NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
IN THE XXXXXXXTER OF THE IMPARTIAL HEARING REQUESTED BY FATHER, ON
BEHALF OF STUDENT X FROM THE ACTION OF THE COMMITTEE ON SPECIAL
EDUCATION OF THE W SCHOOLS
SED #
Parent’s Counsel: [Redacted text], Esq.
W Schools’ Counsel: [Redacted text], Esq.
INTRODUCTION
This hearing is governed by IDEA (20 USC 1400 et seq.), and its implementing regulations, 34 CFR 300 et seq., and NYS Education Law 4404 et seq., and its implementing regulations, 8 NYCRR 200.5 et seq.
Parent requested this hearing on 07/12/13. T 9; Ex. 1 The Board of Education appointed me on 07/28/13. T 9 The W Schools (hereinafter “School”) responded to the hearing request on 07/22/13. Ex. 2 I sent my initial letter (4 pages) to the attorneys on 07/30/13. (Please see IHO Exhibit One, attached hereto.) The pre-hearing conference was held on 09/04/13. The hearing was held on 09/10/13, 09/11/13 and 09/12/13. The record closed on 10/15/13. The decision is due on 10/29/13.
It was a closed hearing. T 12 Eight Witnesses testified: X’s grandparent, the School’s Assistant Director of Special Education (SM), X’s Xxxxxxxxxxxxxx Teacher who was employed by XXXXXXX (JM), a School Xxxxxxx employed by XXXXXXX (DR), two xxxxxxx xxxxxxxs hired by the Parent (SS, JC), a School Special Education Teacher (NM), and a School Elementary School Principal (TF). The transcript contains 488 pages. Exhibits entered into evidence numbered School 1 – 57 and Parent A – X (except for M and Q) and Z. T 23, 25, 52, 279 Complete exhibit lists are attached hereto. Both attorneys submitted written closing arguments.
My findings of fact and conclusions of law [total # of pages herein 35 ] are attached hereto and have been mailed to both attorneys by certified mail, return receipt requested.
PLEASE TAKE NOTICE! Within 35 days of the date of this decision, the parent and/or School has THE RIGHT TO APPEAL this decision to the State Review Officer of the NYS Education Dep't.
If a parent xxxxxxxs to appeal, then a notice of intention to seek review shall be personally served upon the School not less than 10 days before service of a copy of the petition for review upon such School, and within 25 days from the date of the decision sought to be reviewed (so that a certified copy of the hearing record may be prepared for submission by the School). If a School xxxxxxxs to appeal, then the School shall file a certified copy of the hearing record together with its petition.
An appealing party’s petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, then the date of mailing and the 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.
8 NYCRR Part 279 contains the rules of procedure. Directions and forms can be found at: www.sro.nysed.gov/part279home.html. NYS Education Law 4404 et. seq.
Impartial Hearing Officer: Joan B. Alexander, Esq., 196 Crestwood Lane, Williamsville, NY 14221
Date: 10/29/13
PARTIES’ POSITIONS
PARENT: X has xxxxxxx xxxxxxxs arising from his dual diagnosis of and . The School has not complied with applicable law, and can’t meet its burden of proving that X cannot be adequately and appropriately supported in the xxxxxxx education setting. The School improperly addressed X’s xxxxxxx. The School has not appropriately responded to, and has aggravated, X’s xxxxxxx xxxxxxxs. T 28-30, Exs. 1, 54
SCHOOL: The CSE appropriately recommended a xxxxxxx because of X’s xxxxxxx, which became, during 2012-2013, very difficult to xxxxxxx. The School fully complied with IDEA, and all applicable laws and regulations. T 26, Ex. 54
ISSUES
1. Did the School fail to properly develop, review and update the BIP during 2012-2013?
2. Did the School improperly use xxxxxxx and xxxxxxx during 2012-2013?
3. Did the School fail to properly implement the inclusion opportunities provided in the 2012-2013 IEP?
4. Did the School fail to properly implement the 05/10/13 CSE agreement (re X’s inclusion)?
5. Did the CSE determine X’s 2013-2014 placement before it considered all relevant data?
6. Did the 2013-2014 IEP provide for placement in the LRE?
7. Did the School violate Section 504 or the ADA?
8. Should relief include training, monitoring and/or compensatory education?
ORDER
I find that the School did not provide a FAPE to X in xxxxxxx with IDEA during the 2 years at issue. I find no violation of Section 504 or the ADA. I do not have continuing jurisdiction and thus cannot monitor xxxxxxx with my decision.
I find that the School: (1) failed to properly develop, review and update the BIP during 2012-2013, (2) improperly used xxxxxxx and xxxxxxx during 2012-2013, (3, 4) failed to properly implement the inclusion opportunities provided in the 2012-2013 IEP and the 05/10/13 CSE agreement, (5) determined X’s 2013-2014 placement before it considered all relevant data, and (6) did not provide for 2013-2014 placement in the LRE. I find that: a xxxxxxx education setting with appropriate supplementary aids and services is not the LRE for X for 2013-2014, and that relief should include training and compensatory education.
I order the CSE to: (1) develop an IEP for 2013-2014 that will place X in a setting less restrictive than the proposed xxxxxxxxxxxxxxxx xxxxxxx, (2) provide significant and ongoing training and support for staff, including positive xxxxxxxal methods and techniques for supporting students with xxxxxxx xxxxxxxs in xxxxxxx education, (3) provide designated times for xxxxxxx and special education teachers to meet to xxxxxxx lessons and develop xxxxxxx for X to be successful, (4) provide additional and compensatory education to remediate the lack of xxxxxxx progress during 2012-2013, and (5) develop a xxxxxxx xxxxxxx protocol, including development and regular review of a FBA and BIP, and frequent xxxxxxxation with a xxxxxxx xxxxxxx trained in techniques for supporting students like X.
FINDINGS OF FACT
Background
X is now 13 years old. Ex. 54, p. 1 X’s father lives in the school district. Ex. 54, p. 1 X’s grandparent described X as cxxxxxxxing and inquisitive, and having a great sense of humor and a good memory. T 32, lines 13-14, 21-24 X seeks out xxxxxxx xxxxxxx, prefers xxxxxxxs to xxxxxxx, prefers not to spend time alone, tries to make sense of his xxxxxxx environment, and is sensitive about how people feel about him. T 450- 453 X is a student with a disability based on a dual diagnosis of Xxxxxxx and xxxxxxxxxxxxDisorder (“XXXXXXX”). Ex. 40, p. 1; Ex. 54, p. 1
X’s cognitive functioning is in the xxxxxxx to xxxxxxx range (xx percentile). Ex. 40, p.4; Ex. 54, p. 6 Recent testing placed X in the xxxxxxxxx range for all skills except: (1) “Word Attack” skills, which were at the xxx grade equivalent, and (2) “Writing Samples”, (3) “Picture Vocabulary” and (4) “Xxxxxxx Knowledge,” which were all at the xxxxxxxx level. Ex. 40, p.4, 5[1] Overall xxxxxx skills are in the xxxxxxx range and xxxxxxx the xxx percentile; motor skills are in the xxxxxxx xxxxxxx range. Ex. 40, p. 5 X needs a high degree of xxxxxxx xxxxxxx because he has significant xxxxxx issues (i.e., nonxxxxxxx, xxxxxxx xxxxxxx). T. 112
2005-2006
During the 2005-2006 year, X attended an in-district integrated kindergarten (8:xxxxxxx) at his “home” school. Ex. 3; T 33-34 X was described as “happy and content” and enjoyed interacting with xxxxxxxs and xxxxxxx. Ex. 3, p. 3 To help maintain appropriate and xxxxxxx xxxxxxxs, X required close and constant xxxxxxx, as well as frequent xxxxxxxs from the regular xxxxxxxxxxxxxx xxxxxxx. id.
2006-2007
During the 2006-2007 year, X attended an in-district integrated 1st grade (8:xxxxxxx) at his “home” school. Ex. 5, p. 5, 7, 14 X had a xxxxxxx teacher assistant (hereinafter “TA”). Exs. 3, 4 His teacher noted that X was “xxxxxxx” at times, and xxxxxxxly indifferent to his xxxxxxx, but “cxxxxxxxing” and a “delight to work with.” Ex. 5, p. 2, 21 X was also described as: having a good memory, completes no xxxxxxx work, and succeeds only when given xxxxxxx xxxxxxx for xxxxxxxty, xxxxxxxxxx and xxxxxxx xxxxxxx. Ex. 5, p. 2 His xxxxxxxxxxx was so short that the xxxxxxxxxxxxx was questioned. Ex. 5, p. 2; Ex. 4, p. 2 X made “exceptional gains” in the area of xxxxxxx regulation. Ex. 5, p. 19 However, as of 12/06, X’s xxxxxxx and xxxxxxx xxxxxxx had xxxxxxxd, and caused concern about his xxxxxxxty (and that of his xxxxxxx). Ex. 5, p. 5
2007-2008
X began the 2007-2008 year in an in-district integrated setting, but, due to xxxxxxxal issues, was transferred in 01/08 to a xxxxxxx program (known as “Xxxxxxx”) operated by XXXXXXX and located outside of the district. Ex. 7, p. 2- 3, 20-23; T 211
2008-2009
X began the 2008-2009 year (his 2d grade year) in the XXXXXXX Xxxxxxx program located outside of the district. Ex. 7, p. 3 He had a BIP dated 10/08, which targeted xxxxxxx xxxxxxxs, xxxxxxx and xxxxxxx. Ex. 6 One of Parent’s xxxxxxxs 2 suggested xxxxxxxal guidelines. Ex. 11
In 11/08, X’s mother filed a Complaint with NYS Education Department (“NYSED”). Ex. A; T 211 X’s mother challenged the School’s efforts to address X’s xxxxxxx and alleged an incident of xxxxxxx xxxxxxx. Exs. A, B In 11/08, X was removed from the Xxxxxxx program and received homebound tutoring. Starting in 05/09 and for the balance of the year, X was tutored at another district building, but it was not his “home” school. Ex. 7, p. 2; Exs. 9-12; T 37, 213
On 01/15/09, NYSED issued a letter sustaining several of X’s mother’s complaints. Ex. C NYSED found that: (1) the BIP developed by the School did not meet the criteria set forth in NYCRR § 200.4(d)(3)(i) Ex. C, p. 2-3, 7-10 and (2) the School improperly used a “xxxxxxx” xxxxxxx. Ex. C, p. 11-12, 14-16
In 06/09, the CSE conducted a FBA and developed a BIP. Ex. 13 The 06/09 FBA was based on reports from X’s homebound tutor, therapists, and grandparent, as well as a 12/08 xxxxxxx report. Ex. 13, p. 1 The 06/09 FBA noted that removing X from the xxxxxxxxxxxxxx “had little impact on reducing the occurrence of xxxxxxx xxxxxxx.” Ex. 13, p. 3 The CSE amended the BIP during 07/09, 08/09, and 10/09. Exs. 15, 18; Ex. 24 p. 2
2009-2010
During the 2009-2010 year, X attended a 12:1:4 “XXXXXXX” xxxxxxx operated by XXXXXXX and located at his “home” school. 3 Ex. 17, p. 2; Ex. 19, p. 1; Ex. 20, p. 2; T 37-38, 113-114 The CSE noted that X tended to “mimic xxxxxxxs” and thus needed good xxxxxxx xxxxxxxs. Ex. 17, p. 5 In X’s IEPs, the CSE recognized that “a setting which would alxxxxxxx for some xxxxxxx xxxxxxx xxxxxxx would be most beneficial.” Ex. 12, p. 3; Ex. 17, p. 3; Ex. 20, p. 3; Ex. 22, p. [3]
X’s entry into the xxxxxxx was marked by nonxxxxxxx, xxxxxxx (aimed at staff rather than other children) and the xxxxxxx of xxxxxxx xxxxxxxerials. T 113-115; Ex. 21, p.[2] There was a daily xxxxxxxxxxxxxxxx; X always wanted Xxxxxxxxxxxxxx Teacher’s attention. Ex. 20, p.14 X’s uncooperative and xxxxxxx xxxxxxxs interfered with his ability to participate in xxxxxxx xxxxxxx activities and individual learning activities. Ex. 21, p. 2, 5 The emphasis at that time was to get X to folxxxxxxx the structure of a school day T 114, including xxxxxxxs within the school day. T 115 Xxxxxxxal xxxxxxx was the primary focus of his IEP goals. Ex. 21, p.1
X entered the xxxxxxx with a BIP that Xxxxxxxxxxxxxx Teacher considered appropriate. Ex. 15; T 121 When X caused bodily xxxxxxx to another, or was likely to cause bodily xxxxxxx, Xxxxxxxxxxxxxx Teacher believed it necessary to implement a xxxxxxx xxxxxxx. T 121 Deep pressure was applied to X, and his xxxxxxx dexxxxxxxd. T 121, 122 When X’s xxxxxxx began to xxxxxxx, Xxxxxxxxxxxxxx Teacher believed that it could not be xxxxxxx. T 121 Xxxxxxxxxxxxxx Teacher had been informed that X resisted touch, but she found that * he would resist initially and then relax. id. * with the exception of her experience during 2012-2013 T 176
The XXXXXXX staff used visual schedules and timers. T 114, 115 They found that “word” schedules worked better than “picture” schedules because he could read. T 116 The XXXXXXX staff broke down the xxxxxxx within an activity and always provided X with a reward at the end. T 116 They worked on increasing X’s time xxxxxxx before obtaining an award, and X responded pretty well for a while. T 117 They permitted X to guide the activity level. T 114, 115 A positive xxxxxxx system was implemented, with staff working on “catching” X being “good.” T 117-118 Staff tried to structure X’s environment to prevent the xxxxxxxs. T 120
Due to his xxxxxxxs, X did not attend any xxxxxxx education xxxxxxxes, but he went to lunch and to the playground with xxxxxxx children. T 118 Sometimes when the XXXXXXX staff tried to xxxxxxx X outside the XXXXXXX xxxxxxxxxxxxxx, he became xxxxxxx, hxxxx, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. T 119 He didn’t understand the xxxxxxx of xxxxxxx education. id. He had trouble trusting xxxxxxxs and taking direction from xxxxxxxs. id.
2010-2011
During the 2010-2011 year, X again attended the 12:1:4 “XXXXXXX” xxxxxxx with Xxxxxxxxxxxxxx Teacher at his “home” school. Ex. 22 X’s xxxxxxx improved. T 123 X demonstrated that he could folxxxxxxx a schedule. id. X was considered a 3rd grader but was integrated into a 2nd grade xxxxxxx education xxxxxxxxxxxxxx. T 123, 125-126, 129; Ex. 22, p. 2; Ex. 24, p. 2 X was “getting really good” at xxxxxxx xxxxxxx activities in the XXXXXXX xxxxxxx, including xxxxxxxxxxxx and working somewhat xxxxxxx of an xxxxxxx. T 123-125 In X’s IEP, the School noted that “a setting which would alxxxxxxx for some xxxxxxx xxxxxxx xxxxxxx would be most beneficial,” and “xxxxxxxxxxxxxxxxxxxx.” Ex. 24, p. 4 X was integrated for xxxxxxx “centers” for about 20 - 40 minutes every morning, for recess, for lunch, and for special area xxxxxxxes (art, xxxxxxx, library and P.E. ) which took place in the afternoons. T 123, 125-126, 129 X attended the xxxxxxx education settings accompanied by a TA (and rarely by Xxxxxxxxxxxxxx Teacher). T 128-129 The xxxxxxx education teacher was selected specifically because of her background in special education. T 125, 177 Xxxxxxxxxxxxxx Teacher and the xxxxxxx education teacher together modified the activities for X in the xxxxxxx education setting. id. The “centers” in which X participated were selected to maximize his participation and success T 125-126, and where he could be the person “xx xxxxxx.” id. The “centers” were modified for X, and the curriculum was adapted for X. id.
X’s success in the xxxxxxx education xxxxxxx depended on his level of: (1) xxxxxxx and (2) comfort with the xxxxxxx xxxxxxx. T 127 About 40% of the time, he exhibited xxxxxxx xxxxxxxs. id. If X went to a certain corner of the xxxxxxx education xxxxxxxxxxxxxx, then he xxxxxxx and xxxxxxx like the “Xxxxxxx” xxxxxxx xxxxxxx, even though the xxxxxxx children xxxxxxx him and continued their xxxxxxx xxx. id. The TAs tried to keep X away from that corner of the xxxxxxxxxxxxxx. id. If X started doing the “Xxxxxxx”, then it was difficult to xxxxxxx him. T 127, 128 When X’s xxxxxxxs began to xxxxxxx in the xxxxxxx education setting, the xxxxxxx education teacher tried to get him to xxxxxxx his xxxxxxx’ xxxxxxx xxxxxxx. T 177 He xxxxxxx those xxxxxxx, and instead responded only to specific xxxxxxx xxxxxxx direction. id.
X continued to exhibit xxxxxxxal xxxxxxx. T 135 He was xxxxxxx when he: (1) was xxxxxxx toward others or (2) tried to xxxxxxx himself. T 134 Triggers were: (1) xxxxxxxs, (2) the lack of Xxxxxxxxxxxxxx Teacher’s full attention, and (3) P.E. xxxxxxx. T 135 X identified Xxxxxxxxxxxxxx Teacher as the “xxxxxxx person”, from whom X would best take xxxxxxx and to whom he would best respond, to the exclusion of other xxxxxxxs. T 137, 480; Ex. 29, p. 6 P.E. xxxxxxx had a higher energy level and a more chaotic environment than the XXXXXXX xxxxxxxxxxxxxx. T 135 One of the TAs noted when X was beginning to xxxxxxx in P.E. xxxxxxx, and offered X, as a means to avoid xxxxxxx, the opportunity to go for a walk, meet with Xxxxxxxxxxxxxx Teacher or play with his xxxxxxx. T 136 [4]
In 06/11, Xxxxxxxxxxxxxx Teacher prepared a BIP with the help of DK, who was a xxxxxxx xxxxxxx employed by XXXXXXX. T 133, 139 - 140; Ex. 26 DK made recommendations about xxxxxxx X’s xxxxxxx (including the use of xxxxxxx xxxxxxx), and they were implemented by Xxxxxxxxxxxxxx Teacher. T 194, lines 15-25; T 195, lines 2-22 DK did not xxxxxxx X’s FBA (or request a new FBA). T 195, lines 23-25 [5]
2011-2012
During the 2011-2012 year, X again attended the 12:1:4 “XXXXXXX” xxxxxxx with Xxxxxxxxxxxxxx Teacher at his “home” school. Ex. 24, p.2; Ex. 29, p. 1 It was X’s best year because there was an increase in xxxxxxx xxxxxxx, a decrease in xxxxxxx xxxxxxx, and more openness to xxxxxxx xxxxxxx (although his openness to such xxxxxxx remained limited). Ex. 29, p. 6; Ex. 54, p. 3; T 130, 137-138, 147, 152, 157, 187, 202-203 It was going so well that the CSE considered placing X in an integrated program for the fall of 2012. T 130, 218-219; Ex. W, p. 97, lines 15-17 In 11/11, the School prepared a “PTR Xxxxxxx Support Xxxxxxx” (hereinafter “11/11 BIP”). Ex. 28
X was considered a 4th grader but was integrated into a 3rd grade xxxxxxx education xxxxxxx periodically for science and xxxxxxx studies, and more regularly for all special area xxxxxxxes, lunch, and recess. T 130-132, 187, lines 2-4; Ex. 29, p. 1, 6 Integration attempts “went well” a “majority of the time” T 139, lines 14-20; T 187, lines 5-8; Ex. E, p. 6
Xxxxxxxs were modified to reduce the number of activities that X was required to do. X was given a choice of activities. T 139 Nevertheless, X was sometimes non-xxxxxxx in the science and xxxxxxx studies xxxxxxxes. T 132 X was sometimes disruptive; it was difficult to discourage him from doing the “Xxxxxxx”. id. As a result, X was “backed out” of xxxxxxx xxxxxxxes, but remained in special area xxxxxxxes. Art and library became more difficult for X than P.E. and xxxxxxx. T 132, 139
May and June 2012 didn’t go as well as had the earlier months of that year. T 202-204 X increasingly argued with Xxxxxxxxxxxxxx Teacher, and engaged in more xxxxxxxxxxx T 204 [6]
X was scheduled to attend the XXXXXXX xxxxxxx for the extended school year, as he had done in the past. However, he missed the first two weeks of the six week session due to a family vacation. T 207, 203 When he returned, he exhibited increased non-xxxxxxx, xxxxxx and xxxxxxx. T 148, 204 Although summer school historically was an easy time for X, the 2012 summer was difficult. T 148 Nevertheless, X made “very nice progress” with regard to his xxxxxxx goals during his 2012 extended school year / summer program. Ex. G
2012-2013: Intro
During the 2012-2013 year, X again attended the 12:1:4 “XXXXXXX” xxxxxxx with Xxxxxxxxxxxxxx Teacher. Ex. 29, p. 1 However, two days before school started, the location was changed from X’s “home” school to another in-district building. Ex. 30, p. 8; Ex. 54, p. 4, 5; T 39, lines 23-25; T 40, lines 2-3; T 108, 109; T 279, lines 14 -19 X’s grandparent was concerned about this change, because it was sudden and without any preparation, and because X had had a prior difficult experience at said building. T 40, lines 2-16; Ex. 33, p. 2
2012-2013 began with as much difficulty and as many non-xxxxxxx xxxxxxxs as had 2009- 2010. T 148 - 150, 636 Xxxxxxx xxxxxxx techniques that had worked in the past (i.e., reinforcers, schedules, timers, the xxxxxxxs in the 11/11 BIP) were no longer effective. T 148, lines 4-5; T 149, 151, 189; Ex. 54, p. 10 Xxxxxxxxxxxxxx Teacher did not know the cause of the xxxxxxx change, and found it “puzzling.” T 148, lines 9-10; T 190, line 25; T 191, lines 2-4
2012-2013 was X’s last year before he xxxxxxxed to middle school. X’s xxxxxxxs xxxxxxd with efforts to: (1) increase his xxxxxxxxxe, and time with xxxxxxx, (2) decrease his xxxxxxfor xxxxxxx attention, and (3) provide him with xxxxxxx, xxxxxxx and xxxxxx xxxxxxx.[7] T 147, 152; Ex. 54, p. 4-6 His xxxxxxx xxxxxxx was “limited.” Ex. 56, p. 1
X’s xxxxxxx skills were more advanced, and X was “xxxxxxxxxx” than the other students in his XXXXXXX xxxxxxx. T 110, lines 7-11; T 111, lines 14-23 There were no students with whom X could be xxxxxxxxxxly xxxxxxxed for xxxxxxx instruction. T 111, lines 7-9 In xxxxxxxh in his XXXXXXX xxxxxxx, for a very brief time, X was xxxxxxxed with xxxxxxxxx, but when Xxxxxxxxxxxxxx Teacher xxxxxxxd her xxxxxxx to xxxxxxxx, X’s xxxxxxxs xxxxxxxd. T 155 In contrast, X was very loving towards his xxxxxxxxxxxxxxes in xxxxxxxxairs. T 112, lines 8-11
To implement the common core learning standards, the XXXXXXX curriculum became more rigorous, and as a result, Xxxxxxxxxxxxxx Teacher did not xxxxxt as much xxxxxxx xxxxxxxxxx to x as she had in the past. T 159 - 160 The TAs were responsible for providing more xxxxxxx xxxxxxxto X. id. However, if Xxxxxxxxxxxxxx Teacher did not xxxxxxxxx, then xxx would xxxxxe the xxxxxxxxxxxxxx and, xxxxxxxxxxx, then he would xxxxxxxxxxxxx. T 162-164 When he xxxxxxxd, X xxxxxxxxxxxxxxxxxxxxxxxxxxxxx from Xxxxxxxxxxxxxx Teacher. id. If she xxxxxxx X, then he xxxxxxxd his xxxxxxx. T 154-157; T 172; Ex. 54, p. 10 X xxxxxxxxxx. T 162 He often xxxxxxxxx, and so the TAs xxxxxxxxx xxxxxxxxxx. id.
X spent “little to no time in any xxxxxxx xxxxxxxxxxxxxxs” because he disrupted the learning environment with xxxxxxx xxxxxxxs. Ex. 54, p. 3 X’s IEP provided that he could be integrated into xxxxxxx education special area xxxxxxxes, but Xxxxxxxxxxxxxx Teacher often did not give him the opportunity to do so. T 645-648; Ex. 29, p. 13 He xxxxxxxxx in xxxxxxx xxxxxxx; he xxxxxxxxxx in art xxxxxxx; he xxxxxxxxxx during P. E. xxxxxxx. T 640 Xxxxxxxxxxxxxx Teacher admitted, however, that her preparation with X for inclusion in the xxxxxxx education setting was often done “on the fly”. T 646
Prior to 2012-2013, the special area xxxxxxx education curriculum was sometimes modified, but during 2012-2013, that rarely occurred. T 153-154, 641, 645-646 However, a xxxxxxx and reward system was in place. T 641-642 If X did not want to go into the xxxxxxx education xxxxxxxes, then Xxxxxxxxxxxxxx Teacher did not want to force him to attend. T 153-154 She sometimes gave him the choice of whether to attend a special area xxxxxxx education xxxxxxx or to do a seemingly less fun activity, such as xxxxxxx xxxxxx work. T 153- 154, 640, 647-648 X often chose the xxxxxxx work. T 154-155
2012-2013: BIP
The 04/27/12 IEP noted that X needed a BIP to reinforce xxxxxxx of xxxxxxx and maintain xxxxxxx control. Ex. 29, p. 7 The CSE xxxxxxxned to review X’s BIP in the fall of 2012. Ex. 29, p. 8; T 218, lines 2-15 At the start of 2012-2013, X’s BIP was dated 11/11, and it wasn’t based on a FBA. Ex. 28; T 188, lines 13-25; T 189, lines 14-16 (The most recent FBA was dated 06/09. Ex. 13 ) In addition, the 11/11 BIP did not contain: (1) a “functional hypothesis” , (2) a baseline measure of the problem xxxxxxxs or (3) a schedule to measure the effectiveness of the xxxxxxxs. Ex. 28; T 189 [8]
By letter dated 08/04/12 to the Assistant Director of Special Education (Ex. 30, p. 4), Parent commented on and questioned some parts of the 04/27/12 IEP (Ex. 29), including whether the 11/11 BIP required an update. In xxxxxxx, the 10/29/12 IEP stated that the 11/11 BIP was implemented. Ex. 30, p. 14 Xxxxxxxly, the Assistant Director of Special Education did not meaningfully respond to Parent’s 08/04/12 letter, and hadn’t communicated with Xxxxxxxxxxxxxx Teacher concerning the 11/11 BIP or X’s xxxxxxx during the fall of 2012.
In the fall of 2012, Xxxxxxxxxxxxxx Teacher recognized that the BIP needed to be updated. T 190, lines 20-24 X’s grandparent said that starting in the 2012 summer, X’s xxxxxxxs had been xxxxxxx, and in the fall, they were still being xxxxxxx and, as a xxxxxxx, X’s xxxxxxx xxxxxxxs increased. T 41-42; T 44, lines 17-20; T 149; T 192 Xxxxxxxxxxxxxx Teacher believed it xxxxxxx to conduct a FBA until X’s xxxxxxx, and any xxxxxxxs, stabilized. T 149 [9]
Thus, rather than ordering a new FBA or BIP, Xxxxxxxxxxxxxx Teacher developed a verbal xxxxxxx “xxxxxxx” and communicated it to her TAs. T 193-194
The verbal “xxxxxxx” was not based on an FBA. T 194 The “xxxxxxx” included xxxxxxx xxxxxxx and xxxxxxx (or “xxxxxxx”). T 153, lines 5-6; T 160, lines 24-25 In addition, the “xxxxxxx” provided for X to be left in xxxxxxx until his grandparent came to school to pick him up. T 176, lines 3-4 The “xxxxxxx” also implemented (briefly and unsuccessfully) a strategy to reduce X’s xxxxxxxs with Xxxxxxxxxxxxxx Teacher. T 194-195
The staff would “xxxxxxx” the xxxxxxxxxxxxxx of xxxxxxxxxxx, xxxxxxxxx in the xxxxxxxxxxxxxx, xxxxxxxxx, and then xxxxxxxxxx. T 175-176; T 644-645 Sometimes the staff instead used a xxxxxxx xxxxxxx to xxxxxxx xxxxxxx the xxxxxxxxxxxxxx xxxxxxx, xxxxxxxxxx from xxxxxxxing, and xxxxx xim a “xxxxxxx”. T 635-636, 643-644 When X xxxxxxxx, Xxxxxxxxxxxxxx Teacher and the TAs sometimes used a xxxxxxx xxxxxxx to xxxxxxxxxxx and X’s xxxxxxxxxxxxxxes. T 635- 636; Ex. I X sometimes xxxxxxxxxx the xxxxxxx. T 637-638
Neither X’s IEP nor the 11/11 BIP provided for xxxxxxx, xxxxxxx or “xxxxxxx”, being taken home from school or reducing xxxxxxxs with Xxxxxxxxxxxxxx Teacher. Exs. 28, 30; T 192, lines 23-25; T 193, lines 2-9 The 06/09 FBA (which was the most recent FBA at that time) warned that the use of “xxxxxxx” had “little impact on reducing the occurrence of xxxxxxx xxxxxxx” and advised that a xxxxxxxxx period, private xxxxxxx xxxxxxx and tangible rewards for changing xxxxxxx had a better effect in xxxxxxing xxxxxxx xxxxxxxs and xxxxxsing xxxxxxx. Ex. 13, p. 3 The 2009 BIP cautioned that xxxxxxx xxxxxxx should be avoided because that type of xxxxxxx would “xxxxxxx [X’s] nonxxxxxxx.” Ex. 15, p. 3 The failure of the “xxxxxxx” is proven by, among other things, X’s xxxxxxxs from school on 03/27/13 and 05/22/13.
2012-2013: Xxxxxxx and Xxxxxxx Xxxxxxx
X was xxxxxxxly xxxxxxx at least 10-12 times between 09/12 and 12/12. T 160 When a xxxxxxx xxxxxxx was used xxxxxxx a student in a XXXXXXX program (including the XXXXXXX xxxxxxx), XXXXXXX staff completed an incident report. T 279, lines 20-23 The School was “not xxxxxxxly” provided with a copy of the incident report, even though the xxxxxxx was used xxxxxxxxxone of their students and occurred in one of their buildings. T 279, lines 24-25; T 280, lines 2-9
On 10/01/12, X was xxxxxxxly xxxxxxx by 2 xxxxxxxs for 5 minutes. Ex. H, p. 1 On or about 10/03/12, X was xxxxxxxly xxxxxxx by 3 xxxxxxxs for 8 minutes. Ex H, p. 2 On 10/15/12, X was xxxxxxxly xxxxxxx by 3 xxxxxxxs for 5 minutes, and later by 3 xxxxxxxs xxxxxxx a xxxxxxx xxxxxxx for 7 minutes. Exs. I, J Also twice on 10/15/12, X was xxxxxxx for 5-15 minutes. id. On 10/17/12, X was xxxxxxxly xxxxxxx by 3 xxxxxxxs xxxxxxx a xxxxxxx xxxxxxx for 7 minutes, and xxxxxxx for 5-15 minutes. Ex. K
In 10/12, during a school fire drill, xxxxxxxxxxxxxxxxxxxxxxxxxxx. T 167 xxxxxxxxxxxxxxxxxxxxxxxxxx. T 167-168 X xxxxxxxxxxxxxxx more “xxxxxxx” with xxxxxxxxxxxxxxxxxxxxxxxxxxx those “xxxxxxx”, the more xxxxxxxxxxxxx it was to xxxxxxx him. T 158-159 [10]
On 10/22/12, X was xxxxxxxly xxxxxxx by 2 xxxxxxxs xxxxxxx a xxxxxxx xxxxxxx for 7 minutes. Ex. L When asked to describe the cause of the xxxxxxx that led to the xxxxxxx, the XXXXXXX staff person noted that, prior to the xxxxxxx, X had been “xxxxxxxxxxxxxxxxxxxxxxxxxxxn.” Ex. L, p. 2 On 10/27/12, X was xxxxxxx by 3 xxxxxxxs xxxxxxx a xxxxxxx xxxxxxx for 10 minutes. Ex. M
At least two incident reports indicated that XXXXXXX staff did not know the possible motivation for the xxxxxxx xxxxxxx that precipitated the use of xxxxxxx. Exs. I, J In total, during 10/12, X was subject to a xxxxxxx xxxxxxx involving multiple xxxxxxxs for at least 49 minutes. Exs. H, I, J, K, L, M
Although the School’s Assistant Director of Special Education was advised that xxxxxxx and xxxxxxx xxxxxxx had been used xxxxxxx X on multiple occasions during 10/12, she did not determine whether either was authorized or subject to written standards, or when X’s FBA or BIP had last been updated. T 283, lines 7-13, 18-21; 289-290 [11]
The use of xxxxxxx xxxxxxx and xxxxxxx had a significant xxxxxxx impact on X. He (as was xxxxxxx xxxxxxxly for students with disabilities) became very xxxxxxxxxxxxxxxxxxxxxxx. T 44, lines 5-10; T 457, 459, 540-541, 560-563 X became so xxxxxxx about the XXXXXXX xxxxxxx that he xxxxxxxxxxxxxxxxxxxx. T 71, lines 11-15 In addition, one of Parent’s xxxxxxxs (SS, the xxxxxxxal xxxxxxx)[12] stated that the “xxxxxxxxxxxxxxxxxx” policy was counterproductive. T 461-462
2012-2013: 01/01/13 – 03/25/13
During the early months of 2013, X’s family requested an xxxxxxx xxxxxxx evaluation (“XXXXXXX”). The School agreed, and an xxxxxxx xxxxxxx (Dr. TG) was engaged. T 59, lines 17-60 In addition, X’s triennial evaluation was due, and it was agreed that Dr. TG would complete the xxxxxxx xxxxxxx component of that evaluation. T 272, lines 19-25 (The last xxxxxxx xxxxxxx evaluation had been completed in 03/10. Ex. 21, p. 1-6)
In 01/03/13, Xxxxxxxxxxxxxx Teacher met with X’s grandparent concerning X’s progress and xxxxxxx. Xxxxxxxxxxxxxx Teacher said she was “handling” X’s xxxxxxx issues and that an updated BIP was not needed. T 44, lines 24-25; T 45, lines 2-9
Later in 01/13, School Xxxxxxx (DR, who was employed by XXXXXXX)[13] was called to xxxxxxx regarding X’s xxxxxxx. T 343; T 385, lines 10-12 In 02/13, School Xxxxxxx observed X for the first time, did not see a copy of X’s BIP or FBA, and was not aware that Xxxxxxxxxxxxxx Teacher was xxxxxxx a “verbal” BIP, xxxxxxx or repeated xxxxxxx. T 343; T 385, lines 22-25; T 386-388, 424-425 She observed X on a total of 3 separate days, the last being 04/10/13. T 354
During 2013, X xxxxxxxly xxxxxxxxxxxxxxxxx students three times, while in earlier years, he was xxxxxxxxxxxxxxxxxxx – xxxxxxxxxxxxxxs at or xxxxxxxxxxxxp a student. T 164 In 2013, he xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, caxxxxxxx him xxxxy; and he xxxxxxxxxxxxxxxxxxt. T 164-168 Each xxxxxxxxxxxxxxxxxxxx. id. After xxxxxx, the other students in the xxxxxxx were xxxxx, xxxxxxxxxxxxxxxxxxxxx xxxxxxxs, and then X was xxxxxxxly xxxxxxx. T 166 The xxxxxxx were xxxxxxxxxxxxxxxxxfrom the XXXXXXX xxxxxxxxxxxxxx 4-5 times because X was believed to be unxxxxxxx. T 174-175 X was xxxxxxxxxxxs. T 637-638
On 02/27/13, X xxxxxxx by destroying xxxxxxx xxxxxxxerials, and then engaged in 45 minutes of “xxxxxxx”. T 230-231; Ex. 32, p. 3
On 02/27/13, there was a pre-arranged meeting of School’s Director and Assistant Director of Special Education, the XXXXXXX XXXXXXX Director (AR), Xxxxxxxxxxxxxx Teacher, X’s father, X’s grandparent, and one of Parent’s xxxxxxxs (SS). Their agenda had been only the 2013-2014 placement, but their agenda expanded. Exs. 32, 33; T 221-225
On 02/27/13, Xxxxxxxxxxxxxx Teacher stated that she “xxxxxxxxxxxxxxx anymore” and could not xxxxxrt X’s xxxxxxx xxxxxxxs. Ex. 32, p. 1; T 223, lines 12-22 Xxxxxxxxxxxxxx Teacher reported that when X returned to xxxxxxx after an absence of several weeks,[14] X slapped Xxxxxxxxxxxxxx Teacher in the xxxxe, xxxxxxxing xxxxxx. T 637 Ex. 32, p. 4 The Director of Special Education: (1) noted the need to do an FBA and BIP, and (2) discussed DK’s suggestions, and an upcoming xxxxxxx by DK. Ex. 32, p. 1, 4; T 232, lines 13-22
On 02/27/13, X’s family and School staff did discuss 2013-2014 placement. Ex. 32; T 222, lines 2-25; T 223, lines 2-6 The Director of Special Education made notes of the meeting. Ex. 32, p. 3-4; T 222, lines 12-16 She noted that X “need[ed] [an] xxxxxxx program!!” and identified xxxxxxxxxxxxxxxxxxxx programs, “Xxxxxxx” and “Star,” both of which were located outside of the district. Ex. 32, p. 3-4 Not listed in her notes as options were xxxxxxx education with supports and services, and in-district programs. Ex. 32, p. 4 X’s grandparent expressed xxxxxxx in a particular xxxxxxx xxxxxxxxxxxxxx Ex. 31, but School staff explained that students in that xxxxxxxxxxxxxx would be fully integrated into xxxxxxx education in the afternoons, and so it would be xxxxxxx for X. Ex. 37, p.1
School staff suggested a Xxxxxxx placement. Xxxxxxx is a xxxxxxxxx program with xxxxxxxal supports to teach X xxxxxxx to: (1) deal with his xxxxxxxs in a xxxxxxxxxx, and then (2) xxxxxxxize what he learned to a xxxxxxxr environment. T 227-228, 231 They discussed X’s family situation and the presence of xxxxxxxxx in X’s life. Ex. 32, p.4 School staff suggested that X could begin at the xxxxxxxxx program, make progress, and then xxxxxxx xo xxxxxxx education. Ex. 32, p.3
By letter dated 02/27/13, X’s father: (1) stated that X was xxxxxxx at home and showed none of the xxxxxxx xxxxxxxs described by School staff, (2) requested that a new BIP be developed, (3) suggested that X receive at-home tutoring while his xxxxxxx was being adjusted, and (4) confirmed that X’s xxxxxxx agreed that at-home tutoring would be appropriate during the xxxxxxx adjustment. Ex. 33 By letter dated 02/28/13, X’s xxxxxxx confirmed the necessity for xxxxxxx adjustments, and supported the tutoring request. Ex. 34; fn 11
In an email dated 03/04/13, the School’s Director of Special Education denied the request for home tutoring, claimed that “the FBA/current BIP is done,” and advised that School Xxxxxxx is available to xxxxxxx. Ex. 36 (At the due process hearing, the School’s Assistant Director of Special Education admitted that that claim [i.e., that the FBA/current BIP was “done”] was not true. T 292, lines 16-23 )
Thereafter, X’s grandparent: (1) expressed xxxxxxx in Xxxxxxx’s Village, a xxxxxxxxxxxxxxxxx for xxxxxxxxn and xxxxxxxs with Xxxxxxx, and xxxxxxxxxxxxx xxxxos of x:xxxxxxx, and (2) noted that X “thrives best with a xxxxxxx in a xxxxxxx xxxxxxx with xxxxxxxxxxxxxxxx.” Ex. 37; T 243
By letter dated 03/15/13, the School advised X’s family that it would not convene the CSE to discuss X’s 2013-2014 placement until Dr. TG’s evaluation had been completed. Ex. 38, p. 1
By letter dated 03/25/13, the School requested permission to conduct an FBA. Ex. 39[15]
2012-2013: Xxxxxxx and Manifestation
On 03/26/13: (1) X returned to school after xxxxxxxxxxxxxxx weeks (Please see fn 14) and (2) X was xxxxxxxxxxxxxxxxxxxxxxxxx staff, and xxxxxxxxxxxxxxx. T 165, 168; Ex. 42, p.15; Ex. 57, p.6
On 03/27/13, School staff met (without the family present) and decided that X would simply be sent home whenever he demonstrated xxxxxxx xxxxxxx. Ex. 41, p. 2; T 34; T 234, 237-238, 295 Although this decision was implemented, it was not based on an FBA and was never made part of a written BIP. T 291, lines 18-25; T 292, lines 2-9 School Xxxxxxx testified that a “xxxxxxxxxxxxxxxx” strategy is counterproductive and tends to reinforce xxxxxxx xxxxxxx. T 396-397 Also at the 03/27/13 meeting, School staff discussed placement for 2013-2014. Ex. 41; T 234, lines 15-25; T 235, line 2 School staff agreed that a 12:xxxxxxx placement indistrict was not appropriate. Ex. 41, p. 2; T 237, lines 20-25; T 238, line 2[16]
On 04/09/13, a manifestation hearing was held, and the CSE determined that: (1) X could return to school, (2) X’s 03/26/13 xxxxxxx was a manifestation of his disability and (3) X’s IEP and placement needed review. Ex. 42, p. 15 The CSE noted that X needed a new FBA and BIP. id. School Xxxxxxx was engaged for that purpose, and she completed a “Functional Assessment / Xxxxxxx Xxxxxxx Worksheet.” Ex. 56; T 389 School Xxxxxxx was adamant that this was a draft document and should not be considered an FBA or BIP. T 358, 389 -390; T 399, lines 6-9
The 04/09/13 CSE discussed that: (1) X prefers not to go into settings with “xxxxxxx” xxxxxxx, and does not do well in xxxxxxxxx activities or as xxxxxxxes become more xxxxxxx. Ex. 42, p. 17 and (2) Xxxxxxxxxxxxxx Teacher was xxxxxxxxxxxxxxx when X xxxxxxx because X viewed her xxxxxxxas a reward, but she sometimes xxxxxxxxxxxxx order to xxxx xxxxxxx. Ex. 44, p.1
The 04/09/13 CSE agreed that: (1) X would return to school on a half-day basis; (2)X would do only xxxxxxxs of xxxxxxx to him; (3) instruction would be with Xxxxxxxxxxxxxx Teacher; and (4) the School and XXXXXXX would try to find a male TA to work with X. Ex. 42, p. 19; Ex. 43; Ex. 44, p.4 There was discussion about whether a FBA would be completed in X’s current placement or in another placement. Ex. 44, p.3 X’s Parent verbally consented to the FBA. T 60
2012-2013: Two 05/13 CSE Meetings
On 05/03/13, the CSE met. The School proposed a 12:1:4 placement in the Xxxxxxx program, and explained that the Xxxxxxx staff were highly trained to deal with xxxxxxxs, there were several xxxxxxx areas, and the program had a very strong therapeutic component. Ex. 46, p. 4-6 X’s grandparent rejected the Xxxxxxx program and stated that X needs to be in his “home community”. Ex. 46, p. 6[17] The Assistant Director of Special Education said that “there aren’t any other options for [X] at this point.” Ex. V, p. 83, lines 10-11 After a lengthy meeting T 520, there was no resolution. The CSE agreed to reconvene on 05/10/13. Ex. 46, p. 6 In the meantime, X would be provided with home tutoring for 60 minutes per day. Ex. 47
In a Prior Written Notice dated 05/10/13, the School indicated that it had rejected xxxxxxx education inclusion with supports and services because such a placement “would not alxxxxxxx [X] to make progress toward his xxxxxxx goals.” Ex. P The School also rejected a 12:xxxxxxx district (as contrasted with XXXXXXX) placement on the grounds that a district program would not provide the necessary xxxxxxx and xxxxxxxal supports. Ex. P At that time, the FBA, XXXXXXX and triennial had not yet been done, and the BIP had not been updated. T 297-298, 300-302; Ex. V, p. 156-57
On 05/10/13, the CSE reconvened, and the School reiterated its Xxxxxxx decision. Ex. 49, p. 14 Referring to a xxxxxxx education placement, the Assistant Director of Special Education said that that is not something that we’re willing to do. Ex. W, p. 101-102 X’s parent and grandparent had received a draft IEP, and they presented their proposed changes. Ex. 49, p. 18, 19 Their proposals were discussed, and some were incorporated in the IEP. T 253 X’s family submitted a statement regarding the IEP, and advocated for a xxxxxxx education setting with xxxxxx appropriate xxxxxxx. Ex. 49, p. 21, 22
X’s family brought their lawyer, and their 2 xxxxxxxs to the meeting. Ex. 49, p. 1 There was much discussion about a xxxxxxx education setting and about the Xxxxxxx 12:1:4 middle school xxxxxxx. Ex. 49, p. 14, 15 X’s parent, grandparent and one of Parent’s xxxxxxxs (JC, also referred to as the special education xxxxxxx)[18] advocated for JC to xxxxxxx with the School so that X could be fully included in xxxxxxx education xxxxxxxes. Ex. 49, p. 15, 20
Ultixxxxxxxely, it was agreed that: (1) X’s IEP would remain unchanged through the end of the 2012-2013 year, but without related services, (2) home tutoring would continue thru 05/17/13, and (3) the CSE would try to integrate X into xxxx grade xxxxxxx education xxxxxxxes for part of the day with modified curriculum and support. Ex. 49, p. 1, 23; Ex. 50 There was no change in his IEP as the IEP provided for mainstreaming as appropriate. Ex. 49, p. 1
2012-2013: The 05/13 Inclusion Attempt
On 05/10/13, at a CSE meeting, X’s family proposed that an attempt be made to include X in a xxxxxxx education setting during the balance of the 2012-2013 year. Ex. W, p. 114 The School initially refused, explaining that its staff did not have the resources or time to develop such a program. T 302; Ex. W, p. 114, 123, 134 In particular, the School did not believe the inclusion attempt was “realistic.” Ex. W, p. 140, lines 9-12
The School eventually agreed to make the attempt, with the understanding that one of Parent’s xxxxxxxs (JC) would provide a proposal to xxxxxxx with and assist the School. T 256, 302; Ex. 49, p. 20 JC orally provided some details about her xxxxxxxing services to school districts. Ex. W, p. 116-17, 118-19 The School was xxxxxxxed because it felt that there was a “gap” in the support it could provide to X in terms of “xxxxxxx xxxxxxx xxxxxxx.” T 304, 305
JC promptly emailed a xxxxxxxing proposal to the School, but the School rejected it. Ex. 48; T 257, 303 The School determined that there was nothing in that proposal that School staff could not do; that School staff have experience modifying xxxxxxx education xxxxxxxes to accommodate students with disabilities. id. The School did not hire a xxxxxxxant in lieu of JC and “finalized” a xxxxxxx for supporting X without discussing the xxxxxxx with X’s family. Ex. 51; T 77, lines 6-22
The Assistant Director of Special Education claimed that the School relied on School Xxxxxxx to provide support with xxxxxxxning for X’s inclusion into xxxxxxx education. T 305 The Assistant Director testified that School Xxxxxxx’s xxxxxxx xxxxxxx was used. (T 259) However, School Xxxxxxx testified that she had no such involvement. T 399-400 The School did not ask School Xxxxxxx to complete her FBA or finalize the BIP before starting the inclusion attempt. T 399-400
Thereafter, the inclusion was xxxxxxxned, and X’s family was informed. X was to remain a student in the XXXXXXX XXXXXXX xxxxxxx. Ex. 51, p. 3; T 258-261 Xxxxxxxxxxxxxx Teacher rearranged the schedule in the XXXXXXX xxxxxxx so that she herself could provide X with direct xxxxxxx instruction in English Language Arts and Xxxxxxxh. T 258-259 For the remainder of his school day, X was to attend xxxxxxx education xxx grade xxxxxxxes accompanied by a TA. Ex. 51 A separate xxxxxxx was made available for X when needed. T 261
The Assistant Director of Special Education arranged for a TA to work with X; the TA had had some experience working with students with xxxxxxxal needs. T 262 The TA was not one of the TAs from the XXXXXXX xxxxxxx, with whom X was already familiar.
The Assistant Director also arranged for a School special education teacher (NM)(who had never before met X or spoken with his family T 667-668) to coordinate the inclusion attempt and to work with X, even though the Assistant Director did not know whether that special education teacher had ever before worked with a student with xxxxxxx xxxxxxxs in a xxxxxxx education setting. T 261, lines 18-25; T 262, lines 2-3 The special education teacher had xxxxxxxned to co-teach with the xxxxxxx grade xxxxxxx education teacher so as to support X in the xxxxxxx grade xxxxxxx, but she did not do so because she was too busy with other responsibilities. T 669
Xxxxxxxxxxxxxx Teacher, who was the teacher most familiar with X, was “somewhat” involved with the 05/13 inclusion attempt, because she spent a “couple of hours” in xxxxxxxation with the school staff. T 198, lines 7-22 Xxxxxxxxxxxxxx Teacher did not speak with the xxxxxxx grade xxxxxxx education teacher. T 199, line 25; T 200, lines 2-3 Xxxxxxxxxxxxxx Teacher met with the TA assigned to work with X after the inclusion attempt had already started. T 199-200
Xxxxxxxxxxxxxx Teacher never saw a BIP in connection with the inclusion attempt and was never asked to review any xxxxxxx xxxxxxxs for X’s xxxxxxx education inclusion. T 200, lines 12-19
The special education teacher met separately with Xxxxxxxxxxxxxx Teacher and the xxxxxxx grade teacher to prepare work for X that paralleled the xxxxxxx education curriculum so that X would feel a part of the xxxxxxx education xxxxxxx. T 655-656 Students in the xxxxxxx grade xxxxxxx were prepared for X’s arrival. T 657 The xxxxxxxxxxxxxx implemented in the XXXXXXX xxxxxxx was to be continued in the xxxxxxx education xxxxxxxxxxxxxx. T 658 After X xxxxxxxxxxxxxxxxxxxxxxxxxxxx he enjoyed. T 658
On 05/20/13, which was the day before the inclusion attempt, the elementary School Principal (TF)(in whose building the inclusion attempt took place) met with X, X’s father and X’s grandparent. T 79, lines 20-22 The Principal told X that the special education teacher’s office was X’s “office.” X’s grandparent expressed concern to the Principal about this characterization, explaining that she was concerned that X would think that X should work and spend time in his “office,” instead of in the xxxxxxx education xxxxxxxxxxxxxx. T 79-80
The inclusion attempt was extremely brief. It lasted less than two school days (i.e., 05/21/13 and 05/22/13). X spent a total of 10 -15 minutes in the xxxxxxx grade xxxxxxx education xxxxxxx each day, and he was accompanied there only by the TA. Ex. 52, p. 1; Ex. 54, p. 10 The 1st day (05/21/13), X had a “fairly good day” and was “around 92 percent xxxxxxx.” T 81, p. 14-16 X’s xxxxxxx xxxxxxx were disappointed that X did not spend more time in their xxxxxxxxxxxxxx. Ex. 52, p. 1 The special education teacher and TA met X in the xxxxxxx grade xxxxxxxxxxxxxx, but then the special education teacher left to take care of her other responsibilities. T 659 She said that X xxxxxxxxxxxxxxxxxxxx students and the movement in the xxxxxxxxxxxxxx, was xxxxxxxxxxxxxxxxx in the xxxxxxxxxxxxxx, and was xxxxxxxxxxxxxxxxxxx at his desk. T 659-660 X stayed in the xxxxxxxxxxxxxx for a little while and then xxxxxxxxxxxxxxxxxx. T 660 X decided, instead, to spend time in his “office”. T 661 X attended P.E. with the xxxxxxx graders, but was xxxxxxxxxxxxxxxx (i.e., push-ups) and then refused to go outside with the xxxxxxx grade P. E. xxxxxxx. T 661
The 2nd day began with X preferring to be in his “office” instead of the xxxxxxx grade xxxxxxxxxxxxxx, and then xxxxxxxxxxxxxxxxxxxxxxxxxx to return to the xxxxxxxxxxxxxx. T 440, 662 That day ended after a xxxxxxxxs xxxxxxx incident in the school library. Ex. 52, at p. 1 The incident occurred as X was xxxxxxxxxxxxxxxx to the xxxxxxx that had been described as X’s “office.” T 82-83 He xxxxxxxxxxxxxxx in the xxxxxxe, caxxxxxxx xxxxxxxxxx. T 441; Ex. 52, p.2 He went to the library and xxxxxxxxxxxxxxx, and then came out and xxxxxxxxxxx. T 441 He was xxxxxxxxxxxxxxxxxxdays. Ex. 53
After that, X’s grandparent was advised that X was xxxxxxxxxxxxxxxxxx be permitted to return to xxxxxxx education during the balance of the 2012-2013 year. T 83-84; T 272 X’s parent unilaterally kept X out of school for the rest of the year. T 84
2012-2013: The 06/13 CSE and IEP
On 06/20/13, the CSE met for the last time. Once again, it was a lengthy meeting. The CSE reviewed X’s performance in the xxxxxxx Grade xxxxxxxxxxxxxx. Ex. 54, p. 21 Dr. TG provided her XXXXXXX report and xxxxxxx xxxxxxx evaluation, in which she recommended that X receive exposure to “as many xxxxxxx students as possible for xxxxxxxing.” Ex. 40, p. 5 Dr. TG also noted the importance of a “comprehensive BIP” and suggested xxxxxxxal xxxxxxx. id. ; Ex. 54, p. 24
After the meeting, the School developed an IEP. Ex. 54 The IEP contained no reference to: (1) Dr. TG’s recommendations concerning the importance of xxxxxxx xxxxxxx xxxxxxxs or (2) the recommendations of Parent’s two xxxxxxxs. (Both xxxxxxxs participated at the 2013 CSE meetings, recommended supporting X in xxxxxxx education settings and stressed the importance of good xxxxxxx xxxxxxxs Ex. V, p. 50, 83; Ex. W, p. 129-30 )
School Xxxxxxx testified that certain aspects of X’s BIP (which she has still not finalized) could not be implemented in xxxxxxx education settings without significantly xxxxxxxxxxxxxx the education of X’s xxxxxxx. T 405 In particular, School Xxxxxxx identified the need for a xxxxxxx xxxxxxx, a “XXXXXXX philosophy,” xxxxxxx xxxxxxxxx training, xxxxxxxxxxx exxxxxxxxxy xxxxxxx xxxxxxx, and xxxxxxxxxxxiet. T 405-407, 408-09
The IEP stated that X “will not participate in regular xxxxxxx or activities. He requires special instruction in an environment with a xxxxxxx student-to-teacher ratio and xxxxxxxxxxxxxxxxxxxxx in order to progress in achieving the learning standards, xxxxxxx sxxxxxxxx training to develop appropriate xxxxxxxs with xxxxxxx and intense xxxxxxxal supports to address his xxxxxxx needs.” Ex. 54, p. 17 Less restrictive options were rejected as not adequate to: (1) support X’s needs, and (2) alxxxxxxx X to learn the skills he would need to be successful. T 252, lines 13-19; Ex. 55
The IEP provided for placement in a XXXXXXX 12:1:4 “Xxxxxxx” program located at a XXXXXXX xxxxxxxxxxxxx that will afford X no access to xxxxxxx xxxxxxx. The CSE concluded that X’s xxxxxxxs can be appropriately xxxxxxxd only in a single setting – Xxxxxxx – a xxxxxxx program located outside of the district, and staffed with a xxxxxxx and xxxxxxx worker. Exs. 54, 55: T 248, 278; T 678, lines 16-25; T 679, lines 2-9; T 688
The middle school Xxxxxxx xxxxxxx is for students in grades 4 - 7. T 328 It adheres to the XXXXXXX philosophy T 318, 326 which, although originally designed for students with xxxxxxxxxx, is taken one step further to be a xxxxxxxxxxxxxx structure designed to increase student independence and to xxxxxxxxxxxxxx xxxxxxxs. T 324 It is a means of xxxxxxxxxxxxxx organization that creates xxxxxxx expectations for students, decreases student xxxxxxx, and thereby decreases undesired xxxxxxxs. T 324 Students in the xxxxxxx have multiple diagnoses, including Xxxxxxx, xxxxxx, XXXXXXX, and xxxxxxxized xxxxxxx disorders. T 327 Xxxxxxxs are individualized according to each student’s level. T 330 All students need support with xxxxxxx skills, and the abilities to xxxxxxxxxxxxxxxxxxxxits. T 331
Currently, the xxxxxxx has 10 students and xx9 xxxxxxxs. T 329 4 students have splinter skills at grade level; others are working xxxxxxxx xxxxxx. id. Some students are reading at the xxxxxxx levels. T 330 Some students participate in NYS assessments, and some are alternatively assessed. T 339
The Xxxxxxx xxxxxxx is staffed full-time by a special education teacher and 3 days/week by School Xxxxxxx. T 333 A xxxxxxx wxxxx is on site and dedicated to the Xxxxxxx xxxxxxxes. Some TAs are assigned to the xxxxxxx, and there are xxxxxxx TAs who may be required by individual students’ IEPs. T 327-328 All TAs are trained in xxxxxxxxxxxxtic xxxxxxx xxxxxxx, which is an xxxxxxx designed to xxxxxxxxx-on xxxxxxx by looking at how the environment can support students. T 337- 338 All TAs are trained in the XXXXXXX method, in the implementation of xxxxxxx xxxxxxxs, and in the use of the xxxxxxxxxn xxxxxxx. id. All TAs are also trained in implementing xxxxxxxxxxx, which is a xxxxxxxxxx process to rxxxxx a xxxxxxxal xxxxxxxxxxxxxx, identify options, role play, and return to the environment. T 374, 375
The xxxxxxx worker runs xxxxxxx skills xxxxxxxs 2x/week, works on xxxxxxx sxxxxxxxxxxon a pull-out basis, and addresses students’ individual xxxxxxx issues. T 331-332 Data is collected daily concerning student performance. T 335 A xxxxxxxxxxxxxx xxxxxxx xxxxxxx is in place, involving a xxxxxxxxxxxxxx system, to address xxxxxxx and xxxxxxxal needs. T 336 The xxxxxxx curriculum is consistent with NYS standards, and is differentiated for the individual students. T 339
Xxxxxxxly located within the xxxxxxxxxxxxxx is the “xxxxxxx xxxxxxx”, which is an area with individualized sxxxxxxx xxxxxxxerials. T 329, 365 Much of the xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxs instruction is done there. T 329 The xxxxxxxxxxxxxx is also equipped with xxxxxxx.
Connected with the Xxxxxxx program is the Sxxxxn Xxxxxxx, a research-based xxxxxxxic xxxxxxx to assist students to xxxxxxxxxxxxx experiencing xxxxxxx. T 337 If a student is having xxxxxxxal issues, then the xxxxxxx worker is available or, if not, a xxxxxxx worker assigned to another program in the building is made available. T 341 All staff know each student’s xxxxxxxal xxxxxxxxxxxxx, and all help to support students within the many options available to them within the building. T 341, 342 Access to the xxxxxxxx xxxxxxx is also available for that purpose. T 342 Students are taught xxxxxxx skills and how to use them. T 342 The same xxxxxxx xxxxxx language is used across all settings. T 342 Students are not xxxxxxxxx from the Xxxxxxx program as a result of their xxxxxxx. T 342 Rather, staff work on dealing with the xxxxxxxs and addressing how to move on in a positive way. T 342 The xxxxxxx goes into the community 2-3 days/week for bowling, swimming and gym xxxxxxx. T 340 In addition, a student may attend other 12:1:4 xxxxxxxes at the XXXXXXX facility if the curriculum is better suited for that student. T 340
CONCLUSIONS OF LAW
The School has the burden of proving its xxxxxxx with IDEA. It has failed to meet that burden. I find that the School did not provide a FAPE to X in xxxxxxx with IDEA during the 2 years at issue. I find no violation of Section 504 or the ADA. I do not have continuing jurisdiction and thus cannot monitor xxxxxxx with my decision. SRO 05-007; SRO 10-118, p. 12-13; SRO 12-096
I find that the School denied FAPE when it: (1) failed to properly develop, review and update the BIP during 2012-2013, (2) improperly used xxxxxxx and xxxxxxx during 2012-2013, (3, 4) failed to properly implement the inclusion opportunities provided in the 2012-2013 IEP and the 05/10/13 CSE agreement, (5) determined X’s 2013-2014 placement before it considered all relevant data, and (6) did not provide for 2013-2014 placement in the LRE. I find that: (1) a xxxxxxx education setting with appropriate supplementary aids and services is not the LRE for X for 2013-2014, and (2) relief should include staff training and compensatory education.
1.The School Failed to Properly Develop, Review, and Update X’s BIP During 2012-2013.
When a student exhibits persistent xxxxxxx(s) that impede(s) his learning and/or places the student at risk of xxxxxxx or injury, the District must consider the development of a BIP. 8 NYCRR § 200.22 (b)(i) & (ii). At the start of the 2012-2013 year, X’s BIP was a one-and-a half page document dated 11/11.
The requirements for a BIP are set forth at 8 NYCRR § 200.22. The 11/11 BIP did not satisfy those requirements. First, the 11/11 BIP was not based on a contemporaneous FBA, as required by 8 NYCRR § 200.1 (mmm) and § 200.22 (a) (1). T 188, lines 18-25 In 11/11, X’s most recent FBA was dated 06/09. Second, the 11/11 BIP did not contain a baseline measure of the problem xxxxxxxs or a schedule to measure the effectiveness of the xxxxxxxs, both of which are required by 8 NYCRR § 200.22 (b)(4)(i) & (iii). Third, the School failed to update the (FBA and) 11/11 BIP when the need was plainly obvious. Xxxxxxxxxxxxxx Teacher and the XXXXXXX XXXXXXX Director took responsibility for the failure to timely update the BIP, explaining that the issue was just not on anyone’s “radar.” Ex. V, p. 90-91
Soon after the start of the 2012-2013 school year, Xxxxxxxxxxxxxx Teacher recognized (and the IEP stated) that the BIP required updating. X began demonstrating xxxxxxx xxxxxxxs, including non-xxxxxxx and xxxxxxx xxxxxxx. Xxxxxxx xxxxxxx techniques that had worked in the past were no longer consistently effective. X was xxxxxxxly xxxxxxx 10-12 times. Xxxxxxxxxxxxxx Teacher found his xxxxxxx “puzzling.”
The School’s Assistant Director of Special Education and the XXXXXXX XXXXXXX Director (AR) were aware of the multiple xxxxxxx xxxxxxx on X. Because of the multiple xxxxxxx, they too should have recognized (but they did not) the need for an updated BIP. Despite her above-mentioned recognition in 09/12 - 10/12, Xxxxxxxxxxxxxx Teacher decided not to begin the BIP updating process because X’s xxxxxxx was being adjusted.[19] Xxxxxxxxxxxxxx Teacher did not discuss her decision with anyone at School or XXXXXXX, and she didn’t reconsider it in 11/12, 12/12 or early 01/13. In late 01/13, she contacted DR. (Please see p. 10-11, herein.)
Instead, starting in 10/12, Xxxxxxxxxxxxxx Teacher adopted a verbal xxxxxxx “xxxxxxx” that included: (1) xxxxxxx (aka xxxxxxx), (2) xxxxxxx xxxxxxx, (3) X’s absence from school on days that she herself would not be teaching in the XXXXXXX xxxxxxxxxxxxxx, and (4) calling X’s grandparent to remove X from the building. She kept no records. Thus, there was little inforxxxxxxxion about the xxxxxxxal xxxxxxx xxxxxxx that she and her TAs implemented (i.e., which xxxxxxx, how were they specifically communicated to X and to TAs, how effective, when used, who administered, what were the antecedents, what were the short and long-term results). There was no evidence of: (1) a written xxxxxxx policy or procedure, or (2) the efficacy of xxxxxxx xxxxxxxs in xxxxxxx or as applied to X.
None of the 4 listed xxxxxxx were authorized by the IEP, implemented as part of a written BIP, or based on data drawn from a contemporaneous FBA. This is contrary to the Regulations, which set standards for BIPs and require careful xxxxxxxning, together with systexxxxxxxic, documented review and progress monitoring. 8 NYCRR § 200.22 (b)(4,5). [20]
DR, the XXXXXXX School Xxxxxxx, dismissed the idea of a “verbal” BIP. DR testified that a BIP should be written and based on a recent FBA. T 384 DR emphasized the need to address the use of xxxxxxx and xxxxxxx in a written BIP, with specific parameters established with respect to when and how these extreme xxxxxxxs should be used. T 392-394 This is consistent with the Regulations, which require the schools to monitor the frequency, duration and intensity of xxxxxxxal xxxxxxxs at “scheduled intervals,” with the results of such monitoring being “documented and reported” to the parent(s) and CSE. 8 NYCRR § 200.22 (b)(5).
X’s father inquired about xxxxxxxs to update the 11/11 BIP in his 08/12 letter, and specifically asked the School to update the 11/11 BIP in his 02/13 letter. Both the Director of Special Education and the Assistant Director of Special Education xxxxxxx his requests. Exs. 30, 33,36; T 292, lines 16-23 The School finally requested permission to conduct an FBA on 03/25/13.
“The failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary inforxxxxxxxion about the student's xxxxxxxs, leading to their being addressed in the IEP inadequately or not at all.” R.E. v. New York City Bd. of Ed., 694 F.3d 167, 190 (2d Cir. 2012). “The entire purpose of an FBA is to ensure that the IEP's drafters have sufficient inforxxxxxxxion about the student's xxxxxxxs to craft a xxxxxxx that will appropriately address those xxxxxxxs.” id. The absence of an FBA may be overlooked if the school district has provided alternative supports and services that provide “functionally equivalent benefits.”[21]
Despite the supports and services in the IEP, X’s xxxxxxx was unxxxxxxxd, and as a result, his xxxxxxx progress was “limited.” Parent’s 2 xxxxxxxs testified that the School’s xxxxxxxs aggravated X’s xxxxxxx xxxxxxxs by making school a “hostile environment.” T 457, 459, 46162, 560-63 Thus, not only did the School fail to provide benefits that were “functionally equivalent” to a FBA, the School’s xxxxxxxs were counterproductive because they xxxxxxxed X’s education and well-being, and denied him a FAPE.
In addition, the failure to obtain an updated FBA and develop an appropriate BIP undermines the CSE’s justification for its 2013-2014 placement decision.[22] Its decision was based on the assumption that X’s xxxxxxx could not be appropriately addressed in any setting less restrictive than Xxxxxxx.[23] T 678- 679, 688 This was not a reasonable assumption.
First, X has made xxxxxxx progress and “great gains xxxxxxxally” when given meaningful inclusion opportunities. Ex. 29, p. 6 Second, the CSE improperly pre-determined placement. (Please see p. 23-25, herein.) Third, the CSE relied on X’s 2012-2013 xxxxxxx to predict his 2013-2014 xxxxxxx T 405-409; T 425, lines 10-18 even though, during 2012-2013, the School inconsistently implemented a verbal “xxxxxxx” that included the use of counterproductive xxxxxxxs. Without an updated FBA, the CSE lacked “sufficient inforxxxxxxxion about [X’s] xxxxxxxs to craft” a BIP to appropriately address those xxxxxxxs. R.E., 694 F.3d at 190.
The School’s procedural violations (i.e., failure to obtain an FBA, failure to develop an appropriate BIP, and implementation of an improper verbal “xxxxxxx”) amounted to a substantive denial of X’s right to a FAPE. See R.K. v. NYC Dep’t of Educ., 2011 WL 1131492, at *19 (EDNY 01/21/11)(aff’d in relevant part, R.E., 694 F.3d at 193); see also Danielle G. v. NYC Dep’t of Educ., 2008 WL 3286579, at *10 (EDNY 08/07/08). Moreover, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., 694 F.3d at 190.
2. The School Improperly Used Xxxxxxx and Xxxxxxx During 2012-2013.
The Regulations permit the use of emergency xxxxxxxs (i.e., xxxxxxx xxxxxxx) and xxxxxxx (i.e., “xxxxxxx”)[24] under limited circumstances to respond to unanticipated and urgent situations, and only if pursuant to a school policy or procedure. However, emergency xxxxxxxs “shall not be used . . . as a substitute for systexxxxxxxic xxxxxxxal xxxxxxxs that are designed to change, replace, modify or eliminate a targeted xxxxxxx.” 8 NYCRR § 200.22 (c)(1), (d)(2)(ii).
Here, the School used both xxxxxxx and xxxxxxx xxxxxxx in lieu of developing systexxxxxxxic xxxxxxxal xxxxxxxs. Xxxxxxxxxxxxxx Teacher explained the “xxxxxxx” as folxxxxxxxs: “if he became too xxxxxxx then . . . he would be xxxxxxx.” T 153, lines 5-6 The School never developed a comprehensive, systexxxxxxxic approach to xxxxxxx X’s xxxxxxx. The School responded to each incident of xxxxxxx xxxxxxx as if it was an unanticipated emergency. The School did not produce any evidence that it has a policy or procedure regarding the use of xxxxxxx xxxxxxxs. This is precisely the approach prohibited by 8 NYCRR § 200.22 (c )(1) and (d)(2)(ii).
X was xxxxxxxly xxxxxxx at least seven times in 10/12 in incidents involving 2-3 xxxxxxxs xxxxxxx xxxxxxx xxxxxxxs for time periods ranging from 5-10 minutes. On at least two of those occasions, the XXXXXXX staff reported that they did not know what had caused the xxxxxxx that triggered the need for the xxxxxxx. X was xxxxxxx at least 10-12 times between 09/12 and 12/12. The School did not produce any documentation regarding the use of xxxxxxx.[25]
The Regulations impose monitoring / reporting requirements to: (1) avoid the possibility that a student is subjected to repeated xxxxxxx outside the context of a current, reliable BIP, and (2) prevent the use of xxxxxxx if that xxxxxxx has proven ineffective or counterproductive. For example, the School is required to document every use of emergency xxxxxxx. The documentation must include “a statement as to whether the student has a current xxxxxxxal xxxxxxx xxxxxxx . . . .” 8 NYCRR § 200.22 (d)(4). The School is obligated to monitor, document, and report to the parent and CSE: the frequency, duration, and intensity of emergency xxxxxxxs at “scheduled intervals.” 8 NYCRR § 200.22 (b)(5).
None of the reports completed by XXXXXXX in 10/12 indicated whether X had a current BIP. Ex. H, I, J, K, L, M Although the Assistant Director of Special Education knew that xxxxxxx xxxxxxx had been used multiple times, she did not check to see when X’s FBA had last been updated or whether his IEP or BIP authorized the use of xxxxxxx xxxxxxx. T 283, lines 7-17 [26]
The Regulations also provide for certain thresxxxxxxx requirements regarding the use of xxxxxxx as a xxxxxxx xxxxxxx. The School violated several of these requirements. For example, the Regulations expressly prohibit “placing a student in a xxxxxxd xxxxxxx ....” 8 NYCRR § 200.22 (c)(1)(i); see also § 200.22 (c)(6)(“The use of xxxxx… spaces for purposes of xxxxxxx is prohibited.”). Rather, the “xxxxxxx” space must be “xxxxxxxxxxxxxxxxxxxxxx.” 8 NYCRR § 200.22 (c)(6). The School violated this Regulation repeatedly by xxxxxxxing the xxxxxxxxxxxxxx, leaving xxxxxxxxxx, xxxxxxxxxxxx, and then xxxxxxxing it xxt xxxxxxx X’s xxxxxxxxxxx. T 175, lines 10-14, 22-24; T 644, lines 3-10
The Regulations require “staff training on the policies and procedures related to the use of [the] xxxxxxx xxxxxxx,” 8 NYCRR § 200.22 (c)(1)(iii, iv). The xxxxxxx space used for xxxxxxx must be “clean and free of objects and fixtures that could be potentially dangerous to a student . . . .” 8 NYCRR § 200.22 (c)(5). The School produced no evidence that these requirements were satisfied.
The School is required to engage in “data collection to monitor the effectiveness of the use of xxxxxxx. . . .” 8 NYCRR § 200.22 (c)(1)(v). The purpose is to ensure that a student is not subjected to repeated xxxxxxx when that xxxxxxx is ineffective or counterproductive. The School did not produce any evidence that it engaged in data collection to measure the effectiveness of its use of xxxxxxx as an xxxxxxx with X.[27]
Most importantly, except for “unanticipated situations” posing an “immediate” concern for xxxxxxxty, xxxxxxx may only be used in conjunction with a BIP and pursuant to procedures outlined in the student’s IEP. 8 NYCRR § 200.22 (c)(3). The student’s IEP “shall specify when a [BIP] includes the use of a xxxxxxx xxxxxxx” and the IEP must set forth “the maximum amount of time a student will need to be in a xxxxxxx xxxxxxx . . . .” 8 NYCRR § 200.22 (c)(2). The School is required to inform the student’s parent(s) before initiating a BIP that includes the use of a xxxxxxx xxxxxxx, and provide the parent(s) with a copy of the school’s policy on the use of xxxxxxx xxxxxxxs. 8 NYCRR § 200.22 (c)(4).
Here, a “xxxxxxx” strategy was not part of any BIP or IEP. There were no written guidelines regarding the maximum amount of time X could be placed in xxxxxxx.[28] Moreover, xxxxxxx was used to xxxxxxx X’s xxxxxxx long after his conduct could no longer be reasonably described as “unanticipated.” Again, rather than developing a systexxxxxxxic approach to xxxxxxx the xxxxxxx through the IEP / FBA / BIP procedures outlined in the Regulations, the School responded to each incident as if it were an emergency, xxxxxxx extreme xxxxxxxs authorized only in unanticipated situations.
As a result of the School’s inability to effectively xxxxxxx X’s xxxxxxx, X’s xxxxxxx xxxxxxxs were aggravated, school became a hostile environment, and X made “limited” xxxxxxx progress. Ex. 56, p. 1; T 457, 459, 461-62, T 560-63 The School’s numerous procedural violations relating to the use of xxxxxxx xxxxxxx and xxxxxxx had substantive impacts on X’s xxxxxxx and xxxxxxx well-being, deprived him of a FAPE, and served to undermine the CSE’s placement decision.
3, 4. The School Failed to Properly Implement the Inclusion Opportunities Provided in the 2012-2013 IEP and by the 05/10/13 CSE
A school district’s failure to make reasonable efforts to accommodate a student with a disability in a xxxxxxx education xxxxxxx is significant because “a school that has failed to give consideration to inclusion of a child in a regular xxxxxxx with supplementary aids and modifications has most likely violated [IDEA’s] mainstreaming directive.” G.B. v. Tuxedo Union Free Schl Dist., 751 F. Supp. 2d 552, 574 (SDNY 2010) (quoting Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 275 [D. Conn. 2002]). Courts “look at the steps that the school has taken to try to include the child in a regular xxxxxxxxxxxxxx.” Oberti, 995 F.2d at 1216.
Here, the School failed to make reasonable efforts to accommodate X in xxxxxxx education settings by, on the one hand, failing to modify the curriculum and prepare X for inclusion, and on the other hand, and failing to implement appropriate xxxxxxxal xxxxxxx xxxxxxx. This failure to properly implement occurred specifically when X was given an inclusion “attempt” in 05/13, as well as xxxxxxxly during all of the 2012-2013 school year.
During 2012-2013, X spent little to no time in any xxxxxxx xxxxxxxxxxxxxxs. The School took inconsistent and thus ineffective steps to educate X in the xxxxxxx education setting. Xxxxxxxxxxxxxx Teacher and her TAs modified the xxxxxxx education curriculum and prepared X for integration (aka inclusion) only “on the fly” (Please see p. 8, herein). Xxxxxxxxxxxxxx Teacher testified that she asked X whether he wanted to attend xxxxxxx education xxxxxxxes, but she didn’t testify as to her efforts to ease his xxxxxxx. His xxxxxxx was understandable because he was being offered access to a relatively unfamiliar setting. Xxxxxxxxxxxxxx Teacher then justified her limitations on his access to inclusion by citing his xxxxxxx, and his non-xxxxxxx and xxxxxxx xxxxxxxs, and by testifying that he doesn’t like inclusion and doesn’t like being part of xxxxxxx xxxxxxxs. T 185-186 In other words, she measured his performance in xxxxxxx education settings after titling the scales xxxxxxx him by denying him appropriate preparation for inclusion (including curriculum modification). Thus, there is no current, reliable data on how X might behave if properly prepared for and supported in a xxxxxxx education setting. There is every reason to believe that a systexxxxxxxic approach to inclusion would have yielded better results.
During 2012-2013, the School ineffectively xxxxxxxd X’s xxxxxxx xxxxxxxs. (Please see p. 18-22, herein.) Numerous modifications, xxxxxxxal xxxxxxxs, supports, and adaptions were implemented inconsistently by Xxxxxxxxxxxxxx Teacher and her TAs. Xxxxxxxxxxxxxx Teacher was likely acting without malice. Unfortunately, she was also acting with an outdated and ineffective (according to her own testimony) BIP. There is every reason to believe (as confirmed by DR, the XXXXXXX School Xxxxxxx, and Parent’s xxxxxxxs) that a systexxxxxxxic approach to xxxxxxx xxxxxxx would have yielded better results (in all settings).[29]
At the 05/10/13 CSE, the special education xxxxxxx (JC, one of Parent’s xxxxxxxs)[30] disagreed with the School’s reliance on X’s 2012-2013 xxxxxxx as a predictor of his ability to act appropriately in a xxxxxxx education setting. T 539-540[31] In particular, she cited the lack of an updated FBA and BIP, and the repeated use of xxxxxxx and xxxxxxx. T 539-541, 557-559, 613-614 When she asked School staff about the 2012-2013 xxxxxxxal supports for inclusion, and xxxxxxx that were used to xxxxxxx xxxxxxx xxxxxxxs, the xxxxxxx was that “it happens on the fly” and apparently without a xxxxxxx. T 541; Ex. W, p. 57, lines 1-11
JC testified regarding the modifications that she would suggest in order to enable X to participate in the xxxxxxx education middle school environment. She responded that the xxxxxxx paraprofessional would provide xxxxxxxion, timers, xxxxxxx cards, and wait time, as well as “xxxxxxx, supports, kind of setting up so that xxxxxxx is not going to be an issue, those kinds of things.” T 525-527, 536-537 The School alleged that those “kinds of things” were already tried and did not succeed, but I find that: (1) the School’s (and XXXXXXX’) efforts were inconsistent and (2) as a result, the effect of those “kinds of things” is unknown. T 145-146[32]
JC was also asked how to address X’s difficulty with xxxxxxxs. She suggested the use of a xxxxxxxxxx and xxxxxxxxxxx. T 526 School staff stated that: (1) xxxxxxxxxxx were more effective than xxxxxxxxxxx, but (2) such supports did not enable X to obtain meaningful xxxxxxx benefit. I find that: (1) there’s no proof that such supports were used consistently during 2012-2013, and (2) as a result, the effect of those supports is unknown.
To address xxxxxxx xxxxxxxs, JC suggested that “[w]hat we do is study what’s going on and set up the environment in a way that could be successful.” T 529 Thus, she suggested modifying the environment. The School argued xxxxxxx doing so because that would not teach X the skills to cope with the environment. However, the School recommended the Xxxxxxx program, which is xxxxxxxly a modified environment. I didn’t understand the School’s reasoning on this point.
The School alleged that most of Dr. TG’s recommendations (Ex. 40, the XXXXXXX) have been implemented without success. T 274-277 Again, there’s proof of implementation only on an intermittent basis, and as a result, the effectiveness of those recommendations is unknown.
JC suggested letting X stand at a xxxxxxx xxxx in the xxxxxxxxxxxxxx to get sensory input. T 542 She suggested giving him xxxxxxxx, a xxxxxxxk, xxxxxxx xxxxs, and xxxxxxxxxes as other examples to address sensory needs. T 542-543 The School hasn’t yet tried these xxxxxxx with X, but rejected them without exxxxxxxxation. I find the School’s rejection unreasonable.
The School may point to the brief inclusion “attempt” in 05/13 as proof that X cannot be supported appropriately in a xxxxxxx education xxxxxxx. However, I find that the inclusion “attempt” was not a reliable indicator of how X might respond if given proper supports and services in a xxxxxxx education xxxxxxx. I find that the inclusion “attempt” was improperly implemented in that it was poorly xxxxxxxned, poorly executed, and prexxxxxxxurely terminated.[33]
On 05/10/13, at the CSE meeting, School staff discussed inclusion and acknowledged that they had a “gap” in the support they could provide to X in a xxxxxxx education setting. T 304, 305 Thus, the School agreed to consider a proposal from JC (one of Parent’s xxxxxxxs and a special education xxxxxxx who has extensive experience xxxxxxxing with school districts on supporting students with xxxxxxx xxxxxxxs) to provide xxxxxxxing support to xxxxxxx for including X in xxxxxxx education. The School then rejected JC’s proposal without ever filling the “gap.”
At some time during the spring semester in 2013, the School retained DR to perform an FBA and develop a BIP. The Assistant Director of Special Education alleged that the School also relied on DR (the XXXXXXX School Xxxxxxx) to fill the “gap” in xxxxxxxning for X’s 05/13 inclusion into xxxxxxx education. T 305 However, DR testified that she had no involvement with such xxxxxxxning. T 399-400 Furthermore, the School did not ask DR to complete her FBA or finalize the BIP before the start of the inclusion attempt. T 399-400
The School “finalized” its xxxxxxx for supporting X without having the special education teacher or TA (neither of whom had ever before met with or worked with X) meet with X or his family. T 667-668 The School terminated the inclusion attempt after less than two days and told X’s family that he could not return to any xxxxxxx education settings. T 83-84; T 272
The 05/13 inclusion “attempt” was also improperly implemented in that: (1) the Principal referred to X’s “office”, inadvertently leading X to believe that the Principal intended X to work there, (2) the special education teacher was not available to co-teach during the hours of X’s inclusion, leading to over-reliance on the TA, (3) Xxxxxxxxxxxxxx Teacher met with the TA after the inclusion attempt began, (4) Xxxxxxxxxxxxxx Teacher never saw or reviewed a BIP to be used in connection with the inclusion attempt, (5) Xxxxxxxxxxxxxx Teacher never met with the xxxxxxx grade xxxxxxx education teacher, and (6) the Assistant Director of Special Education didn’t know if the special education teacher or TA had had any experience integrating students who exhibited xxxxxxx xxxxxxxs.
Thus, X’s experience with the 05/13 inclusion “attempt” was not a reasonable predictor of his ability to be appropriately supported in a xxxxxxx education setting. T 571-577 The court’s decision in Warton is instructive. In that case, the court discounted evidence gathered from an inclusion attempt because communication among school staff was poor and xxxxxxxning was “developed by the teachers on an ad hoc basis.” Id. at 274-75; see also Mavis v. Sobol, 839 F. Supp. 968, 989-90 (NDNY 1993). Thus, the court concluded that the student’s “past inability to function in the mainstream does not demonstrate that [student] would not benefit from an appropriate placement with supports in the mainstream.” Warton, 217 F. Supp. 2d at 276. Likewise, there is good reason here to discount the predictive power of X’s experience during the extremely brief and poorly xxxxxxxned inclusion attempt in 05/13.
Indeed, X’s xxxxxxx education experience in prior years (when his FBA and BIP were less outdated) suggests that: (1) his xxxxxxxs can be xxxxxxxd with supports and services in that setting and (2) the xxxxxxx xxxxxxxs exhibited during 2012-2013 were axxxxxxx.
Although X has always demonstrated some xxxxxxx xxxxxxxs, his early elementary education was in inclusive settings and he was described as “happy and content,” xxxxxxxed in xxxxxxxs and xxxxxxx, a “delight to work with,” and making “exceptional gains.” During 2010-2011, X was integrated into xxxxxxx education settings and showed success about 60% of the time. During 2011-2012, X was integrated into specials and xxxxxxx xxxxxxxes. The inclusion attempts “went well” a “majority of the time” and X made “great gains xxxxxxxally.” Ex. E, p. 6
5. The School Predetermined X’s 2013-2014 Placement
I find that: (1) before any CSE meetings, School staff decided that X’s xxxxxxx could not be xxxxxxxd in any placement in-district, (2) thereafter, at CSE meetings, School staff refused to consider additional inforxxxxxxxion, and (3) thus, Parent did not have an adequate or a meaningful opportunity to participate in the development of the IEP. See T.P. ex rel S.P. v. Mamaroneck Union Free School Dist., 554 F.3d 247, 253 (2d Cir. 2009); J.G. ex rel. N.G. v. Kiryas Joel Union Free School Dist., 777 F. Supp.2d 606, 648 -649 (SDNY 2011)(citations omitted).
Predetermination “can rise to the level of a substantive xxxxxxx, and therefore deprive a child of a free appropriate public education, where the child's parents are ‘effectively deprived’ of ‘meaningful participation in the IEP process.’” Id. (quoting Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857 (6th Cir.2004)); see also J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 447 (9th Cir.2010) (“Parental participation in the development of an IEP is the cornerstone of the IDEA.” (citing Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007)).
The School’s statements and conduct demonstrate that it predetermined X’s placement in violation of the IDEA. See Spielberg v. Henrico County Pub. Schls., 853 F.2d 256, 259 (4th Cir. 1988)(finding that series of letters written prior to CSE meeting demonstrated that district “resolved to educate [student] at [particular placement], and then developed an IEP to carry out their decision”); D.B. ex rel H.B. v. Glouster Tp. Schl. Dist., 751 F. Supp. 2d 764, 772 (D.NJ. 2010)(“Plaintiffs have shown that … [the district] had come to definitive conclusions on … placement without parental input, failed to incorporate any suggestions of the parents or discuss with the parents the prospective placements, and in some instances even failed to listen to the concerns of the parents.”).
The fact that a parent was present and permitted to speak at CSE meetings is insufficient to rebut a predetermination claim. “Participation must be more than a mere form; it must be meaningful.” Deal, 392 F.3d at 840 (emphasis original). “When there was no way that anything the [parent], or any data the [parent] produced, could have changed the School System’s determination . . ., [the parent’s] participation was no more than after the fact involvement.” Id. at 858.
The instant facts are: In the spring of 2013, X was due for his triennial evaluation and his annual IEP review. X’s Parent and the School agreed that Dr. TG would complete the xxxxxxx xxxxxxx component of the triennial evaluation and perform an XXXXXXX. The School: (1) advised X’s family that it would not convene the CSE to discuss X’s placement for 2013-2014 until Dr. TG’s evaluation had been completed[34], and (2) requested permission to conduct an FBA. Then, School staff met without X’s Parent (or anyone else from his family) to discuss X’s placement for 2013-2014. At that meeting, Staff agreed to reject a placement in-district. Then, on 05/03/13 and 05/10/13, the CSE met, and School staff presented Xxxxxxx as their placement recommendation. On 06/20/13, the CSE met again. On 06/20/13, Dr. TG presented her report to the CSE, in which she: (1) recommended that X receive exposure to “as many xxxxxxx students as possible” and (2) noted the importance of a “comprehensive BIP.” Notwithstanding Dr. TG’s recommendation, and even though the FBA and BIP were still in draft form, the School insisted on Xxxxxxx (which is located outside of the district and would afford X no access to xxxxxxx xxxxxxx). The IEP developed as a result of the 06/20/13 meeting contains no reference to the recommendations of Dr. TG or of Parents 2 xxxxxxxs. (Those 2 xxxxxxxs participated in the afore-mentioned CSE meetings.)
The School conceded predetermination via the testimony of its Assistant Director of Special Education. The Assistant Director testified that School staff ruled out a placement in-district before the CSE met, and before considering the results of the XXXXXXX or the triennial evaluation. Then, at a CSE meeting, the Assistant Director rejected the possibility of a xxxxxxx education placement (Please see p. 13-14, herein). There is also circumstantial evidence of predetermination, in that the School recognized the need for a new FBA and requested permission to obtain it, but then convened the CSE and rejected any placement less restrictive than Xxxxxxx before it received a finalized FBA or BIP.
At the 05/03/13 CSE, the School claimed that the Xxxxxxx placement was necessary because the Xxxxxxx staff, unlike the in-district staff, had the necessary training to support X. JC (a xxxxxxx at Xxxxxxx University and nationally-recognized special education xxxxxxx) agreed that the in-district staff would need specialized training to support X in a xxxxxxx education setting, but she explained that such training could be provided readily, and at the 05/10/13 CSE, she provided details about the availability of such training. T 530-32; Ex. V, p. 100; Ex. W, p. 8, lines 19-21
6. The IEP Did Not Provide for 2013-2014 Placement in the LRE
IDEA mandates that students with disabilities be educated with their xxxxxxx xxxxxxx “[t]o the maximum extent appropriate” and requires that “removal of children with disabilities from the regular xxxxxxx environment occurs only when the nature or severity of the disability . . . is such that education in regular xxxxxxxes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412 (a)(5)(A).
As such, “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 xxxxxxx xxxxxxx.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir.2007) (quoting 20 U.S.C. § 1412(a)(5)).
Thus, IDEA requires that a student’s program be provided in the LRE. However, the LRE must be appropriate for the student. The IEP placement must be reasonably calculated to enable the student to receive a meaningful xxxxxxx benefit, which means an opportunity for more than trivial advancement. Walczak v. Fla. UFSD, 142 F.3d 119, 130 (2d Cir., 1998) IDEA does not require that all students with a disability be educated in a regular education setting – that is the reason that a continuum of placements must be available. The Regulations of the Commissioner of Education recognize that, where “the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved” (8 NYCRR §200.1[cc]), the regular education environment is not appropriate.
To reconcile the tension between the requirement that a placement be appropriate to meet a student’s special education needs and the requirement that it be in the LRE, the United States Court of Appeals for the 2d Circuit endorsed the test used by the 3rd Circuit in Oberti v. Bd. of Educ., 995 F.2d 1204 (1993), based in xxxxxxx part on the xxxxxxx Circuit’s decision in Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 (xxxxxxx Cir. 1989). Mr. and Mrs. P v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008). Newington provides a two-pronged test to determine whether an IEP places a student in the LRE appropriate to the student’s special education needs.
The first inquiry is “[w]hether education in a regular xxxxxxxxxxxxxx, with the use of supplemental aids and services, can be achieved satisfactorily.” Newington, at 120. Factors to consider include: “(1) whether the school district has made reasonable efforts to accommodate the child in a regular xxxxxxxxxxxxxx; (2) the xxxxxxx benefits to the child in a regular xxxxxxx, with appropriate supplementary aids and services, compared to the benefits provided in a special education xxxxxxx; and (3) the possible xxxxxxx effects of the inclusion of a child on the education of the other students in the xxxxxxx.” Newington Bd. of Educ., at 120. These factors, however, are not exhaustive. “[A]n individualized and fact-specific inquiry into the nature of the student’s condition and the school’s particular efforts to accommodate it is required.” Newington, at 120.
The second prong of the test applies if the student cannot be satisfactorily educated full time in a regular education xxxxxxx. Then, the inquiry is “[w]hether the school has mainstreamed the child to the maximum extent possible.” Newington., at 120. There is no presumption in favor of any particular quantity of inclusion in the regular education xxxxxxx. Rather, a case by case determination must be made, weighing the “presumption in favor of mainstreaming … xxxxxxx the importance of providing an appropriate education to handicapped students.” Newington, at 122, citing Briggs v. Board of Educ. of State of Conn, 882 F.2d 688, 692 (2d Cir. 1989). “While including students in the regular xxxxxxxxxxxxxx as much as is practicable is undoubtedly a central goal of the IDEA, schools must attempt to achieve that goal in light of the equally important objective of providing an education appropriately tailored to each student’s particular needs.” Newington Bd. of Educ., 546 F.3d at 122.
The School bears the “burden of proof, including the burden of persuasion and burden of production” with respect to the placement decision. NY Educ. Law § 4404 (1)(c).
a. School Did Not Meet its Burden as to the First Prong of the Newington Test
i. The School Did Not Make Reasonable Efforts to Accommodate X in a Regular Xxxxxxxxxxxxxx
Please see p. 23-25, herein. I find that the School did not make reasonable efforts to include X in xxxxxxx education settings during 2012-2013.
ii. School’s Failure to Consider Benefits of Inclusion
X’s Parent is not required to prove that X should be educated alongside his xxxxxxx xxxxxxx. Rather, the School bears the burden of proving that X would not experience xxxxxxx benefits or make satisfactory progress in a xxxxxxx education xxxxxxx, even with supplementary aids and services. Mavis, 839 F. Supp. at 985 (recognizing that the “[IDEA’s] strong presumption in favor of mainstreaming … would be turned on its head if parents had to prove that their child was worthy of being included, rather than the school district having to justify a decision to exclude the child from the regular xxxxxxxxxxxxxx.”)(quoting Oberti, 995 F.2d at 1219).
The Newington test requires a comparison between “the xxxxxxx benefits available to the child in a regular xxxxxxx, with appropriate supplementary aids and services,” and “the benefits provided in a special education setting.” Newington, 546 3d at 120.
Thus, consideration must be given to “those unique benefits the child may obtain from integration in a regular xxxxxxxxxxxxxx which cannot be achieved in a segregated environment, i.e., the development of xxxxxxx and communication skills from xxxxxxx with nondisabled xxxxxxx.” Warton, 217 F. Supp. 2d at 275 (quoting Oberti, 995 F.2d at 1216); see also Daniel R.R., 874 F.2d at 1049 (noting that because “[i]ntegrating a handicapped child into a nonhandicapped environment may be beneficial in and of itself,” the “inquiry must extend beyond the xxxxxxx benefits that the child may receive in regular education”).
Placement at Xxxxxxx will afford X no access to his xxxxxxx xxxxxxx. The School has concluded that the benefits X might derive from access to xxxxxxx xxxxxxx are outweighed by the anticipated benefits he will receive from the xxxxxxx setting. I disagree.
The School argued (irrelevantly) that a full-time xxxxxxx education xxxxxxx would be less appropriate for X than Xxxxxxx because it could not: (1) be modified to implement the consistent instruction and structure offered at Xxxxxxx, (2) offer a xxxxxxx xxxxxxx within the xxxxxxxxxxxxxx without disrupting the xxxxxxx education students T 405, (3) implement the true XXXXXXX philosophy without isolating X T 408, (4) implement xxxxxxx skills training appropriate for X T 409, and (5) teach X appropriate ways to deal with frustration or being told “no”. T 409
There’s no proof, however, that appropriate supports and services (including consistent instruction and structure, xxxxxxx skills training and xxxxxxx for dealing with frustration) could not be provided in a setting less restrictive than Xxxxxxx, or that X absolutely requires a xxxxxxx xxxxxxx and the XXXXXXX philosophy as contrasted with other supports and/or services.
The School argued that a xxxxxxx education xxxxxxx would be xxxxxxx for X because it has xxxxxxx beyond those in the structured Xxxxxxx xxxxxxx. T 409 JC testified convincingly that most special education xxxxxxxes had more xxxxxxs than most xxxxxxx education xxxxxxxes. T 541-542
The School argued that a xxxxxxx education setting would be xxxxxxx because X would have to xxxxxxxxxx when his xxxxxxx xxxxxxxd. I find that there’s no current data re his xxxxxxx xxxxxxx when integrated together with appropriate supports and services. Furthermore, if removal from the xxxxxxxxxxxxxx is the test of the appropriateness of a setting, then perhaps the XXXXXXX XXXXXXX Director was correct when she opined that the XXXXXXX xxxxxxx was not appropriate for X. He was removed multiple times from that xxxxxxxxxxxxxx. The goal is to provide appropriate services and supports so that X’s xxxxxxx does not xxxxxxx. There’s no proof that such supports and services could not be provided in a setting less restrictive than Xxxxxxx.
“One way of measuring the benefits of placing a particular child in an integrated xxxxxxx is to look at the progress he or she in fact made in such xxxxxxxes.” G.B., 751 F. Supp. 2d at 577. IEPs dated 04/05/10 and 03/23/11 both recognized that “a setting which would alxxxxxxx for some xxxxxxx xxxxxxx xxxxxxx would be most beneficial” for X. Ex. 22, p. 3; Ex. 24, p. 4 As discussed above, X’s xxxxxxx education experiences before 2012-2013, while not perfect, were xxxxxxxly positive and productive. In 2011-12, for example, the inclusion attempts “went well” a “majority of the time” and X made “great gains xxxxxxxally.” T 139, 187; Ex. E, p. 6
In contrast, X spent 2012-2013 in a setting that shared many of Xxxxxxx’s features – a xxxxxxx xxxxxxx, wherein he was given “little to no access” to xxxxxxx education, and received xxxxxxx instruction focused on xxxxxxx and other xxxxxxx xxxxxxx goals. Ex. 45, p. 7; Ex. 54, p. 3 The results were disastrous, with X making “limited” xxxxxxx progress.
“Another way [to] . . . objectively weigh the benefits of integrated versus segregated xxxxxxxes for a given child is by considering the opinions of xxxxxxxs who are familiar with the child.” G.B., 751 F. Supp. 2d at 578. SS (one of Parent’s xxxxxxxs; a xxxxxxxal xxxxxxx and xxxxxxx of xxxxxxxal xxxxxxx who has worked with X and his family for seven years) testified that X is a warm, friendly person who “really enjoys xxxxxxx with people, in fact has a strong preference for it.” T 450, lines 22-25 SS explained that X is xxxxxxxed in interacting with same age xxxxxxx and that xxxxxxx isolation is xxxxxxxful to him. T 451 SS believes X needs access to xxxxxxx xxxxxxx xxxxxxxs to develop appropriate xxxxxxx skills “now more than ever,” and would benefit from exposure to age-appropriate xxxxxxx. T 452-453, 455-456 SS described X as a “master mimicker,” she reiterated the need for good xxxxxxx xxxxxxxs for X, and at the 05/03/13 CSE, she expressed serious concern about the lack of such xxxxxxxs at the Xxxxxxx program. T 465; Ex. V, at p. 50, 83 SS urged the 05/03/13 CSE to consider an inclusive placement, and testified that she did not believe that X’s xxxxxxxs could not be xxxxxxxd in an inclusive setting. T 463
At the 05/10/13 CSE meeting, JC stressed the importance of giving X access to xxxxxxx xxxxxxx. Ex. W, p. 56, 69 JC testified that the best place to teach X xxxxxxx skills is in a setting that affords him access to good xxxxxxx xxxxxxxs. T 545-546 Like SS, JC rejected the School’s suggestion that X can only be taught xxxxxxx xxxxxxx xxxxxxxxxs in a xxxxxxx setting that provides no contact with xxxxxxx xxxxxxx. T 463 JC referenced xxxxxxx-reviewed literature to support her conclusion. T 579-581 See also G.B., 751 F. Supp. 2d at 577 (“‘[T]he language and xxxxxxx xxxxxxxs available from nonhandicapped children may be essential or helpful to the handicapped child's development,’ so that, even if the child cannot ‘absorb all of the regular education curriculum, he may benefit from nonxxxxxxx experiences in the regular education environment.’”)(quoting Daniel R.R., 874 F.2d at 1047-48).
As noted above, Dr. TG performed an XXXXXXX and xxxxxxx xxxxxxx evaluation during the spring of 2013, and recommended that X’s xxxxxxx setting “include as many xxxxxxx students as possible for xxxxxxxing.” Ex. 40, p. 5
The CSE disregarded the opinions of these three xxxxxxxs. (Please see p. 25-26.) I note that although all of them were familiar with his school records, and Parent’s xxxxxxxs (SS and JC) attended the CSE meetings, none of these three xxxxxxxs ever observed X in a school setting.
The CSE relied instead on the opinions of Xxxxxxxxxxxxxx Teacher and DR. Xxxxxxxxxxxxxx Teacher was not very familiar with the Xxxxxxx program. When asked, she testified: “Xxxxxxx program I believe is for students that have xxxxxxxxxxxxxx and xxxxxxx disorders. I’m not exactly sure.” T 168-69 DR observed X three times (T 344, 348, 352), and based her assumptions about X’s xxxxxxx xxxxxxx needs on his 2012-2013 xxxxxxx. T 425 However, when she agreed with the CSE’s placement recommendation, DR had not seen the 06/09 FBA or the 11/11 BIP, and was not aware that Xxxxxxxxxxxxxx Teacher was and had been xxxxxxx xxxxxxx, xxxxxxx and a verbal BIP. In fact, DR first learned this when she testified at the due process hearing. T 424-425
The School bears a heavy burden on this point. It must show that the benefits of the Xxxxxxx program are so overwhelming that they justify excluding X completely from any contact with xxxxxxx xxxxxxx. Moreover, the proof must be compelling enough to rebut the presumption that a xxxxxxx education placement with supports and services is appropriate. See A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 548 (D. Conn. 2002)(“Even were the court to assume that the Board's proposed xxxxxxx would be a viable and effective placement for [the student], in that she could make progress [there] ..., what would still be missing from the Board's argument is evidence that [the student] could not, with appropriate supplemental aids and services, make the same or even more progress in the regular education setting.”).
In other words, even if the School believes Xxxxxxx is the best place for X to learn xxxxxxx xxxxxxx and xxxxxxx skills, the School cannot prevail unless it proves that Xxxxxxx is the only place he can acquire those skills. See A.S., 183 F. Supp. 2d at 548 n. 16 (“Obviously, to the extent the Board’s view reflects a pedagogical preference for a non-mainstream curriculum, it is squarely at odds with the IDEA.”). Thus, the School has not met this burden.
iii. Would Providing Appropriate Supports and Services to X be significantly disruptive to the education of his xxxxxxx xxxxxxx? What would be the Impact on Other Students?
It is appropriate to consider the potential “xxxxxxx effects” of including X “on the education of the other students in the xxxxxxx.” Newington, 546 F.3d at 120. “In evaluating this factor, the child must be significantly disruptive in order [to] justify removing him or her from a mainstream xxxxxxxxxxxxxx.” G.B., 751 F. Supp. 2d at 579-80 (collecting cases)(emphasis added). Moreover, when “considering the possible xxxxxxx effect of the child’s presence on the other students, the court must keep in mind the school’s obligation under the [IDEA] to provide supplementary aids and related services.” Warton, 217 F. Supp.2d at 277 (quoting Oberti, 995 F.2d at 1204). Based on X’s 2012-2013 xxxxxxxs and inclusion experiences, the School assumes that supporting X in a xxxxxxx education xxxxxxxxxxxxxx would be significantly disruptive to the education of his xxxxxxx xxxxxxx. As discussed on p. 18-25 herein, there are good reasons to question the predictive power of X’s xxxxxxx during 2012-2013. See Warton, 217 F. Supp.2d at 277 (finding that district had not satisfied “significant disruption” prong because there was insufficient proof that the student “would present similar xxxxxxx if provided with an adequate level of supplementary aids and related services in the regular xxxxxxxxxxxxxx”); Oberti, 995 F.2d at 1222–23 (xxxxxxxing that while the school district “presented numerous witnesses . . . who testified to [the student's] extremely disruptive xxxxxxx,” the “district court did not xxxxxxx its discretion in deciding not to defer” to the IHO's finding that the student was sufficiently disruptive to justify placing him in a xxxxxxx xxxxxxx).
DR testified that certain aspects of X’s BIP (which she has still not finalized) could not be implemented in xxxxxxx education settings without significantly disrupting the education of X’s xxxxxxx. T 405 DR acknowledged that her predictions about X’s level of need were based on his 2012-2013 xxxxxxx. See Warton, 217 F. Supp. 2d at 277 (noting that evidence concerning xxxxxxx should have been discounted because it occurred during an “improper placement . . . , with an untrained paraprofessional, and without appropriate supports and modifications.”).
SS and JC testified, on the other hand, that X’s xxxxxxxs were not so xxxxxxx that they could not be xxxxxxxd in an inclusive setting, and JC explained in detail how this could be accomplished. T 463, lines 9-16; T 524-530; T 532, lines 16-25
With regard to the services / supports that DR said could not be provided in a xxxxxxx education setting, JC testified, giving specific examples, that each of those supports / services could be provided in such a setting without being significantly disruptive. T 536-538, 541-547 JC also reviewed the goals in X’s IEP and testified that meaningful progress could be made toward those goals in a xxxxxxx education setting without significantly disrupting the education of X’s xxxxxxx xxxxxxx. T 552-5 57; T 610, lines 5-25
The “goals advanced by the IDEA’s mainstreaming mandate . . . should not be alxxxxxxxed to be sidetracked by the mere showing that a special education student has exhibited xxxxxxxal problems.” A.S., 183 F. Supp. 2d at 549. Moreover, several courts have recognized that xxxxxxx students benefit from exposure to students like X. See A.S., 183 F. Supp. 2d at 547 (“Mainstreaming … serves the important goal of ‘[t]eaching nondisabled children to work and communicate with children with disabilities,’ so as to ‘eliminate the stigma, mistrust and hostility that have traditionally been harbored xxxxxxx persons with disabilities.’”)(quoting Oberti, 995 F.2d at 1217 n. 24).
Lastly, although X has demonstrated xxxxxxx xxxxxxxs: (1) the standard for segregation is “significantly” disruptive (not “somewhat” or “frequently” disruptive), (2) Parent’s 2 xxxxxxxs, who I find credible even though neither has observed X in a school setting, explained that X could be supported in a xxxxxxx education setting without significantly disrupting the education of his xxxxxxx, (3) prior to 2012-2013, X demonstrated success, 60% of the time when he was included in xxxxxxx education (usually lunch, recess and special area xxxxxxxes) settings, and
(4) there are compelling reasons to believe that his xxxxxxx during 2012-2013 is not predictive of his abilities if properly supported in an inclusive setting. There was proof that xxxxxxxs are difficult for X. Whatever his 2013-2014 placement, X will xxxxxxx from elementary to middle school. Thus, X will be xxxxxxxed to a school building, to a xxxxxxxxxxxxxx, to xxxxxxxxxxxxxxes, to TAs and to a teacher that will differ from that which is familiar to him. I do not believe that, under those circumstances, even with all of the modifications, supports and services described by the xxxxxxxs here, any child could successfully xxxxxxx directly to a full-time xxxxxxx education setting after living through everything that occurred during X’s 2012-2013 year. I note that none of the witnesses was asked specifically to address the after-effects on X, if any, of X’s xxxxxxx experiences during 20122013, or to estixxxxxxxe the likelihood of X’s success if X were to be placed (with appropriate supports and services and with all of those changes) in a full-time xxxxxxx education setting as of 09/13. I find that the School was justified in refxxxxxxx a full-time xxxxxxx education placement for 2013-2014.
b. The School Did Not Satisfy the Second Newington Prong
I find that the School cannot show that it has included X “in school programs with nondisabled children to the maximum extent appropriate.” Inclusion to the maximum extent appropriate would be required to satisfy Newington’s second prong. Newington., 546 F.3d at 121. Here, again, the burden on the School is heavy. The law requires the School to provide a “continuum of alternative placements ... to meet the needs of handicapped children.” 34 C.F.R. § 300.551(a).[35] Xxxxxxx affords no access to nondisabled students and is thus extremely restrictive.
To satisfy this prong, the School must prove that X cannot be appropriately educated in any setting less restrictive than Xxxxxxx. The School made no such showing. The School offers numerous programs and services less restrictive than Xxxxxxx. Ex. D There was little proof regarding the features of these programs, and their suitability for X. To the extent the record lacks sufficient inforxxxxxxxion about alternative programs, I must charge that lack of inforxxxxxxxion xxxxxxx the School, because it bears the burden of proof.
Moreover, as outlined above, the School admitted that it ruled out a less restrictive xxxxxxx placement in-district before any CSE meetings were held, before the XXXXXXX and triennial were completed, and before an updated FBA and BIP had been prepared. The School has not complied with IDEA’s presumption in favor of inclusion. Thus, the School has not proved that its placement is in the LRE.
7. The School Did Not Violate Section 504 or the ADA
Section 504 of the Rehabilitation Act and the ADA protect individuals with disabilities from discrimination in the provision of public services, including education. 29 U.SC. § 794 (a); 42 U.S.C. § 12132.[36] To obtain relief under these statutes, X must show that: (1) he has a disability for purposes of Section 504/ADA, (2) he is otherwise qualified for the benefit that has been denied, and (3) he has been denied the benefit by reason of his disability. Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 146-47 (2d Cir. 2002).
It is xxxxxxx that X is disabled within the meaning of Section 504 / ADA and that X was deprived of benefits he was otherwise qualified to receive – namely, the right to a FAPE, the right to be free from unlawful and improper xxxxxxx and xxxxxxx, and the right to an appropriate xxxxxxx placement. See Weixel, 287 F.3d at 148.
However, “something more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment.’” S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 289 (SDNY 2007)(quoting Scaggs v. N.Y. State Dep't of Educ., No. 06–X–0799, 2007 WL 1456221, at *15 (EDNY 05/16/07) (internal quotation omitted).
I agree with Parent that: (1) the School’s violations of the legal requirements governing the use of these extreme measures (i.e., xxxxxxx, xxxxxxx xxxxxxx, sending or staying at home) were numerous and pervasive, (2) the School appears to have made xxxxxxx use of these techniques as a substitute for systexxxxxxxic xxxxxxx xxxxxxxs, (3) the School continued to use these xxxxxxxs even after it should have been xxxxxxx they were ineffective and counterproductive, and (4) the School compounded its errors by xxxxxxx X’s xxxxxxx to exclude him entirely from xxxxxxx education settings and to recommend a xxxxxxx placement that would completely xxxxe X from his xxxxxxx xxxxxxx.
To provide more context to Parent’s claim of discrimination by the School, I note that grandparent testified that X’s family did and/or currently does have some xxxxxxx in placing X in a xxxxxxxxxd facility that would be even more restrictive than Xxxxxxx. (Please see p. 12, herein.) Grandparent indicated xxxxxxx because the atmosphere seemed less hostile than the atmosphere X has encountered at School and at XXXXXXX. I’m not sure that I agree with the School, which cited grandparent’s xxxxxxx to show that the instant dispute is a run-of-the-mill dispute rather than a case of discrimination.
I note with distress and concern that: (1) Xxxxxxxxxxxxxx Teacher reported xxxxxxx xxxxxxx xxxxxxx as early as 2009-2010, (2) some of the 2012-2013 xxxxxxx involved xxxxxxple xxxxxxxs xxxxxxxx in a xxxxxxx position, (3) X was xxxxxxxly xxxxxxx at least seven times during the month of 10/12, (4) during 10/12, X spent 49 minutes in xxxxxxx involving xxxxxle xxxxxxxs (Exs. H, I, J, K, L, M) , (5) the School repeatedly used xxxxxxx or “xxxxxxx,” which involved xxxxxxxng X xxxxxxx a xxxxxxx xxxxxxx a xxxxxxx xxxxxxx or xxxxxxx in the xxxxxxxxxxxxxx and xxxxxxxing the xxxx xxxxxxx his attempts to xxxxxxxe (T 643-644), (6) the XXXXXXX XXXXXXX Director and the School’s Assistant Director of Special Education[37] were aware of the multiple xxxxxxx but did not: (a) investigate the circumstances, (b) check the provisions of X’s IEP or BIP to determine whether such xxxxxxxs were authorized, (c) determine whether X’s FBA or BIP required update and/or review, (d) determine whether the xxxxxxx and xxxxxxxs were or should have been implemented as per written School policy or as per the Commissioner’s Regulations, (e) meet with X’s family, or ( f) order a formal xxxxxxxal xxxxxxx. T 283, 289-290
However, I also recognize that: (1) X did in fact undergo xxxxxxx changes and adjustments that xxxxxxxly affected his xxxxxxx during 2012-2013, (2) in 10/12 (but not thereafter), because of those xxxxxxx changes, Xxxxxxxxxxxxxx Teacher did have some justification for postponing the BIP update process and (3) X’s many absences (i.e., 50 days between the beginning of 09/12 and the end of 03/13, including family vacations as well as a significant number of days that resulted directly from Xxxxxxxxxxxxxx Teacher’s improper xxxxxxx whereby X was to remain at home if she herself would not be teaching his xxxxxxx) would have interfered with a FBA or a BIP update.
I do not find bad faith or gross misjudgment in the School’s 2012-2013 xxxxxxx xxxxxxx “xxxxxxx”, or in its repeated use of xxxxxxx xxxxxxx and xxxxxxx. I note that I closely observed the demeanors of all of the witnesses during a three-day hearing, and that I’ve become very familiar with all of the proof in this xxxxxxxter. I find that my concerns support the relief granted in the next section.
8. Relief Should Include Training, and Compensatory Education
IDEA affords the IHO discretion to fashion appropriate remedies, which can include compensatory education, supplemental training for school staff, and the hiring of a xxxxxxxants. See Newington, 546 F.3d at 123. As outlined above, the School’s violations of IDEA and the Regulations are numerous, pervasive and serious. The School displayed an ignorance and/or indifference to requirements and regulations concerning positive xxxxxxx xxxxxxxs and inclusion.
Thus, I order the School to hire a xxxxxxxal xxxxxxxant (acceptable to Parent) with significant experience in humanistic and positive xxxxxxx supports. The xxxxxxxant must also have significant experience in supporting students with xxxxxxx xxxxxxx in xxxxxxx education settings, curriculum modifications, and developing xxxxxxx skills in students with deficits in those areas. JC, who is already familiar with X, would be a logical and appropriate candidate.[38] The School must retain the xxxxxxxant for a period of at least two (2) years. The xxxxxxxant must provide mandated training for School staff on positive xxxxxxx xxxxxxx xxxxxxx and the requirements governing emergency xxxxxxxs. With regard to X, the xxxxxxxant must be given the resources s/he requests to: (1) complete the FBA and BIP and then (2) develop, implement, and coordinate a xxxxxxx for providing supplementary supports and services to X, including him in xxxxxxx education settings, and affording him maximum exposure to age-appropriate xxxxxxx.
I also order compensatory education to address X’s limited xxxxxxx progress during the 2012-13 school year. The School cites X’s multiple absences during 2012-2013 as one of the reasons that X should not be so entitled. I note that there were multiple reasons for those absences, some of which are directly related to the School’s failure to: (1) properly xxxxxxx his xxxxxxx and (2) provide for inclusion. I find that X was denied FAPE during 2012-2013. In addition, please refer to section 7 above.
Footnotes
[1] These test results were reported, with at least one error, in the IEP. Ex. 54
[2] One xxxxxxx is a xxxxxxxal xxxxxxx (SS) and the other xxxxxxx is a xxxxxxx in special education teaching (JC). Both are highly-credentialed, credible and convincing University xxxxxxxs.
[3] For four years beginning in 2009-2010, X attended the XXXXXXX xxxxxxx and it was taught by the same special education teacher (JM, hereinafter “Xxxxxxxxxxxxxx Teacher”). For the first three years, it was located at X’s “home” school. Students in the XXXXXXX xxxxxxx ranged from x years of age to xx years of age, in grades xx - x. T 105 The student / staff ratio was xxxxxxxly xxx students, xxx TAs and Xxxxxxxxxxxxxx Teacher. T 105-106 Xxxxxxxly, two TAs and Xxxxxxxxxxxxxx Teacher worked with X. T 106-107 However, X’s xxxxxxx instruction was usually provided xxxxxxx by Xxxxxxxxxxxxxx Teacher. T 111 The reading and xxxxxxxh programs were xxxxxxxxxxxxxxxxx. T 110, T 111 The TAs retaught lessons to X, assisted him when integrated into xxxxxxx education xxxxxxxes and activities, and assisted him when xxxxxxxxs. T 107 The TAs were trained to work with X’s xxxxxxxs, and in the use of xxxxxxx xxxxxxx as well as xxxxxxxxx xxxxxxx xxxxxxx (“XXXXXXX”). T 108
[4] This inforxxxxxxxion re xxxxxxx and xxxxxxxal triggers applies to 2010-2011 as well as 2011-2012, but it’s xxxxxxx that: (1) Xxxxxxxxxxxxxx Teacher was sometimes confused when distinguishing among the four years that she taught X, and (2) X’s xxxxxxx was better in 2011-2012 than in prior years. T 133-137, 140, 142-143, 145, 147-148, 187; Ex. 26
[5] See xxxxxxxly T 187-195
[6] X’s “xxxxxx” is a means by which a child (who is intellectually disabled) xxxxxxxxxx. “They’re just xxxxxxg their world xxxxxxxx, xxxxxxxxxxxxxxx of it.” T 468
[7] The xxxxxxxs did not challenge X because it would xxxxxxx his xxxxxxx. T 179 “If he xxxxxxxxx and could xxx xxxxxxxxxxx, then his xxxxxxxs would xxxxxxx.” T 180
[8] Please see fn 4.
[9] In 01/13, however, at a meeting with X’s teacher and one of Parent’s xxxxxxxs (SS, the xxxxxxxal xxxxxxx), X’s grandparent indicated that there was no concern with X’s xxxxxxx. Ex. 44, p.1
[10] Please see fn 6.
[11] Please refer to the last full paragraph on p. 8, herein, regarding the BIP reference in the 10/29/12 IEP.
[12] SS recently served for more than a decade as Chair of the Xxxxxxx University Xxxxxxx Department. Ex. S She is an associate xxxxxxx working with the Children’s Services program of the Central NY Developmental Services Office, Office of People with Developmental Disabilities. Ex. S, p. 2 She has participated in national and regional conferences on xxxxxxx support and persons with disabilities. Ex. S, p. 3-9 She has published many articles and abstracts on these topics. Ex. S, p. 9-12 She has been working with X and his family for about 7 years. T 449-50 She has xxxxxxxed with the School, and attended many CSE meetings. In 2008, she prepared and provided to the School a document entitled “Xxxxxxxal Guidelines,” which included procedures for xxxxxxx X’s xxxxxxxs. Ex. 11; T 450
[13] School Xxxxxxx (DR) has a cccccc. in cxxxxxxxx school xxxxxxx, focxxxxxxx on ccccccccc. T 320-322 Prior to her XXXXXXX employment, she was employed for 4 years in the xxxxxxx department at cccccccc. Prior to obtaining her xxxxxxx degree, she taught for 3 years in a traditional school setting. T 319 She provides professional development to staff, helps with xxxxxxx xxxxxxxions, and xxxxxxxx with conducting FBAs and BIPs. T 317 When in the Xxxxxxx xxxxxxxes, she provides xxxxxxxal support, helps xxxxxxx and makes sure that xxxxxxx xxxxxxxs are folxxxxxxxed. T 333 She provides training, role xxxxxxxing and other support, and she participates in xxxxxxx meetings. T 333-334 She was credible and convincing.
[14] X’s school attendance was irregular during 2012-2013. He missed 11 days thru the end of 12/12, and then an additional 39 days thru 03/25/13. Ex. 57 Of those 50 days, X was absent for 17 days (i.e., 02/28/13 – 03/25/13) on xxxxxxxxxx, caused by a xxxxxxxxxxx xxxxxxx. T 45-52; Exs. 34, 57; Ex. Z Of those 50 days, X was absent from school for xxx days in xxxxx for xxxxxxxxx. id. X was also absent when Xxxxxxxxxxxxxx Teacher was ill, on vacation, at a conference, administering tests or grading papers, because his grandparent did not send X to school when Xxxxxxxxxxxxxx Teacher xxxxxxxxxxxxxxxxxxxxx X’s xxxxxxx. T 46-47
[15] This letter was the School’s first request to conduct an FBA during the 2012-2013 year.
[16] At that time, neither Dr. TG’s XXXXXXX nor the triennial evaluation had been completed, the most recent FBA was dated 06/09, and the most recent BIP was dated 11/11. T 295-97
[17] X spends most of his time at his grandparents’ house outside of the District. T 31, 93
[18] Parent’s xxxxxxx (JC, who is a Xxxxxxx at Xxxxxxx University in Special Education) has a PhD in special education from the University of Wisconsin-Madison. Ex. U, p. 1 She has published two books and authored or co-authored 30 xxxxxxx-reviewed journal articles on special education topics. Ex. U, p. 2-5 She has several years of experience teaching in public schools. Ex. U, p. 9 She has been a featured speaker at numerous conferences throughout the USA and Canada. Ex. U, p. 9-20 Her work has included xxxxxxxing with school districts on xxxxxxxal supports for students with disabilities. T 490, lines 15-21
[19] Parent agreed that this was true in the early fall, but stated that xxxxxxx was not a problem later in 2012.
[20] In essence, throughout 2012-2013, the School responded to xxxxxxx xxxxxxx by treating each incident as an emergency – repeatedly xxxxxxx xxxxxxxs that are designed to address unexpected events. The School failed to recognize its legal responsibility to: (a) undertake a systexxxxxxxic review of the antecedents of the xxxxxxx, (b) develop a formalized, comprehensive strategy for xxxxxxx the xxxxxxx based on that review, and then (c) monitor the progress of the xxxxxxxs.
[21] See T.Y. v. New York City Bd. of Educ., 584 F.3d 412, 419 (2d Cir. 2009)(finding that failure to obtain FBA and develop BIP did not deny FAPE because student was given a xxxxxxx aide who “provided significant benefits . . . in addressing the problexxxxxxxic xxxxxxxs”).
[22] Indeed, the School has still not obtained an updated FBA or BIP – the most recent FBA is still the 06/09 FBA (Ex. 13) and the last written BIP is from 11/11 (Ex. 28). Although DR prepared a draft “Functional Assessment/Xxxxxxx Xxxxxxx Worksheet” (Ex. 56) during the spring of 2013, she was adamant that this worksheet was a draft document and should not be considered an FBA or BIP. T 389-390; T 399, lines 6-9
[23] At the CSE meetings, DR agreed with the Xxxxxxx placement, but at the time of those CSE meetings, she was unaware of the xxxxxxx, xxxxxxx and verbal “xxxxxxx” and had not reviewed the 06/09 FBA or 11/11 BIP. T 424- 425; T 385, lines 22-23; T 386, lines 4-6
[24] A “xxxxxxx xxxxxxx” is “an area for a student to xxxxxxxly dexxxxxxx, regain control and prepare to meet expectations to return to his or her education program.” 8 NYCRR § 200.22 (c). Xxxxxxxxxxxxxx Teacher and her staff employed xxxxxxx xxxxxxx that xxxxxxxch this definition precisely. T 643, lines 15-25; T 644, lines 2-20
[25] The incident reports in the record were produced by Parent. Exs. H, I, J, K, L, M, N The School did not produce any evidence regarding its documentation of the use of xxxxxxx xxxxxxx.
[26] Neither the 06/09 FBA nor the 11/11 BIP authorized the use of xxxxxxx. Exs. 13, 28 An earlier BIP cautioned that xxxxxxx xxxxxxx should be avoided because it would “xxxxxxx [X’s] nonxxxxxxx.” Ex. 15, p. 3
[27] The evidence suggests that xxxxxxx was not an effective method for addressing X’s xxxxxxx. The 06/09 FBA (which is still the most recent completed FBA) warned that the use of “xxxxxxx” had “little impact on reducing the occurrence of xxxxxxx xxxxxxx.” Ex. 13, p. 3 In addition, a 10/12 incident report noted that use of xxxxxxx may have caused xxxxxxx xxxxxxx. Ex L., p. 2
[28] X was intentionally xxxxxxxxxx the “xxxxxxx” space until his grandparent came to pick him up. T 176, lines 3-4
[29] Surprisingly, the XXXXXXX Director suggested that the XXXXXXX xxxxxxx had never been an appropriate placement because it was not designed to help xxxxxxx X’s xxxxxxxs. Ex. V, p. 77-78
[30] JC observed X twice: in a meeting with his family on 04/24/13 and in an interpersonal setting involving xxxxxxx xxxxxxx on 05/03/13. T 500-508; Ex. T She attended all three 2013 CSE meetings. T 519-520 She reviewed several IEPs, FBAs, BIPs, and DR’s draft FBA / BIP. T 521
[31] SS (Parent’s other xxxxxxx) also cautioned xxxxxxx xxxxxxxizing from X’s 2012-2013 experience.
[32] The School is correct that those “kinds of things” will not address X’s need for xxxxxxx direct instruction in xxxxxxxs, xxxxxxx skills and xxxxxxxal skills T 173, 477, but I find that that instruction: (1) need not take place exclusively in a xxxxxxx education setting, and (2) could be provided in a setting less restrictive than Xxxxxxx.
[33] This is not to suggest that certain of the participants (i.e., the school principal and xxxxxxx education teacher) did not make the attempt with the best of intentions and in good faith. Rather, the School had an acknowledged “gap” in its capacity to support X in a xxxxxxx education xxxxxxx, didn’t fill the gap and thus didn’t give its staff the tools and training they needed to include X.
[34] This initial decision was correct. A school district is required to consider an XXXXXXX “in any decisions made with respect to the provision of a [FAPE] for the student . . . .” 8 NYCRR § 200.5 (g)(v)
[35] The school district “must take intermediate steps wherever appropriate, such as placing the child in regular education for some xxxxxxx xxxxxxxes and in special education for others, mainstreaming the child for nonxxxxxxx xxxxxxxes only, or providing xxxxxxx with nonhandicapped children during lunch and recess.” Daniel R.R., 874 F.2d at 1050. “Thus, even if a child with disabilities cannot be educated satisfactorily in a regular xxxxxxxxxxxxxx, that child must still be included in school programs with nondisabled students wherever possible.” Oberti, 995 F.2d at 1218.
[36] In this case, the requirements of the ADA and Section 504 are essentially identical. See Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 206 (EDNY 2000) (citations and quotation marks omitted), aff'd, 331 F.3d 261 (2d Cir.2003) (“Although there are subtle differences between [the ADA and Section 504 of the Rehabilitation Act], the standards adopted by Title II of the ADA for State and local government services are xxxxxxxly the same as those required under section 504 of federally assisted programs and activities.”).
[37] In 08/12 and thereafter, Parent expressed concern re the BIP to the Assistant Director, but she brushed him aside.
[38] If a person with experience in both xxxxxxx xxxxxxx supports and inclusion cannot be found, then the School should hire a xxxxxxxal xxxxxxxant and an inclusion xxxxxxxant. The xxxxxxxants should have either a doctorate in special education or have made significant progress toward a doctoral degree (i.e., a person who has a Masters in special education, has completed all of his or her doctoral studies, and is working on a dissertation).