Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

X

In The Matter Of The Parents and Guardians of [], Petitioners,

Case #

- against -

M. Lazan, I.H.O.

[], Respondent.

X

This matter came before me on the parents’ Due Process Complaint dated September 28, 2011 and received by the District on September 29, 2011. The Complaint (Exh. 1) alleges that the . (the Student) has been denied a FAPE for 2011-2012 because the District recommended placement in an overly restrictive 12:1:1 setting that requires a two hour bus ride. The school associated with such placement is a BOCES setting. The parents request that the Student be placed in her home school district in a general education placement with supplementary aids and services, or alternatively in a special education placement that is less restrictive.

The parties waived resolution on September 30, 2011. A prehearing conference was scheduled on October 13, 2011, during which the parties discussed the issues and set hearing dates. Issues relating to the parents’ request for [] to observe a general education setting at the District were discussed. A prehearing conference summary was sent to the parties. (IHO Exh. 1)

In connection to the requested observation, the parents sent a correspondence to this IHO dated October 17, 2011. (IHO Exh. 2) The District sent a correspondence opposing this application on the same date. (IHO Exh. 2) The parents’ request was denied by written decision dated October 27, 2011. (IHO Exh. 2)

On November 2, 2011, this IHO received a letter from the parents indicated that the District was no longer willing to allow the parents’ expert to conduct a full day evaluation of the student in the BOCES placement. (IHO Exh. 3) On November 4, 2011, the parents submitted a letter requesting that I order a full day observation of the student in class by their expert. (IHO Exh. 3) On November 7, 2011, the District submitted a letter in response. By decision dated November 8, 2011, this IHO denied the parents’ request for a full day observation. (IHO Exh. 3)

The parents sought to extend the decision date on November 14, 2011 because of the need for the expert to observe the Student. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to December 13, 2011. (IHO Exh. 4) The parents sought to extend the decision date again on December 8, 2011 to allow for witnesses to present testimony and evidence. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to January 13, 2012. (IHO Exh. 4) Hearings were held on December 6, 2011; December 12, 2011; December 14, 2011; January 3, 2012. Appended to the record are the names of witnesses.

The parents sought to extend the decision date again on January 13, 2012 to allow the parties to submit briefs and replies and to allow the IHO to consider same in connection to the decision. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to February 10, 2012. (IHO Exh. 4) Briefs were received from the parties on January 25, 2012 (IHO Exh. 5); the parties submitted replies on January 27, 2012 (IHO Exh. 5), the record close date in this matter.

FINDINGS OF FACT

The Student is a five year old classified as []. (37) She has []. Her strength is music; she can attend to a lesson with music for 15-20 minutes. (446) She enjoys being with peers. (Exh. 9). She needs to engage in purposeful play with peers to increase social interactions. (Exh. 11) She is an extremely happy child. (Exh. 12) She has difficulty [].

In the Student’s []. (220) The room included children who are non-disabled who are there for daycare. (31, 221) []. (223, 238) []. (227) []. (232) She loved the songs on the rug, did the gestures. (233) She enjoys singing. (380-382) She has started to do some imitation during the songs. (291) []. (234) []. (235) []. (242-243) []. (382) []. (Exh. 23)

The Student made [] in terms of speech, but [] in terms of IEP goals. (244; Exh. 23) []. (377) []. (379) []. (380) She can understand []. (380) []. (382) She can []. (384)

[]. (Exh. 33) []. [].

The Student has demonstrated knowledge of body parts. (250) []. (251) []. (252) []. (Exh. 17)

When books are read out loud, the Student will []. (252) She is not disruptive, but []. (252)

The Student benefits from []. (253)

The Student was not interested in []. (248, 259, 260, 385) She did not work well with a []. (249, 263-264) She did use []. (249-250)

During []. (287-288) Adaptive technology was []. (301) The Student may benefit from []. (357) []. (360)

During an observation of the preschool by the District, []. (31-32) []. (32)

The CPSE and CSE both met in back to back meetings on June 10, 2011. (44) The District felt that the Student required []. (48) The District thought it would be “a stretch,” but the CPSE recommended []. (25, 51; Exh. 21, 22) The preschool providers had recommended []. (25) These students []. (196) []. (55) []. (56) []. (192) []. (187) Everyday Math is used in this program. (188) These children push into the regular education classroom []. (188) They may []. (188) Some may go into one classroom, and others may go into another classroom. (190) The []. (191)

The []. (192) These students []. (192) The []. (191)

After the recommendation, the District sought to apply to []. (26) The District was told that the Student would not be appropriate for such class due to her []. (26, 51-52) The class was an []. (114) The students push into the regular classroom daily for a much time as the children can tolerate. (114) It is a special education program. (115)

On the advice of [], the District visited a []. (54) The parents agreed with this program and signed a consent for this class. (58, 66) However, the understanding was that if the parents did not like the class, they would be able to look at other programs. (67) The parents were concerned after visiting the program. (67-68)

An IEP meeting on July 22, 2011 recommended the []. (Exh. 25) Thereafter, the parents viewed the general education kindergarten class. (62) The mother agreed that the pace of this class was too fast for the Student. (63)

The parents also visited the [], which was located at a different site over the summer. (68) Children have similar needs to the Student in such program. (70)

In August, 2011, the [] attended a meeting with the superintendent.

(531) They were under the impression the meeting was a CSE meeting. (531) The Student was characterized as an []. (532-533) The parents were told it was not possible to have the Student in a []. (533)

The CSE meeting on August 19, 2011 included a discussion about []. (73, 75) The [] did not agree that this was the appropriate level of cognition and instruction for her. (73) The CSE recommended the [], which was a higher functioning program than the []. (76) []. (76) Related services remained the same, with []. (77) []. (77) Previous CSE meetings did not include a discussion about []. (115-124)

The []. (Exh. 28) It indicates that the Student does not require [].

The District has discussed supplemental supports such as []. (297-298)

The bus ride to and from []. (77)

[] observed the student three times and disagreed with the contentions of the report of []. (90- 111, 126-132) []. (103) [] would have to be developed for the child in the general education classroom. (112)

[] reported that the Student []. (319-325; Exh. 31) The gap between her and her peers []. (327) She had []. (327) She didn’t []. (329) She []. (Exh. 31) Adaptive behavior scores []. (332- 335) []. (335) The teacher []. (337) []. (338) The Student could not []. (338) []. (339) He did not []. (351) He posited that it is appropriate to []. (367-368)

The District did not [] until the parents requested []. (132-134) The District then concluded []. (134-137) The principal felt strongly that []. (138)

The District did not engage in []. (139) There was no detailed exploration of []. (140-141, 167) The District did consider []. (146)

The District did not engage in []. (158)

In the []. (180-181) [] was given when the Student seemed []. (181)

From the standpoint of language development, being around [] is best for a child. (273, 275) The Student may be [] when a peer leads an activity. (353)

All the educational professionals from []recommended a small classroom for the Student. (293; Exh. 18) They felt that she needed consistency and repetition to acquire skills and the level of support available in such classroom. (294, 340) They felt she would benefit from direct and explicit instruction at her level. (328)

The [] as of the day of testimony. (408) There were [] in the room. (408) There is a [] for the room, and there are [] assigned to particular students. (409) One of the []. (409) It is a []. (411) It is a []. (411) There is a []. (412-413) Students are in the []. (415) []. (416) []. (417) []. (417)

The classroom is []. (581) The Student can []. (583)

Within the classroom, the Student uses a []. (461) She does not engage in []. (418) During []. (419) She will occasionally []. (419) She prefers to []. (419) Some of the []. (420) Some are []. (421) As far as []. (422) Four of the []. (424-425)

The program uses the []. (427) All the children are []. (428) You need to []. (428-430)

For the Student, they []. (430) The class does a []. (430-431) The Student has []. (432-433) One day she did []. (434) Students are mostly []. (436)

The main goal of the class is to []. (436) There is a []. (437) The []. (437, 441) The Student will []. (437) She seems to []. (438)

The group work includes []. (440)

The Student requires []. (443) There has been no [].(445)

IEP work is mostly []. (446) The entire class mixes with []. (462-465) The Student is []. (471) In music, []. (472) []. (472) She will []. (473-474) []. (473) In library, []. (475-476) Some of the []. (477)

The Student may []. (479-480) She responds to []. (483) She does not have []. (487) She is making []. (488) She has difficulties []. (503)

The date of the observation []. (506) They wanted to set the Student up for success on that day, and this did not work. (506-507)

The Student has not had a []. (512)

The progress report on goals []. (Exh. 36) Activities involving [].

[], also works to prepare teachers for certification in New York State. (548; Exh. A) She is a former teacher of children with special needs. (549, 595-597) She teaches a class describing supplementary aids and supports for students. (555) She spent a day with the Student, reviewed records pertaining to the Student, and prepared a report for the Student. (552; Exh. A)

Her opinion is that the Student can make satisfactory progress in a general education setting with supports. (555) She indicated that many students with severe disabilities are integrated into general education classrooms. (556) Kindergarten teachers are very well equipped to differentiate instruction because students are very young and come in at different levels. (559, 618) Differentiation would take different forms. (618; Exh. A) Examples of differentiation include matching shapes and colors instead of creating letter patterns, having pre-drawn patterns for math. (Exh. A)

The Student could meet the goals in the IEP, i.e., []. (559-566) She indicated that []. (561) She indicated that []. (565) She indicated that []. (566-567) She indicated that []. (589; Exh. A) )

She indicated that this []. (589; Exh. A) Differentiation would allow her to work with different materials. (618)

She indicated that []. (590) She indicated that []. (591)

When []. (567-568) There were no interactions between the Student and the special needs peers. (567) The majority of []. (569) She was not []. (570) The []. (570)

The Student []. (571-572)

The Student []. (572) She []. (572) She []. (579-580) It can be []. (576)

The Student []. (578)

The Student is []. (580)

[] believes that students should be mainstreamed unless they have significant behavioral issues. (597) She believes that []. (598-599) She did not speak to any of the preschool providers. (599)

[] there is not necessarily a correlation between a child’s future and their current performance based on a testing situation involving motor planning skills. (631)

[] indicated that additional modifications would be based on how the student performed within the general education setting. (638) Her report indicated that a bus ride of over 2 hours back and forth to school every day is not appropriate. (Exh. A) The report indicates that the Student would work []. The Student []. She was []. []. The report indicated that [].

The Student’s report card is []. (Exh. 35) The notes indicate []. There is a []. []

CONCLUSIONS OF LAW

In enacting the IDEA, "Congress was concerned about the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes." Sch. Comm. of Town of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 373 (1985). Accordingly, in formulating an appropriate IEP, the CSE must “be mindful of

IDEA's strong preference for 'mainstreaming,' or educating children with disabilities '[t]o the maximum extent appropriate' alongside their non-disabled peers." Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(5)); Lachman

v. Ill. State Board of Educ.,, 852 F.2d at 295 ("[IDEA's] requirement that mainstreaming be provided to the maximum extent appropriate indicates a very strong congressional preference").

Still, the Second Circuit has been "mindful that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students." P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122 (2d. Cir. 2008).

It thus has held that "where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate." Briggs v. Bd. of Educ. of Conn., 882 F.2d 688, 692 (2d Cir. 1989). The IDEA's preference for mainstreaming "rises to the level of a rebuttable presumption." Warton v. New Fairfield Bd. Of

Educ., 217 F. Supp. 2d at 273 (quoting Sacramento City Unified Sch. Dist. v. Holland, 786

F. Supp. 874, 877 (E.D. Cal. 1992)); see also 8 NYCRR Sect. 200.1(cc).

In Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993), the Third Circuit Court of Appeals set forth a construct for school districts in connection to their duties to provide an education to students with disabilities in the Least Restrictive Environment. The Second Circuit explicitly adopted the Oberti approach in 2008 in P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122(2d. Cir. 2008). In Oberti, the Third Circuit looked to: (1) whether the District has made reasonable efforts to accommodate the child in a regular education classroom; (2) whether there are educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) whether there are possible negative effects of the inclusion of the child on the education of the other students in the class. Id., at 1217-1218. The Second Circuit considers this the “first prong” of the Oberti test. Newington, 546 F.3d at 119-120. The Oberti court continued to explain that, if after considering these factors, the court determines that the District was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. This is considered the “second prong” of Oberti test. Newington, 546 F.3d at 119-120.

First Factor, First Prong.

With respect to first factor of the first prong of Oberti, a review of the caselaw makes clear that the District’s duties cannot be characterized as a “token.” Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261 (D. Conn. 2002)(most modifications came from a list provided by parent). Moreover, a review of the caselaw indicates the importance of offering a one-to-one aide in this connection. G.B. and L.B. v. Tuxedo Union Free School District, 751 F. Supp. 2d 552 (S.D.N.Y. 2010)(faulting District for failing to consider aide).

The record reveals that the District never tried to place the child in a general education environment with supplemental aids and supports because []. The District notes that [].

Oberti, a seminal case in this area, in fact involves a child with []. The student there had a “severe intellectual disability” and severe behavioral issues also, but the Third Circuit found that the student should be placed in a mainstream class with supports. The Circuit pointed out that the child would benefit from a modified curriculum and from behavioral supports, crediting the federal district court judge who – reversing the hearing officer – noted that the District employed a perfunctory approach to providing such supports. The decision indicates that the District had never tried to place the child into the general education environment.

Newington, the major case in the Second Circuit, is similar although the ruling ultimately went in favor of the District. Newington also involves a child with who was functioning at the level of a two year old. As opposed to the facts in the instant case, in Newington, the District placed a child in general education for 74% of the child’s school day, which would ultimately increase to 80%. The District provided a variety of supports, including assistive computer programs and a consultant recommended by the parent. In upholding this plan, the Circuit cited to two cases where school districts had “creatively” come up with programs that included “some” special education. It cited to Poolaw v. Bishop, 67 F.3d 830 (9th Cir. 1995), where a student had been mainstreamed unsuccessfully by an Idaho school district which had offered “varying degrees of placement in the regular classroom.” It also cited to Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1076 (5th Cir. 1989) another seminal case in this area where -- again -- a Texas District tried to mainstream a student without success. The Second Circuit noted the “creative approach” of the Texas District, which employed a general education pre-kindergarten teacher who had devoted a substantial amount of time to the student.

Other cases involving children with are in the same mold. In Blount v. Lancaster-Lebanon Intermediate Unit, 40 IDELR 62 (E.D. Pa. 2003), the court found that the District should have initially mainstreamed the student. In McCullough v. Unified School Dist. No. 259. Topeka, Kansas, 43 IDELR 187 (10th Cir. 2005), the District had initially tried to mainstream the student with supplemental aids and supports. In L. v. North Haven Bd. of Educ., 624 F. Supp.2d 163 (D. Conn. 2009), a 12 year old student had attended a mixture of regular education classes and special education in the District for years.

The District indicates that the child’s [], but the record does not support this contention. The record indicates that the [] was a 9:1:2 special education class, with []. There were also []. These students did not have []. I do not agree with the Distict’s characterization that this constitutes an attempt to place the Student in a general education classroom.

The District indicated that it has considered providing some supplemental aids and supports. On cross-examination from the parents’ attorney, []. Also on cross-examination from the parents’ attorney, there is mention [].

The record indicates that the District did not employ a “creative” approach as suggested by the Circuit in Newington. The District did not []. Among other things, the District did not adequately consider the use of an []. The District suggests that the Student []. However, the record shows that the Student []. Moreover, the Student has []. The District also did not []. Nor did the District []. Nor did the District []. Nor did the District []. The District also did not [].

Additionally, there was no []. There was no consideration of whether a []. Application of Child with a Disability, Appeal No. 03-073 (District attempted to provide general education instruction through consultant teacher and two parapofessionals)(cited in District reply brief). Additionally, though [], there is nothing in the record to indicate that any assistive technology evaluation was conducted in connection to this Student.

Throughout its argument, the District noted that []. However, the IEP does not indicate that music is []. The IEP merely states []. It is also unclear from the record why [] consistent with the requirements in Newington and Oberti.

The District contends that the Student is []. See 8 NYCRR Sect. 200.4(b)(1)(v), Sect.. 200.22(b). The District objects that the Student does not []. Kendell Miller from []. (Exh. 9)

In sum, I can understand the District’s position here. However, given strong the congressional mandate in favor of teaching children in the Least Restrictive Environment, I agree with the parents that [].

Second Factor, First Prong.

With regard to the second part of the first prong of Oberti, the record supports the view that the best possible environment for the Student in terms of speech and language development is the []. There is no dispute between and among the parties on this issue. []. The record suggests that the Student has []. Her report card from []. While there was []. The record also indicates that []. In addition, [].

The record suggests []. As stated, the Student would have []. Further, []. []. []. []. I agree with the parents that [].

Third Factor, First Prong.

With respect to the third part of the first prong of Oberti, the record indicates that the Student has []. However, the record does not []. The District appears to []. However, when it created the IEP, the CSE []. Districts are []. 8 NYCRR Sect. 200.4(b)(1)(v); see R.K. v. New York City Dep’t of Educ., 56 IDELR 168 (E.D. N.Y. 2011); see also 8 NYCRR Sect. 200.22(b). The lack of such an assessment and plan speaks to []. The record indicates that the Student is a []. While the Student has [], they do not rise to the level required for an FBA and do not rise to the level required to deny the child her access to the Least Restrictive Environment. See Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993)(student engaged in crawling and hiding under furniture, toileting accidents, touching, hitting and spitting at other children, struck teacher and aide; held that the student should be placed in regular education program).

As a result of the foregoing, I agree with the parents that the District denied the Student FAPE by failing to provide an education in the Least Restrictive Environment. The District should reconvene the CSE and formulate a plan to attempt to integrate this child into the general education classroom.

Finally, I will note that I do not find that the [] is a basis for this relief. I have considered the parents’ LRE argument in connection to the [], and find it without merit. M.M. v. Unified School Dist. No. 368, 51 IDELR 188 (D. Kan 2008)(Down Syndome student bused for 60-90 minutes each morning; held no violation of LRE requirements).

ORDER

As a result of the foregoing, I order that the District reconvene the CSE within 10 days of this order to create an IEP for the Student placing the Student in a general education setting with supplementary aids and services.

Dated: Brooklyn, N.Y.

February 10, 2012

MICHAEL LAZAN IHO