Impartial Hearing Decision

FINDINGS OF FACT & DECISION

JHRS Case Number: 70662

Student Name: qua»

Date of Birth: Ee

District: Qateah Public Schools

Hearing Requested By: Parent

Dates of Hearing: June 25, 2012

June 26, 2012

July 9, 2012

July 12, 2012

Actual Record Close Date: September 10, 2012

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 25, 2012

For the Student:

De 2SO., Attorney

GR, Parent Student

For the District:

De SQ. Attorney

Ree > irector of Special Education

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 26, 2012

For the Student:

EE SQ. Attorney

SS Pace

De 2 SQ., Attorney

Re |irector of Special Education

School Psychologist, Project AIIM, Southern Westchester BOCES Ree

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 9, 2012

For the Student:

SR£30, Attorney

SEE Parent

GREE Poincipa|, Ce Cees

CEE... Special Education Teacher, Wg

For the District:

BE SQ. Attorney

et for Special Services, Southem Westchester BOCES

Te Director of Special Education

|

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 12, 2012

For the Student:

RE0. ory

ase. Parent

For the District:

ESQ., Attomey

ee SEDA. Director of Special Education

I JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by counsel for the student and the parent in a due process complaint notice dated April 25,2012. The primary issue to be determined at this hearing is whether or not the QD Public Schools (the “District”) offered the student a free appropriate public education (“FAPE”) for the 2010/11 and 2011/12 school years (Ex. [HO-IID.’

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402: see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C_F.R. §§ 300.320, 300.321; 8 NYCRR 9$§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. $§ 1221e-3, 1415(e)-(f); 34 CLFLR. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-().

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§

References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 300.503(a\(1)-(2), 300.507(a}(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2\(A), (h)C1)-(3); 34 C-FLR. § 300.521 (a)(1)-(4); 8 NYCRR $§ 200.5G)(3)(v), (vid), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5G)(S). A party may seek a specific extension of time of the 45-day timeline, which the [HO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the {HO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an [HO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 CFR. § 300.514(b)(1); 8 NYCRR § 200.5(k).

ll. PROCEDURAL HISTORY

I was appointed by the District to hear this matter on April 30, 2012.? Ina letter dated May 7, 2012, the District denied each and every allegation raised in the parent’s April 25, 2012 due process complaint (Exs. IHO-II, IHO-IV). Ina letter dated May 15, 2012, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-I). A pre-hearing conference

°That appointment was later confirmed by the District’s full Board of Education on May 16, 2012. with the parties was held on May 16, 2012 to clarify the issues and establish dates for the hearing (Ex. IHO-Ll). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter where held on: June 25, 2012; June 26, 2012; July 9, 2012; and July 12, 2012.° Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(;)(5)(v).

HI. FACTUAL BACKGROUND

At the time of the April 25, 2012 hearing request, the student was an @Mllilijyear-old HED rade student, educationally classified as a student with an other health impairment (“OHI”) (Ex. IHO-III at 1, SD-7 at 2).* While the student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing, see 34 C.F_R. § 300.8(c); 8 NYCRR § 200.1(zz), the parent objects to his educational classification as OHI (Ex. 1HO-IL at 3, 5).

The student has a history cfpg a asa aa aD :. SD-7 at 2, SD-26A at 1, SD-56 at 1, SD-62 at 2, SD-

71 at 1, 10). The student attended the Ce

* Following my appointment to this case, the parties moved to extend the case compliance date in this matter three (3) times in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parent’s due process complaint and to allow for adequate time for my review of the hearing record on the extensive issues raised in the parent’s due process complaint. In considering those requests, | weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 591-592, 726-727; Exs. IHO-V, JHO-VI, IHO-VID).

* Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(160). dqueEUyE £00 his first year of day care/school (the 2007/08 school year) (Ex. SD-71 at 4).

On June 25, 2008, the student completed a psychological evaluation at the WH ee ie 2s SB2s. GQ onths old at the time. Relevant assessment tools completed included the Wechsler Preschool and Primary Scales of Intelligence - Third Edition (“WPPSI-HI”), the Vineland Adaptive Scales - Second Edition (“Vineland-II”), the Beery Buktenica Developmental Test of Visual Motor Integration (“VMI”). the Child Behavior Checklist Parent Report Form, the Conners’ Parent Rating Scale and the Social Skills Rating System (“SSRS”) (Ex. SD-71 at 4-5).

Based on these tests, the student’s verbal and nonverbal intellectual skills were estimated to be in the average range (VIQ and PIQ = 93). Processing speed skills were lower (SS = 78). According to the parent report on the Vineland-II, the student’s receptive language skills were estimated to be at an age equivalent of 2.2 years. The student’s expressive language skills were estimated to be at an age equivalent of 3.3 years. Visual-motor skills were estimated to be in the low average range (SD = 85). Problems were identified with regard to prosocial behavior, social skills, behavioral regulation, anxiety related to being around other children, aggression, and impulse control. Of note, it was reported in this evaluation that the student's behavior was reported to be best when he was under the supervision of a 1:1 aide in his preschool. Recommendations from this evaluation included behavior therapy, social skills training, and increased structure in his academic setting (including 1:1 adult support). Continuation of occupational therapy services was also recommended, in addition to an updated physical therapy evaluation, Continued consultation with psychiatry and psychological professionals was also indicated (Ex. SD-71 at 4-5).

For the 2008/09 school year, the student attended the Qi. ee, <i 2 therapeutic day school (Ex. SD-71 at 4). When the student was 4.7 years old (September, 2008), he completed a speech and language evaluation through CQ. Tests administered included Preschool Language Scale - Fourth Edition and the Goldman Fristoe Test of Articulation Second Edition. Results indicated age appropriate receptive and expressive language scores. The examiner noted that the student committed several articulation errors, but deemed them “developmentally appropriate” and suggested that they would resolve themselves over time (Ex. SD-71 at 5).

@B years old (October, 2008), he also completed the Peabody

When the student was Developmental Motor Scales - Second Edition in the context of an occupational therapy evaluation, Difficulties were noted with grasping/manipulation, and his skills were estimated to be at the ninth percentile. He demonstrated other functional difficulties with fine motor skills, including buttoning and unbuttoning. Difficulties with visual-motor skills were also observed, as the student was unable to consistently copy a circle. Letter reversals and a tendency to write letters upside down were also observed. It was recommended that occupational therapy services continue (Ex. SD-71 at 5).

On January 9, 2009, the student completed an evaluation through the District by ili Seuemmegtingg> Severs! of the tests completed in the previous evaluation were repeated, including the WPPSL-HI, the VMI, and the Vineland-IJ. In addition, the Kaufman Survey of Early Academic and Language Skills (“K-SEALS”) was completed. The student’s verbal intellectual skills were again measured to be in the average range (VIQ=104). Compared to previous testing, a notable increase was observed in his performance on tasks assessing perceptual reasoning skills (PIQ=116, PSI=102). Visuomotor skills were measured to be in the average range (SS=109), which was higher than his previous performance. Early academic skills were estimated to be in the high average range (Exs. SD-34 at 2, SD-64 at 2-4, SD-71 at 5).

In the fall of 2009, the student transitioned from the QQ to CURED Qpeteeee2 private program in QAR for kindergarten (Ex. SD-7] at 4). program, the student attended school on a full-time Enrolled in the @RRRIRRERNBEeges basis and participated in a transitional kindergarten class. The transition kindergarten class was in a combined class that had both five (5) and (4) year olds (Ex. SD-62 at 2).

garten (Ex. SD-7] at 4). Enrolled in the @RRRIRRERNBEeges program, the student attended school on a full-time basis and participated in a transitional kindergarten class. The transition kindergarten class was in a combined class that had both five (5) and (4) year olds (Ex. SD-62 at 2).

The student was referred to (uQeagiegitent® Ph.D. of QaGieeertadgy for a neuropsychological evaluation. The student was examined by Weewetites in October and November of 2009. Qijapaiai§hege found that his results were generally consistent with previous evaluations. The student’s overall intellectual functioning measured in the average range. The student’s WPPSI-3 full scale 1Q was 94, with a verbal IQ of 91 anda performance IQ of 103. The student’s early reading, alphabet fluency, and spelling skills, however, were slightly below expectations. The student’s math problem solving skills were slightly higher, and measured in the average range for his age group. Qualitative observation of the student's handwriting skills revealed difficulties with regard to letter construction and writing mechanics (Exs. SD-8 at 3, SD-34 at 2, SD-71 at 10).

apifanssties wen on to note that attention and impulsivity were an “overreaching concern” for the student, with poor attention and impulse control difficulties being seen at home, at school, and observed during his evaluation. The student’s expressive language skills, e.g.. articulation, grammar, syntax, was an area of “some concern.” Though the student’s receptive skills were also variable, that was deemed reflective of difficulties with attention and working memory. While the student’s performance on formal memory tasks was also variable, attention and impulsivity undermined his compliance with these tasks. Fine motor coordination was weak bilaterally. There were also ongoing concerns with respect to the student’s socialization and behavioral disinhibition (Ex. SD-71 at 10).

On November 10, 2009, the CSE for the City of QPP met to develop an Individualized Education Services Program (“IESP”) for the student.” Redetatess CSE noted that the student had been diagnosed with attention deficit hyperactivity disorder (“ADHD”), a seizure disorder and oppositional defiant disorder (“ODD”) for which he was prescribed Depakote, Resperdal, Straterra and Ceraquil. Gan CSE recommended that that student receive individual occupational therapy, two (2) times per week, to improve his fine motor and attention skills (Ex. S$D-64 at 1, 3-5). Bi-weekly speech/language therapy was later initiated, on March 26, 2010, to focus on speech intelligibility, pragmatic language skills, and understanding spoken paragraphs (Ex. SD-40 at 1).

=In 2007. New York State amended Education Law Section 3602-c to comply with the reauthorization of 20 U.S.C. § 1412(a)(10) (Children in Public Schools”) and its implementing regulations, 34 C.F.R. § 300,130 - 300.147. See N.Y. Educ. Law § 3602-c as amended by Ch. 378 of the Laws of 2007. Education Law Section 3602- ¢ - commonly referred to as the dual enrollment statute - requires parents who seek to obtain educational services for students with disabilities placed in nonpublic schools to file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See N.Y. Educ. Law § 3602-c(2}, The district of location’s CSE must review the request for services and develop an [ESP based upon the student’s individual needs and “in the same manner and with the same contents” as an IEP. See N.Y. Educ. Law § 3602-c(2(b){1). In addition, the district of location’s CSE “shall assure that special education program and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” See id.

In an April 26, 2010 progress report, the student’s teacher at the eitupemiteands kindergarten program stated that his epileptic “seizures are difficult to recognize. [His] seizures and the medicine he takes to treat them may be affecting his ability to attend in the classroom as well as his behavior.” Looking ahead to the 2010/11 school year, the teacher stated that the student “continues to need an adult to monitor his ability to attend and focus on lessons and activities. [He] also continues to need support in the area of social/emotional skills, specifically in reading so

“-8-a ‘s][Dys osenSur] satssaidxa $.juapNis sy] “UOTEN[eAd STY SULINP poArasqo pue “TooYps je In an April 26, 2010 progress report, the student’s teacher at the eitupemiteands kindergarten program stated that his epileptic “seizures are difficult to recognize. [His] seizures and the medicine he takes to treat them may be affecting his ability to attend in the classroom as well as his behavior.” Looking ahead to the 2010/11 school year, the teacher stated that the student “continues to need an adult to monitor his ability to attend and focus on lessons and activities. [He] also continues to need support in the area of social/emotional skills, specifically in reading social cues and developing pragmatic skills to be able to navigate a variety of social situations” (Ex. SD-62 at 2, 4).

At a meeting held on May 7, 2010, the CSE educationally classified the student as one with an OHI and developed an IEP for the student for the 2010/11 school year, his first grade. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class setting. The CSE also recommended that the student receive individual and group counseling to support social skills and refocusing and redirection in the classroom. The CSE did not find the student eligible for extended school year/twelve month services (Ex. SD-56 at [-2).° The CSE also discontinued occupational therapy and speech/language therapy (Ex. SD-40, SD-

50 at 3, SD-56 at 1).

The CSE identified the student’s recommended placement at the iia

MD District. The Schoo! Reenmeppipntd segs. «:'35cb is part of the QURIPSSBMT

® Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for student determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individualized education program. 8 NYCRR § I

200.(eee).

~~ 12:1+1 program at the WERE 2)owed students to be mainstreamed into regular class settings, where appropriate. Students would also be mainstreamed for art, physical education and computer classes (Exs. SD-39, SD-55, SD-56 at 1).

According to an anecdotal progress report prepared on or about December 16, 2010 by SIME, the student’s teacher at QB. the student displayed consistent and considerable behavioral difficulties in school throughout the fall of 2010 (Ex. SD-52). The student was discharged from a psychiatric hospital on September 24, 2010, where he had been an inpatient due to severe neurodevelopmental difficulties (Exs. SD-31, SD-52 at 2). The student was again hospitalized in November of 2010, this time due to pneumonia. Following that latter hospital stay, the @#@a@~ staff reported that the student’s behavior improved slightly (Exs. SD-34 at 2, SD-

52 at 8).

The parent began seeking a more restrictive program, such as a day treatment program, for the student by mid-year (Ex. SD-34 at 2). In a December 1, 2010 response to a referral of the student by the District, @@@QGUARs Intake Coordinator noted that its programs for the fall were full and that an updated psychiatric evaluation would be required for further placement consideration (Ex. SD-51 at 2). A psychiatric evaluation of the student was performed on December 16,2010 by Q@U@O@OQQ~MIM, M.D. (Ex. SD-34), The CSE reconvened on May 25, 2011 for an annual review of the student’s IEP. The Committee members included @@@@H@M@Band the parent. An account of the discussion at the May 25, 2011 meeting states that:

[The student] has been making slow, steady progress this school year at Spdiae School. [The student] can identify all capital and lower case letters as well as 21/26 letter sounds. He is able to identify his sight words in isolation, however difficulty has been seen when he reads these words within context. [The student] continues to need assistance throughout activities and keep him focused.

He often disrupts lessons by calling out and continues to have a difficult time focusing. [The student] has made progress in his social skills and can initiate play with others, however, he does need teacher intervention to interpret social cues.

Based upon testing, classroom reports, and subsequent conversation, the Committee decided to maintain [the student’s} current placement within the self-contained classroom, continue Speech and Language Services as well as Counseling Services. OT will be increased from 1x/week to 2x/week in a group setting. A 2:1 shared aide will be provided (Ex. SD-26A at 1).

Consistent with this discussion, the CSE recommended for the 2011/12 school year, the student’s second grade, that he receive the majority of his instruction in a 12:1+1 special class setting. The CSE also recommended that the student receive related services of: specialized transportation, individual and group counseling, group speech/language therapy, group occupational! therapy and a shared (2:1) aide. The CSE recommended that the student receive refocusing and redirection in the classroom and test accommodations of: extended time, special location and revised directions. The CSE did not recommend that the student receive extended school year/twelve month services (Exs. SD-7 at 2, SD-26A at 1, 7-9).

In an October 20, 2011 classroom observation, it was reported that the student started in a second grade-third grade self contained class in September, but was removed from the environment due to his maladaptive behaviors. Thereafter, the student was placed in a kindergarten-first grade special class with approximately six (6) students, one (1) teacher (Ms. QM 2nd three (3) aides in addition to his 1:1 aide (“Mrs. B.”). GUAMeDOagageeae, who conducted the October 2011 observation, noted that the student was “constantly engaging in taskavoidant/escape and attention-seeking maladaptive behaviors, which are not appropriately addressed throughout the day.” From her observation, Weel concluded that the class was no longer academically or socially appropriate for the student (Ex, SD-32 at |, 3).

On a January 12, 2012 occupational therapy report, the student’s therapist noted that he had made “slow progress” in fine motor skills, e.g., writing legibly, in his occupational therapy sessions during the school year. However, the student exhibited many task avoidant behaviors such aS running and distracting others. He also displayed defiant behaviors when asked to complete tasks (Ex. SD-35).

As part of a January 15, 2012 psychological evaluation, the student was administered the Wechsler Intelligence Scale for Children - Fourth Edition (‘WISC-IV”). The results for the student’s psychological assessment indicated that he possesses average developed perceptual reasoning and working memory abilities and low average verbal comprehension abilities and borderline speed abilities. The student’s cognitive functioning decreased since his 2009 evaluation. His verbal comprehension abilities decreased 19 points, his perceptual reasoning decreased 26 points and his processing speed decreased 27 points (Exs. SD-7 at 9-10, SD-8 at 4).

Qa) was administered a behavioral rating scale (‘BASC”) to assess behaviors demonstrated in schoo! and within the classroom. On @i@p@Q@O8Hs teacher report, she reported hyperactivity, aggressiveness, conduct problems, depression, somatization, and atypicality in the clinically significant range and attention problems, learning problems, withdrawal, adaptability, and study skills in the at-risk range (Ex. SD-7 at 10, SD-8 at 4).’

In a letter dated January 31, 2012, uupeneeE, Director of Special Education at Wate. requested a program review. “At present, (the student] is struggling due to a combination of new medical issues and increased behavioral concerns. We have added a 1:1

Scores in the clinically significant range suggest a high level of maladjustment while scores in the at-risk level may identify a problem that may not be severe enough to require formal treatment, but need careful monitoring

(Ex. SD-7 at 10).

10

aide, incorporated sensory breaks and used a flexible approach in trying to meed this student’s needs in this setting [Cottle]. Unfortunately, despite our best efforts, all are in agreement that this program is no longer appropriate for [the student]” (Ex. SD-28).

On a March 15, 2012 neuropsychological evaluation, conducted by Ee, 1h. student’s overall intellectual functioning was estimated to be in the lower end of the average, with a Wechsler Abbreviated Scale of Intelligence (“WAST”) full-scale 1Q of 82. The student's skills were fairly equally developed across both the verbal and performance indices; his verbal IQ was 86 and performance IQ was 81 (Ex. SD-8 at 5).

The student’s academic achievement skills remained weak and in need of ongoing remediation. With respect to reading skills, the student’s single word reading was weak (ss=76) as was decoding of nonsense words (ss=68). Mathematics skills were also weak; his performance on the numerical operations subtest of the WIAT-3 fell at a standard score of 75. The student was only able to perform simple single-digit addition problems. He was not able to perform any subtraction problems (Ex. SD-8 at 5).

WRN st2ted that “the most salient feature of his overall presentation is his clear distractibility/inattention as well as impulsivity/hyperactivity. Such difficulties are reported by his mother, his teachers, were observed during the current evaluation, and were seen on objective tests of attention.” The student also showed deficits in higher order executive functioning, language and memory (Ex. SD-8 at 9).

Between September and March of 2012, the student was suspended from school several times (Ex. SD-27A), On or about March 19, 2012, the CSE recommended that the student be temporarily placed on homebound instruction while it pursued an alternative educational

1]

placement for the student (Ex. SD-26-B). On or about May 23, 2012, the student was placed in another interim alternative educational setting, an ABA-VB class operated by Southern Westchester BOCES which focused on increasing functional language and decreasing problematic, maladaptive behavior (Ex. SD-9). The student’s homebound instruction, however, continued after his placement m the BOCES class.

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.* See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove y. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

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. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir.

‘The term “free appropriate public education” means special education and related services that - (A) have been provided at public expense, under public supervision and direction, and without charge; (B)} meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved: and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009), Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.59 )(4) (i).

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f3)(E\D. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. 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, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199: Grim, 346 F.3d at 379; Walezak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.”” Cerra, 427 F.3d at 195, quoting Walezak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(S)(A); 34 CLF_R. §§ 300.114(a)(2)0), 300.1 16(a)(2); 8 NYCRR §§ 200.1 (cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walezak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101 (c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an LEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(1), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR &§ 200.4(d)(2)\(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Classification

The parent objects to the student’s educational classification as OHI (Ex. [HO-IL at 3, 5). The District bears the burden of establishing the appropriateness of the classification recommended by the CSE. See, e.g., Application of a Child with a Disability (Carmel Cent. Sch. Dist.), Appeal No. 99-86 (SRO Nov. 10, 2000). I find that the student was properly classified by the CSE as OHI for both the 2010/11 and 2011/12 school years. The student has been diagnosed iee lee, (xs. SD-7 at 2, SD-8 at 1-2, 7-8, SD-26A at 1, SD-26B at 1, SD-31, SD-34, SD-36, SD-37, SD-40, SD-50 at 1, SD-38, SD-62 at 2, SD-71 at 2). The record is replete with reports and teacher comments indicating that the child’s behavior and inattention in class has affected his ability to benefit from instruction (Exs. SD-8 at 7-8, SD-11, SD-12, SD-13, SD-14, SD-52, SD-62 at 4). See 8 NYCRR § 200.1(zz)(10).

Alternatively, while [tjg@yhmmyhliifi& determined in 2009 that the student met the critena OE recommended in 2009 and 2012 a change in the student’s educational classification from OHI to eile. see 8 NYCRR § 200. 1(zz)(1), the CSE, and IQ, did not believe that MRI was the student’s primary diagnoses (Exs. SD-8 at 8, SD-34 at 3, SD-36, SD-37, SD-56 at 4, SD-

71 at 11)” Indeed, even @RMIERG noted in 2012 that qaand Care known to co-oceur (Ex. SD-8 at 8). In any event, it is well-settled that a board of education may establish classification priorities, where a pupil has more than one handicapping condition. See Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 102; ” 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 ifa 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 specified. 8 NYCRR § 200. 1(zz)(1). Matter of Handicapped Child, 23 Ed. Dept. Rep. 191; Matter of Handicapped Child, 20 Ed. Dept. Rep. 557.

C. Adequacy of Evaluations

The parent argues that the CSE failed to evaluate the student in all areas of suspected disability and that the CSE’s evaluations were not tailored to assess the student’s specific areas of educational need (Ex. IHO-III at 4-5).

An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 CLELR. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in al] areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(viz), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had more than adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its programs for the student for the 2010/11 and 2011/12 school year (Exs. SD-26A, SD-26B, SD-536). See Application of a Student with a Disability, Appeal No. 12-017 (SRO Feb. 22, 2012). The hearing record reflects that the student’s cognitive functioning, educational functioning, mental health needs and adaptive behavior skills were regularly assessed by the CSE since September of 2009 (Exs. SD-7, SD-8, SD-11, SD-12, SD-13, SD-14, SD-17, SD-31, SD-32, SD-34, SD-35, SD-36, SD-37, SD-40, SD-50, SD-52, SD-58, SD-62, SD-71). Accordingly, I find that the documentation considered by the May 2010 and May 2011 CSEs was sufficient to render determinations as to the student’s recommended special education programs and related services (Exs. SD-26A, SD-26B, SD-56).

D. Consideration of 2009 Neuropsychological Evaluation The parent also objects to the CSE’s failure to adopt all of the educational recommendations contained in POMC WRRAEP neuropsychological evaluation with sufficient reason (Ex. IHO-IH at 3, 5).

A CSE must consider independent educational evaluations obtained at public expense and private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. See 34 C.F.R 300.502(c); 8 NYCRR 200.5(g)(1)}(v1). CSE consideration, however, does not require substantive discussion. See 7.S. v. Ridgefield Bd. of Educ., 808 F. Supp. 926, 931 (D. Conn.

1992), aff'd, 10 F.3d 87, 90 (2d Cir. 1993).

The hearing record reflects that the May 2010 CSE reviewed and considered @@@ aettiep: 2009 neuropsychological evaluation (Ex. SD-56 at 4-5). While the CSE did not incorporate all of QAMs educational recommendations into the student’s IEP (Exs. SD-56, SD-71 at 11-13), a CSE is not required to adopt recommendations for different programming offered by independently secured experts. See E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 (S.D.N.Y. 2010); Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 (N.D.N.Y. Jun. 19, 2009); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d

141, 145 (N_D.N_Y. 2004).

E. CSE Membership

The parent alleges that the CSEs which developed the student’s IEPs for the 2010/11 and 2011/12 school years were not duly constituted (Ex. IHO-ILI at 4-5).

An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.}, Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE, and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 CFR. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).

As the hearing record reflects that al! the required members attended the May 25, 2011 CSE meeting, which developed the student’s IEP for the 2011/12 school year, I find that the May 2011 meeting was duly constituted (Ex. SD-26A at 1).

The hearing record also reflects, however, that the May 7, 2010 CSE meeting, which developed the student’s LEP for the 2010/11 school year, lacked a special education teacher, a regular education teacher and an additional parent member (Ex. SD-56 at 4).

While I find that the May 2010 CSE erred in proceeding without a special education to participate in the May 7, 2010 teacher, given that the CSE invited the student’s teacher at @@P meeting and that the CSE reviewed and considered an April 26, 2010 progress report prepared by that teacher, I conclude that this procedural error did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (Exs. SD-56 at 4, SD-62, SD-68). See 20 U.S.C. § 1415((3 (E)Gi); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(9)(4).

Lalso find that the May 2010 CSE erred in excluding a regular education teacher from its meeting, given that students enrolled in the @@MMemageee: 2-1-1 special class program were “mainstreamed for ‘Special’ area subjects (Art, P.E., Computer, etc.)” and “particrpate[d] in a wide variety of extracurricular activities” (Exs. SD-55, SD-56 at 4). However, in light of the patties’ pursuit of more restrictive programming for the student, as early as the fall of 2010, I conclude that this procedural error did not impede the student's nght to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (Ex. SD-51). See 20 U.S.C. § 1415(DGE)U); 34 CFR. § 300.513; 8 NYCRR § 200.5q)(4).

Lastly, I find that the May 2010 CSE erred in excluding an additional parent member from the meeting (Ex. SD-56 at 4). While the District correctly notes in its post-hearing brief that the District is permitted to operate subcommittees on special education, which do not include additional parent members, see 8 NYCRR § 200.3(c)(2), as the May 7, 2010 meeting was the first time the student was to be recommended for special class instruction outside of the student’s school of attendance, an additional parent member was required, see 8 NYCRR § 200.3(c)(4)(i1). Based on the totality of evidence offered at the hearing, however, I do not find that the absence of this required member altered the outcome of the meeting and therefore conclude that this procedural error did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (Ex. SD-51). See 20 U.S.C. § 1415(f)(3)( Ei); 34 C.F.R. § 300.513; 8 NYCRR § 200.54 )(4).

F. Adequacy of Behavior Management (FBA/BIP)

The parent alleges that the CSE failed to conduct a functional behavioral assessment (“FBA”) and develop a behavior intervention plan (“BIP”) for the student during the 2010/11 and 2011/12 school years (Ex. IHO-III at 4-6).’°

'0 mnctional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall! include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms. the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r).

Under the IDEA, a CSE may be required to consider special factors in the development of a student’s IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or the learning of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior" when developing, reviewing, and revising an IEP. See 20 U.S.C. § 1414(d)(3)(B)G); 34 CFLR. § 300.324(a)(2)(1); 8 NYCRR §

200.4(d)(3)(i); EA. v. Board of Educ., 2009 WL 3326627 (2d Cir. Oct. 16, 2009); 4.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student. See 20 U.S.C. § 1414(d)\(1)(A)G)IV); 34 C.F.R. § 300.320(a)(4); 8 NYCRR §§ 200.4(d)(2)(v)(a), (b)(3); Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 (S.D.N_Y. Apr. 7, 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.NLY. Sept. 29, 2009).

I find that the CSE erred in failing to conduct an FBA and develop a BIP for the student during the 2010/11 and 2011/12 school years and that this error denied the student a FAPE. The evidence contained in the hearing record clearly demonstrates that the student’s behaviors in school impeded his learning and that of other students. In a December 16, 2010 teacher progress report, RPP detailed the student’s behavior management needs present during the fall 2010 semester (Ex. SD-52).

In a January 11, 2012 teacher progress report, @@@iapamamanyins the student’s remedial reading teacher, noted that: Behavioral intervention plan means a plan that is based on the results ofa functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.i(mmm). (The student’s] behavior is a major issue within the class. Some days he comes in, follows directions, and completes his work. Most days, however, he is very defiant in doing his work and following directions. He will answer me back and sometimes show disrespect towards his aide when she asks him to do something.

He has tried to pretend he is sleeping during class or walks around with his eyes closed so he does not have to do any work. There have been times in which [the student] hits the table with his hands, screams out, and makes loud noises so he can be removed from class. He becomes a major distraction for the other student when these behaviors occur (Ex. SD-11).

On a January 12, 2012 occupational therapy progress report, the student’s therapist noted that the student “exhibits many task avoidant behaviors such as running and distracting others.

He also displays defiant behaviors when asked to complete tasks” (Ex. SD-35).

Likewise, on the January 15, 2012 psychological report describing the results of the BASC assessment, It was noted that: OWN ihe student’s teacher for both the 2010/11 and 2011/12 school years] reports that [the student] engages in an unusually high number of behaviors that are adversely affecting other children in the classroom. These behaviors are disruptive and indicate that [the student] is having problems maintaining selfcontrol. @@jeesponded almost always to the following statements: is overly active; disrupts other children’s activities; acts without thinking; interrupts others when they are speaking; has poor self-control; cannot wait his turn; and acts out of control. ¢jga@QMlP reports that (the student] displays an unusually high number of aggressive behaviors and may be reported as being argumentative, defiant and threatening to others. @@Q—UMMHresponded almost always to the following statements: argues when denied his own way; loses his temper too easily; defies teacher; annoys others on purpose; and often to the following statements: threatens to hurt others and seeks revenge on others.

GRAMM reports that [the student] often engages in rule-breaking behaviors, such as cheating, deception, and stealing. She replied almost always to the following statements: breaks the rules; disobeys; deceives others; lies; and gets into trouble. @_QIRVBB reports that [the student] is withdrawn, pessimistic, and sad. She replied almost always to the following statements: is easily upset and cries easily. She replied often to the following statements: is sad; is negative about things; and is pessimistic. @QIQRMGMP noted that [the student] displays a high number of health-related concerns. She reports that he almost always complains of pain and sometimes visits the school nurse. @0@GBRMB reports that [the student] frequently engages in behaviors that are considered strange or odd and he generally seems disconnected from his surroundings. She replied almost always to the following statements: does strange things; babbles to self; seems unaware of others; and acts strangely. She also replied often to the following statements: seems out of touch with reality; acts confused; and says things that make no sense (Ex. SD-7 at 9).

Similarly, on January 18, 2012, QQRRRRBPMey, the student’s music teacher stated:

In music class, it is mainly a behavior issue. [The student] needs to learn to distinguish appropriate behavior with inappropriate behavior. He needs to develop an awareness that his behavior should be in sync with the rest of his peers (Ex. SD-13).

On January 31, 2012, QQgaaaiapamapeta Qygntteg Director of Special Education. wrote to Ms. Seda to request a program review meeting to change the student’s placement because of “increasing behavioral concerns” (Ex. SD-28).

Between September 2011 and March 2012, the student was suspended from school seven (7) times due inappropriate behavior which violated the @PRAPOSONEK s student code of conduct (Ex. SD-27A).

Prior to the student’s attendance at @@@TM®, the May 2010 CSE determined that “the student’s delays .. . required a small teacher-to-student ratio program with minimal distractions in order to academically progress” (Ex. SD-56 at 4). The May 2011 CSE later agreed, and further determined that the student did not require a child specific FBA/BIP (Ex. SD-26A at 4).

While the absence of an FBA/BIP has been excused where appropriate positive behavioral interventions and supports, and other strategies, are implemented to address a student’s interfering behaviors, see 4.C., 553 F.3d at 172-173; cf R.K. v. New York City Dep't of Educ., No. 09-CV-4478, 2011 WL 1131492 (E.D.N.Y. 2011), the evidence entered into the hearing record demonstrates that the enhanced staffing available to the student at the Gam School program and the classroom-wide behavior management system in place were insufficient to address the student’s considerable behavior management needs (Ex. SD-32 at 4). While @e.

WW noted that “it is unfortunate that the mother had the child evaluated in so many different setting all giving different opinions and treatment recommendations,” which may have contributed to his interfering behaviors, the CSE was still obligated to develop individualized strategies to address those behaviors, regardless of their origin (Exs. SD-7, SD-8, SD-31, SD-34 at 3, SD-36, SD-37, SD-64 at 4, SD-71).

G. Extended School Year/Twelve Month Services The parent alleges that the CSE failed to provide extended school year/twelve month services to the student during the summer of 2010 and the summer of 2011 (Ex. [HO-III at 4, 6).

Students shall be considered for twelve month special services and/or programs in accordance with their need to prevent substantial regression, if they are: (i) students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention who are placed in classes in accordance with subparagraph (h)(4)(i1) of this section [in other words, 6:1+1 or 8:1+1 special classes]; (ii) students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes in accordance with subparagraph (h)(4)\(iti) of this section; (121) students who are recommended for home and hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention and intervention or who have severe multiple disabilities and require primarily habilitation and treatment; (iv) students whose needs are so severe that they can be met only in a seven-day residential program; or (v) students who are not in programs as described in subparagraphs (1) through (iv) of this paragraph during the period from September through June and who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education.

8 NYCRR § 200.6(k)(1).

{ find that the CSE did not err in determining that the student did not need extended school year/twelve month services to prevent substantial regression (R. 126; Exs. SD-26A at 7, SD-56 at 1). See 8 NYCRR § 200.6(k)(1)(v). Additionally, I note that the Ms. Seda informally offered the student an extended school year program during the summer of 2011 at two (2) separate locations, which the parent declined (R. 128-[29, 131-132).

H. Interim Programs

Federal regulations provide that at the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an TEP as defined in Section 300.320. See 34 C.F.R. § 300.323(a). Implicit in this requirement is that an IEP be in effect before special education and related services are provided to an eligible child. See 34 C.F.R. Part 300, Analysis of Comments and Changes, 71 Fed. Reg. 156 at 46679 (Aug. 14, 2006).

This requirement, however, does not preclude temporarily placing an eligible child with a disability in a program as part of the evaluation process before the IEP is finalized to assist the public agency in determining the appropriate placement for the child. See Application of a Child with a Disability, Appeal No. 03-050 (SRO Nov. 6, 2003). To ensure that the temporary placement does not become the final placement, school districts could develop an interim IEP with specific conditions and timelines, ensure that the parents agree to the interim placement before it is carried out and that they are involved in the development process, and set a specific timeline for finalizing the IEP and conduct an IEP meeting at the end of the interim period to finalize the IEP. See id.

I find that the CSE offered the student appropriate interim educational! services during the spring of 2011 pending its designation of an alternative educational program. Following the in March of 2011, the CSE amended the student’s IEP and student’s exit from the@@apei@paae@® arranged for the student to receive homebound instruction (R. 208, 579, 640-641; Ex. SD-26B). At the request of the parent, the CSE secured QQQQ3QQ90§RARMM 2 special education teacher, to provide the student with homebound instruction (R. 641-642). The parent acknowledged at the hearing that QQQMMia@B and the student had a good rapport (R. 642-643). In or around April of 2011, the CSE secured a temporary educational placement for the student in an 8:1+2 special class operated by SOQUOSUDRTRAMBAMME and located in the apgiihatiaws::0°!

School) (R. 141, 224, 514, 640; Exs. SD-9, P-A, P-C). The District QuQOPRNORQgMNABM rough the CSE continued to provide the student with one-to-one instruction from @jQs@RMBEh conclusion of the 2011/12 school year, i.e., June 30, 2012 (R. 208, 579).

Alternatively, while the parent objects to the absence of a transition plan for the student chool (Ex. IHO-M at 7), the from homebound instruction to the @QQSAMEPOqeeGGPS IDEA does not require a “transition plan” as part of a student’s IEP when a student moves from one school to another. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-047 at 17 (SRO May 4, 2012)."'

I. Compensatory Additional Services

Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to remedy a school district’s failure to ‘leo similar reasons, I find that the CSE was not required to develop a “transition plan” for the student as at the beginning of the 2010/11 school year (Ex. [HO-III at 4-5). he moved from GMB the QueG@tteemp implement a student’s IEP which resulted in a dental of FAPE. See Newington, 546 F.3d at 123 (stating that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and. . . compensatory education is an available option under the Act to make up for a denial ofa FAPE”).

Likewise, State Review Officers have awarded compensatory “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4" Dep’t 2005) (finding it proper for a State Review Officer to order a school district to provide “make-up services” to a student upon the school district’s failure to provide those educational services during home instruction); Application of a Student with a Disabilitv, Appeal No. 09-044 at 17 (awarding “make-up” counseling services to remedy the deprivation of such services) (SRO June 25, 2009).

While I have previously concluded that the District denied the student a FAPE by failing to conduct an FBA and develop a BIP to address the student’s significant behavioral management needs, I do not find that the relevant equities support an award of compensatory additional services. Equitable considerations may not support an award for equitable relief where parents have failed to cooperate with a school district or have otherwise frustrated a district’s attempt to offer a FAPE. See Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007) (stating that a “major consideration” in deciding whether equitable considerations are satisfied is whether the parents have cooperated with the district through the process to ensure that the student receives a FAPE); Carmel Cent. Sch. Dist. v. V.P.,373 F. Supp. 2d 402, 411, 417 (stating that numerous courts have held that parents who refuse to cooperate with the CSE equitably forfeit their claim for tuition reimbursement). Moreover, equitable principles dictate that parents cannot deliberately withhold their child from an intake interview and impede a district’s ability to offer a FAPE and also secure a future award of equitable relief. See Bettinger, 2007 WL 4208560 at *7-8; Application of the New York City Dep’t of Educ., Appeal No. 11-131 at 10 (SRO Dec. 16, 2011).

I find that Ms. Seda credibly testified that the CSE’s efforts to secure an alternate educational program for the student during the 2011/12 school year were frustrated by the parent’s unwillingness to fully participate in the referral/intake process at proposed placements, which included, but was not limited to, failing to bring the student to intake interviews. During the 2011/12 school year, Ms. Seda sent several referral packets to out-of-District programs (R. 136-137, 293; Ex. SD-29). Potential programs might decline the referral or request that the student visit their program for an intake interview (R. 143; Ex. SD-38). The parent refused to participate in the referral/intake process on the grounds that she believed that most of the potential programs were for students with emotional disabilities and because she was waiting for RYNAMNMYs March 2012 neuropsychological report to be completed (R. 391, 703). The parent also cancelled approximately five (5) CSE meetings, including one to discuss the student’s School (R. 386, 686; Exs. SD-21, SD-22, SD-30, SD-43). enrollment in the Qgg@G@aRRGRGAEP

Alternatively, while parents have a right to meaningfully participate in the educational placement process, the IDEA and State regulations do not permit parents to direct through veto a district's efforts to implement a student's IEP. See T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009), cert. denied, 130 S. Ct. 3277 (2010).

J. Attomeys’ Fees

The parent’s request for attorneys’ fees must be denied (Ex. IHO-III at 8). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to such costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); see also Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008). Since only a court can determine who is a prevailing party entitled to attorneys’ fees, I conclude that I lack subject matter jurisdiction over this aspect of the parent’s claim and dismiss it accordingly.

I have considered the parent's remaining claims and have concluded that they are without merit,

V. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) the parent’s claim that the student was denied a free appropriate public education during the 2010/11 and 2011/12 school years is SUSTAINED; + .. (2)}the parent’s claim that the student requires a Functional Behavioral Assessment and a Behavioral Intervention Plan ts SUSTAINED. Within thirty (30) days of the day of this Order, the CSE shall conduct a Functional Behavioral Assessment of the student and develop a Behavioral Intervention Plan;

(3) within sixty (60) days of the day of this Order, the CSE shall convene to develop an appropriate Individualized Education Program (JEP) to address the student’s academic, physical, social/emotional and behavior management needs in the least restrictive environment, (4) the parent’s requests for an independent speech/language evaluation and an independent occupational therapy evaluation are DENIED;

(5) the parent’s request for compensatory additional services is DENIED; and

(6) the parent’s request for attorneys’ fees and expenses is DENIED.

Dated: September 14, 2012

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“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 four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8 NYCRR § 279.2(b)). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found on the Office of State Review website: www.sro.nvsed.gov/appeals.html

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENT

A. E-mail string between @iQMMM & S. Seda, 4/16/12 & 4/18/12, 2 pgs.

B. E-mail to S. Seda from | —} 4/16/12, 1 pg.

Cc. E-mail to S. Seda from , 5/16/12, 1 pg.

D. E-mail to S. Seda from Qggeml&. 4/19/12 1 pg.

E. E-mail string between S. Seda & Qqga, 5/19/12, 1 pg.

E. E-mail string between Qgggililim & S. Seda, 3/30/12, | pg.

DISTRICT

1. [Reserved]

2. Committee Attendance Sheet, 6/8/12, | pg.

3. [Reserved]

4. [Reserved]

5. [Reserved]

6. Progress Report for IEP Goals 2011/12, undated, 4 pgs.

7. Psychological Report, 1/15/12, 14 pgs.

8. Neuropsychological Consultation Report, 3/15/12, 11 pgs.

9, Memo from Q@ggiegp, undated, | pg.

10. [Reserved]

11. Progress Report (Remedial Reading/K,1,2), 1/11/12, 2 pgs.

12. Progress Report (Speech/Language), 1/12/12, | pg.

13. Progress Report (Music), 1/18/12, 1 pg.

14. Progress Report (Art), 1/12/12, | pg.

15. [Reserved]

16. Request for CSE Cancellation, 5/23/12, | pg.

17. Health Appraisal Form, 6/24/11, 5 pgs.

18. [Reserved|

19. Contact Sheet, 8/30/11, I pg.

20. {Reserved]

21. CSE Meeting Notice, 5/31/12, 2 pgs.

22. CSE Meeting Notice, 5/19/12, 2 pgs.

23. Excusal of Mandated Committee Member, 5/14/12, | pg.

24. Agreement to Excuse Required Committee Member (unsigned), 5/18/12, 1 pg. 25, [Reserved] 26-A. Student Information Summary, 5/25/11, 9 pgs. 26-B. Student Information Summary, 5/25/11, 9 pgs. 27-A Student Suspension Letters, 9/27/11 - 3/16/12, 9 pgs.

28. Letter to S. Tavernia-Seda from @QQaawMM®, 1/31/12, 1 pg.

29. CSE Referral Cover Sheet, 1/24/12. | pg.

30. CSE Meeting Notice, 5/14/12, 2 pgs.

31. Letter from @gggeRap, M.D., 10/7/10, 1 pg.

32. Classroom Observation Report, 10/20/11, 6 pgs.

33. [Reserved]

34. Psychiatric Evaluation, 12/16/10, 4 pgs.

35. Occupational Therapy Report, 1/12/12, | pg.

36. Letter from Q@QRORpER. M.D.. 9/26/11, 1 peg.

37. Letter from @RRRRPMGSMH, PhD, 11/4/11, 1 pg.

38. Letter to S. Seda from @gemigagneae LMSW, 2/13/12, 1 pg.

39. Letter to from S. Seda, 7/26/10, | pg.

40. Speech/Language Update, 5/1/10, 2 pgs.

41. E-mail to Q@gpgggage from ADR, 10/21/11, | pe.

42. [Reserved]

43. CSE Meeting Notice, 1/24/12, 2 pgs.

44, Excusal of Mandated Committee Member, 1/24/12, 2 pgs.

45. Letter to Jeanne and Maria from Karen, 10/27/11, 1 pg.

46. Memo to Executive Assistant to Board from 9Ogayg@, 10/20/11, 2 pgs. AT. (Reserved|

48. [Reserved]

49. Letter to S. Seda from @ggaage@, 3/29/11, 1 peg.

50. Occupational Therapy Annual Progress Report, 4/20/10, 3 pgs.

51. Letter to S. Seda from @Qppeangyuta, 12/1/10, 2 pgs.

52. Progress Report for @gQ@MaM, 12/16/10, 9 pgs.

53. [Reserved]

54. New York State Education Department, OSES Pre-Approval Data, 8/2/10, | pg.

55. Letter to S. Seda from @@jgigagam, 6/7/10, | pg.

56. Individualized Education Program (JEP) 2010/11, 5/7/10, 9 pgs.

57. Letter to UR from Came 5/20/10, | pe.

58. Occupational Therapy Regression Statement, 4/20/10, 1 pg.

59. [Reserved]

60. Records Release, 5/7/10, 1 pg.

61. Letter to S. Seda from QQqRaMM, 11/29/11, 1 pg.

62. Teacher Progress Report @@QW), 4/26/10, 4 pg.

63. Consent to Re-evaluate (Signed), 4/28/10, | pg.

64. Individualized Education Program (IEP) 2009/10, 11/10/09, 5 pgs. 65, [Reserved]

66. [Reserved]

67. Notice of Committee on Special Education Meeting, 4/20/10, | pg.

68. CSE Invitation Letter for Agency/Additional Personnel, 5/7/10, 1 pg.

69. [Reserved]

70. [Reserved]

71. | Neuropsychological Consultation Report, 10/5/09 & 11/9/09, 13 pgs.

IMPARTIAL HEARING OFFICER

Letter to parties from [HO, 5/15/12, 6 pgs.

Ih. Letter to parties from IHO, 5/24/12, 2 pgs.

HL. Due Process Complaint Notice/Impartial Hearing Request, 4/25/12, 8 pgs.

IV. Due Process Response, 5/7/12, 3 pgs. Confirmation of extension, 7/9/12, I pg. Vi Confirmation of extension, 7/13/12, | pg.

VI. Confirmation of extension, 9/3/12, | pg.