704 and there was a September 8th, 2009 meeting with the Board of Education which was a final goodbye. The witness reviewed SD-36, a letter to TAS regarding a failure to provide documents, T1704. The witness also reviewed P-X2 pg1, T1711; there were recurring errors by the district interchanging 504 and CSE under correspondence. The witness reviewed F-3, T1714, H-3,

T1717, Q-3, T1718, which was a due process hearing request. The witness also reviewed F-3 pg

3, a draft of the 504 as discussed at the meeting at the mother’s request for review and WM from

TS participated by phone. The witness also reviewed X3 pg 3, doctor’s letters supporting the parent’s position, T1711. The witness also reviewed Y-3 pg 6 of 504, a procedural safeguard,

T1731. The witness also reviewed G-4, for a request for reevaluation of the student by the district to determine needs and continuing eligibility. The witness reviewed C-4, a question from

TAS, which is part of the application process, particularly pages 2 and 5, T1737.

On cross-examination, it was revealed that the witness performed a record review in 2010, which occurred on two occasions, T1739. On one occasion, FC, the Principal, assisted.

The first time the student was already at TAS, T1739. The student was not developing as similar peers. When the student was young, she went to the pediatrician who would keep an eye on things but no testing, T1739. The student got through elementary education and the primary grades, which are, clustered 1, 2, 3 or 4. The student was on anti-anxiety medications since elementary school which was approximately 2004, T1741. Initially based upon the pediatrician then by Dr. D, who started monitoring the student’s medications in 2005, T1743. The student is still on anti-anxiety/ depression medications. AM has been working with the student since early elementary, T1744. The witness does not have a report from Dr. D, T1743 even though the student has continued to see him since 2005 every 6 weeks to 2 months depending on the student’s condition. During the fall of 2006, the CSE eligibility meeting, and the spring 2007 504 meeting, no IEP’s were recommended. The mother provided Dr. Z’s report to the district, which was in September, 2006, T1747. Testing done in August and the witness obtained the same on September 13th 2006 at an informational session with the doctor. P-I was the rehearsal to the 504 in November of 2006, T1749. The mother agreed with the 504 recommendations. KP did a behavioral screening. The witness reviewed P-C, the October 18th, 2005 504 plan indicating difficulties in the elementary education grades with distractibility, organization deficits which were also demonstrated at home and continued at home through 6th and 7th grade, T1750.

Distractibility increases with focus on one item over a broader period of time. Organizational problems still were at home, T1751. The student was caring towards friends even though reported there were problems with interaction and social difficulties, T1752. The student had a problem, as evidenced by P-R pg 3, T1753. The 1st time the witness saw this was at the record review. FC requested a list. The mother would help the student several times clean out the backpack, T1757. The incident in Gym occurred approximately in November 2007, T1755. The witness responded immediately by informing the district of the incident of the punch throwing but does not remember specifically when it occurred, T1758. The student commenced Tae Kwon

Do, T1760 as a sensory release, discipline, and stress release and to foster the student’s belief that she could defend herself. The mother asked for a reevaluation and a referral to CSE, T1761.

AM was the initial contact in elementary school. In 7th and 8th grade, the student was in accelerated classes, T1762. The witness does not recall in 6th grade, at the 504, there was a copy of the procedural due process. In April 2008, there was consent to evaluate while the student was in 7th grade, T1763. The student would show up at SCs, indicating that she was stressed, does not remember how many times she would appear. The student had difficulty with distractibility, re-organization. The witness reviewed P-V, a letter to NL describing the student’s struggles, T1765.

The mother waited until April because she was hoping for a miracle and that something would click to deal with the end of school stressors, T1766. The pediatrician, psychiatrist the student was feeling the pain of others. The witness reviewed P-K pg 3. The witness would raise questions but not challenge authority, T1767.

The witness would approach the student at appropriate times, pre-warn her, because once she is engrossed in a topic you cannot tell her to stop and she stops immediately, T1768. The

June 2008 CSE meeting session the witness claimed that the CSE did not consider the initial reports by Dr. Z, T1769. The witness did not raise objections but student did not have meeting with SC as often as scheduled. She did not push the issue. In 8th grade, the student would go to the nurse when stressed, T1770. Regarding organizational issues, the witness could not push the student to much. The mother would break things down, can’t say “Clean room.” would have to say “Pick up clothes.” T1770. Otherwise, she would be overwhelmed, T1771. The witness did not observe the student in the classroom. The e-mails dealt with March to April of 2009. Witness was concerned that the student’s peers were using her but the student would say they were the only ones who would hang out with her, T1773.

On continuing cross, the witness told SC about the suicide attempt right after she learned about it after she was able to schedule an appointment to see him, T1782. She did not immediately contact the pediatrician or Dr. D but told them later on. There were no outside counselors initiated, T1783. The witness was questioned regarding cutting. She was surprised that Dr. D, T1784, the expert witness said that the student was still cutting as she had not seen it, was not looking for it and does not ask about it. There were no specific evaluations done with regular visits, T1785. There was an increase in the frequency of visits to Dr. D because he was changing her medications, T1786. Witness was not aware that the student would leave her backpack with SS. The witness was questioned regarding sit and spin and whether it was a routine. The witness indicated that there was a correlation between stress and spinning and the student does it every day. There was an increase in frequency, winter of 7th grade into the spring,

T1786 because the student was emotionally fragile. The student continued to be distractible. The witness never asked for a homework modification, T1787. The witness was questioned regarding the 504 plan regarding the tuition reimbursement. There was no specific reference to organizational difficulties, T1787. The witness did not recall whether the 10th period in 7th and 8th grade was a free period, T1788. At home, the mother would attempt to assist the student in organization and her backpack and would warn her ahead and tell her it would take 2 minutes to organize it, T1789. The mother periodically approached her about the status of her backpack but there were so many other life issues going on that it was not a high priority, T1789. She was not worried about the details, T1789, but would try when mood was right, T1789. The mother did not request any further accommodations through the 504 committee regarding the backpack, nor in 8th grade, T1790. The mother did approach the 504 committee regarding the student’s missing assignments, T1790. The witness was quizzed regarding the CSE eligibility meeting. She was looking for an answer as to the basis for the termination not necessarily a report, T1792. The witness reviewed S-D 48, Dr. B, the pediatrician’s note script regarding the student’s stomachaches, T1792. The student would periodically complain of stomachaches, headaches, and sore throats, T1792. There were no other documents or notes supporting the belief that these related to stress or anxiety, T1795. When the student was indicating that she was afraid to go school, the mother did not contact the 504 to make the accommodations to get over the fears,

T1795. The student was in band and went on several field trips, T1796. TAS does not have a band. She went on one prolonged field trip but the father was a chaperone. She disagreed with the 504 recommendations from the May 27th, 2009 meeting. She disagreed with the recommendation but did not verbalize it or follow it up with a written disagreement, T1798. She had not yet started the application process at TAS. The witness reviewed P-C 2, a request for records that is dated May 29th, 2009, T1799. Dr. B the pediatrician never observed the student or review district documents, T1802. She was exploring her options and did not want to leave the school but she did contact TAS before May 27th, 2009. The witness reviewed P-F2 which she gave to FC but did not share with the district initially but did eventually, T1800. She did not agree with the observations and there was a letter from Dr B, the student’s pediatrician, which indicated that the student was suffering from some somatic symptoms and school avoidance. The witness next reviewed P-W, which was an invitation to the May 27th, 2009 annual review,

T1802, which resulted in a draft, 504 plan, which the witness did not object to and did not ask for a sensory evaluation or any further evaluations from Dr. Z, T1804. The witness next reviewed the June 2008 504 plan. The mother suggested strategies to deal with organizational difficulties.

SN and LD were working on the issues. Nothing new was added, T1805. The witness felt that the committee was not interested in her opinion but the mother did not object to the 504 plan and did not voice an objection during the 504 meeting or otherwise, T1805. The student did receive hate mail, which was reported to the interim principal which occurred in the 7th grade on or about

October. The witness next reviewed P-P1, the 8th grade teacher’s letter regarding homework assignments, T1806. The witness did not request a modification to the 504 team. The witness next reviewed P-G1, which was a letter to NL and the witness was aware that SN was working with other kids but believed that she was only keeping an eye on the student and not giving her direct services, T1807. At TAS there were 22 absences but the witness indicated that 10 of those were when they were on vacation, T1809. There was a field trip that the father took with band and chaperoned same. There were no complaints of problems, T1810. The witness next reviewed

P-V1, an e-mail trail from the mother to NL and the student was continuing to have time management issues in 8th grade which was not problematic for test and quizzes because the student was able to finish same, T1811. The backpack did cause physical problems, T1811.

There was a report indicating scoliosis, which the mother verbally informed the district. The

TAS does accommodate parents wishing to have the students take Regents exam provided by the district, T1812.

The witness indicated that the student was first accepted at TAS at the end of June, 2009 and she believed that the district had limited insight as to the student’s disabilities, insight into the consequences, T1813. There were team meetings from the 7th and 8th grade. It was a difficult time with the lockers and the 3 minutes and it was unsure how this could be accommodated,

T1814. The witness also reviewed P-H2, a 7th grade verbal report given to the Board of Education on June 9th, 2009, T1816. The witness also reviewed K-2, a report from Dr. D from

FWood that was provided to the district and that she gave to the 504 committee in June of 2011,

T1816, but the report was dated June 10th, 2009. The witness had admitted that Dr. D never observed the student in class or never had spoken to the district staff and did not review any educational records, T1817. The witness next reviewed S-2, a letter to the mother indicating that if she had any concerns of program placement to bring them up at the 504 plan meeting, T1818, which she did not do. Observations did not get placed because we were in the middle of the hearing process. The witness also reviewed SD-35, T1819, an e-mail from NL, even though the mother indicated that she was unaware that the district was in communication with TAS though

SD-36 indicated communications e-mail 2 days later, T1820. The witness admitted that she taped the CSE 504 meeting which occurred as evidenced by SD-38, T1822. The witness also reviewed

P-X2 pg2 which was incomplete. The witness did not file due process hearing request, challenging the 504 committee recommendations from May 10th, 2010 504 plan, T1824. The witness also reviewed H-3, e-mail dated 10/13/2011 the mother received sent to herself from PD.

There was a 504 meeting November 2nd, 2011 and one of the purposes of the meeting was to discuss the 504 plan placing the student at TAS, T1828. There were no observations or evaluations based upon the mother’s concern as to the stress that a small school setting such as

TAS would cause the student, T1828. The witness also reviewed G-4 pg3 but the mother consented to the 504 plan, T1833, observations that CS the mother withdrew the consent for the evaluation, T1831. Also, the witness reviewed C-4 pg2, which indicated that the student relates better to adults than students and that the student felt herself as a mediator and it was not a serious concern in terms of her social interactions, T1831, indicating that she was getting things in order for the Hearing, T1821, but she had no intention of returning the student to the District,

T1826.

This is the re-direct of the mother- The mother was not sure what Dr. D called his report or process, whether it was an evaluation or an assessment, T1839. The 504 plan was based on Dr. Z’s report, who did not do classroom observation nor were there any follow-ups, T1839. The witness asked to see the content of the report from SC which was reviewed by the CSE. She had a copy later but no one would read the report with her, T1840. The student was a member of the

Anime club, which was labeled by the student as the “un-pop group”, T1841. The student’s friends said that she had to belong or she couldn’t be friends anymore. The 504 meetings, she did not ask about homework accommodations though she did bring up the issue during the school year, T1842. At the time of the annual review she felt that she should trust those that she told to take the information and use it. At the time of the meeting, there were no improvements and she felt there was no sense of bringing things up at the meeting, T1843. The content did not change the accommodations and modifications such as the binder details were not in the 504 plan and they gave no consideration to her thoughts, T1843. No one explained to her the difference between the 504 IDEA, T1844, and on the re-cross, she gave consent to talk to Dr. D and signed a release at Dr. D’s office, made AM aware that the release was signed but there was no follow up session, T1845. At the 2006 annual review of the 504, there was no follow up. She did not bring Dr. Z to the meeting, updated reports or observations. She did not bring up at the 504 meeting the question of the 504 counseling.

The parent rested and the district called FC, the High School principal as the rebuttal witness, indicated that PS was not in the student’s file, T1848, he did not get a list of incidents from the mother at the meeting at the end of the 7th grade, T1848, when certain information that was a surprise to him regarding events that impacted the student, T1849. He was upset that the information was not conveyed to him, T1849. Gym class is not scheduled back to back days,

T1849. He discussed with RE in 7th grade, the fact that the student was struggling with organization, T1850. The protocol was to involve the Guidance Counselor of the situation to help the student with the backpack and organizational skills, T1851. RE was to develop a plan such as a priority locker, locker checks, to cut down on the backpack and trips to the locker and help with organization, T1851. He was not aware of the incident with the other student who threw a punch at the student until the end of the school meeting, T1852. If he does not know about the situation, than he cannot fix it, T1854. He felt that it was the parent’s obligation to communicate with the school otherwise, it is impossible to handle the situation, T1854. The June meeting, since it was late in the school year, he felt that there was little that could be done. In 7th and 8th grade, there was communication about the organizational skill deficits but very little information regarding the negative social impacts of the student when with others. These were the mothers concerns and if he was aware of those concerns, he would have dealt with it. The team philosophy of the school is to ensure the social and emotional well-being of students which is a high priority, which is a district-wide, building-wide philosophy and not necessarily included in the 504 plan, T1855.

The witness was quizzed regarding personal notes, communications, overall in particular with the student’s mother. He was not aware of the bus incident, T1873. The students were throwing things at the student herein and he was not aware that the student was cornered in gym class, T1870.

The district closed and the parents closed and there was then subsequently a lengthy discussion and request by the parents to reopen the case to admit certain documents, T1877-

T1896. The request was granted to allow the parent to enter documents that were objected by the district because they were incomplete, T1896 and subsequently admitted as to partial exhibits P-

A4, P-B4. The district then introduced 51, 52, 53, 54 exhibits which included references to the student’s code of conduct, T1913. FC went through SD-50, which is the Student Handbook in effect 2007 and 2008. Exhibits SD52, 53 were described as a partial quick reference. On cross examination, the witness acknowledged that he did not discuss these handbooks with the mother,

T1848.

ISSUES

DISTRICT ISSUES

The District argues that tuition reimbursement is unwarranted in this matter and denies the following: that the student was denied FAPE when 1.) The District failed to classify the student with a disability under IDEA; 2.) The District failed to provide adequate accommodations to her under 504; and 3.) The District failed to provide a safe environment free from peer bullying to access her education. The District argues that the tuition reimbursement is for 3 separate school years and that each year should be considered individually as the needs of a child can change from year to year.

In terms of the relevant facts, the District argues that the student became a student in the fall of 2000, beginning with kindergarten. When the student was in 2nd grade as a result of the student’s behaviors in classrooms, AM began seeing the student to handle her frustrations and meltdowns. This counseling continued through 3rd and 4th grade. The student was in the Young

Scholars group and at no point in time was the student’s learning affected by any of her deficiencies as she was performing well in school and on standardized tests. The 504 referral in the fall of 2006, the 504 committee determined that the student needed counseling and consultant teacher services to provide organizational strategies permitting the student to take frequent breaks to address her sensory issues.

In junior high, it was a transition for the student as students have more freedom and independence. The student was taught organizational strategies to prevent her from becoming overwhelmed and anxious. The student was allowed to have sensory breaks to decompress. The student did not always take advantage of organizational strategies. The student was an active participant in the social skills class but rarely spoke of her own personal struggles. There was a CSE referral in April, 2008. An evaluation by SC, the school psychologist, indicated that the student had a difficult time transitioning and that counseling should continue and she should be allowed breaks to refocus. The services were being provided under the student’s 504 plan. SC indicated that there was nothing in his evaluation that supported the determination that the student had a learning disability and that the student required interventions to address organizational skills but the student did exhibit poor social habits but was improving in both areas but none of the student’s deficits were effecting her school performance and that the student was not eligible for classification because there was no adverse effect on her education.

The student’s junior year in 8th grade, the 504 plan was reviewed on June 20th, 2008. It appeared that the student was making progress. She was taking fewer sensory breaks in the nurse’s office; she was performing well in class, did not require as much redirection and was improving socially and becoming more able to handle her stress and frustration.

In 9th grade, the District’s 504 committee determined that her 504 plan should continue.

The student was expected to obtain an Advanced Regents degree. The parents did not express any concerns of the student being placed in an advanced placement or AP course. The program for 9th grade was discussed at the annual review. The student was to receive counseling once every 4 days to address social development and organizational deficiencies. The student would be provided a TA to help implement and reinforce the organizational skills that she was taught.

She would be assigned a priority locker and be able to take breaks at her discretion. The mother was in attendance at the meeting and at no point during the student’s annual review, did the mother state that she was unhappy with the student’s program for 9th grade or informed the 504 team that she was rejecting its recommendations but then there was a letter to the superintendant indicating that she would not return and that they were seeking reimbursement.

While the student was in 10th grade, the District’s 504 committee convened to perform the student’s annual review. PD from TAS indicated that the student had done well academically but continued to struggle with social interactions. She had meltdowns on a regular basis and was absent from school for 22 days through the first 3 quarters of the school year. At TAS, the student received the accommodations that were recommended by the District. The 504 plan was to update her current needs and there was no indication that a classification was necessary under IDEA since there was no adverse effect on her education.

In high school for the 11th grade, the 504 plan was continued partly because there were no progress notes received by the District from TAS. There was a problem with counseling services where the provider wanted to be placed on payroll and the District sought to look for a replacement. The District argues that it attempted to reevaluate the student and their efforts were thwarted by the parent and TAS as was the District’s attempt to provide the parent access to the student’s educational records. At the 504 meeting in October, 2011, the 504 plan could not be updated because they did not have additional information as to the student’s current level of functioning. The District requested to observe the student at TAS and this request was not allowed.

Regarding the placement at the TAS, though TAS is not a certified school it does not employ Special Education teachers. It is strong in Arts, Drama and Music courses, it does not offer Regents diplomas and at many times she was the only student in her class and they rarely had more than 5. The student was not given tools to grow her independence but instead became completely dependent upon the teacher to organize her life and keep her on task. In addition, the student continued to have difficulties with peer interactions. Again through the 11th grade, the student’s 504 plan was continued because the 504 committee was unable to update said plan.

The District then addressed the reimbursement issues twofold; first under the IDEA and second under the 504. Under the IDEA, the District argues that the District’s program was appropriate, TAS was not appropriate, and equitable considerations do not favor reimbursement because the parents did not provide appropriate notice under IDEA. The parents unreasonably delayed, and any procedural violation by the District was de minimis. Under tuition reimbursement under 504, the District’s program was appropriate but TAS was not and there was no evidence of a denial of FAPE. Also, the District argues that the District did not discriminate against the student who was not bullied. Disability was not a factor. Educational environment was not effected and they had no actual knowledge of deliberate indifference.

PARENT ISSUES

The parent argues the following:

The District denied the student her rights to further evaluations, classifications under IDEA and an IEP and FAPE for 2009-2012.

The District denied the student further evaluations and FAPE under IDEA 504 and ADA for the 2009-2010 school year, 2010-2011 school year and 2011-2012 school year.

The District cannot deny the student benefits of FAPE without due process and the parents have rights to advocate for them. The 14th amendment protects the student’s right to FAPE and its benefits to the IDEA, 504, ADA and specific rights to FAPE including access and due process.

Bullying, harassment, taunting and teasing may violate these civil rights when peer harassment based upon a disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated and not adequately addressed or ignored by school employees. To support these claims, the parent states the following: the elementary school years were instructive, 7th grade brought trouble, trouble and more trouble. Bullying and more serious harassment began escalating in the first few weeks of the 7th grade. The parents argue that the District denied the student FAPE under IDEA for 2009-2010, school year 2010-2011, school year 2011-2012 and that the District should have further evaluated, classified the student for 2009-2010 year and developed an IEP for the 2009-2010-2011 school years.

The parents argued that the District failed to meet its obligation under Child Find even though the student’s grades were slipping in 7th grade which triggered a request for a CSE meeting which sought a formal reassessment and an update of the student’s 504 plan.

The parent acknowledges that the District held a CSE meeting but failed to test in all areas of disability and did not consult Dr. F, the Behavioral Specialist, did not request updated information from Dr. Z or Dr. D. The CSE denied classification because of a lack of significant academic difficulties based upon assessment and testing. The parent argues that the District provided no specific programs, services or interventions to meet the needs that were discussed and determined to be appropriate. There was no consideration for the exacerbation of bullying and harassment and the parents argued that the CSE’s focus was on general academic performance.

The District failed to have a CSE meeting 2009-2010, 2010-2011 denying the student’s right under IDEA.

The parent also argued that the record reflects the District denied rights to access FAPE, did not provide appropriate or further evaluations or an appropriate 504 plan, did not implement agreed upon appropriate 504 plan, did not provide a safe, non-hostile educational environment placement under 504. The parents claim that the District must be equally effective, must afford an equal opportunity to obtain the same result and the School Districts cannot use policies or procedures that result in discrimination.

The parent argues that the June 2008, 504 meeting removed Resource Room. The parents claim that the District failed to provide a priority locker and there is no support for organizational skills. The parents claimed that the District failed to provide support for organizational deficits.

Bullying and harassment were not addressed at the CSE or 504 meeting. Throughout the school year, bullying continued although not as blatant but the student was shutting down more and more. The student was communicating less with the parents and the District was saying that the student did not need organizational assistance but the report cards reflected otherwise. The parents claimed that organizational problems were not improving. The parent claims that she told the Superintendent about the student’s suicidal thoughts.

The parents were critical of the May 27, 2009 504 meeting, the use of a TA for 40 minutes once a day to help with organization. There was a lack of concrete plan to end bullying.

Expert Dr. D stated that organizational issues were related to the student’s disability. The parent met again with the Superintendent and requested tuition reimbursement for TAS.

The late spring the student, because of bullying, became resistant to school. The parent claims that the District violated FERPA by failing to provide school nurse logs to account for the student’s resistance to school. The parent’s claim of cyber bullying, the student was fearful of contacts with students in the community.

The parents initiated attendance at TAS but would consider the District if there was a district wide policy to address bullying. 504 procedural safeguards did not inform that they could ask for a hearing. The parents were denied access to educational files. There were no records of meetings or telephone conversations.

DECISION

STATUTE OF LIMITATIONS

The SRO in 7-116 stated the following in analyzing a statute of limitations issues:

“The IDEA was amended in 2004 with an effective date of July 1, 2005. The

IDEA 2004 amendments added an explicit limitations period for filing a due process hearing request and also added explicit accrual language. IDEA 2004 requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f] [3] [C]; see also 20 U.S.C. § 1415[b] [6] [B];

Educ. Law § 4404[1] [a]). Absent clear congressional intent, a newly enacted federal statute of limitations does not operate retroactively (see Landgraf v. USI

Film Products, 511 U.S. 244, 280 [1994]; In re Enterprise Mortgage Acceptance

Co., 391 F.3d 401 [2d Cir. 2005] [holding that the limitations period in the

Sarbanes-Oxley Act of 2002 did not have the effect of reviving stale claims];

Application of a Child with a Disability, Appeal No. 06-083). Prior to the IDEA

2004 amendments, the IDEA did not prescribe a time period for filing a request for an administrative due process hearing and a one-year limitations period was applied in New York (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119). A claim accrues when the complaining party knew or should have known of the injury involved, i.e., the inappropriate education (Southington, 334 F.3d at 221).

Here, the first step in determining whether a due process complaint notice is timely is to determine when petitioners' claim accrued. The student's mother participated at the June 15, 2005 CSE meeting (Pet. Ex. F at p. 8). Petitioners received a copy of the IEP by July 20, 2005 (Pet. Ex. H). By letter dated July 25, 2005, petitioners notified respondent that they were rejecting the IEP, and the letter indicates that petitioners previously communicated their dissatisfaction with respondent's recommended program (Pet. Ex.

H). It is unnecessary to resolve the issue of whether petitioners' claim may have accrued at the time of the CSE meeting because the claim would nevertheless be untimely if accrual of petitioners' claim did not occur until they received the IEP on July 20, 2005. I am persuaded that the claims raised in their July 24, 2007 due process complaint notice accrued no later than July 20, 2005 because petitioners knew or should have known of their dissatisfaction with respondent's recommendations for the 2005-06 school year at that time. Thus, I will apply the two-year statute of limitations period in effect at the time that petitioners claim accrued. Absent an exception to the two-year statute of limitations period, petitioners were required to commence an impartial hearing within two years from July 20, 2005, or risk dismissal of their claim by virtue of respondent's assertion of the defense of untimeliness. IDEA 2004 contains two statutory exceptions to the limitations period: The timeline described in [20 U.S.C. § 1415[f][3][C]] shall not apply to a parent if the parent was prevented from requesting the hearing due to – (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent”

The parents argue that they the Procedural safeguards they received was defective. The notice under IDEA is more expansive than under Section 504 of the Rehabilitation Act and as result the parent were advised of their right to a hearing. The receipt of the 504 plan took place in summer of 2009. As a result the parents were aware of the contents of the 504 plan, as a result the parents should have known of their displeasure prior to September 9, 2009. In fact the parent had informed the district by means of a letter to the superintendent that the student was not returning to the district tin June of 2009. I find that the date of the letter to the district that the student was going to be placed at TAS is the date of the accrual of the claim. The two year statute of limitations applies to both IDEA claims and to 504 claims. As a result of the filing of the due process hearing request in September 8, 2011 creates a statute of limitation time bar date of September 8, 2009.

The parents raised a claim of failure to provide information pursuant to FERPA based upon a request by the mother to conduct a record review of the student’s academic files.

Although there were some documents that the parents were not able to obtain either in the record review or during the course of the hearing, these items do not serve as a basis for tolling the statute since it did not impact the filing of the due process hearing request. Nor does it operate to toll the statute. Furthermore there is no claim that district made any specific misrepresentation that would resolve the issues alleged to have occurred forming the underlying basis of the compliant to toll the statute

As a result the 2009-2010 claim for tuition reimbursement is time barred by the statue of limitations.

PRONG I

THE APPROPRIATENESS UNDER IDEA OF THE DISTRICT PLACEMENT

A thorough analysis of the party’s respective positions necessarily includes a continuation of the parent’s claims that the District placement was not appropriate, nor did it provide FAPE.

The following principle of law is well established:

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

of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][3][E][iii]).”

PRONG ONE PROCEDURAL ISSUES

Classification

The district argues that its CSE properly declined to classify the student under IDEA. District staff testified that the CSE considered all relevant classifications which include Autism, Learning Disability and Emotional Disturbance.

Those terms are defined as follows by NYS regulations:

“Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3 that adversely affects a student’s educational performance.

Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance:

(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors.

(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or

(v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.

Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.”

It is conceded that all of the above definitions of classification require an adverse affect upon educational performance. A review of SRO decisions reveals the appropriate standard for determining an adverse effect upon academic performance.

The SRO in 03-004 stated the following

“Upon reviewing the record, I must agree with the hearing officer that the district's CSE was correct when it declined to classify the student as a student with a disability, as his condition did not adversely affect his educational performance. An evaluator concluded that the student's academic skills were on or above grade expectancy, and no academic areas of weakness were noted (District Exhibit 2; Transcript p. 260). The evaluator also testified that the student's behavior during the evaluation was exceptionally cooperative and focused (Transcript p. 261). The evaluator observed and commented that the student persevered and was able to raise his level of effort as the examples became more challenging. Additionally, the evaluator testified that the student was able to deal with his ADD without using medications by using compensatory skills and coping mechanisms (Transcript p. 280). Upon reviewing the record, I must agree with the hearing officer that the district's CSE was correct when it declined to classify the student as a student with a disability, as his condition did not adversely affect his educational performance. An evaluator concluded that the student's academic skills were on or above grade expectancy, and no academic areas of weakness were noted (District Exhibit 2; Transcript p. 260). The evaluator also testified that the student's behavior during the evaluation was exceptionally cooperative and focused (Transcript

p. 261). The evaluator observed and commented that the student persevered and was able to raise his level of effort as the examples became more challenging. Additionally, the evaluator testified that the student was able to deal with his ADD without using medications by using compensatory skills and coping mechanisms (Transcript p. 280).

In SRO 07-086 SRO the following was stated regarding the Emotional Disturbance classification:

The Individuals with Disabilities Education Act (IDEA) defines a "child with a disability" as a child with a specific physical, mental or emotional condition, "who, by reason thereof, needs special education and related services" (20 U.S.C. § 1401[3][A]).

In order to be classified, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student's educational performance to the extent that he or she requires special services and programs (34 C.F.R. § 300.8[a], [c]; see 8 NYCRR200.1[zz]; Application of a Child Suspected of Having a Disability, Appeal No. 07-042; Application of a Child Suspected of Having a Disability, Appeal No. 07-003; Application of the Board of Educ., Appeal No. 06-120; Application of a Child Suspected of Having a Disability, Appeal No. 05090; Application of a Child Suspected of Having a Disability, Appeal No. 01107; Application of a Child Suspected of Having a Disability, Appeal No. 94-42;

Application of a Child Suspected of Having a Disability, Appeal No. 94-36). A child with a disability having an emotional disturbance, pursuant to federal regulations, means "a child evaluated . . . as having . . . a serious emotional disturbance . . . and who, by reason thereof, needs special education and related services" (34 C.F.R. § 300.8[a]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007] [explaining that a child must meet a twoprong test to be considered a child with a disability]). Emotional disturbance, in turn, is defined as (i) a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.(C) Inappropriate types of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems. (ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c) (4) (i) of this section. (34 C.F.R. § 300.8[c][4]; see 8 NYCRR 200.1[zz][4]). “ The SRO in 07-042 has also stated the following regarding the Autism classification;

“There is no dispute that the student is diagnosed as having Asperger's Syndrome, which is identified in the record as an Autism Spectrum Disorder (Dist. Exs. 9 at p. 2; 13 at p. 1). However, in order to be classified as a child with a disability, the student must not only have a specific disability, in this case autism, but the disability also must adversely affect the student's educational performance such that the child requires special services and programs (see Application of the Board of Educ., Appeal No. 06-120; Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-36). The disability of autism is defined in federal regulation as "a developmental disability significantly affecting verbal and nonverbal communication and social interaction . . . that adversely affects a student's educational performance" (34 C.F.R. § 300.8[a],[c][1][i];2see 8 NYCRR 200.1[zz][1]). As noted above, the impartial hearing officer found that petitioners did not prove that their son's educational performance was adversely affected by his disability and upheld the CSE's determination that he was not eligible for special education. The record shows that when the CSE met in July 2006, the student had completed fourth grade in regular education classes where he earned mostly As and Bs and was promoted to the fifth grade (Dist. Ex. 46). In addition, on the fourth grade ELA examination, the student demonstrated an understanding of the ELA knowledge and skills expected at the fourth grade level (Dist. Ex. 47 at p. 10). Further, testing administered as part of the June 2006 psychological evaluation conducted by the school psychologist showed that the student's reading, math and writing skills were within expectations given his age, grade and ability (Dist. Ex. 11 at p. 7). The record also shows that during fourth grade, the student began to exhibit behavior difficulties and received several discipline referrals (Dist. Ex. 65 at p. 1). On his fourth quarter progress report, he was rated as having weaknesses in the areas of: accepts and follows rules and routines; follows directions; respects the rights, feelings and properties of others; participates cooperatively in group activities; and accepts responsibility for own actions (Dist. Ex. 46). The school psychologist noted that the student appeared to lack understanding of the nuances of socially appropriate behavior and began to exhibit "tic-like behaviors" (id.). Teachers of special areas, such as physical education and library and computer, noted that the student struggled socially, would speak out or interrupt, did not follow directions, was easily distracted and required redirection (Dist. Ex. 11 at pp. 2-3). The school social worker testified that she observed the student on one occasion during the 2005-

06 school year and that he was very appropriate in the structured instructional setting (Tr. p. 214). She stated that the student sometimes needed reminders to stay on task, but no more than his typical fourth grade peers (id.). The school social worker also testified that she worked with the student approximately four times during the 2005-06 school year, specifically on social skills and that he responded very positively during those sessions (Tr. pp. 213-14). She further testified that during the 2005-06 school year, she worked with the student on a few occasions to help him develop social skills in reaction to some peer conflicts that occurred mostly during recess (Tr. p. 206). She stated that the student participated in peer conflict resolution, which she described as very structured, and indicated that the student was able to identify strategies to avoid conflict, take turns appropriately and respect the personal space of other students (Tr. pp. 209-12).At the July 2006 meeting, in making its determination that the student was not eligible for special education services, the CSE reviewed the private psychological evaluation report and the school psychologist's report (Tr. pp. 42-43; Dist. Ex. 15). The school principal and the school social worker discussed their involvement with the student during the 2005-06 school year. The CSE noted that the student's grades and classroom performance remained in the average to above average range. It also noted the student's difficulties with social interaction at school. While the record shows that the student exhibited some behavior difficulties in less structured settings, there is insufficient information in the record to show that the student's needs resulting from his disability adversely affected his educational performance such that special education services were required. With the exception of the student's fourth grade progress report, the record does not include any other information from the student's fourth grade teacher about the student’s educational performance. Moreover, the record shows that the student responded positively when working with the school social worker on social skills and participated appropriately in peer conflict resolution (Tr. pp. 209-12, 214). Based upon the information before me, I find that the CSE properly determined that the student was not eligible for special education service when it met in July 2006. “ The initial CSE determination denying classification under IDEA is D17 dated 6-9-08. In said ineligibility document the following was reported: IQ scores in 97 percentile, verbal skills in the 99 percentile, non-verbal skills in the 90 percentile, processing speed in 99 percentile, and working memory in high average range. The lowest score for academic functioning evaluating intellect to academic performance was 90 in math. It was acknowledged that the student has social issues, has organizational issues and was head strong. The student was becoming more organized as the school year progressed and was adjusting well. A review of the 7th grade report card dated 6-1-09 reflects an overall average of 90, 91, 86, and 91 for the four quarters respectively. The ELA teacher indicated that those were strong scores for his class, the math teacher indicted that the student had some difficulty in displaying her work product. French class was near the end of the day and fatigue may have been a factor. A review of D29 the report card for 8th grade dated 5-9-09 reveals similar performance with a GPA through three quarters of 92, 93, and 92. Also review of the 8th grade NYS TP indicates a level 4 in ELA D30, a strong 4 in math D31, and a 98 in the 8th grade intermediate science test D32 and in D33 the student scored on the national percentile on the ACT of 96 to 100.

It is well documented in both exhibits and testimony the student’s high level of cognitive functioning as indicated on IQ testing, test score and respect of some of her peers. It is also well documented the difficulty the student was encountering in organizing her back pack, homework assignments, and turning in completed homework. It is interesting to note that the teacher has indicted that she was not concerned with the student turning in her homework assignments on time because she believed the student had completed the homework assignments because she quizzed the student and found that she knew the material. There is also ample testimony from the mother that she attended team meetings, emailed teachers regarding homework and homework accommodations and she expressed a concern that the missed home work would not negatively affect the student’s grades. However there did not appear to be a concern that the student was not learning the material, nor a concern that the student was in need of instructional assistance programming or otherwise. Over the 8 days of testimony there was not a suggestion that the student needed direct instructional support. I find the district’s CSE properly found that the student did not meet the necessary requirements for classification except for Emotional Disturbance which is analyzed below.

There was testimony about the need to handle stress, frustrations and the development of social interaction skills. There was also testimony regarding missed classes and fear of bullying, a need to decompress. There were melt downs, fear, anxiety and resistance to attending school. The de-stressors where utilized at home by means of the sit and spin. There were concerns expressed by the mother that she not push the student too much and let her de-stress after school. However much of this information was not provided to the CSE on 6-9-08.

There were no updated reports from Dr. Z, Dr. D of FW. Instead the mother relied upon informal communication with teachers via attending team meetings and emails assuming that the district staff would either provide this information or use this information. Unfortunately this approach runs counter to a committee operating under IDEA to arrive at a consensus and making a recommendation as to program services or eligibility. Furthermore D16 the invitation to the CSE meeting states that the parents could bring any one with knowledge or special expertise and may also submit evaluation information that will be considered by the committee. The student was provided with accommodations for emotional, social issues the student was encountering.

Based upon the information considered by the CSE, I find that the CSE student’s deficits and needs did not raise to the level of needing special educational services. This, however, does not conclude the analysis since the parent has raised a claim of the district failing to evaluate the student in all area of suspected disability and failed to fulfill its Child Find obligations.

It is interesting to note that during testimony one of the concerns of the mother regarding the CSE determination was that it was not explained to her why the student was not eligible. The mother relies on the referral letter to CSE seeking a determination that the student was a student with a disability under IDEA. In said letter the mother asked for a formal re-assessment, consult with the behavioral consultant, additional testing/evaluations and regular evaluations. In the body of the letter the mother references that the student has suffered a lot this year and that they may have to pull the student for her emotional and physical health. Plus the student is challenged with organization, time management, auditory processing, and high stress from the intense bullying this year. Based upon said request a psycho educational evaluation was performed by SC D15. In said report dated 5/5 2008 in the social emotional functioning section it was reported that the student self-reported “many incidents of teasing and bullying directed at her by several of her peers” Also that the student needs significant amount of attention from staff members to help her when she is overwhelmed or picked on by peers. Nonetheless no additional testing was performed or recommended such as the BASC, nor a FBA. The rationale provided by the district was that there was no adverse effect on educational performance. In addition, there were other factors in play including the student’s anxiety did not result in outbursts disrupting the classroom nor affecting the learning of other students, and as the expert Dr. D stated the student’s anxiety crossed over various planes and not just in school. Nonetheless based upon the testing performed by SC the lack of a negative impact upon the student’s educational performance there is not a need to further evaluate the student’s emotional social levels unless it impacts the student’s education. A district’s responsibility is to render educational services is not required to evaluate further unless there is a negative impact on educational performance. It should also be noted that there was a not a report from the student’s attending physician or mental health provider who was monitoring her medications that the student’s education was being negatively affected.

CHILD FIND

The parents assert that the district did not fulfill its child find obligations. The SRO has stated on 03-043

“The IDEA places an affirmative duty on state and local educational agencies to locate, identify and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.125[a][1][i]). This child find provision includes "children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.125[a][2][ii]). To satisfy that requirement a board of education must have procedures in place that will enable it to find such children. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. The child find duty is triggered when the state or local educational agency has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). “ The student initially came under review by the District’s IST because of the student’s emotional outbursts in Kindergarten. The guidance counselor AM started providing services for the child at that point in time. The district performed psycho educational evaluations when the student was classified under Section 504. The district again performed evaluations prior to the CSE eligibility determination meeting. The student’s level of cognitive functioning is not in dispute. The district identified the student’s deficits in the areas of organizational skills and delays in social interaction. The district addressed the organizational issues and created a program to address them. The district also provided counseling services, social skills classes, and time to de-stress.

Although the parents dispute the effectiveness of the programs and accommodations, and the thoroughness of the district evaluations in all areas of disability, I cannot find the district violated it Child Find obligations.

PROCEDURAL SAFEGUARD NOTICES

The parents have raised a claim that here was a procedural violation concerning the procedural safeguards notice. The procedural safeguards notice for the June 2008 CSE eligibility meeting is D18. The parent claims there was constant confusion on the districts paperwork between 504 and CSE /IDEA.

The safeguards notice is contained in P-O. The document itself declares it elf to be a procedural safeguards notice and is for IDEA. I find that the parents were provided the procedural safeguards notice for IDEA.

The parent also claims that the Procedural Safeguards Notice they were provided did not inform the parents that they could request a hearing. Please see ww2.ed.gov/about/offices/list, 34 CFR Part 104 104.36 “ Procedural safeguards

. ... The purpose of this part is to effectuate section 504 of the Rehabilitation act of 1973”

The said regulation states the following:

“104.36 Procedural safeguards. A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement”

Also please see: http://www.p12.nysed.gov/specialed/publications/. OCR Office of civil rights”

“Frequently Asked Questions About Section 504 and the Education of Children with 44.

What procedural safeguards are required under Section 504?

Recipient school districts are required to establish and implement procedural safeguards that include notice, an opportunity for parents to review relevant records, an impartial hearing with opportunity for participation by the student's parents or guardian, representation by counsel and a review procedure”

Although the P-O is somewhat misleading I find that it adequately advised the parents of their right to a hearing. As a result I find that the parents were not denied FAPE as a result of being provided an IDEA safeguards notice instead of a 504 safeguards notice. P-X2 pg 5 is a receipt signed by the parent for a Part B and Section 504 Procedural Safeguards Notice dated May 10,

2010.

The parent specifically claim that there procedural right were violated because the 504 procedural safeguards notice failed to advise the parents her rights to a hearing. P-Y3 pg 7 paragraph 11 advises the parents that they have a right to an impartial due process hearing.

I find based upon the receipt for the procedural safeguards notice for the May 10, 2010 meeting and the procedural safeguards notice used for the November 11, 2011 meeting that the parents were advised at the 504 meeting of May 10, 2010 and November 11, 2011 of their right to a due process hearing.

IMPLEMENTING ACCOMODATIONS

In SRO 10-13 it was stated

“Turning next to the parties' dispute over the implementation of the resource room services during the 2008-09 school year as set forth in the student's April 2008 IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (Houston Independent School District v. Bobby R., 200 F.3d 341 at 349 [5th Cir. 2000]; see also Fisher v. Stafford

Township Bd. of Educ., 2008 WL3523992, at *3 [3d Cir. Aug. 14, 2008]; Couture v. Bd.

of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch.

Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007] [holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007) [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program”

The question of implementation applies to the providing of a priority locker, locker visits, counseling while at the district and counseling while at TAS.

The mother claimed the location of the priority locker is not close enough to facilitate the movement from class to class in only 3 minutes. The mother took this to mean the priority locker would be located in the 7 grade cluster. NLD stated that the priority locker would be in an easier location for the student to use. The exact location was not specified. If there was a failure to implement it would fall within the category of not material or substantial. I find the location of the priority locker would not rise to the level of denial of FAPE.

The mother also stated that the student was not provided with locker visits during lunch.

There is to a dispute that the student did not access this accommodation after the death note. FC the principle indicated that RE set up a locker visitation plan. The district indicated that the student did not access this accommodation during lunch. District witnesses indicated that the student would engage with her friends at the lunch table. The failure to utilize the lunch visits was partly attributed to the student socializing and as a result I do not find they the district failed to provide this accommodation.

The other issue was the failing provide counseling services while the student was at the district. Both SC and SS testified that they were available to provide these services; however they did not keep logs or notes so it was difficult to disprove their statements that they provided the services. SS indicated that he meet frequently with the student dropping off her book bag at times and stopping in to let him know that she was doing alright. It should also be noted that there exists a fine line with providing the counseling serves and confronting and compelling the student to attend and creating a situation that would lead to a meltdown by the student. Although there were gaps in counseling services in 2010-2011 school year it did not affect the 504 meeting of May 10, 2010. The parents alleged in their amended hearing request that the District did not provide services. There is no requested relief regarding missed services. As a result, I am unable to direct same.

As a result I find that the district implanted the services to a sufficient amount so that I find that the district implementation did not lead to a denial of FAPE.

PROGRAMATIC ISSUES

There is not any dispute that the student was extremely bright. There are disputes regarding the student’s levels of performance. The parent claims the student’s grades were slipping in 7th grade. The student’s grades did take a dip in the third quarter but the student did rebound in the fourth quarter. However relying on classroom grades can be misleading in evaluating progress. Academically the student encountered some difficulties in turning in assignments but as indicated by expert Dr. D the middle school was a larger busier place. District staff testified that the transition into middle school creates challenges for many students. The parent was critical of the quality of the counseling provided by SS and SC. The parent was critical of the homework checklist since it was not individualized enough to meet the student deficits. These criticisms were directed at the accommodations of the student and not towards the instruction of the academic contention materials. I find that based upon the record the student did not need direct instructional support.

However, that does not mean to say that the accommodations were appropriate. The analysis of the accommodations and the student’s progress and will be set forth in the Section 504 portion of this decision.

PRONG 2

Even though I have previously ruled on the failure to classify the student, it should be noted that IDEA requires that students as they reach the age of 14-16 be provided with a transition plan to facilitate their post high school lives. As the SRO stated in SRO 02-016:

“Beginning at the age of 14, a student’s IEP must include a statement of transition service needs which focuses upon the student’s course of study and is updated annually (8 NYCRR 200.4[c][2][viii]). At age 15, the student’s IEP must include a statement of needed transition services, including, if applicable, a statement of the responsibilities of the school district and participating agency for the provision of such services and activities that promote movement from school to post-school opportunities before the student leaves school. Necessary activities include instruction, related services, community experiences, development of employment and other post-school adult living objectives, and if appropriate, the acquisition of daily living skills and a functional vocational evaluation (8 NYCRR 200.4[c][2][ix]). “

TAS although provided a safe harbor for the student, it is woefully lacking in preparing the student for her post high school years. It should be noted that the district attempted to conduct a classroom observation and updated evaluations of the student in November of 2011 after the filing of the due process hearing request but before the beginning of testimony. During the hearing there was contradictory testimony whether TAS provided the district with quarterly or any progress reports. Parent exhibit Y2 is a report from PD to the 504 committee dated 5/10/10 which sets forth the student’s present levels of performance, current needs, program modification, testing accommodations, transition goals, additional information.

Overall, the student described by PD is very similar to the student described by the district teachers and personnel, and the mother. It was reported that the student was above the charts intellectually, has a major gap with social skills, struggles with peers, her awkwardness is embarrassing to her causing great anxiety, has difficulty understanding social interaction, at times insensitive and at other too sensitive. She is awkward in appearance. This description is consistent with how the student was described by district teachers and providers.

PD described the student’s needs to include staying on task, staying organized, using time wisely, keeping on task, cleaning out back pack. Again this was how the student was described by district personnel. PD indicated that the student needs weekly sessions with the school psychologist to understand her anxieties to be able to function in world around her.

In the program modification portion, PD indicated that the student needs help with organizational skills and time management, needs tools to ask for help, teachers needs cues, and time off to burn off energy. Test accommodations include extra time and test reads. Again this is consistent to the description of the student when she attended the District. PD’s transition goal for the student is strong support system to help her filter out outside stimuli. Regarding additional information, the student needs support for her emotional ability and emotional resource to cope with outside stimuli.

The student needs help with sensory issues learning to process and filter stimuli. PD expressed concern that the older the student gets the more stimuli she is around but because of her high intellect her anxiety will increase causing continuous meltdowns.

PD’s transition goal for the student is for a strong support system to help her filter out outside stimuli. Regarding additional information, the student needs support for her motion emotional ability and emotional resource to cope with outside stimuli

It is unclear exactly what was meant by outside stimuli, the record is well documented by negative peer interactions and the focusing on what the student wanted to focus on. PD seeks counseling to deal with these and other issues. It is extremely difficult to determine any progress that the student has made during to 09-10 school year at TAS. P-K3 is the quarterly report from JR the counselor who provided services at TAS for a period of time. JR reports that the student reports that at times she is overwhelmed with school and social situations/interactions

The focus of counseling is to assist the student verbalizing her feelings and to identify specific situations which contribute to her anxiety and stress. Additional opportunities for social growth within and outside of school setting should be explored. In his testimony, Dr.

D. the expert identified the student as an AAA child, Asperger’s, ADHD, and Anxiety, with anxiety being the student’s most severe disability impacting all planes of her life. He described the student as having a very limited social data base upon which to draw from interpreting social cues and appropriate social responses. While at TAS the student benefited from the social and educational interaction with adults. This was not a weakness of the student. However the small class sizes, the small buildings being transported by family and friends and not by means of traditional school buses, did not expand the data base. The frequency of peer interaction was very limited. Nonetheless the student continued to have emotional meltdowns and did have 22 absences, although a portion was for a family vacation. The student did have a negative social interaction with another student.

Both PD and Dr. D the expert expressed concerns about the student transitioning.

PD as part of a transition plan after TAS and Dr. D as part of a transition plan to a larger high school setting. Dr. D. indicated that it was worth the effort but would need the support of the whole team and the counselor. The implication of this is that the TAS setting was not appropriate for the student. The district argues that the program at TAS was not appropriate because it made the student more dependent upon adults and less independent. The mother believed that the TAS program was appropriate for the student. There can be no disputing that

TAS because of its composition and structure and policy was a safer location; safer from physical intimidation and emotional trauma. It Is clear from the mother’s testimony that she was very hesitant to become actively involved in assisting the student with organizing her homework or the student‘s preferred method of doing her homework on the floor. The extension of this is that the mother‘s primary concern was not upsetting the student and not triggering a meltdown. The mother’s primary concern was the emotional day to day well-being of the student. PD wanted weekly counseling from the school psychologist. Dr D. the expert recommended counseling for the student to deal with her anxiety. As was stated regarding the IDEA is equally relevant herein, ‘The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132’

The lack of counseling services during the 2011-2012 school year would not have affected PD‘s comment in May of 2010. It would be relevant however in the amount frequency duration an intensity of any counseling services necessary to transition the student out of TAS.

The district argues that the program at TAS was not appropriate and did not use certified special education teachers. As was stated in SRO No. 03-03: “The failure of a parent to select a program with certified teachers and known to be approved by the state in favor of an unapproved option which includes uncertified teachers is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).”

I find that the parental private placement at TAS is not appropriate. Furthermore this IHO is not swayed by the argument by the physical safety of the student would justify a different finding.

PRONG 3

DO THE EQUITIES FAVOR REIMBURSEMENT BY THE DISTRICT

Regarding the district’s claim that the parents failed to provide proper timely notice of their decision to unilaterally place the student at TAS, the SRO stated in SRO 07-032

“With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.

v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir.

2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty

v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]; see Application of a Child with a Disability, Appeal No. 05-098)”

There is no dispute that the parent did not notify the district at the 504 meeting of the decision to enroll the student at TAS. The parents notified the district’s superintendent by P-E2 pg1 a letter dated June 1, 2009, “that they cannot send her back to [the district] “. The notification also states that “we are applying to [TAS] and plan on [the student] attending beginning 9/09”. Based upon P-E2 pg1 it is unclear when the student was enrolled at TAS. P-C2 is a release to provide records to TAS signed by the parent on May 29, 2012 asking for records and indicates that the student is applying. P-C2 is an email seeking information regarding a change of placement which is equivocal regarding the timing of the enrollment at TAS. The student began the school year at TAS. The mother testified that they did not make their decision until just before the start of the school year. PD testified that she met with the student who filled out a student questionnaire dated June 3, 2009 P-C4.

I find that the parents failed to provide the appropriate prior notice of the commencement of the application process. However since this occurred at the end of the school year and the student did not actually start attending classes for several months the district had ample opportunity to respond and conduct a Section 504 meeting if they chose to. As a result the lack of notice is not sufficient to justify a finding that the Equities do not favor the parent in their reimbursement claim.

The SRO in 07-133 states the standard as follows:

“The IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see Mrs. C., 226 F.3d at n. 9). Regarding the former, tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.

v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v.

Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston

Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]).”

The district claims that the parents delayed and as a result the equities do not favor reimbursement. The district also argues that the parent failed to provide proper notice of their decision to place the student at TAS. The parent claim that the district failed to properly evaluate test, create an appropriate 504 and failed to classify the student. I have previously ruled on these issues.

The parent did not voice any objection to the 504 plan or during the 504 meeting. The parent had initiated some contact with TAS concerning placement. The parent testified that no formal decision had been made concerning removing the student from the district. However it cannot be disputed that the parent had grave concerns regarding the ability of the district to keep her daughter safe and to educate the student. Unfortunately the parent approached the 504 meeting as if it were a foregone conclusion what the district was going to do. As the mother had stated they were trying the same things that were not working. Nonetheless the parent has an obligation to enter the 504 meeting with information relevant to the decisions and the recommendations to be made by the 504 committee. Whether it was an attempt to bolster her reimbursement claim, out of frustration, or in an attempt to conceal the severity of the student’s deficits so as not to limit the student’s college choices, it is not clear. Either way it does not matter the CSE or 504 meetings are designed to allow for the participation of all members to reach a consensus as to a recommendation. The parent’s informal communication with teachers, administrators, counselors, deprives the 504 committee of the benefit of the cumulative effect of the student’s difficulties. In addition, indicating that the treating health care providers have permission to discuss matters with the school, although admirable it does not ensure that the information is provided to the committee, especially when the parent does not voice concerns or provide information at the committee. The failure of the parents to fully cooperate results in a finding that the equities do not favor reimbursement.

SECTION 504

The Parents argue that the District failed to comply with The Rehabilitation Act of 1973, Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 29 U.S.C. 794, and in particular 34 CFR 104.33 Free appropriate public education, which states (a) “ A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.”

The Parents herein argue they are entitled to reimbursement for tuition at the TAS. They have argued that the District’s 504 Plan is inadequate to meet the Student’s needs and fails to provide FAPE.

The SRO has stated: “There is no evidence that accommodations or modifications were sought, or would not have been provided, under Section 504. Therefore, I must sustain that portion of the hearing officer's decision which denied petitioners' request for tuition reimbursement under Section 504; because there is no showing that the child's rights under Section 504 were violated during the 1993-94 school year”.

The District argues Section 504 and IDEA requirements parallel and complement each other; the statutes do differ in terms of what actions they address. 504 is a discrimination statute which protects a disabled student from being discriminated against as a result of the District not providing accommodations necessary for the student to access the educational program. IDEA requires modifications to the program itself to accommodate the special education needs of a disabled child.

To establish a claim under 504, it is necessary for parents to establish “(1) that the student is disabled; (2) that the student is “otherwise qualified” to participate in school activities; (3) the school or the board received federal financial assistance; and (4) the student was excluded from participation in, denied the benefits of, or subject to discrimination at, the school.” L. G. v. Bd.

Of Educ. Of the Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y.2005). Because relief under Section 504 is only available upon showing of discrimination, “ The Parents are not entitled to reimbursement unless the Student’s rights have been violated

“Petitioners assert that they should be reimbursed by respondent for the cost of the child's tuition at the Landmark School during the 1992-93 school year because respondent denied the child the free appropriate public education which she should have received under the Individuals with Disabilities Education Act and Article 89 of the Education Law. In the alternative, they assert that they should receive tuition reimbursement because respondent allegedly violated the child's rights under Section 504 of the Rehabilitation Act of 1973 by failing to make accommodations for the child. Tuition reimbursement may be an appropriate remedy for violations of the Individuals with Disabilities Education Act under certain conditions (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v.

Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]), or for violations of Section 504 of the Rehabilitation Act of 1973 (Gregg B. v. Bd. of Ed. Lawrence Sch. Dist., 535 F. Supp.

1333 [E.D.N.Y., 1982]). As noted above, petitioners have not established that their daughter is a child with a disability under the Individuals with Disabilities Education Act.

Therefore, they cannot rely upon that statute to provide them with tuition reimbursement.”

The applicable standard was restated recently in SRO 11-011:

“Applicable Standards…it is well settled that a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch Dist. Four v.

Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir.

1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]

aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. Of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 C.F.R. § 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). “ The district claims that the student rights were not violated because the district offered an appropriate program and the parent’s claim that the district failed to offer an appropriate program.

The student had 504 plans commencing at the initial 504 determination meeting on

11/29/2006 D3, annual review 504 plan of 5/11/2007 D 6, program review on 6/20/08 D19, annual review on 5/27/09 D25, and annual review on 5/10/2010 D38.

The district claims that there is a two year statute of limitations under IDEA. The Court of Appeals for the Third Circuit held that since Section 504 does not have a statute of limitations provision, the Court must borrow from the most analogous statute. The Court therefore found that the two year statute of limitations period in the IDEA applies to parallel claims brought under Section 504. P.P. v. West Chester Area School District 53 IDELR 109 (United States rd Court of Appeals, 3 Circuit (2009)

The comments and discussion to “Section 300.507(a) (2) and section 615(b) (6) (B) of the Act are clear that a due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew, or should have known, about the alleged action that forms the basis of the due process complaint…” The last 504 meeting prior to the parental private placement at TAS took place on 5/27/2009. The due process hearing request that was filed on September 9, 2011 and amended on September 15, 2011. The alleged violation as a result must have occurred after September 9, 2009. The only 504 team meeting that is not time barred is the May 10, 2010 D38.

In order to provide historical perspective a comparison with the previous 504 plans reveals that D3 the 11/29/06 504 plan provided counseling1:1 1 x 6 day cycle and CT services direct/ indirect 1 x 2 weekly for 6 hours. D6 the 504 plan from 5/11/07 added resource room 2 x

4 day cycle for 42 min. The 504 plan from 6/20/08 is D19 and provided the following services:

counseling 1:1 1 x per 4 day cycle for 30 min in the counselor’s office and group 1 x for a 4 day cycle for 30 min at special location. The 504 plan of 5/27/09 is D25 added TA 1:1 daily for 40 in special location. The district was unable to update the 504 plan at a November 2011 which was subsequent to the filing of the due process hearing request because of concerns by the parent that it was too close to the hearing and would affect the hearing.

The May 10, 2010 504 plan D38 was developed while the student was attending TAS.

PD from TAS participated and stated the student had a wonderful year and is gifted academically with grades for the 3rd quarter ranging between , 91 and 100, continues to have difficulty with social emotional areas, works independently with teacher, is articulate and verbal, continues to need social support and psychological supported that she continues to have meltdowns on a regular basis, has high anxiety continues to have meltdowns missed 22 days of school, has made progress with back pack, organization understanding some concepts especially socially and time management remain a concern. The 504 plan recommended counseling 1-1 2 x weekly for 30 min in special location. In addition the 504 plan recommended services and support for organizational strategies, color coded / identified folders and binders for am/pm classes, use of checklists reminders to use organizational strategies, frequent brawls, allow breaks as needed to address anxiety, clarification of changes presets for changes to schedule, visual verbal cues, visual schedule of classes, reminders to stay for extra support, reminders to use organizational strategies and supports, clear expectations of upcoming events, tasks, responsibilities.

The District argues that its 504 plan provided an appropriate education reasonably calculated to enable a student to achieve passing marks and advance from grade to grade.

The student is capable of that with or without special education services and accommodations.

The question remains, however, if the student progressed in areas of deficits i.e. organizational skills and social interaction. Dr. D the expert opined that the strategies used and recommended by the district were traditional organizational strategies. The mother claims that the district kept trying the same of accommodation without success. She was critical of the TA for organizing homework and homework assignment. These were areas that she herself had difficulties at home with the student. There were no provisions for Parent counseling or training that may have helped address the apparent difficulties the mother had with assisting the student with her homework and study skills. Beside that there was testimony that the resource room teacher had taught the student organizational skills and that the student grasped said skills intellectually. The failure or inability of the student to implement these strategies can only be addressed through counseling the student. The student’s reluctance to surrender her ways and ways of thinking transcends all area of her life including school, home and in the community.

The testimony from the teacher was that they were seeing progress with the he student dealing with stress and distressing. The teachers were providing accommodations to the student in accepting late assignments.

I find that 504 plan was reasonably calculated to provide an educational benefit.

However, that does not conclude the analysis since we must now visit the topic of bullying and the failure to provide a safe access to an education.

BULLYING

The topic of bullying is complicated because of different definitions, concepts and applications. The district defines bullying as an exercise of power over another to put down belittle or control when there is no reason or basis for it. There were discussions whether bullying can occur when it is a single incident. The district characterized what occurred as a negative social interaction. The parent‘s in their post hearing submission phrased it in terms of safety. Dr. D the expert called it traumatic which could be caused by single event. The NYSED required district’s to establish guidelines with dealing with bullying situations; however this mandate occurred after the student left the district. The district relied upon the student hand in print which included a student’s code of conduct and the parents relied on the online hand book.

This IHO is not of the opinion that awareness and focus on “bullying” arose after the student left TAS and as a result a proper analysis requires a review of the underlying incidents that occurred and what steps the district took to address those concerns.

There was a reported incident of the student engaging in inappropriate social interaction on the internet with an older male. The significance of this is that it highlights the student’s inappropriate social interaction encompasses all phases of the student’s life.

Another incident of significance is the male student who threatened to rape and kill the student.

Although it appears that the threat was delivered in school, it is extremely unlikely that act itself of rape and murder would take place on school grounds. The fear and emotional anxiety that this created in the student was real. The actions by the district and the reaction by the district were equally real. The expulsion of the student clearly set the tone that this type of conduct would not be tolerated and would not be accepted by the district. It is unclear from the record if this point was reinforced with the student. The actions by the district clearly addressed the physical safety of the student.

The incidents involving the girl is more complicated since based upon the record it was re-occurring; the thrown punch and the comments in gym class, and incident at the out of district math program. It was not in the record if anyone was identified as the author of the death threat note left in the student’s locker or if this girl was involved in bus incidents or the stairs.

The student’s movement from class to class and traversing the hall ways and stairs caused the student anxiety about her physical safety. The pencil throwing and other unkind acts are less extreme than the threats to rape and kill, and as a result created a different challenge to the district since those acts of students would be harder to discover, monitor, control or eliminate.

The effects of the repetitive trauma created additional anxiety for the student.

The IDEA and the 504 team meetings are designed to allow the parent to participate in creating a program to address the needs of the student and her deficit’s. However the pervasiveness of the acts and the effect of these acts were not shared at the IDEA CSE meetings or the 504 team meetings. Instead the mother relied upon informal contact with the teachers and administrators to provide this information to them with expectation that they would respond and act on the information. However the result of this is that there was lost the cumulative effect of these acts since the mother communicated with a variety of different school personnel. The mother expected that the district would respond to this information; however the cumulative effect of these situations was not obtained by using informal methods. If this information was brought to the CSE or 504 team and presented so that the cumulative effect of these incidents could be analyzed and measured; parents would have a stronger case if the 504 plan was inappropriate. In addition, if there were medical reports from the student’s mental health provider, then the 504 committee would have information how these acts were affecting the student and having a negative impact on the student’s education. It is true the mother provided notes from the pediatrician as to the existences of stomach aches, the causes of these stomachs we not reported by Dr. B

Dr. D., the treating child psychiatrist, working in the outpatient program at Fwinds as distinguished from Dr. D. the expert) was monitoring the student’s medication since 2005, but was not providing counseling. Dr. D would conduct an office visit every 6-8 weeks for 15-20 minutes. But there were no reports generated by Dr. D.

According to the mother the Dr. D’s report dated June 10, 2009; (K2) was presented at the November 2011 504 meeting. The mother remembers asking BB for a name to place on the release form since the Doctors’ offices needed specific names of the recipients of the released information. When the mother discovered that the student was cutting she waited until the next appointment with Dr. D, who was only monitoring medications and not provided any counseling treatment, to inform him of the cutting and Dr. D did not recommend a counselor. There were no reports other than from Dr. B while the student was in 7th and 8th grade was suffering from stress or anxiety causing the student physical complaints . Dr. B was not provided any school records or records from Dr. D. Dr. Z did not perform any classroom observations, nor any updates or evaluations.

It should also be noted that ND did not recall the mother indicating at the 504 meeting that the student was treating with Dr. D.

A review of the comments portions of D38 the 5/10/2010 504 plan shows the only reference to bullying is that TAS has a bullying program. A review of D25 the 5/27/09 505 plan.

At said meeting the other inquired about test modifications, asked to be notified if there was a problem so she could stay on top of things at home because she was not told if there were problems until she started asking questions. Also the mother inquired if the student’s case worker was knowledgeable about students with Asperger’s. It should be noted that the D19 the 6/20/08

504 plan for the student’s 8th grade year does not contain a comments section. Nor does D6 the 504 plan from 5/11/2007 for the student’s 7th grade year. Of course there are the comments from the student herself at the board meeting as part of the anti-bullying committee during which the student indicated that she was subject to bullying in 7 grade but was much better in 8th grade.

This is also supported by the mother in her testimony. The comments by the student reinforces what was said at the 5/27/09 504 meeting D25. She is capable of solving some of her problems.

It was reported in the comments portion of the 504 plan that SS the social worker stated that the student has insights of her limits, how she is seen by other people, what she is capable of and what causes her stress. SS and the student discussed the student’s anxiety, a change of medications because anxiety is a major factor in her life. When the student is overwhelmed and if she breaks down, she is able to do better. She is capable of integrating what she has learned.

Another example of the student coping with this situation occurred at the math field trip in which the student was encountering difficulties in other students not accepting her responses and the student withdrew from the situation. Dr D the expert indicated that the student’s anxiety impacted her in all places of life. It may be unrealistic to ask a District to eliminate all acts of bullying from occurring since some may take place some may be more pervasive than others, however the District has implemented tools to respond to building wide bullying including an increased awareness, the District strategy and skills classes have imparted to the student the tools to deal with these situations.

The SRO in 07-086 reviewed a determination by the CSE that a student did not meet the criteria to be classified as a student with an Emotional Disturbance. The student in SRO 07-086 was provided home instruction from February to the end of school and had encountered difficulties in re-entering the school in September. The student was diagnosed with PTSD in December. The student was placed on home instruction and then referred to the CSE. The student was placed on home instruction and then referred to the CSE. The CSE in May determined that the student was not eligible for classification because of a lack of averse affect upon academics. The SRO in reversing the IHO’s determination that the CSE determination not to classify the student as proper stated:

“In the circumstances of this case, respondent erred by inadequately considering the student's non-academic limitations in determining eligibility for special education services. In light of the foregoing evidence, I do not agree with the impartial hearing officer's conclusion that the student's psychological conditions did not adversely affect her educational performance.”

It would appear that home instruction with has a limited amount of instructional time with a resultant adverse effect upon education.

In September 2003, at the beginning of the student's eighth grade year, an incident occurred in which petitioners' daughter was tripped by another student (Dist. Ex. 21; Tr. pp. 318,

465, 489-90). The second student was suspended (Dist. Ex. 21). Although the student's mother asserted that her daughter was subjected to ongoing bullying in seventh and eighth grades (Tr.

pp. 317-18, 330-31), school administrators indicated that the issue had been resolved and that they were not aware of any additional incidents (Tr. pp. 456, 464-66, 490-91). According to the assistant director of special education, the CSE was not apprised of any bullying (Tr. p. 493).

SRO 06-14

In 06-114The SRO reversed the IHO which found the district denied the student FAPE for a student classified as ED where there were reports of bullying. The district’s 12-1+1 program provided FAPE. As a result depending on the specific circumstances, bullying can lead to a denial of FAPE and where it is severe enough.

In SRO10-129, the district was found to have violated its child find obligation were the student was homebound instructed as a result of a disciplinary removal from school. The SRO did not find that bullying lead to unsafe environment.

“See I note that the parents do not allege in the due process complaint notice or in the cross-appeal that the alleged incidents of bullying referenced in the hearing record deprived the student of a FAPE (see Dist. Ex. 1).However, even if the parents did advance this argument, I conclude that a review of the evidence contained in the hearing record does not support such an allegation (see T.B. & M.B. v. Waynesboro Area Sch.

Dist., 2011 WL 718516, at *1, *4 [M.D. Pa. Feb. 22, 2011]; Emily Z. v. Mt. Lebanon

Sch. Dist., 2007 WL 3174027, at *1- *4 [W.D. Pa. Oct. 29, 2007]; Appeal of M.G. and

J.G., 40 Ed Dep't Rep 336, Decision No. 14,491 [holding that the evidence did not show that the district failed to provide a safe educational environment that would permit the student's reentry into the school]). “

In SRO10-18 the SRO found the Parent’s allegation that the district failed to address the bullying as lacking in merit.

A review of SRO decisions reveals that it is necessary to review the incidents, the severity of the incidents, the student the student’s disability, and the effect of the incident upon the student’s disability. This requires an ad hoc examination when reviewing the allegations, claims or fact patterns of incidents.

The district addressed the issue by expulsion of the male student providing physical safety. It addressed the student’s program by providing counseling and allowing breaks. The occurrence of bullying is a societal problem and occurring inside and outside the school environment. The district took building wide and school wide steps to addresses what is a general education problem. The 504 team addressed the student 504 plan to provide support for the student. I find that the efforts were sufficient to address the level of bullying known to the 504 team.

Recently in Clark County Sch. Dist., 112 LRP 27516 (SEA NV 05/11/12); A Nevada district established that it did not deny a fifth-grader with autism FAPE by failing to adequately respond to incidents in which the student was allegedly bullied by peers. Rejecting the parent's request for reimbursement of private school costs, the IHO concluded that the bullying, if it did occur, did not adversely impact the student's education. The IHO cited M.L. v. Federal Way

School District, 42 IDELR 57 (9th Cir. 2005), for its holding that if a teacher is deliberately indifferent to bullying and the abuse is so severe that the child can derive no benefit from the his services, the child has been denied FAPE. In this case, however, there was no evidence that most of the alleged incidents occurred. The district investigated the bus incidents, but found no witnesses.

Based upon a review of the record I find that the district did not demonstrate an indifference to the rights or deliberate indifference to depriving the student rights, which are secured to the disabled under Section 504. I also find that conduct did rise to the level of having a systematic effect denying the student equal access to the district’ educational program. I also find the District 504 plan of May 10, 2010 did not deny FAPE.

FERPA

The parents have raised in their due process hearing request complaint, allegations that the district violated the FERPA rights of the parent and student by failing to make available all of the student’s academic records for review and coping. The parent’s reviewed the academic records on two separate occasions.

The parents claim certain documents were not in the student’s academic file but were on the desk and being reviewed during the transitional time between the former and current CSE

Director of Special Education Services. The other issue dealt with the nurse’s log book recording. Another issues dealt with FC personal diary.

The SRO in No. 05-036 stated:

“Insofar as the impartial hearing was commenced pursuant to the IDEA (Parent Ex. A-1;

IHO Decision, p. 2) and all issues raised as alleged violations of the IDEA in respondent’s hearing request were settled by stipulation between the parties during the course of the hearing and before the impartial hearing officer’s decision (IHO Decision, pp. 2-3), I find, under the circumstances presented in this case, that the impartial hearing officer erred in proceeding to determine the issue of expungement of the student’s suspension records (Application of a Child with a Disability, Appeal No. 01-099;

Application of a Child with a Disability, Appeal No. 94-9; see also Federal Policy and

Guidance, Letter to Parent re: Amendment of Special Education Records, Aug. 13, 2004, at http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/parent.html4).

The SRO in No. 98-83 stated:

“I concur with the hearing officer's determination that the issues of evaluation, classification, placement, and reimbursement are beyond the scope of this proceeding because respondent failed to raise these issues in a timely fashion. I do not review issues which were not properly raised at an impartial hearing (Application of a Child with a Disability, Appeal No. 98-14). I must also concur with the hearing officer's determination that an impartial hearing under the IDEA cannot be used to collaterally attack disciplinary determinations made pursuant to Section 3214 of the Education Law

(Application of a Child with a Disability, Appeal No. 97-64), or to resolve purely FERPA issues (Application of a Child with a Disability, Appeal No. 94-9; Application of a Child Suspected of Having a Disability, Appeal No. 96-61). However, the IDEA regulations also provide for maintaining the confidentiality of student records, and should be considered in this proceeding. I find that respondent's cross-appeal must be limited to challenging the hearing officer's findings about the propriety of notifying the police about the boy's suspected crimes and releasing his records to the police.

In upholding an Impartial Hearing Officer’s decision the SRO stated in No. 09-007

“Hearing Officer 5 noted for the record that the parent had not replied to the district's motion to dismiss and then she proceeded to consider the motion at the scheduled

October 21, 2008 hearing date (Tr. pp. 56-60, 62-64). In a decision dated December 4, 2008, Hearing Officer 5 granted the district's motion to dismiss (IHO Decision at p. 3).

Hearing Officer 5 held that "[t]he Parent did not appear, thus abandoning the action and ensuring default" (id.). Hearing Officer 5 also held that the due process complaint notice did not state a claim upon which relief could be granted; that the parent lacked standing because his proposed remedy failed to address the alleged violations; that the complaint was grounded in information requests under the Family Educational Rights and Privacy Act (FERPA) and Freedom of Information Law (FOIL), which are outside the scope of an impartial hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA); and that the allegation about a 2005 IEP containing erroneous information was time-barred by the statute of limitations (id.). By correspondence dated December 4, 2008, the parent was provided with a copy of Hearing Officer 5's decision (Answer Ex. V).”

As a result of the above , I find that the claims against the district that it violated FERPA is a collateral issue not properly before this IHO in a Hearing seeking reimbursement of tuition.

For the appropriate venue for litigating I would refer the parents to SRO 07-051 states:

“To the extent that petitioner makes reference to FERPA in her petition and memorandum of law, I refer her to the procedures set forth under that statute's implementing regulations (34 C.F.R.§§ 99.20-99.22)”

It should also that during the course of the hearing be some of these issues were raised as part of conducting the hearing. This IHO issued evidentiary rulings. The log book recorded students gaining access to the nurse’s office and services and were not personal educational records of the student. The log book documented all the students entering the nurse’s office. The production of said log book would have violated the confidentiality of all the students accessing the medical office. The request of said records occurred months after the first day of testimony.

The production, review, and redaction of the log was denied at the late stages of the proceeding.

This IHO did not direct the production of same. The personal notes of FC were not limited to interaction with the parents, student or teachers involved in the issues related to this hearing. It should also be noted that clerical delays in filing records into the student’s file were reasonable under the circumstances herein, in particular relating to D43 the notification from BOCES that they would not be able to provide counseling services to the student for the 10-11 school year.

BB the CSE Chairperson testified that they were actively working on arranging counseling services for the student as an explanation why the documents were not in the student’s academic file when the mother performed the record review.

As a result of the above I find that the district did not violate the student’s FERPA rights and that the parents should seek redress of their alleged grievance for FERPA violations pursuant to the procedures set for tin the FERPA implementing regulations.

AMERICANS WITH DISABILITY ACT

Title II of the Americans with Disabilities Act (ADA) prohibits the discrimination on the basis of disability. Title II of the ADA prohibits discrimination on the basis of disability by state and local government providing services by state and local governmental entities which include public school districts. Public education is a government service. ADA requires school districts to provide a free appropriate public education (FAPE) to students with disabilities protected by those laws. Section 504 of the Rehabilitation Act of 1973 also requires the district provide FAPE. In order for the parents to prevail under the ADA, there needs to be a finding that the district denied FAPE. As I found in the portion of this decision dealing with the parent’s

Section 504 claim, I find that the district provided FAPE to the student and did not deny the student FAPE as a result the parent cannot succeed with a reimbursement claim under ADA and I so find.

14th AMENDMENT

In SRO 01-02, the SRO dismissed an appeal that challenged the IHO’s decision where the IHO “dismissed five claims that raised constitutional or civil rights issues that were outside his jurisdiction.”

Furthermore in upholding the decision by this IHO in SRO 05-071, the SRO stated:

“I now turn to petitioners' claims relating to the United States Constitution and their contention that certain IDEA provisions are unconstitutional per se or as applied in this case. Petitioners’ constitutional questions are beyond the scope of this proceeding and I will not decide them here (Application of a Child with a Disability, Appeal No. 02-016). I thus concur with the impartial hearing officer in declining to address these issues (IHO Decision, p. 4).”

As a result, I find that the issues of violations of the 14th Amendment are outside the scope of this proceeding.

ATTORNEY FEES/ADVOCATE FEES

It is well established that IHO and SRO have no authority to award attorney fees and related costs. As the SRO stated in 01-011

“there is no authority for either an impartial hearing officer or the State Review Officer to award reimbursement attorney’s fees and related costs (Application of the Board of Education of the Enlarged City School District of the City of Saratoga Springs, Appeal No. 96-9; Application of a Child With A Disability, Appeal No. 94-18)”.

In SRO 05-084 the SRO upheld the denial of the request for attorney/consultant/advocate fees and expenses. Furthermore the SRO in 07-133 stated

“With respect to petitioner's request for reimbursement for out of pocket and other costs related to her impartial hearing (i.e. mileage and meals for her advocate, fees related to testimony by her witnesses, lost wages, and administrative supplies) I decline to award such costs. The IDEA does not provide for compensatory damages (see Polera v. Bd. of Educ., 288 F.3d 478 [2d Cir. 2002]).

Any award of attorney fees and related costs under IDEA, Section 504, and ADA must be addressed in a Court of competent jurisdiction. As a result I deny the request for fees and expenses and costs for the advocates both before and, during the hearing.

FINDINGS

I find that the date of the letter to the district that the student was going to be placed at TAS is the date of the accrual of the claim. The two year statute of limitations applies to both IDEA claims and to 504 claim

I find the district’s CSE properly found that the student did not meet the necessary requirements for classification except for Emotional Disturbance which is analyzed below.

Based upon the information considered by the CSE, I find that the CSE student’s deficits and needs did not raise to the level of needing special educational services. This, however, does not conclude the analysis since the parent has raised a claim of the district failing to evaluate the student in all area of suspected disability and failed to fulfill its Child Find obligations.

Although the parents dispute the effectiveness of the programs and accommodations, and the thoroughness of the district evaluations in all areas of disability, I cannot find the district violated it Child Find obligations.

I find that the parents were provided the procedural safeguards notice for IDEA.

Although the P-O is somewhat misleading I find that it adequately advised the parents of their right to a hearing. As a result I find that the parents were not denied FAPE as a result of being provided an IDEA safeguards notice instead of a 504 safeguards notice.

I find based upon the receipt for the procedural safeguards notice for the May 10, 2010 meeting and the procedural safeguards notice used for the November 11, 2011 meeting that the parents were advised at the 504 meeting of May 10, 2010 and November 11, 2011 of their right to a due process hearing.

I find the location of the priority locker would not rise to the level of denial of FAPE.

The failure to utilize the lunch visits was partly attributed to the student socializing and as a result I do not find they the district failed to provide this accommodation.

As a result I find that the district implanted the services to a sufficient amount so that I find that the district implementation did not lead to a denial of FAPE.

I find that based upon the record the student did not need direct instructional support.

I find that the parental private placement at TAS is not appropriate. Furthermore this IHO is not swayed by the argument by the physical safety of the student would justify a different finding.

I find that the parents failed to provide the appropriate prior notice of the commencement of the application process.

As a result the lack of notice is not sufficient to justify a finding that the Equities do not favor the parent in their reimbursement claim.

I find that 504 plan was reasonably calculated to provide an educational benefit. However, that does not conclude the analysis since we must now visit the topic of bullying and the failure to provide a safe access to an education.

In SRO10-129, the district was found to have violated its child find obligation were the student was homebound instructed as a result of a disciplinary removal from school. The SRO did not find that bullying lead to unsafe environment.

I find that the efforts were sufficient to address the level of bullying known to the 504 team.

Based upon a review of the record I find that the district did not demonstrate an indifference to the rights or deliberate indifference to depriving the student rights, which are secured to the disabled under Section 504.

I also find that conduct did rise to the level of having a systematic effect denying the student equal access to the district’ educational program.

I also find the District 504 plan of May 10, 2010 did not deny FAPE.

As a result of the above , I find that the claims against the district that it violated FERPA is a collateral issue not properly before this IHO in a Hearing seeking reimbursement of tuition.

In order for the parents to prevail under the ADA, there needs to be a finding that the district denied FAPE.

As I found in the portion of this decision dealing with the parent’s Section 504 claim, I find that the district provided FAPE to the student and did not deny the student FAPE as a result the parent cannot succeed with a reimbursement claim under ADA and I so find.

As a result, I find that the issues of violations of the 14th Amendment are outside the scope of this proceeding.

ORDER

It is hereby ordered that the parent’s claim is hereby denied in its entirety

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

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

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

Notice:

(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.

(b) The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.

( c ) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.”

Dated: June 27, 2012

PAUL T. BUMBALO, ESQ.

IMPARTIAL HEARING OFFICER