NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education BEDS No.
NYS ID. No.
X. and Y. on behalf of their infant daughter, Z.
-against-
Findings of Fact and Order
The Central School District
Procedural Context
On August 27, 2013 I was appointed to hear the matter of as parents of Z., versus the Central School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). On September 16, 2013 a pre-hearing conference was convened telephonically for the purpose of developing a litigation schedule. Thereafter, hearings on the substantive merits were held on October 16, 2013 and October 17, 2013. On this latter day, the Parents were offered an opportunity, pursuant to the five day rule, to review recently submitted evidence involving the Board o f Cooperative Education (hereinafter “BOCES”) class profile. A further opportunity to depose the BOCES witness, should this be necessary, was additionally granted, with the proviso that testimony be limited to the class profile. On Nove mber 4, 2013 ad ditional testim ony was taken teleph onically, at the m utual consent of all.
Specifically, the Parents assert that the School District’s ed ucational placem ent for the 2013- 2014 school year, as m emorialized by the Individua lized Education Program (hereinafter “IEP”)
of April 22, 2013, stands in violation of its mandate pursuant to 20 U.S. Code Section 1412 [a][3]
and is neither suitable nor appr opriate for their child. Exh. JT-76. In furtherance thereof, the Parents maintain that the non-comm unity based BOCES 12:1:1 program [1] recommended by the CSE is inconsistent with its mandate to place Z. in the least restrictive environment. Rather, they contend that Z. should continue her studies in an integrated cl assroom, facilitated by additional staffing, educational modifications and appropriate supports and services. It is noted that Z. is “a child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified as “other health impaired” as that term is defined by 20 U.S.C. § 1401(a)(1). Z. is currently six years old and is assigned to a ho me-zoned, integrated co-teaching class which she now attends as pa rt of her pendency placem ent. There is no dispute regarding classification. A list of persons in attendance and of evidence is appended hereto. The School District’s Case A. testified as lead witness fo r the School District. Ms. Z . hol ds a m aster’s degree in school psychology and has been em ployed by the District as a school ps ychologist for seven years. Among her duties and responsibilit ies, Ms. Z. conducts student assessments and observations while additionally serving as part of the kindergarten screening team. Tr. at 73. As such, she was familiar with Z. and provided a brief overview of the child’s educational history. At the outset, psycholog ist A. noted that Z. in itially received services through Early Intervention and eventually articulated into preschool at the D. School (hereinaft er “D.”). After a considerable period of tim e, Z. gradually tra nsitioned f rom part-time to f ull-time attend ance a t D. . Nevertheless, personnel expressed concerns about Z. ’s level of progress and, to some extent, her younger age relative to other ki ndergarten children. Tr. at 97. In April 2011, both D. and the CPSE determined that Z. would benefit from a second year of preschool. Tr. at 65-66; Exh. 5 a t 6. During this tim e, Z. was ass signed to a full-time, inclusion class of sixteen children with a dedicated 1:1 paraprofessional and ex tensive related services. Tr. at 94; Exhs. 5 at 1; Exhs. 14. Within this context, the child later participated in an extended school year at a BOCES program sited at the main BOCES campus. As the 2011-2012 school year progressed at D., th e child’s goals continued to emphasize the acquisition of pre-academ ic and foundation skills. W hile a total comm unication, multi-senso ry paradigm was im plemented, Z. continued to progr ess at a lethargic pace. Exh. 44. In March 2012, psychologist A. conducted a Re-Evaluation for Special Education. Exh. 34. At this tim e, the clinician noted that measures of cognitive ability, as per the Wechsler Preschool and Primary Scale of In telligence- T hird Edition (hereinaft er “W PPSI-III) we re un obtainable due to “ the examiner’s variance from the stand ardized WPPSI-III directions.” Exh. 34 at 3. Consequently, much of M s. Z.’s assessm ent relied upon infor mal observations and surveys com pleted by D.
personnel. This included input from Ms.I., he r teacher, and the Parent. Although individual sub-scores derived by D. and the Parent were ofte n incons istent, th eir o verall Gene ral Adap tive
Composite (hereinafter “GAC”) scores for Z. were in alignment.
Ultimately, Z.’s scores fell below the 0.1 % level, indicating an “extremely low” range of functional s skills as reported by both the Parent and Z. ’s teachers. Exh. 34 at 4. Most significantly, measures of Z.’s communication, self-direction and social skills reflected minimal abilities, while the child’s functional academics after an addition al year of preschool were only marginally higher. Exhs. 5, 34, passim. Nevertheless, Ms. Z. reported that Z.’s interfering an d dysfunctional behaviors had artificially depressed the child’s scores , and it was likely that Z. was capable of higher cognitive scores. Tr. at 105. On further inquiry, the clinician acknowledged that she had not perform ed any non-verbal cognitive testing upon the child as Z. ’s “pointing” skills were unreliable during extended periods . Tr. at 126-127. Similarly, all testing was performed on the same day, notwithstanding the child’s clear attentional deficits.
The record further indicates that although Z. ofte n engaged in dysfunctional, off-task behaviors, [2]
D. had not implem ented a form al behavior interv ention plan. Rather, Z.’s m anagement issues were addressed through an inf ormal posit ive reinforcem ent schedule, s egmenting her instructional time into five to ten minute periods, offering game-like presentations of educational material and using an iPad as a motivational tool. Nevertheless, these oppositional behaviors continued to exert an impact upon Z.’s ability to function appropriately within the classroom. Tr.
at 106-108. The Comm ittee again note d that, due to Z.’s high level of distractibility, fluctuating hearing, and strong personal agenda , the child’s cognitive score of 33 months was a low estim ate of her skills. Tr. at 74; Exh. 44 at 4.
On April 19, 2012, the CSE convened and generated an IE P for Z.’s first kindergarten year in
District. Exh. 44. At this time, the Committee retained Z.’s “other health impaired” classification and the child was assigned to an integrated co -teaching program. This program included a full-time general education teacher, a half-time special edu cation teacher, one kindergarten aid e and one special education aide in addition to an additional staffing person assigned to Z.’s classroom.3
Ms. Z. testif ied that, at a m inimum, there we re always four adults with in the c lassroom, noting that when the special educator was not present, the room was staffed by a special education aide.4
Tr. at 68. Beyond this, the presence of Z.’s push-in related service providers supplied even further staffing to the classroom , likewise enriching th e pupil: personnel ratio. Tr . at 69. In this manner, the CSE hoped the additional staff member would encourage Z. to generalize skills across staff members and increase her level of independence. Notwithstanding the u se o f additional staffing offer ed by various adults in the room , on cross-examination the witness testified that Z. always had one-to-one support when necessary. Tr. at 97-98.
Beyond the various D. reports o ffered during the Apri l 30, 2012 CSE, the Neurodevelopm ental
Evaluation Summary from Louis C., M.D. was discussed. Exh. 46. In his report, the neurodevelopmental physician specifically recommended a “blended” program for A.A, supported by a Teacher of the Deaf and Hearing Impaired. He further noted that the child required a one-to-one aide as he considered Z. “clearly a flight risk.” Exh. 46 at 2; 74 at 1. Most significantly, the April 2012 report addressed Z.’s recent seizure-like episodes followed by periods of fatigue; a later report, dated October 1, 2012, notes the seda tion effects of the child’s attention deficit/hyperactivity medication. Exh. 55.
In November 2012, a status review was held to a ssess Z.’s transition from D.. At this tim e, the
Minutes ind icate th at testing accommodations were added to the child’s program along with a reduction of herapy services and service delivery modifica tions to Z.’s therapy.
As Z. did not like “adults hovering over h er al l t he time,” t he u se o f a n additional st aff member would provide instructional and management flexibility, without the intensity of a dedicated 1:1 paraprofessional. Tr. at 71. The witness described the kindergarten classroom as an open room facing the first grade classroom. In this manner, Z. was always within sight of the special education teacher, if not actually being instructed by her. Tr. at 72.
Exhs. 63-65. Although Z. had previously utilized a at D., these services were terminated in District.
As the child’s kindergarten year progressed, psychol ogist A. observed that Z. frequently relied upon 1:1 instruction with E., the special education kindergarten teacher. The clinician noted that
Z. was easily distracted and fr equently requir ed the p resentation of m aterials in a gam e-like manner. If Z. were not “in a positive frame of mind,” she would engage in tantrum-like behavior.
By m id-morning, the child would need a nap, although her collaborative kindergarten class entailed full-day programming. Tr. at 76. Descri bring some of the instructional accommodations offered to Z., Ms. Z. noted that much of the child’s instruction was presented on an individual basis. This was a necessary strategy as much of Z.’s academic programming was “. . . often so different from her peers.” Tr. at 124.
On January 8, 2013 the District i ssued a “Progress Report f or IEP Goals and Objectives.” Exh.
68. At this time, the child’s provider noted that Z. was employing 2-3 word expression s with more clarity, but continue d to require adult encouragement and modeling to maintain a reciprocal conversation. As such, Z. ’s spontaneous speech was limited. Similarly, although her attention span and listening skills were increasing, Z.’s ability to follow one-step directions remained inconsistent. The child was, however, able to identify 15 upper case letters of the alphabet and five numbers, although dem onstrations of 1:1 correspondence continued to require adult supervision. Similarly, Z. continued to struggle with the concept of te mporal sequencing and identifying 10 kindergarten sight words.5 In occupational therapy, the record indicates that Z.
was now dem onstrating em ergent pre-handwriti ng skills thr ough modeling a nd im itation.
Nevertheless, it was clear throughout the January 2013 assessment that the persistence of Z.’s off-task behaviors was having an adverse im pact upon her ability to function within the classroom . Exh. 68, passim.
Ms. Z. testified that the CSE next met on Apr il 22, 2013. At this time, the CSE discontinued its recommendation for an integ rated class room and generated a 12:1:1 extended year recommendation in a non-comm unity public school. In this context, Z. would attend a summ er
These skills could not be assessed. program on the main BOCES campus. During the remainder of the school year, however, Z. would be assigned to a BOCES 12: 1:1 classroom housed within the J. School, a mainstream elementary school. Tr. at 79-82. Given Z.’s limited academic and socio-emotional progress, the witness indicated that the BOCES recommendation reflected a more functional approach to Z.’s educational needs. Tr. at 81-84. In furtherance thereof, Ms. Z. testified that the CSE was troubled by Z.’s performance levels and her indolent rate of progress with in the integrated classroom. She testified, “. . . as a collective staff we feel (sic) like we have put into place many modifications and accommodations for Z. And we didn’t feel like there was anything further that we could do for her in the co-teaching setting . . .” Tr. at 94, 89. In contrast, the witness testified that the Parent was upset by the BOCES recommendation as she believed the J. location was an unsafe environment for Z. Specifically, Ms. X. indicated that Z.’s biological father lived near J. location. As the biological father’s parental rights had recently been legally terminated, Ms. X. expressed apprehension about Z.’s safety at that location. Beyond this, Ms. X. voiced concern that J.’s increased distance from the child’s home-zoned school would interfere with medical appointments. Tr. at 80-87. Referencing Z.’s progress th is year in the collaborative team teaching class s, psychologist A. indicated that the child had been struggling in this pendency placement. Based upon frequent observations and consultations with classroom personnel, Ms. Z. testified that Z. was continuing to work on last year’s skills in terms of letter identification, number recognition and foundation skills. In contrast, she noted that the other special education student s were now building upon the foundational skills Z. still lacked . In terms of her interpersonal relationships with her peers, the witness opined that Z. seem ed disengaged socially and, in fact, appeared to be regressing. Tr. at 89-90 , 118-120. Acknowledging the negative impact of Z.’s deficits upon her ability to socialize, the witness nevertheless testified, “Last year, if I saw Z. in the class room during activities, it see ms like the kids would co me over to h er. If it was something she enjoyed, she would try to engage or might play with the same item . . . she might be playing with [a toy] next to somebody else that was playing with the same item s. And with adult support, sometimes an adult would help Z. carry on a conversation about something that she was enjoying. This year . . . in m y observations from this year I see th at Z. is not engaging with the other kids and doesn’t seem to want to be near the other kids or engage with the other kids like she did last year.” Tr. at 119-121.
On cross-examination, Ms. Z. was uncertain as to why several co mponents of Z.’s kindergarten
IEP had not been implemented. Although the April 19, 2012 IEP had recommended the use of a
Tech Talk 8, the witness was uncertain as to whether this had actually been used. Nevertheless, Ms. Z. testified that a District iPad was used throughout the day as a m otivational tool.
Similarly, the witness did not know why a Teach er of the Hearing Impaired had not been accessed, although it had, in fact, been recommended on th e IEP. Tr. at 109-112; Exhs. 44 at 11, 45 at 3. 6 Finally, Ms. Z. acknowledged that a behavior intervention plan had not been implemented, notwithstanding the negative impact Z.’s behaviors were exerting upon the educational process. In further rance thereof, th e witness observed that behavior management was only one component of Z.’s struggles. In fact, she testified that Z.’s cognitive skills, academic levels, adaptive, social and physical needs 7 were all interfering with Z.’ s ability to function within the integrated classroom. Tr. at 133. Lastly, Ms. Z. observed that no toileting goals had been established for the child, although Z. remained in diapers.
In sum, although there were several other special education students in Z.’s collaborative class, Ms. Z. te stified that, th e cla ss p rofile d escribed considerable divergence between Z. and her peers in terms of their the management, academic, physical and social needs. Tr. at 92; Exh. 93.
In contrast, she opined that BOCES offered a wider range of progr amming for a student population more closely aligned with Z.’s needs.
B. additionally testified on behalf o f the District. Ms. B. is the Distr ict’s Special Education Coordinator, a position she has he ld for more than two years. Her duties include the conduct of program reviews and transfer in take meetings, along with the supervision of District special education personnel and providers. Tr. at 141.
Minutes from the April 19, 2012 IEP meeting address hearing teacher services noting, “. . . possible hearing teacher - will wait to see.” Exh. 45 at 3. The witness additionally opined that the child’s excessive napping was not task avoidance behavior; rather personnel observed that the child genuinely appeared fatigued by mid-morning. Tr. at 114-115. On April 19, 2012, the witness participated in a CSE review for Z.’s 2012-2013 kindergarten school year, her first within District. At this time, many of D.’s special education teachers and/or providers participated in the convene. Aware th at Z. had previously been assigned to a 1:1 paraprofessional, the CSE determined that “additional staffing” would more appropriately support the child’s programming as the classroom already contained an array of full and part-time adults. Tr. at 144. Similarly, Z. preferred to work as independently as possible. The witness testified that at or about this time, it was determined that the Talk Tech technology utilized by D. was no longer needed. Tr. at 15 6, 166-168. In fact, the child utilized a total communication approach in which visuals, sign language and au ral input were incorporated. Finally, Ms.B. agreed that while many of the child’s behaviors could exert an impact upon Z.’s educational progress, Z.’s development and developmental delays m ilitated against the value of a behavior intervention plan for the student. Tr. at 172. Nevertheless, the child did possess m any strength s. Referencing the Minutes of the April 19, 2012 CSE, adm inistratorB. acknowledged that Z. could “make simple blocks, point to body parts and/or share a lot of information.” Exh. 45 at 2. Moreover, Z. was “interacting and communicating more and more every day.” Based upon D.’s positive assessments of the child and the District ’s anticipation that Z. would be successful, an integrated classroom was recommended along with a wide range of educational supports. In furtherance thereof, the parties agreed to re-convene in November 2012 to assess Z.’s transition from D. to the District’s kindergarten. At this time, the child’s progress was reviewed and, with some minor program accommodations, Z.’s IEP remained intact. Ms.B. agreed that the record gave no indication that Z.’s progress was “trivial” in nature.” Tr. at 171; Exhs. 59 at 3, 60. In April 2013, the CSE conducted its annual review for Z.’s upcoming first grade year. At this time, Dr. C.’s most recent report was presented by the Parent and its instructional modifications adapted. Tr. at 150 ; Exhs.74, 76. Following a discussion of the child’s academic status, Ms.B. testified that a BOCES placement was recommended. Specifically, the witness noted that Z. continued to work below grade level and had n ot evidenced the progress anticipated earlier by the CSE. Although some gains had been made, many of Z.’s instructional accommodations were inconsistent with placement in an integrated classroom.
In furtherance thereof, she noted that Z. required segmented instruction within five to ten minute increments due to her high levels of distrac tibility while new educational m aterials r required game-like presentations. Tr. at 148-149. Ms.B . testified that, although Z. had demonstrated progress, it had been “trivial” in nature, rather than substan trial. Tr. at 156. Ultim ately, the witness indicated that the CSE’s recomm endation in April 2013 was based upon a global assessment of Z.’s skills “across the board,” rather than any si ngle factor. By August 2013, the child’s goals had been modified to reflect m ore m odest object ives, c ommensurate with the District’s policy of revising goals when they are not mastered within a year. Tr. at 185-186; Exh. 85 at 1.
Lastly, th e witness testified that Parental objections to the BOCES recommendation were limited to the program ’s location. While the extended year program was housed at the BOCES main campus, both Ms. X. and her advocate, K., expressed concern that the ten month program at J. was sited near the home of Z.’ s biological father, an individual whose parental rights had been legally revoked and who ha d previously demonstrated a propensity towards violence. 8 Tr.
at 149-150, 154-155; Exh. 80 at 3, 6-7.
E. has been a special education teacher for 28 years and is employed by the District in this capacity. Ms. E. was Z.’s special education kindergarten teacher during the 2012-2013 school year and additionally participated in her initial screening at D.. The witness described Z.’s integrated kindergarten classroom , a room with 23 children, five of whom were identified with special needs. She noted that five adults had been assigned to this class, including both general and special educators as well as one kindergarten and one special education aide. Beyond this, the supplemental presence of “additional staffing” reflected provisions in Z.’s IEP.
The Court found that Z. and her siblings had been neglected and malnourished. The record suggests maternal drug and alcohol use. An Order of Protection was ultimately issued in favor of the A. family. Exhs. 4 at 1; 5, 8, 18, 22, 25, 31, 32, and 34, 49, 52, 53, 57, 62.
Characterizing many of Z.’s behavi ors as task avoidant, Ms. E. not ed that the child frequently cried for her mother or claimed she was ill, refusi ng to work or keep her hearing aids intact. On some occasions, Z. resisted wheeling her chair in to the cl assroom or following class room protocol. Tr. at 199-201. Ms. E. noted that Z. required pre-teaching and segmented instruction as well as game-like presentations of educational m aterial. By mid-morning, the witness noted that
Z. would request a nap after one or two visits to the school nurse.9
Socially, Ms. E. described a child whose skills were lim ited to p arallel play, notin g tha t pee r interactions and initiations required consider able adult facilitation. Tr. at 204-205. Beyond this,
Z.’s participation in “specials,” such as library, music and art was inconsistent as th e child was often uncooperative. Ultimately, the witness observed that Z. required constant adult supervision. Consequently, even when the class engaged in activities as a whole, this time would be used to provide Z. with individualized instruction.
As the school year advanced, Ms. E. testified that the gap between Z. and her peers had widened considerably. W hile students were now working on addition a nd subtraction, Z. had yet to master rote counting to eleven or consistently identifying her numbers from zero to five. Tr. at 207; Exh. 76 at 4. The child similarly continue d to struggle with identifying more than 15 letters of the alphabet an d sight words beyond “I” and “a”. Exh. 85 at 1. Ms. E. observed th at as Z.’s self-isolating behavior management issues persisted 10, the child was further segregated from her peers in th e integrated classroom. Indeed, as a result of these management concerns,
Ms. E. testified that Z.’s related services had been modified to pull-out sessions. Th e witness testified that, “Because Z. had a very hard time with push -in therapies. And there are m any times that they would be crying m atches. And, again, you had 23 children in the classroom.
And if she was crying, we still have these other r children who have to learn, and she – would
The child is frequently removed from the classroom for toileting (diaper changes), an activity which is considered a nursing procedure. i.e. refusing to enter the classroom, transitioning poorly, removing hearing aids, oppositional behaviors accompanied by locking her wheel chair, crying, intentionally offering the wrong answer, pinching have a hard tim e working with the other adult.” Tr . at 248. As the achievem ent gap widened,
Ms. E. testified that Z.’s instruction al accomm odations and learn ing differences co ntinued to increase.
Notwithstanding the child’s global challenges, th e witness s indicated that Z. could express herself through signing and classroom visuals. Consequently, the witness opined that Z. did not require augmentative communication. Tr. at 212-213; Exh. 44 at 6. Similarly, although the child would have benefitted from an FM unit, this assistive technology w as dependent upon Z.’s inclination to keep her hearing aids in her ears, a tolerance which gradually increased as the year went on.11 Tr. at 224.
Having said this, Ms. E . did not b relieve Z. was benefitting academically or socially from the presence of typically developing peers in her class room. W hen queried as to whether Z.’s reluctance to engage with her peers might be motivated by the child’s own frustrations regarding her academic deficits, Ms. E. testified that Z . was cognitiv rely unaware of her academic differences. Tr. at 237. In sum , she describe d Z.’s progress during the 2012-2013 kindergarten year as minimal and inconsistent. As a result of this inco nsistency, Ms. E. believed Z.’s skill level was higher than those abilities actually observed. Nevertheless, the child’s teacher opined that as her integrated classroom peers m atured, it was clear that Z. could no longer function appropriately within an integrated environment. Thereafter, based upon her observation of the proposed BOCES program, Ms. E. determined that the child would benefit from their life skills training and the enrich ed special education services their program could offer. She added, moreover, that this was a recommendation she had never previously made for one of her students. Tr. at 217.
G. testified on behalf of the District as Z. ’s kindergarten teacher. She has co -taught th e integrated kindergarten in District as the general education teacher for 14 years. Ms.G. testified that she first m et Z. in the Spring of 2011 in the context of a kindergarten screening at D..
Thereafter, Z. was assigned to the w itness’ class in September 2012 after it was determ ined that the child would benefit from an additional year in preschool.
By the end of the 2012‐2013 school year, Z. could tolerate her hearing aids until 11:00 am. Tr. at 224.
During the 2012-2013 school year, Ms.G. observed that Z. struggled to maintain her position within the integrated class. Although the child had entered kindergarten knowing colors and shapes, she required and ongoing curricular modifications, consistent with her “much slower” pace in absorbing educational materials. Tr. at 258. As a specific example, she noted that other students were learning all the letters of the alphabet while Z. was still focusing on her own name recognition. Ibid. Ultimately, Ms.G. testified that, although some progress was evidenced throughout the year, she opined that it was neither meaningful nor significant. She based this opinion, in p art, upon th e level of academic progress and social maturity observed with the other special needs children in he r classroom. Tr. at 260, 263, 277-278. In furtherance thereof, the witness testified that Z.’s limited language skills additionally interfered with her ability to grasp academic materials. As a result, it was always necessary to present material within a multi-step, pre-kindergarten level format, a protocol which further delayed the child’s ability to process educational tasks.
On cross-examination, Ms.G. described a number of instructional modifications which were incorporated into Z.’s program during the day. These included fewer and less complex academic demands which required a game-like presentation. She noted that Z. often refused to participate, even when it was clear that she was familiar with the requested task. While other students were already modeling written express sion, Z. was asked to demonstrate basic matching to sample tasks in an inappropriately babyish manner.12 She testified, furthermore, that Z.’s refusals to do work adversely impacted upon the student’s ability to either practice or learn new skills. Tr. at 264-266.
Nevertheless, while Z.’s ability to communicate was limited to occas ional one or two word utterances, Ms.G. testified that the child’s non-verbal gestures facilitated personnel’s ability to adequately understand child’s wants and needs. Specifically, Z. often stated that she wanted her mother or felt sick. As the year progressed, Ms.G. noted that the gap between Z. and her peers was ever-widening. She observed th at Z.’s social skills remained stagnant, testifying, “. . .
everything was with adult support. She . . . wouldn’t just go up a nd play with a child. It was i.e. peekaboo, “show the baby”. Tr. at 265.
always adult directed, adult initiated that she wo uld interact with her friends. She would do . . .
parallel play . . . Her fri ends might come over t o her just b ecause . . . they liked what she was playing with.” Tr. at 258. She noted that Z. was typically unable to engage in reciprocal conversation while the clarity of her articulation was inconsistent. Tr. at 270.
Although Z.’s articulation improved during the year , her peers within the integrated class had difficulty comprehending her speech. Tr. at 270. To a large extent, Z.’s positive social interactions were largely limited to giving hugs. Tr. at 268. In contrast, Z. often engaged in aggressive and negative behaviors (i.e. pinching, tantrums) as a means of communication.
Having said this, the witness acknowledged that Z.’s anti-social behaviors did, in fact, decline as the year advanced. Nevertheless, they contin used to occur every few days, rather than on a several times daily basis. Tr. at 271.
The witness observed that th e child’s frequent tantrum s and “m elt-downs” were ultimately disruptive to the class as a whole and self-isolating beyond Z.’s status as the only child in the class with a wheelchair, walker and hearing aid. Tr. at 259, 266. In fact, Z.’s isolation was compounded further by difficulties associated w ith m aneuvering her wheelchair about the playground equipment. Tr. at 272. 13 Ms.G. testified that she participated in a CSE meeting in April 2013, and concurred with the recommendation generated during these proceedings.
Consistent with other witnesses, she indicated that the Parent’s objection to a BOCES placement was site rather than program driven. Tr. at 261.
In sum, Ms.G. opined that while the child had benefitted from the social environment offered by an integrated class, the extens ive modifications and pull-outs largely rendered Z.’s participation in an integrated class “irrelevant.” Tr. at 275.
F. additiona lly te stified on behalf of the Distr ict. Ms. F. is the Assistant Director for the
Madison-Oneida BOCES Alternative and Special Program. She ha s been em ployed with
BOCES for 20 years, in various instructional a nd adm inistrative capacities. As such, she
Z.’s wheelchair was difficult to manage on grass or wood chips. As a result, she was largely limited to socializing on a paved area where her classmates played with chalk. participated in the April 2013 CSE meeting. At this time, she described the BOCES program and the 12:1:1 program specifically recommended for Z. In furtherance thereof, she noted that the program included both wheelchair bound children and others. W hile some students were verbal, others were not. Given Z.’s limited academic progress, social immaturity and need for individualized instruction, Ms. F. opined that the BOCES program would be an appropriate placement for Z. Tr. at 285. She noted that the child’s program would be housed for ten months at the J. Elementary School (hereinafter “J.”), a general education facility which was able to accommodate both her need for various related services as well as opportunities for mainstreaming. Tr. at 279-280. At this time, the Parent expressed specific concerns about the J. location, as Z.’s biological father lived near this site. In response, Ms. F. described th e buildings safety protocol, noting that there is a single entry which is monitored by indoor and outdoor cameras. Tr. at 282-283. The witness observed that Z. had previously attended a BOCES 12:1:1 program during the summer, a program sited at the main BOCES campus rather than J.. During this time, she had spoken with Ms. X. at least twice and had not been apprised of any Parental discontent or concern. Tr. at 286-287. Ms. F. testified that the main BOCES campus is approximately one quarter of a m ile from the J. location; both facilities are located in Ve rona approximately one quarter mile apart. Referencing the class profile, Ms. F . noted that the BOCES students were s similar in term s of academic abilities which ranged from pre-kindergarten through first grade level in both math and reading. Exh. 95. Several children utilized wheelchairs, were assigned to additional paraprofessional support and utilized augmentative communication devices, including the and similar technology. H. has been employed by BOCES a s a special education teacher for eleven years. She served as Z.’s extended school year special education BOCES teacher during the 2012-2013 school year. As such, she was familiar with Z. and additionally testified on behalf of the District. Ms.H. noted that Z.’s summer class included six boys and six girls. Four students relied upon wheelchairs, several continued to require diaper changes and every child received a variety of therapeutic services. While some children availed themselves of visual services, Z. was the only child utilizing an Nevertheless, the witness indicated that she did not observe any difference between Z.’s ability to function with or without the as the child appeared to hear even without the aids.
Academically, Ms.H. testif ied tha t Z. “was right in the m iddle” of the class and “fit in beautifully,” although her behavi or continued to be problem atic. Tr. at 305, 309. Beyond this, she descr ibed a child whose play skills r remained imm ature. Specif ically, even within the BOCES setting, Z. did not interact appropriately with other chil dren, was unable to share toys and engaged in unsophisticated symbolic play. Tr. at 326, 228. While the child would express affection toward her peers by hugging, “. . . she usually didn’t back that up with words. They didn’t know why was hugging. And so several tim es they’d be taken aback . . .” Tr. at 327.
Ms.H. noted that Z. rarely engaged in any reci procal dialog with her classm rates; when she did, her communication was aggressive and demanding.
Ms.H. testified that she is em ployed on a twelve month basis and would have been Z.’s teacher at J., had the child been enrolled in the BOCES program during the 2013-2014 school year.
There are presently 14 children in her class and Z. would have been the fifteenth. Tr. at 316.
Moreover, a t least s ix o f the children participating in the summer program would have been assigned to Z.’s class at J.. Tr. at 306. Over the summer, the witness indicated that she maintained a daily communication book, including feed-back on behavior management issues.
In furtheran ce thereof, Ms.H. noted that the Parent had not contacte d h er over r the summer to express any concerns about the program.
The witness noted that her classroom stressed routine, functional independence and academic skills which addressed the individual child’s need s. This might include, for example, num eric sense and English literacy. Her instruction was multi-sensory and language-based, incorporating rotating table-top activities and tasks which enhanced both fine motor and cognitive development. Although there were fourteen children in her class, serve n children were assigned
By the summer of 2013, Z. was leaving her hearing aids inside her ears for extended periods and utilizing an FM unit inside the classroom. Tr. at 328‐329. to 1:1 paraprofessionals. Tr. at 310-312. She noted that instruction was offered individually and in a s mall group paradigm , adding that the la rge num ber of adults within the classroom facilitated opportunities to communicate and to generalize skills across personnel. In furtherance thereof, Ms. H. observed that while the child ’s was inconsistently articulated in a clear manner, she believed Z. knew exactly what she wished to communicate. Tr. at 325. Ms.H. testified that her classroom schedule add itionally included a specific “qu iet time” during which lights were dimmed, class sical music played and quiet activities en couraged. She noted that Z. appeared to benefit from this period, cuddling with a blanket as a form of self-regulation. Tr. at 309. Beyond this, Ms.H. noted that her classroom i ncluded physical accommodations which facilitated student participation. This in cluded the use of tables rather than desks, graduated chairs and sp ecial chairs for child ren in where lchairs. She no ted that m any children within her class require d assistance with eating, as did Z. Beyond this, a toilet w as located within the classroom and a changing area sited nearby. Tr. at 318-321. She noted that although toilet training for Z. had been introduced ov er the summ er, the child’s use of orthopedic appliances had complicated her participation in the process. Tr. at 323. The Parents’ Case I. has been em ployed by D. as a le ad teacher for eleven years. As such, she is responsible for implementing and planning curriculum , deve loping educational accomm odations, updating IEPs, supervising others within the classr room and sharing inform ation with parents, administrators and Committees on Special Educ ation. She noted that D. is an inclusive environment in which th ere are typically ten m ainstream children and s ix children with special needs. Tr. at 333-334. Z. was a preschool student in Ms.I.’s classroom for two years, from 2010 through 2012. Since then, the child has visited Ms.I. two or three times. The witness has never formally observed the child within District or spoken with personnel sin ce Z. articulated into District kindergarten. As such, Ms.I. acknowledged that she had little firsthand knowledge of the child currently. Tr. at 345-346. The witness described a “spunky” child who was popul ar with other students and enjoyed being “right where the kids were, where th e action was. She liked being in th e mix, in the center r of what was going on in the room .” Tr. at 338; E xh. 5. Referencing Z.’s experience at D., Ms.I.
noted that Z. was using various augmentative communication devices and was additionally signing. By the end of the 2011-2012 school year at D., Ms.I. testified that Z. could identify colors, shapes, anim als and their signs. Academically, the child was demonstrating e mergent skill in recognizing letters although she required a one-to-one aide to pre-teach the lesson, implement the child’s educational accommodations and ensure Z.’s physical safety. Tr. at 336.
She noted that Z. was highly m otivated by music and gam es on he r iPad, a m odality used to encourage reciprocal peer interactions and turn-taking.
In fact, Ms.I. noted that Z. was highly motivated by the presence of her peers who “could get her to do just about anything.” Tr. at 343. In furtherance thereof, the iPad was frequently utilized to facilitate Z.’s ability to make choices and demonstrate her knowledge. 15 Nevertheless, despite the significant progress Ms.I. observed, it was the collaborative opinion of both she and the District that Z. would benefit from an additional pre-school year at D. during the 2011-2012 school year. Tr. at 342. Indeed, Ms.I. acknowledge d the severity of Z.’s academic and social-emotional deficits and agreed that D. had obtained a variance for Z.’s third year of preschool based upon these extreme needs. Tr. at 367-368.
Describing Z.’s learning style, M s.I. noted th at th e child demonstrated strong observational learning skills in term s of modeling peer behavior. Tr. at 342. Similarly, Ms.I. testified that Z.
was responsive to instruction that was embedded within a playful format, specifically noting that
Z. could attend to a group lesson for 30 minutes within that para digm. Tr. at 349. Ms.I.’s remarks, however, were interna lly inconsistent with her own June 2012 Progress Report, an assessment which continued to reference Z.’s limited attending skills as well as the March 2012 Progress Summary which noted, “Z.’s attention span is quite short (1-2 minutes), and her ability to focus is often hindered by her distractibility.” Exhs. 89 at 2; Exh. 32 at 3.
In furtheran ce thereof, Ms.I. noted that Z. en gaged in asocial behaviors, was often “silly,” refused to do school work, and poked other student s in order to engage them . While Ms.I.
testified that Z. had been res ponsive to an inform al behavioral system implemented within the i.e. through the use of various educational apps. classroom, D.’s June 2012 Update continues to enum erate considerable classroom management issues, as evidenced by social immaturity, poor attending skills and o ppositional behaviors. Exh. 89 at 2. On cross-exam ination, Ms.I. acknowledged that, as early as April 2011, D. had attem pted to fade Z.’s 1:1 support as the child preferred to be independent and did not require constant supervision to execute routine tasks. Tr. at 359; Exh. 5 at 3. Nevertheless, despite the witness’ assertion that Z. was popular and enjoyed being the center of atten tion, the record indicates that “facilitation of an adult is necessary to ensure that friends are aware of her communicative intent and that Z. waits for a response.” Tr. at 357; Exh. 5 at 2. More significantly, Ms.I.’s report indicated that “. . . [Z.] does not lik e to have demands placed upon her and when they are, she reacts vocally and som etimes physically. Z. m ay yell or h it if a teacher asks her to perform a particular task (such as putting a toy away).” Exh. 5 at 3. Likewise, Ms.I. acknowledged that her refer rence to “huge” progre ss was not actually substantiated in the record. W hile her notes in dicate “nice progress ” toward m eeting self-help goals, Ms.I. conceded that descriptions of huge progress and subs tantial growth were misstatements. Tr. at 362-363, 376; Exh. 45 at 2. M. is Z.’s d irect support profession al. She ha s never observed the ch ild in a formal acad emic setting and, other than certification in Cardio-Pulmonary Resuscit ation, she has no specific academic degree o r licensure which would qualify her to instruct Z. with regard to activities of daily living. She functi ons largely as a respite worker. As such, her testim ony was of lim ited value. Tr. at 381-387. Lastly, M s. X. testif ied. She is th e x m other of Z., a child whom she and her husband had fostered since age 13 months. In 2010, Ms. and Mr. X. adopted Z., following neglect proceedings in which the child’s birth parents were deemed unfit. Z. is d iagnosed with multiple congenital anomalies, including 1, 2, 3, 4, 5, 6, and 7. The child has limited muscular control of her tongue and negotiates her environm ent with the assistance of a wheel chair, walker and orthopedic braces. Z. is treated on an on-goin g basis by a nephrolog ist, cardio logist, neu ro- developmental specialist, orthopedist, ENT and a udiologist. She is additionally very sm all for her age, demonstrate s multiple, co -existing global develo pmental delays and is m edicated for attention deficit disorder. Tr. at 389-390, 402-404. Nevertheless, Ms. X. described a social child who enjoyed interacting with her peers and struggled to be as i ndependent as possible. Tr. at 393-394.
The Parent provided a brief educ rational history of Z., noting that, from early on, the child’s ability to transition in to new environments has been com promised by traumatic events experienced as a newborn and toddler. As a result, Z.’s poor transition skills have had a negative impact upon her ability to cope with new educational experiences. Significantly, the child continues to struggle with maternal separation even when Ms. X. is in the same room. Tr.
at 395. Although her daughter w as ultim ately successful at D., her adaptation to this new environment was slow. Nevertheless, by her thir d year at D., Z. was comfortable with the ir routine and was eventually trained to utilize an
Following Z.’s transition to kindergarten, the Parent testified that District personnel continued to assure her that Z. was function ing successfully in the classroom. Specifically, Ms. X . observed that her daughter’s communication skills were developing as was her ability to recognize letters.
In April 2013, the CSE convened with the Pare nt and her advocate. Although the Parent believed her daughter’s kindergarten experien ce had been positiv e an d productiv e, she was advised at this time that Z. would be better served in a BOCES program, an opinion based upon
Z.’s academic struggles and need for life skills instruction. Beyond this, the District advised her that Z.’s frequent related service pull-outs, including those for toileting, were disruptive as were the classroom logistics of managing her wheelchair r, walker and the extra personnel associated with her IE P. Tr. at 406. The witness indicated that she was shocked by the District’s conclusion which she believed was premature and unfair.
Ms. X. testif ied that while th e child ’s goals rem ained the sam e, a 12: 1:1 recommendation for
BOCES was generated. The Parent indicated that both she and her advocate disagreed with the
Specifically, the Proloquo2go iPad app
Rebuttal testimony from witness A. denied these allegations. Tr. at 462-464.
recommendation. She stated, “I believe Z. benef its with being with both kinds, typical and non-typical students. Z. does enjoy learning. I find that the 12:1:1 program is not – she likes learning. She likes to be with her peers and th at the program is not—not a lot of education is being – you know, lessons and stuff like that are what she would be up to. I m earn, she wants to – she likes the books. She likes a lot of different areas of learning. And I find that that is just too m inute. I guess, it’s m ore juvenile.” Tr . at 412-413. The Parent opined that Z. did not require a “day-care-like” life skills program and was capable of performing many ADL tasks on her own.18 Tr. at 413, 429.
Rather, she believed Z. should be exposed to a first grade curricul um with appropriate modifications and on-going opportunities to m odel the behavior of typically developing mainstream peers. Beyond this, the Parent credibly testified th at part of her objection to the BOCES placem ent concerned th e added distance fr om her hom e and its prox imity to Z.’s y, against whom she has an Order of Protection which has already been violated. Tr. at 436.
Finally, the witness credibly testified that she had attended the BOCES open house and communicated freely with District personnel through a communication book, notes and telephone calls. Ms. X . noted that she had exch ranged independent medical reports with staff and assisted Z. with her homework on a daily basis. Nevertheless, she had not shared her concerns with either Ms.H. or Ms. F. regarding the inadequacy of BOCES’ academic programming. Tr. at 438-439.
On cross-examination, the Parent acknowledged that her Due Process Request had not referenced the need for an augmentative communication device nor had it contested the adequacy or appropriateness of the IEP’s goals. Similarly, Ms. X. conceded that s he had no t specifically objected to the use of additional staffing as opposed to assignment of a dedicated 1:1 paraprofessional during the November 5, 2012 or April 22, 2013 CSE meetings. She was, moreover, aware at the time of her Due Process Request, that certain augmentative communication devices as well as the child’s F M unit were not being utilized by the District.
It is unclear whether Z.’s multiple surgeries have caused nerve damage which is now impairing the child’s toileting independence.
Exhs. 64 at 6; 80 at 3. Finally, although she had previously requested corrections of the CSE Minutes when she believed statements were inaccurate, she did not object to K.’s 19 report which confined Parental objections to the BOCES placement to matters of safety. Tr. at 449; Exhs. 75 at 3; 84 at 2.
The School District’s Position
The School District maintains that the April 22, 2013 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C .R.R. §200.6 §(a)(1). Inherent within this s position, the School District assert s that the IDEIA sim ply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to m aximize or optim size the child' s educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects th e results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at rem ediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” be yond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005 , citing Cerra v. Pauling Cent. S ch. Dist, 427 F.3d 186, 192 [2d Cir.2005]). The Di strict does not dispute its oblig ation to place its students in the least restrictive envi ronment. It sim ply maintains that Z.’s extensive needs can no longer be reasonably addressed within an integrated class.
As a procedural coro llary, the District further argues that the Parents are precluded from raising issues not previously pleaded in her Due Process Requ rest. In the alter rnative, the Dis strict maintains that it was not obligated to furnish these services.
The Parents’ Position
The Parents assert that the School District stands in abrogation of its duty to provide Z. with a free and appropriate public edu cation for the 2013-2014 school year in violation of the IDEIA.
See 20 U.S.C. § 1412 (a)(1)(1997). As such, counsel maintains that the IEP generated April 22,
Z.’s case worker from ARC 2013 reflects a number of substantive errors which, in aggregate and alone, compel nullification of the document. Specifically, the P arents maintain that the District und erestimated the extent of Z.’s cognitive abilities, and by doing so, com promised the integrity of its educational planning. In furtherance thereof, counsel maintains that the School District’s BOCES recommendation fails to address the academic needs of Z. and is unduly restrictive. Rather, consistent with its obligation to place Z. in the leas t restrictive environment, the Parents maintain that th e child would be more appropriately served in an integrated setting, supported by a full range of related services, educational accommodations and assistive technological s supports. In furtherance, th e Parents argue that t he District’s failure t o incorporate both and a behavior intervention plan into their daughter’s program unduly frustrated Z.’s ability to succeed, further compromising any assessment of the student’s true abilities. Discussion It is clear that the legislative intent of 20 US Code § 1412 of th e Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C. 1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services em bodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects th e results of evaluations to identify the student's need s, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus ope randi" of the IDEA (Burlington Sc h. Comm. v. Dep' t of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IE P is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). Th e IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].
In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calcu lasted to enable th e child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 2 06-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]). Specifically, the IDEA mandates that all students with disabilities be educated with non-disabled children to the maximum extent a ppropriate and m ay only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[ a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1044 [5th Cir. 1989]). In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student m ay make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 ( WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist ., 873 F.2d at 567; D.B. e x rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Indeed, "proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act" (Kerkham v. McKenzie, 862 F.2d at 886). Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199. Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v . Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP th at is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]). The purpose of the Act was "more to open the door of public education to handicapped children on appropriate term s than to guarantee any particular level of education once inside. . . ” Rowley, supra, at 192). As such, failing grades are not dispositive evidence of a denial of educational benefit (Sherm an v. Mamaroneck Union Free S ch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]). Likewise, even if the record revealed a lack of progress under a particular IEP, one may not automatically conclude that the IEP in question was inappropriate (Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 [S.D.N.Y. 2003]). Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005; J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 [S.D.N.Y. 2011] (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised”). Consistent with the “prospective” requirement that the integrity of an IEP be based upon a “snapshot” view offered at the time of the proceedings, the Courts have held that, with th e exception of amendments made during the resolution period, an IEP must include all services to be provided as of the time the document was created . A District m ay not rely upon vague promises as to what services may be available once a child is placed . Rather, th e child ’s educational programming must be set forth completely within the IEP. This rule recognizes the critical nature of the I EP as the center rpiece of the system, ensures that p arents will have sufficient information on which to base a decision about unilateral placement, and puts school districts on notice that they must include all of th e services they intend to provide in the written plan (R.E., M.E., et al. v. NYC Dept. of Educ., U.S. Ct. of Appeals [2nd Cir. August Term 2011, decided Sept. 20, 2012], Dkts. 11-1266, 11-1474, 11-655).
Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEIA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ . of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of th e statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F .2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).
Having said this, procedural flaws alone do not automatically translate into a denial o f FAPE. A violation of FAPE m ay only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent' s participation in th e creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W .G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sc h. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if th e procedural violation affected the student' s right to a FAPE]).
Ultimately, the IDEA ensures that a school d istrict m ust include and involve the parents of a disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). It contemplates a collaborative decision-m asking process based upon respect and cooperation. Nevertheless, Parents may only have input into th e process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep 't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).
Point 1: Consistent with Board of Educ. v. Rowley, 458 U.S. 176, 184 (1982), was the April 22, 2013 IEP reasonably calculated to confer an educational benefit upon Z. during the 2013- 2014 school year? A. Were the student’s present levels of performance appropriately incorporated into the April 22, 2013 IEP? Clearly, an appropriate IEP must accurately reflect a student’s current levels of performance so that programming can be specifically designed to meet the needs of that child (Application of a Child with a Disability, Appeal No. 01-105; A pplication of a Child S suspected of Having a Disability, Appeal No. 93-9). Federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how t he student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 N.Y.C.R.R. 200.4[d][2][i]). School districts m ay use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). ]). (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 W L 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 N.Y.C.R.R. 200.1[cc], 200.6[a][1]).
As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents (A.D . v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). In the matter at bar, the Parents do not assert any claim regarding the appropriateness of the District’s assessments, their adequacy or their timeliness pursuant to 8 N.Y.C.R.R. 200.4[b][4]. Rather, both parties agree that formal testing of Z. has yielded scores which are, in fact, far lower than her actual ability. The primary issue is whether Z.’s cognitive, social, emotional and physical needs were adequately addressed within the child’s IEP.
Turning to the question of Z.’s IEP and its pred icate evaluations, I n rote that several current assessments are referenced within the document. These included a February 29, 2012 Peabody Developmental Motor S scale-2 Therapy sub-test score: 58); a March 21, 2012 Peabody Developmental Motor Scale-2 ( Therapy sub-test score: 53); the March 12, 2012 Wechsler Preschool and Primary Scale of Intelligence III (hereinafter the “WPPSI-III) and the March 19, 2012 Preschool Language Scales 5 (Auditory Comprehension SS = 58; Expressive Communication SS = 57; Total Language Score = 54) . Exh. 76 at 1. There is no assistive technology assessment although the child’s IEP inconsistently notes that Z. requires such a device. Exh. 76 at 5. S similarly, there is no functional behavior assessment although witnesses uniformly testified that Z .’s inappropriate behaviors exerte d a negative impact upon her ability to function within the classroom.
At the outset, it is clear that standar dized testing possessed limited value for Z. Both Parent and District witnesses unan imously indicated th at Z. was difficult to assess, if not untestable. Specifically, psychologist A. reported that Z.’s interfering and dysfunctional behaviors had constrained her ability to com plete the W PPSI-III, thus artific ially depressing the child ’s cognitive and achievement scores and leading to a truncated test adm inistration. Tr. at 105. The witness further acknow ledged she had not perfo rmed any non-verbal testing, nor had she continued her test administration over the cours e of several sessions to accomm odate Z.’s high level of distractibility. T r. at 126-127. Having said this, the record is silent regarding the value of these supportive m easures, given the pervasiveness of Z.’s “silly,” 20 off-task behaviors, her i.e. providing wrong answers intentionally. unreliable pointing skills and com plex physical chal lenges. As such, the extent to which Z.’s cognitive scoring would have benefitted is unclear.
Instead, psychologist A. turned to informal observation and quasi-objective surveys completed by the Parent and D. personnel to enhance her assessment. Exh. 34 at 3. This included the Adaptive Behavior Assessment Scale completed by D. ’s Preschool team and the Parent as well as Ms. Z.’s own classroom observation. Although individual sub-scores derived by D. and the Parent were often inconsistent, their overall General Adaptive Composite (hereinafter “GAC”) scores for Z. were in alignm ent. Ultimately, Z.’s scores fell below the 0.1 %, indicating an “extremely low” range of functional skills as reported by both the Parent and Z.’s teachers. Exh. 34 at 4. Most significantly, measures of Z.’s communication, self-direction and social skills reflected minimal abilities, while th e child ’s functional academics after an addition al year of preschool were only marginally higher.
Psychologist A. additionally incorporated test results yielded on the Developmental Assessment of Young Children (hereinaft er, “DAYC”) as referenced in Ms.I.’s April 2011 Progress Summary. Exh. 34 at 4, Exh. 5 at 3. These measures also reflected an underestim ate of Z.’ s cognitive abilities, an opinion Ms.I. based upon Z.’s physical and motor delays. Ibid.
In April 201 1, the record indicates that Z. received a standard score of 52, “with average being 100 and a standard deviation of +/- 15.” Exh. 5 at 3. Significantly, one year later in April 2012, Ms.I. again participated in the formulation of an IEP and stated, “According to the DAYC Cognitive checklist, Z. is demonstrating cognitive skills at the 33 month old level, with a standard score of 64. 21 Due to her high level of distractibility, fluctuating hearing (inconsistently working hearing aides) a nd strong personal agenda, this score is considered a low estimate of her skills.” Exh. 44 at 4. Nevertheless, it is clear that Z.’s scores continued to evidence slim improvement relative to her peers.
Between two and three standard deviations below the norm It is s significant that, even within a r relatively structured testing environment, a setting enriched by frequent praise and the support of a 1:1 paraprofessional to facilitate communication, th e child could not follow standardized administration directions. Although there was much testimony regarding th e inaccu racy of standardized testing and Z.’s artificially low cognitive scores, one cannot disregard the fact that even under the most prop itious of circumstances, the child fared poorly when asked to complete cognitive task s. To some extent, the experience showcases Z.’s inability to function appropriately even when educational materials are presented within the alternate test reality of a segregated and quiet 2:1 pupil:personnel paradigm.
Evaluations were again marshaled in preparation for the April 19, 2012 CSE. Exh. 45. Although no new testing is referenced with in the IEP, a review of Z .’s goals largely reflects academic stasis and a growing gap between the student a nd her peers. Many of her goals are simply reincarnations of previously unm et goals as demonstrated by D.’s progress reports dated February 2012 through June 2012. Exhs. 87, 88 at 4; cf. Exh. 89 at 2 (i.e. following 2 step directions, engaging and sustaining a play dyad, increasing attention span beyond ten minutes). While a subsequent Neuro-Developmental Summary generated April 30, 2012 indicates that Z. has at least 75 signs, Dr. C.’s conclusion is based upon Parent report and there is no independent corroboration of this in the record. Exh. 46 at 1.
Ms.I. additionally participated in this CSE review and described Z. ’s significant progress towards her goals. Her opinion, however, was generally unsupported by the record, including Ms.I.’s own reports and assessments. For example, Ms.I. acknowledged that her reference to “huge” progress was not actually substantiated in the record. W hile her notes indicate “nice progress” toward meeting self-help goals, Ms.I. conceded that descriptions of huge progress and substantial growth were essentially misstatements. Tr. at 362-363, 376; Exh. 45 at 2.
While a review of M s.I.’s April 11, 2011 re port indicates that Z. has “form ed solid relationships” with her peers, her notes indicate, “ the facilitation of an adult is necessary to ensure that friends are aware of her communicative intent and that Z. waits for a response.” Tr. at 357; Exh. 5 at 2. The record further notes the presence of asocial beha viors such as laughing when her peers “get hurt or [sic] crying.” Exh. 27 at 2. Like wise, the Speech and Language Evaluation of March 19, 2012 describes the child’s social behavior as “self-directed” with interpersonal initiations largely limited to greetings and displays of affection such as hugging, kissing or patting others on the back. Exh. 33 at 3-4. Although the child was, indeed, participating in increasing levels of social interaction, these relationships remained adult focused and largely adult-initiated, while negative behavior s such as kicking and h sitting persisted. Ibid. This sim ply does not com port with Ms.I.’s descri ption of “huge” progress, either socially or academically. Rather, it would ap pear that Ms.I.’s d escriptions of “very nice” and “huge” progress were offered relative to Z.’s profound disabilities.
It is further noted that Dr. Pelligrino’s freque nt reports do not reflect the condu ct of any independent testing other than his own clinical observations, nor did he recommend any further assessments. More sign ificantly, ea ch report r eiterates th e f act that Dr. Pelligrino spent approximately 30 to 35 m inutes with the fam ily on each visit, with “greater than 5 0% of the time devoted to discussion and counseling re garding m edication m anagement, school and medical plans.” Exhs. 6, 46, 55, 74, 82, passim. Having said this, even Dr. C. reported that after three years at D., Z. continued to function at an early to mid-preschool level. Exh. 46 at 2.
In fact, it is more likely that the March 19, 2012 Speech and Language Evaluation Report of Christianne LaLonde provides a more reliable estimate of the child’s abilities as it is one of the few assessments in which Z. was consistently cooperative and eager to participate. Exh. 33 at 1. Again, Ms. LaLonde’s report indicates that the child’s combined score for expressive communication and auditory comprehension fell at 54, three standard deviations below the mean for a child her age.22
Credit for signed answers was given. Following approxim ately one year in an integr ated kindergarten and based upon the child’s triennial assessm ents, the CSE generated a recommendation for BOCES on April 22, 2013. Exh. 76 at 13. The review included the partic ipation of educational and related service professionals with on-going and intim ate knowledge of the child, includi ng the Parent and two Parent advo cates. In th is m anner, cognitiv e and achievem ent scores ob trained via standardized testing were enhanced by the observational report s of those who worked with Z. daily, both in school and in the community. Consequently, in formation obtained obser vationally assumed far greater im port, a burden m et by the District’s wide array of prof essionals pa rticipating in th e child’s April 2013 CSE . Exhs. 76 at 2; 75 at 3. As there is no indi cation that m andatory evaluations were not perform ed within the prior r thr ee ye ar period pursuant to 8 N.Y.C.R.R. 200.4(b)(4), I believe the Distri ct appropriately relied upon both objective and subjective measures of the student’s current performance levels.
In furtherance thereof, it is cl ear that, notwithstanding three years in preschool at D. and one year in kindergarten, by the Spring of 2013, Z. was still functioning at a preschool level. Indeed, psychologist A. testified that this would be a “generous” assessm ent, when referencing Z.’s reading levels. Tr. at 75, Exh. 72 at 1. Similarly, progress reports from April 2013 disclose that the student had not consistently m astered recognizing numbers beyond 11 or assigning 1:1 correspondence. Exh. 71 at 7, Exh. 72 at 1. Indee d, the child’s latest pr ogress reports and IEPs describe a pre-kindergarten ch ild who continued to struggle with the acquisition of basic foundation skills, both academic and social. Exhs. 60 at 4; Exhs. 68, 71, 72, 76, passim. While the child’s academ ic deficits alone were concerning, her indolen t rate of progress was equally sign ificant, an o pinion voiced by psychologist A.. Tr. at 89. Ms.I.’s testim ony to the contrary, the record indi cates that Z.’s functional attenti on span hovered within three to ten minutes of on-task perf ormance, a deficit evid enced across all environm ents and personnel. Exh. 60 at 4 (“Her attention to task is about 5-10 minutes per activity”); Exh. 32 at 2 (“With Z.’s short attention span and strong personal agenda, it is challenging for her to participate for extended periods of tim e, following another’s agenda”); Exh. 64 at 5 (“. . . m ay need to switch
Nor is one claimed. Exh. 1 act. [sic] every min [sic]”); Exh. 64 at 6 (“. . . change act [sic] - every 5 to 10 m in. . . .”); Exh. 55 at 1 (“Z. continues to have significant challenges with regard to her attention span, distractibility and impulse control”). Indeed, only the year before, D. reported that “Z.’s attention sp an is qu site short (1 -2 minutes) and her ability to focus is often hindered by her distractibility.” Exh. 32 at 2. Only with “an adult’s constant encouragement and enthusiasm . . . can the child remain “engaged with a play choice (emphasis added) for 15 minutes or more.” Ibid. W hile it was clear that Z.’ s on-task performance had improved, its lethargic pace remained. In sum, it is clear that Z .’s progress throughout D. and in District has been painstakingly slow. Witnesses uniform ly testified th at the child demonstrated little achievement academically, describing it variously as “minimal,” “not meaningful,” “slight” and “trivial.” Tr. at 89, 156, 257-260, 171, 213, 277. Although clearly a low estimate of the child’s actual abilities, it is highly unlikely that a child whose standardized scores hov er at or near two to three standard deviations below the norm would function successfully within an integrated environment - even with the accommodations sought by the Parents. B. Are the P arents precluded from asserting claims not specifically articulated within their due process request? The IDEIA and New York State regulations clearly provide that, “The party requesting the due process hearing m ay not raise issues at th e hear ing that were not raised in the party’s due process complaint notice unless such original complaint notice is duly am ended prior to th e hearing or the other party otherwise agrees to such an amendment (20 U.S.C. § 1415[c][2][E]), 20 U.S.C. § 1415[f][3][B]); see also 8 N.Y.C.R.R. §200.5 [j][1][ ii]. "[T]he purpose of the sufficiency requirement is to ensure that the ot her party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint" (S. Rep. 108-185, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint" (Application of a Student with a Disability, App. No. 08 -098; Application of a Student with a Disability, App. No. 09-025.
Indeed, the new regulations facilitate a more meaningful due process hearing while preventing unnecessary loss of time, money and other resources spent defending uncontested issues. In this manner, both parties have a clear r understanding of the subject matter of the complain t. The issues at hearing are appropriately and clearly identified and, as a collateral benefit, compliance with the five day disclosure rule is expedited. C.F.R.§300.509[a ][3]; 8 N.Y.C.R.R. 200.5[i][3][xii][a]. Nevertheless, the regulations, in no way, limit a hearing officer from using principles of comm on sense and fairness in determining when to expand the hearing to include new relevant issues, under the proper circumstances, should they arise (Application of a Child with a Disability, App. No. 04-061). The Court has reiterated, “The statute does no t specify th at all facts relating to the Parent’s dissatisfaction must be spelled out in the notice, much less that every legal theory must be set forth in painstaking detail at that time to avoid waiver. Such a burdensome, unwieldy standard would far exceed th at to which federal court plaintiffs are held, and seems antithetical to the more nimble less rule-intensive character of administrative proceedings” (Alexandria R. et al v. Brookline S ch. Dist., 06-cv-0215-JR, Sept. 10, 2009, 53 IDELR 93, 109 LRP 57939, citing Escambia Cty. Bd. of Ed. v. Benton, 406 F. Supp. 2nd 1248, 1259-60 [S.D. Ala. 2005]). Notwithstanding the position set forth in Escambia Cty Bd. of Ed., supra, a review of the Parents’ Due Process Complaint confirms that it cannot be reasonably read to assert a claim regarding the use of augmentative communication or the conduct of a Functional Behavior Analysis (hereinafter, “FBA”) and Behavior Intervention Plan (hereinafter, FBA”). Having said this, even if the Parents’ Due Process Request had m et all pleading requirements of 20 USC § 1415 (B)(7)(A)(ii)(III)- (IV), I do not believe the District’s failure to incorporate these interventions into its I EP has established apr ocedural inf irmity which would invalida te the child’s IEP (Schaffer v. W east, 546 US 49, 54 (2005), recognizing that due process hearing requirements impose “ minimal pl reading standards on the parties ”). In further rance thereof, I will briefly address these two claims. Failure to Incorporate an FBA and BIP into the child’s April 22, 2013 IEP The IDEIA requires that, in developing an IEP f or "a child whose behavior impedes [his other] learning," the school district must "consider the use of positive behavioral interventions . . . to address that behavior" (20 U.S.C. § 1414(d)(3)(B)(i); see also A.C. v. Bd. of Educ ., 553 F.3d 165, 172 [2d Cir. 2009]). This mandate is essentially the springboard for the development of an FBA, which provides detailed information about a student' s problem behaviors, and a BIP, which provides strategies to reduce those behaviors. See N.Y. Comp. Codes R. & Regs. Tit. 8, § 200.22(a)-(b). It is clear, however, that "[F] ailure to conduct an FBA does not render an IEP procedurally inadequate where the IEP provides strategies to address the student' s behavior" (A.C. ex rel rd M.C. v. Bd. of Educ of Chappaqua Sch. Dist. 553 F.3 165, 172 (2nd Cir. 2009), 553 F.3d at 172-73; M.H. & E.K. v. N.Y. City Dep' t of Educ., 712 F. Supp. 2d 125, 159 (S.D.N.Y. 2010); J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp 2nd 684, 689 9S.D. N.Y. 2009); M.N. v. the N.Y. City Dept of Educ., 700 F. Supp. 2d 356 [S.D.N.Y. 2010]. There is no question that Z.’s asocial behavior s have exerted a negative impact upon her ability to access an education. In furtherance thereof, I note that th e April 22, 2013 IEP references a number of strategies and interventions designed to address these issues. These include the use of limited time segm ents for instruction, the provision of additional staffing, presentation of instructional materials within a game-playing paradigm, napping breaks of up to 45 minutes, sensory breaks and specific preparation for transitions. Additional modifications recommended by Dr. C. included preferential seating, use of pictorial examples, modification of curriculum information, pairing aural information with visual cues, allowing additional time to process information- and monitoring attention to task. T r. at 150; Exh. 76 at 4, 11. It is clear that the child’s negative behaviors as well as the basis s for their occurrence were the subject of considerable discussion during the CSE’s proceedings. Described as “spunky,” Z.’s person al agenda and her opposition al behaviors have long been addressed informally by experienced personnel with specialized training in special education. Tr. at 133; Exhs. 11, 14, 44, 60. The testimony indicates that Z. exhibited high levels of distractibility, fluctuating hearing, inconsistent use of hearing aids and a strong personal agenda, superimposed upon cognitive and social deficits. Tr. at 105, 107-108. However, given th e general imm aturity of kindergarteners, personnel wished to exhaust its less form al strategies before seeking more dramatic and restrictive measures. Ultimately, as the gap between Z. and her peers widened, adm inistratorB. testified that Z.’s immature behaviors far exceeded those of an average kindergartener. Tr. at 190, 225-226. In the absence of expert behavioral testimony, the evidence does not establish how the use of discrete, measurable, target-based criteria in a data -based format would significantly diminish the child’s negative behaviors above and beyond any of the measures currently utilized and referenced in the child’s IEP. Indeed, Ms. E. ultimately testified that a functional behavior analysis was only “one way” to address Z.’s inter rfering behaviors while Ms.B. questioned its efficacy, given Z.’s cognitive deficits and developmental delays. Tr. at 172-173. In view of the above and consistent with A.C. ex rel M.C., supra, I find that the District’s failure to incorporate provisions for an FBA and BIP into its IEP does not render the document procedurally or substantively inadequate. Failure to Incorporate Provisions for As per 8 N.Y.C.R.R. §200.1(e), means any item, piece of equipment, or product system , whether acquired comm ercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a student with a disability. Such term does not include a medical device that is surgically implanted, or the replacement of such a device. See also 8 N.Y.C.R.R. § 200.1(f); 20 U.S.C. § 1414(d)(3)(B)(v). Although Z.’s use of the iPad at D. was wide -ranging, facilitating social interactions and reinforcing receptive language skills, it appears that its u se in District was largely limited to its function as a m otivational tool. Tr. at 76, 109, 120, 339. Nevertheless, the child’s current teachers un iformly testified th at Z. possessed em ergent language and was capable of communicating through gestures, sign language, word approxim ations and some true words.” Exh. 33 at 4. In fact, witnesses uniform ly testified that the child was increasing her use of functional communication to engage with her peer s, while psychologist A. testified that, “Z. verbalizes quite clearly when she wants something or likes something.” Tr. at 109, 122; Exh. 44 at 4; Exh. 59 at 3. S similarly, BOCES teacherH. testified that, “If it’s something that she’s interested in, she can say a couple of words back and forth . . . . There were some things that she could say that were completely clear, very well understood . . . Z. knows exactly what she’s saying and she was trying to the best of her ability to express her language, and we just needed to work to get there.” Tr. at 325. Beyond this, both Dr. C. and District personnel observed that, using a total communication approach, Z. was now able to communicate her wants and needs more consistently. Exh. 46. Although the Parent now maintains that she opposed the termination of Z.’s Talk Tech 8, Minutes of the April 19, 2012 do not indicate any such dispute. Rather, the record reflects a considered decision to rem over this device based upon the educational audiologist’s recommendation that Z . rely upon oral communication first. Exh. 45 at 8. At this time, the efficacy of an augmentative communication device is speculative and although possibly useful, such a determination can only be made through the assessment of a duly qualified clinician.
Assignment of a Dedicated 1:1 Paraprofessional
I note, ab initio, that the Parents’ request for a 1:1 paraprofessional is, in fact, incorporated into their Due Process Request. Nevertheless, there is no indication through the volum inous record that this was ever seriously desired. Rather, the evidence indicates that Z. disliked the presence of a 1:1 aide “hovering” about he r. Tr. at 72. Indeed, as early as pre-school, Z.’s desire for independence was memorialized in D. progress not es, to wit: “Z. likes to be independent and really prides herself on trying to work things out on her own.” Exh. 5 at 3. Likew rise, Ms.I. testified that D. personnel had early on been attempting to fade support as a means of developing Z.’s independence. Tr. at 358-360; Exh. 5 at 5. While it is clear that Z . needed constant support through out the day, the use of additional staffing was consistently viewed a s a less s intrusive intervention which would foster the child’s independence. Beyond this, the use of rotating staff within the classroom was viewed as a means of generalizing skills across personnel. Although 1:1 supervision would be maintained, the child’s ability to work productively among various staff members was viewed as a means of ensuring the acquisition of new skills across various individuals. Tr. at 72, 97-99. Indeed, other than the Par ent, witnesses unif ormly testified th at t he District’s use of additional staffing as opposed to the assignment of a 1:1 paraprofessional was uncontested. Given Z.’s desire for independence and the use of ever-present, but rotating individualized support, I do not believe the absence of a dedicated 1:1 paraprofessional militates against the child’s right to FAPE. In sum and as articulated in T.Y., supra at 417-421, the lack of certain services alone does not establish that the overall program r recommended by the CSE was inappropriate. The Courts have clearly maintained that “[s]chool districts are not required to furnish ‘every special service necessary to maximize each handicapped child ’s poten trial’” ( Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Id. at 199, 102 S.Ct. 3034; see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 534 (3d Cir.1995) (school districts "need not provide the optimal level of services, or even a level that would confer additional benefits, since the IEP required by IDEA re presents only a ‘basic floor of opportunity'") (quoting Rowley, 458 U.S. at 201, 102 S.Ct. 3034), cited in Walczak, 142 F.3d at 132. Given the facts at bar, the District’s failure to include provisions for a behavior intervention plan, augmentative communication and a dedicated 1:1 paraprofessional do not place it in abrogation of its IDEA mandate. C. Do the educational recommendations and programming articulated in the student’s IEP provide FAPE for Z. in the least restrictive environment? Clearly, the IDEA mandates that al l students w ith disabilities be educated with no n-disabled children to the maximum extent appropriate an d m ay only be removed to a more restrictive environment when the nature and severity of the disability is such th at education in regular r classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1993]; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).
In furtherance thereof, the Courts have adopted th e two-part test set forth in both Daniel R.R. v. El Paso Indp. Sch. Dist. (874 F.2d a t 1048) a nd Oberti v. Bd. of Educ. ( 995 F.2d at 1215) ( see Warton, 217 F.Supp.2d at 273-274; A.S., 183 F.Supp.2d at 540-541; Mavis, 839 F.Supp. at 982- 983). Specifically, the Daniel R.R. /Oberti analysis requires a de termination, first, "whether education in the regular classroom , with the us e of supplementary aids and services, can be achieved satisfactorily" (Daniel R.R., 874 F.2d at 1048). S secondly, Oberti asks whether the school has made efforts to include the child in school program s with nondisabled children whenever possible" (Oberti, 995 F.2d at 1215). "If the school officials have provided the maximum appropriate exposure to non-handicapped students, they have fulfilled their obligation under the [IDEA]." (Daniel R.R., 874 F.2d at 1050). In the instant matter, there is no claim that a full-time regular education class room is an appropriate placement for Z. The choice lies between a community-based integrated classroom and a self-contained BOCES placement, both special education programs along the continuum. Clearly, the student’s documented struggles with in an integrated environment militate against any conclusion that a collaborative classroom can provide the academic support this child requires. Given Z.’s cognitive, social, emotional and physical deficits, h er participation within an integrated classroom is more illusory than real. Her related services bring her outside the classroom for hours each day. Her curriculum is so modified that it bears an increasingly distant relationship with that of her peers. Upon inquiry , general educatorG. testified that, considering all of the modifications to Z.’s program, her status in an integrated class was “irrelevant”. Tr. at 274-275. When queried as to whether Z.’s lack of class participation reflected some sense of intimidation in term s of her relative academic deficits, Ms. E. testified that, “Z. is not ware of that - that she is below everyone else.” Tr. at 236-237. Other than the positive opportunities for appropriate peer modeling of social behavior, witnesses confirm ed that Z. had received little benefit from her integrated classroom. Beyond this, it is clear that Z.’s actual performance is inconsistent with those profiled within the special education component of her first grade integrated class. On a physical basis alone, she is the only child with extensive medical needs. As such, Z. requires daily nursing care, frequent toileting breaks, mobility assistance a nd “coaxing” to eat h er lunch. Exh. 93, passim. Z. is the only student who participates in hours of pull-out related service therapies daily and is the only student who receives either adaptive physical education or an extended school year. Lastly, she is the only student unable to write due to fine motor delays.
In terms of classroom management, Z. is the only child who requires add itional staffing. While other students m ay require verbal or physical prompting to follow adult directions, the level of physical, verbal and co gnitive support requ ired to engage Z.’s cooperation is intense an d unabated, often beginning at the classroom door in the morning. Tr. at 199-201. As per the first grade profile, she is the only child w ho does not self-advocate when she requires assistance and “will only work in a s mall group (up to 2 children) if it is a topic of interes t” for up to 5 to 10 minutes.”
For Z., the impact of transition issues such as regaining focus with new personnel is enormous; the child continues to experi ence maternal separation issues and, during the 2012-2013 school often cried endlessly for her mother. Tr. at 76, 200, 394-395. Indeed, Z.’s push-in services were terminated, “Because Z. had a very hard tim e with push-in therapies. And there are m any times that they would be crying m atches. And, agai n, you had 23 children in th e classroom. And i f she was crying, we still have these other children who have to learn, and she - would have a hard time working with the other adult.” Tr. at 248. As such, Z.’s dysfunctional behaviors have only become increasingly self -isolating. Given this scen ario, it is clear that the child’s m anagement needs preclude any reasonable participation within an integrated class.
Indeed, Z.’s special education peers in her first grade integrated class are generally able to follow class routines although her own level of cooperation is m arginal. Exh. 93. While one other student 24 m ay require “reminders” and “physical support” to follow classroom protocol, even this child does n ot require the protracted level of direct intervention associated with engaging Z.’s attention or cooperation (i.e. game-like presentation of materials, segm ented instructional periods, naps, transition strategies, adult cajoling).
Student # 4 on the first grade class profile Z.’s social deficits are likewise inconsistent with her par ticipation in a n integr ated class. The profile indicates that only one of Z. ’s spe cial e ducation pe ers demonstrates any deficits with social skills. Nevertheless, while this student is demonstrating emergent skills in terms of social interactions, the testimony clearly indicates that Z. barely engages in parallel play, doing so only when prompted by an adult. Special edu cation teacher E. , m oreover, observed th at with in an integrated classroom, Z. basica lly just sits ne xt to [her peers] . . . unless you guide her . . . she just . . . basically sits there. . . if it wasn’t for the adult s support, she would si t there for an extended period of tim e looking at a certain bo ok or working on an iPad.” Tr. at 233. The reality is that “. . . The gap is widening because the children ar e older . . . So as the gap is widening, the children are just going to play with other friends. Again, th ey’ll help her if you ask them to. . . . But aga in, they come over because they want to play with a toy th at she’s play with. She’s happy just doing what she wants to do either in her chair or on a blanket outside. . . But for her to initiate conversations . . . a lot of conversations were incidental . . .” Tr. at 213. Again, the level of physical, verbal and cogniti ve support required to engage Z.’s cooperation and social interaction simply outflanks the capacity of an integrated classroom. Finally, although Z.’s Guided Reading Level is described as “Lev el AA,” psychologist A. noted that this was a “generous” assessment of the child ’s level. Tr. at 75; Exh. 72 at 1. W hile Z. continues to work on identifying numbers, even student #4, her lowest functioning peer in the integrated classroom, has begun to tackle addition. Exh. 93 at 3. The reality is that Z.’s skills are demonstrated erratically and only in the presence of herculean support. In the absence of any academic consistency across environments, personnel and tim e, one cannot truly consider these skills “acquired.” In contr ast, Ms.H. testif ied tha t Z. f it “r ight in the m iddle.” She described a BOCES class in which some students were capable of first grade wo rk, while others struggled at a six to twelve month level. Having taught Z. in h er BOCES ex tended year class, she was fa miliar with the child and noted that she had fit in “beautifully.” Tr. at 304-308; Exh. 95. All of her students received a variety of therapeu tic s ervices, sev eral were in wheelchairs, and other rs rece ived services from the Teacher of the Visually Im paired. A review of Ms.H.’s class profile corroborates her description of similarly grouped students, som e not amenable to standardized testing, others yielding lower cogniti ve scores in alignment with those of Z. At least half of the students were working on pre-acad emic math and reading le vels, while several were capable of pre-kindergarten assignm ents. All of the students were enga ged in specific social skills development. Nin e required additional adult support and all received speech services to improve receptive and expressive language. She describ ed a program which was routine-based, multi-sensory in nature and accommodating to the phys ical challenges of its students. As such, toileting facilities are located within or near the classroom, table tops rather than desks are used for wheelchair bound students and an enriched p upil:personnel ratio is offered as many students are assigned to paraprofessionals. Given the extensiv e accommodations which m ust be im plemented for Z., along with m ultiple hours of push-out related se rvices, Z.’s participation in an integrated class is m ore illusory than real. Indeed the record indicates th at, even du ring “specials,” Z.’s diffic ulty with trans itions often precluded her from participating with her p eers. S similarly, the c hild was un able to join class instruction when given to the class as a whole as Z. did not lea rn well in this f ormat. Consequently, this tim e would be used to o ffer Z. individualized instruction f or a m ore fundamental curriculum that was widely divergent from that of her peers. Clearly, integrated instructi on during the 2012-2013 school year wa s advancing at a pace far out-stripping Z.’s ability to keep up - even with cur riculum tailored to Z.’s specia l needs. Indeed, it appears that the degree of repetition, practice and consistency necessary for Z. to acquire basic educational material created a scenario in which the child was always struggling to develop foundation skills while others moved on to more advanced challenges. Ultimately, Z.’s expe rience within the in tegrated classroom reflected little more than a pa rallel universe in which she was largely divorced academically, socially and even physically from her peers. While the Parents’ proposal augm ents the student’s program by c obbling together m ore and m ore special education se rvices, at som e point these m odifications simply cannot compensate for the specialized services offere d by BOCES. Indeed, the sum of all of these modifications is, in fact, less than its parts. Consistent with Oberti at 1215 , supra , and the District’s mandate to place the child in school programs with nondisabled childre n whenever possible, I note that the BOCES program is hosted within a mainstream elementary school. In this setting, Administrator F. testified that, in addition to lunch, “There were always opportuniti es for all of our students for m ainstreaming into the gen ed classroo ms based on their abil ity and what the goal would be. Some would be socialization and som e of it m ight be for acade mics.” Tr. at 282. At a m inimum, children are mainstreamed during lunch.” In view of the above , "If the school officials have provided the maximum appropriate exposure to non-handicapped students, they have fulfilled their obligation under the [IDEA]." (Daniel R.R., 874 F.2d at 1050).
Ultimately, the IEP’s "basic floor of opportunity” must reflect an individualized program likely to provide progress, not regression. Grim v. Rhinebeck Cent. Sch. Dist., supra; Carlisle Area School v. Scott P., 62 F.3d at 533-34 ; Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984] [Rut h Bader Ginsbur g, J.] (because public "resources are no t infinite," federal law "does not secure th e best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child").
Considering Z.’s standardized cognitive and achievem ent deficits along with her considerable management needs, the District’s April 2013 IE P has m et its IDEIA m andate. While integrated classes are an excellent idea for many “other health-impaired” children, I am not persuaded that
Z. is one of them 25. Z. needs to be an integral m ember of the class, valued for her substantive contributions as an equal and engaged participant.
Equitable Considerations
Although the Parent m aintains that her objectio ns to the BOCES placem ent reflect both programmatic and site con cerns, there is no eviden ce in the record which supports this position.
In fact, Minutes of the April 22, 2013 CSE state the contrary, to wit: “Mom disagrees with recommendation of MO (sic) BOCES and wants m ediation because of safety. Mom and Mrs.K.
is (sic) is not disagreeing with the program .” Exh.75 at 3. W hile this is a rational concern, given the biological birth parent’s prior violation of an Order of Protection and his apparent proximity to the BOCES location, one cannot expect the local educational authority to intervene
Although Z.’s classification is undisputed, this issue might be re‐visited during her next triennial. in matters more properly brought bef ore Family Court. Regrettably, this is a personal hardship which cannot be assumed by the District. As a collateral issue, much was made of the Parent’s lack of complaint as the school year progressed. A review of th e 2012-2013 communication book sent between Ms. X. and school personnel reveals a breezy log in which out of 66 pages, fewer than ten entries by the District indicate any difficulties with the child. Exh. 91 at 3, 18, 24, 40-42. Along with Ms. E.’s upbeat, “positive” reports, it is unlikely Ms. X. was actua lly aware of any serious issues until the April 2013 convene. Tr. at 400-401. As a result, she would have ha d nothing about which to complain. Nevertheless, she did not offer any obj sections to the extended school year at the BOCES campus and it is m ore likely that the Pa rent’s objections are grounded in the issue of safety. Clearly, the Parent has shared extensive medical evaluations with the District, willingly attended the BOCES open house program , participated consis tently in educational planning conferences and CSE convenes, provided on -going feedback in Z.’s co mmunication book and generally acted proactively in order to wo rk collaboratively with school personnel. Her lack of complaint is a sm all component of her equitable burden and was not factored into the within Findings of Fact. Conclusion The Parents’ request for relief is denied for the 2013-2014 school year. Wherefore, it is hereby ordered that: The child shall be placed at in an extended year program at BOCES during the 2013-2014 school year.
The District along w ith BOCES i s urged t o conduct assessments f or both a Behavior Intervention Plan and augmentative communication device by individuals with specific expertise in these areas.
Dated: December 23, 2013
_________________________________________
Lynn Botwinik Almeleh, Esq. New York State Certified Impartial Hearing Officer
Persons in attendance on October 16, 2013
For the Parent:
Legal Services of Central New York by , Esq. Ms. X. For the School District
A., District Psychologist B., Special Education Coordinator E., District Teacher Persons in attendance on October 17, 2013
For the Parent:
Legal Services of Central New York by Esq. I., Lead Teacher, D. Ms. X. For the School District
A., District Psychologist G., District Teacher F., Assistant Director for BOCES Alternative and Special Programs H., BOCES Teacher Persons in attendance on November 4, 2013 (proceedings held telephonically)
For the Parent:
Legal Services of Central New York by Ms. X. For the School District
A., District Psychologist F., Assistant Director for M BOCES Alternative and Special Programs H., BOCES Teacher
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of th is decision, the parent and/o r the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of th e Education Law and the Individuals with Disabilities Education Act. If the par ent plans t o app real the decision, a notice of inter ntion t o seek reviews hall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school d istrict, and within 2 5 days from the date of the decision sought to b e reviewed so that a certified copy of the hearing r record may be prepared for submission by the s chool district. If a school d istrict plans to appeal t he decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of th e decision sought to b e reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 N.Y.C.R.R. § 279.2(b)).
The r rules o f procedure for proceedings before a SRO a re found in Part 279 o f the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
Footnotes
[1] The 12:1:1 program additionally includes full‐time “additional staffing.”
[2] i.e. intentionally offering an incorrect answer, engaging in aggressive physical behaviors, inappropriately perseverating with non‐compliant/oppositional behaviors, removing hearing aids and “display[ing] self‐directed behavior which negatively impacts her ability to engage in academic and language learning opportunities.” Exh. 32 at 2‐5; Exh. 33, passim.