NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
Cover Sheet for electronic submission of impartial hearing decision
To: SPECEDIH@MAIL.NYSED.GOV
From: PAUL T. BUMBALO
IHRS Case number: 72192 District: CSD
Attached is a redacted, electronic copy of the (choose one): X Final Decision
Pendency or
Amended final decision for the above case.
IMPARTIAL FORMAL HEARING PURSUANT TO
EDUCATIONAL LAW SECTION 4404(1) AND
COMMISSIONER OF EDUCATION REGULATION
SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,
IMPARTIAL HEARING OFFICER
_________________________________
In the Matter of the Complaint of DECISION
Of the Parent of a Student with a Disability
Against the XXXXXXXXXXXX
CASE IDENTIFIER NO
72192
___________________________________
This IHO was appointed on July 12, 2012 to preside over impartial hearing arising out of a due process hearing request filed by the parent dated July 10, 2012. This IHO provided counsel with a Scheduling Order dated July 19, 2012. On August 6, 2012 this IHO provided counsel with a Notice of the Start of 45 Day Time Line. A pre-hearing conference was held on August 14, 2012 which indicated that the original Resolution Session was scheduled for July 30, 2012 and rescheduled at the request of the parent on August 6, 2012. During the course of the pre-hearing conference the District raised and the parents waived the pendency issues arising out of the scope of reimbursement claim and the amended due process hearing request dated July 12, 2012 and July 13, 2012; the second clarifying the pendency issue. During the course of the pre-hearing conference, hearing dates were selected. This IHO was informed that the District would need two days of hearing and the parents would also need two days of hearing. The hearing was conducted over eight days of hearing with testimony provided on the following dates: October 17, 2012; October 18, 2012; October 24, 2012; November 20, 2012; January 24, 2013; January 25, 2013; January 29, 2013; February 25, 2013. During the course of the hearing IHO Exhibits
1-10 were admitted which dealt primarily with the parents counsel request that this IHO recuse himself. IHO1. pro-offer of proof; IHO2. amended pro-offer of proof; IHO3. Subpoena; IHO4.
three page letter from Andrea Green attorney for the District; IHO5. e-mail correspondence;
IHO6. IHO letter dated January 22, 2013; IHO7. IHO letter dated January 23, 2013; IHO8.
January 28, 2013 response; IHO9. list of indexes; IHO10. documentation tracking extensions
The District admitted Exhibits 1-71. The parents admitted Exhibits A-V, Y, BB, BB1,2,3,4,5, and CC.
SUMMARY OF FACTS
The district’s first witness was YG, the director of special and alternative education for the district T61. YG has been employed by the district for 22 years and before that was employed by the New York City Board of Education. YG has been employed as a special education teacher, educational evaluator, CSE chair, and director of special education, T62. As a special education teacher, she has been in contact with students with disabilities including behavioral, emotional and autistic. Over the past three to five years, the witness estimated that the cumulative number of such students is 150 students ranging from 4 years of age to 21 years of age T62. YG’s responsibilities also include program development, supervision of staff and related services providers, T63. YG’s education includes a BS in Psychology and Special Education and a Master’s in Education of Emotionally Disabled and Administration of Special Education and several credit hours towards doctoral studies obtained in the 1980s T63.
YG is New York State certified K through 6 general education and special education teacher, and has a SBA and SDA T64. YG’s responsibilities include overall supervision and administration of special education, pre-K to 21 years of age with students with disabilities in public, private and parochial schools. Her responsibilities include program development, staff development, administration of CSEs and PCSEs, supervision of staff and related services providers, CSE Chairs T64. There are approximately 100 special education teachers and 60 staff including teacher assistants with approximately 1,375 classified students T65. YG chairs some of the CSE meetings based upon parent requests, staff requests, and when uncommon resources are requested. When YG does not chair the CSE meeting, her role is to review CSE recommendations and report to the Board of Education T66. YG is also involved in several professional associations T67.
YG met the student 12 years ago when he was attending private parochial school at PW
T69. The student transferred to the district for sixth grade T70. The student was at a BOCES placement at I middle school as he transitioned from fifth to sixth grade. The student was placed at the therapeutic support program. A case manager was assigned whose responsibilities include observations and monitoring progress T73. Each of the two case workers is assigned approximately 80 students in out-of-district placements T73. The case managers report to YG.
There were two locations for the BOCES Fragile TSP, one at I and one at S. The student attended I for sixth, seventh, eighth and twelfth grades and S for ninth, tenth and eleventh grades.
The student was placed because of a strong request by the parents T74. The I and S programs were consolidated into the I location for twelfth grade T75.
The TSP stands for therapeutic support program and the fragile program consists of clusters of two to three classes with complete access to general education, curriculum and
Regents diploma T76. The program addresses social, emotional and adaptive skills grouping fragile impulsive behaviors, working towards modulating emotions and communication skills, following schedules, change of classrooms, problem solving, group and individual counseling
T77. The focus is on adaptive skills, problem solving, appropriate responses, communication skills, self-management and self-determination T78. The student desires to attend college T79.
The student and parents were invited to attend a transition fair T81.
YG reviewed D38 strength based assessment for which the interview was held on March
16th 2012, where the student indicated he wanted to be a pediatrician T81. The witness pointed out that the parents signed the tuition agreement P–V with CH, the unilateral parental placement on March 3, 2012 even though the parents indicated that they had not visited the school but the student was accepted on February 3, 2012.
YG reviewed D3, the IEP from the June 16th 2010, CSE meeting, planning for the 2010- 2011 eleventh grade school year. The CSE recommended the BOCES TSP with individualized and one each per week T85, therapy plus accommodations and services. The support services recommended were access to word processing, behavior intervention, and test and program accommodations T85. On D3 page 3, it was stated that it was expected that the student would graduate with a Regents diploma in June 2012 T85. On page 7, several options were considered including the district’s high school T86.
This was based upon information provided by teachers, providers, and support staff. YG next reviewed D48 the IEP from the CSE meeting of April 23rd 2012 for the 2011-2012 school year for the student’s twelfth grade T89. YG chaired the CSE meeting.
YG reviewed D48, page 2, the CSE comment notes from the April 23, 2012 CSE meeting referencing a shared program at the district’s high school with access to the Fast Forward software program to address processing speeds with travel training and college courses
T92. The CSE also recommended the Diagnostic Vocational Evaluation or DVE to be provided by JCCA Compass Project T92 which provides services during and after school to allow access to co-curricular activities, OT, speech-language therapy T92 to be provided by BOCES which was based upon the parental request and CSE recommendation T93. YG next reviewed D21, the IEP for the 2011-2012 school year which was based upon a CSE meeting on May 26th 2011. YG was not in attendance but did review the recommendations. The transition plan was discussed by the district staff and BOCES staff and placement at the TSP at I high school because of closure of the S high school program T95. YG testified that there was a discussion regarding the student completing 12th grade at the district high school but it was reported that the family strenuously requested the student be allowed to complete 12th grade at the BOCES program T96. There was a discussion by the district staff of appropriate programs at the district high school, T96. YG reviewed D21 page 13, the parental approval for the May 26th 2011 IEP for the 2011-2012 school year which recommended placement at the BOCES Fragile TSP program at I high school.
YG reviewed D4 the parental approval for services recommended by the CSE for the 2010-2011 school year T98. YG also reviewed D15, the electronic print out attendance sheet showing 11 absences from September 13th 2010 through June 10th 2011, and D55 showing 13 absences during the 2011-2012 school year T 99.
YG reviewed D47, the CSE/Sub-CSE meeting minutes from the April 23rd 2012 meeting which resulted in the D48 the April 23, 2012 IEP. D21 the IEP for 11-12 school year recommended 3 hours of 8:1+1. YG advocated for the changes to integrate the student into mainstream content area classes. The student was resistant to change and schedules to allow for mainstream in content area academic classes T103. The parents participated in the discussion
T104. The parents were concerned that the student was sitting alone at lunch because he chose to eat alone T105. The father felt that it should not be the student’s choice. The BOCES staff were facilitating and encouraging the student’s social interaction T106. However, the student was expressive of his desires and preferences T106. The student did not attend because the family did not want the student to attend the CSE meeting T106. Travel training is referenced on page 6 which is usually performed on the way to school or from school to home at the end of the day.
Travel training is an adaptive skill T109. There are two travel training district staff members delivering travel training services to 10 to 20 students per year T107. Travel training starts with an informal assessment to perceived dangers within a practical set of activities, exposing the student to public transportation, i.e., the B Line T110. The vocational evaluation at JCCA
Compass DVE is a multi-day assessment of a variety of skills T111. There was also scripting for self-advocacy. The Fast Forward was recommended which an individualized computer-based scientific research program providing several hours of practice T112.
YG explained the Think College at I College which is a post-secondary transitional program for students with disabilities providing access to college courses. The Think College program provides soft and adaptive skills such as transportation, self-efficacies, academic and social supports provided by master’s level students of special education mentors, social worker and school psychologist T114. The intent was to continue support after graduation with support from JCCA. There were three students in the Think College program at the time of the referral of the student with the goal to have six district students in the program T116.
For the student, life skills are a weakness. The student has a developmental disability and was approved by services by OPWDD to provide lifelong support T115.
The witness reviewed D49, the letter from the parent rejecting the offered services based upon the objection to the student’s graduation T117. YG response was D51 indicating the student had been certified for graduation as of June 22nd 2012 and asking the parents to confirm travel training, DVE, and Fast Forward services. Instead of confirming the delivery of services, the parents responded with a Nickerson letter informing the district that they had enrolled the student in CH and were seeking reimbursement by the district T120. YG explained CH is a residential program in Connecticut and has community-based apartments. YG reviewed the due process hearing request; page 4, alleging the district had threatened to place the student in a vocational, non-college bound track, and YG denied that the district had tracks T122. Nor did the student ever receive a 12 month program. The student turned 18 on June 18th 2012 and was invited to the CSE meeting and the resolution session which was not required T125, and did not attend.
YG also reviewed D54, the student’s transcript showing the student’s Regents/RCT scores in the 80s meeting the special education department’s level of aspirational goals for being college-ready T126. The student’s certified transcripts D56 which showed 25.25 credits exceeding the 22 required levels for graduation with a weighted GPA of 95 and an unweighted
GPA of 91 T128. YG reviewed D57 a certified diploma and D65 the Regent’s diploma.
The witness YG reviewed D58 the parent’s due process complaint T130, D59 the invitation to the resolution session, T130, D61 the rescheduled resolution session D131, D62 the summary of the resolution session, T132, D63 the amended due process complaint D64 the resolution summary proposal for the amended due process hearing request T133, D64 the resolution summary proposal for the amended due process hearing request 134.
There were changes by the CSE to the June 16, 2010 IEP, D3, but they were to the general education program. YG indicated that the staff from BOCES believed that its program was appropriate which provided for six hours of 8:1+1 special class being a change from D21, which was done because the student did not want to take general education classes at that time.
The previous IEP recommended three hours of 8:1+1 special class. D48, the IEP from the April 23, 2012 CSE meeting made available to the student a shared program with the district high school. There were no shared programs as recommended by D21, the IEP from May 26th 2011.
As a way of background, the student was initially placed at PW a parental unilateral placement when the student was not deemed IDEA eligible T151. The student transitioned from
PW to a district placement from 5th to 6th grade for middle school. There were evaluations and observations for transition from the parochial school T152. Although the district had therapeutic program the BOCES I program had more clinical supports built into the program than the district therapeutic program in the home district T153. YG had previously conducted visits to and observed the BOCES I program where the student was placed based upon the parents’ being
“quite insistent” T158. The I HS and the S HS BOCES program were consolidation was not sudden T162. The S BOCES program placement was based on appropriate evaluations, T153.
There was not a specific FBA or BIP since they are part of the classroom program. The student was making excellent progress. The other program at BOCES I was a TSP for developmentally disabled. The students had severe cognitive disabilities with adaptive mood disorders heading towards an IEP diploma.
The witness compared D3, D21, D48, and the IEPs for 2010-11, 2011-12. There was no travel training recommended to be delivered until May 7th 2012. Parent training and counseling was not recommended in D3, D1, and D48 T178. BK was the community worker employed by
SW BOCES whose services were geared towards life skills T181. The student was encouraged to attend CSE meetings T 181. YG reviewed D1 strength-based assessment administered to the student on April 21st 2010 when the student was 15 T184. The SBA indicates the students’ need for post-secondary supports T185. YG next reviewed D38 the strength-based assessment administered on March 16th 2012 when the student was 17. D38 revealed that the student had dreams of attending medical school T206. The goal was to provide post-secondary support as seamlessly as possible T209 and to continue to address ADL’s, activities of daily living after graduation, i.e., self-management, socialization, decision-making, self-advocacy, self-determination, independent living skills, shopping, laundry, handling of money. The current program addressed many of skills including guidelines for planning ADLs and assists the natural support at home T212. The other TSP program labeled DD for developmentally delayed worked on life skills during the school day with intensive support 215. YG was not aware of the parent’s desire to mainstream the student T215 nor did YG after reviewing D3, the IEP from June 16th 2010 know that the IEP recommended gym instruction in a general education class
T216. However, at the April 23rd 2012 CSE meeting which generated the IEP D48 on page 2, paragraph 2, it was reported that the student had very strong feelings not to be mainstreamed
T219. The student’s anxiety about graduation and leaving school was the primary focus that the staff was working on T220. However, the student was not mainstreamed because of intervening variables although YG felt it was appropriate T223. The student was not mainstreamed for academic classes during the 2011-201 school year T225. In describing the TSP Fragile program:
the general education curriculum is not modified T228; most of the teachers have dual certifications. D48 recommended the Fast Forward program which is shared program co-curricular activity and extracurricular activity to address the student’s relative weakness in auditory processing speed T231. The student was also getting services from speech-language therapist but the Fast Forward program was offered to the student if the parents wanted it T231.
The student was also getting services from the speech-language therapist who was offered to the student if the parent wanted the general education service. Also travel training was recommended for the first time in D48, the April 23, 2012 IEP; because it was the first time the parents raised issues stating the student was very dependent in that area and BOCES TSP did not address that deficit T233. Travel training is delivered in real time on the way to school and back home from school in a natural setting T234. TG reviewed D49 the parent’s letter and D51, the letter to the parent which sought parental consent for the district vocational evaluation, travel training, Fast Forward and indicated the student had met the criteria for graduation with a Regents diploma T237. YG was quizzed regarding Think College program which started two years ago for the 2010-2011 school years with three students now attending and anticipating three more in spring T239. Think College fully integrated the students into college class; one class at a time with support from master’s level special education student mentors. The other students in the program are very similar to the student in many ways T241. They would receive support services in a form of tutoring 10 hours per week of soft or adaptive skill support, 5 to 15 hours on campus work supervise or facilitated work experiences, leisure time activities, and student clubs T243. Travel training would be part of the Think College to support campus life with services provided by JCCA T245.
YG reviewed D25, the ACT results from a test of October 27th 2011 which indicated the student was college-ready in English but not in Math, Reading, and Science. YG responded
October was early in school year and many students retake the test. For the D48, a CSE meeting, a representative from Access VR was invited but did not attend but provided information for the parents T253. The DVE vocational evaluation and scripting as a technique of teaching social skills were recommended at this CSE meeting but not previously, T 254.
The parent believed the student was not ready to attend college but the CSE did not consider residential. It was noted that the student was invited to the CSE meeting but did not attend T260. The strength-based assessment is a regional tool and was not created by the district
261. Travel training included safety in the community but parents did not accept the service
T261. The parents were provided training counseling D3 pg. T264. Regarding lunch, the student indicated he preferred eating alone. The IEP for the 2010-2011 school year recommended three hours of 8:1+1 for the five and a half hour school day less related services. The student was in general education physical education class as pursuant to the May 26th 2011 IEP. It was reported in D48 the IEP dated April 23, 2012, the student did not want program changes and did not want program changes on April 23rd 2012 T270, but according to D49 the schedule had gaps.
The Fast Forward program of the April 23rd 2012 IEP is not a special education program.
Travel training was not in the IEP prior to D48. There was not a recommendation to a co-curricular placement in the mainstreamed building. The building did not change. The student was not mainstreamed into core subject but specials only T276.
The district’s next witness was BK, the community social worker from SW BOCES with 29 years of service at the BOCES T287. She has prior experience at UCP in a 21-and- older-day program T288. Her primary role at SW BOCES is to assist in transition from middle school to high school and high school to post-secondary education T289. Her services are usually accessed for the last few years before leaving the program T290, however a lot of her students are alternate assessment students who are not college bound T291. She met with the student at S high school TPS program in October 2010 when the student was a junior T292. She met with the Dr. K the psychologist T 292. The student was hobbling because of a hockey injury. There was an informal interview about what is fun, who is in the family. At home, the student plays video games; previously he had played hockey and karate, performs no chores at home, has never made his own bed nor buy his own clothes, and has no familiarity with community things T293-294. BK has had a meeting at the district with the mother and student.
BK informed them that the student was registered through OPWDD, the office for people with developmental disabilities and advised them to apply for SSI, Guardianship, and Medicaid. The student’s hopes and dreams are to graduate from college and have his own family T 295 -297.
Applying for SSI, the student can obtain cash benefits, apply for Medicaid, sign a Medicaid waiver, and then access programs through an agency T297. BK provided packet of college information and information about Access VR, access to adult services, and vocational services through WJCS T300. BK reviewed D12; a follow up letter dated November 23, 2010 informing the mother of an agency which conducts monthly informative meetings and followed up with a phone call but the mother did not attend. The packet also contained information about colleges but the mother never followed up. The mother was not impressed with the prior experiences with the JCCA program.
BK was familiar with JCC programs and believed that they could provide support in the student’s areas of weakness, there were group programs for teenagers supporting communication, integration into the community, emotional regulation, dinner, movies, and exposure to the community. BK followed up but the mother did not seem to be interested T305.
ARC, the Association of Retarded Citizens, was discussed that the County Office provides many services, and programs for college life. There was a conversation on March 2011 about the district’s college fair. BK suggested to the mother she contact GL because he was a wealth of information about programs T305. There was ARC program to attend college classes over the summer but the student was going to a summer sleep-away camp T309. The conversation at the annual review of CSE meeting of April 23rd 2012 was about SATs but not CH T310. It was reviewed that BK had 29 years of experience at BOCES most recently at a day program. She is assigned to TSPDD which is geared towards functional academics, not the Fragile program, which is geared towards academics and Regent’s diplomas. The TSPDD is more vocational and IEP diploma-geared. The TSPDD program includes community outings, travel training, banking and money skills, apartments and housekeeping T316. TSPDD focuses on the more functional life skills. She was never assigned to the fragile program T317 but the services were quite common T 318 with agencies providing an array of services, but what was different was the set of college information sent to the mother. The mother was very appreciative but never followed through T319. The student wanted to live alone because he does not get along with other people.
There was a meeting with the mother as requested by FF of the district, not a CSE meeting, but to offer services but the mother did not appear interested because the student does not do ADL’s at home. The student does not have to make his bed, fold laundry, but there was never a plan established at home T326. BK called the mother to contact GL at the College Fair. The mother did not see an advantage from the prior JCCA programming. The provision of college information fell within the category of parent training T336.
GL is the transition coordinator for the district for the past five years and case manager for two years along with JG T340. His educational background includes a Masters in Psychology and Educational Counseling. GL is New York State certified school counselor and a graduate certificate in Transition Planning, T340. GL worked one year at SW BOCES as school counselor, transition coordinator and case manager dealing with placement, program, visits, student observations T341, communication with parents, managing transcripts, and graduation requirements T342. He also chairs CSE meetings and has 40 students on his case load and approximately 15 students have BOCES placements T342. The student is on his case load. GL has met the parents at the transition fair which had approximately 50 agencies and colleges,
T343.
The witness reviewed D19, the brochure for the transition fair which occurred on March
10th 2011 T34 when he met the mother and gave her his contact information T346. The student was 15 years old and was invited as well as other students. The focus for colleges was speakers, educational programs, agencies with adult services. The Transition Fair is used to provide information to the parents to assist them but not to make recommendations T348. GL reviewed D24, the letter of introduction dated September 28th 2011. He spoke with the mother who had concerns about the transportation and test modifications for the ACT test which included separate location or multiple days T351. The student was 17 in 12th grade. GL was not aware that the student took the test more than one time T352. The student was invited to graduation but did not feel comfortable and did not attend T354. GL reviewed D38 the strength-based assessment of Mach 16, 2012 for which the student was brought in after the start of the meeting
T355. The student was not sure where he was going to attend, but the parents would help him decide T358. The student’s likes include video games; played sports before getting hurt, worked as an assistant to director at the summer camp he attends T359. GL reviewed D38 but did not believe the parents and student in district were on the same page for a clear plan T361. D38 pg3 is a checklist of responsibilities for parent, district, and student, T362. The parent was seeking post-graduation T365 transition, he had all Regents level courses, needs assistance in life skills, was nervous, but handled the evaluation well T363. GL contacted BK to provide information to the family about different options and different programs as indicated by D39 the contact log from IEP Direct T364. CH was at the transition fair, was not recommended, T365. D38 on page 13 listed transition short-term programs which could be summer programs or a one year program, and an independent living program longer which focus on living skills and can be three- to four-year program T368. Prior to the last CSE, the parents wanted the student to go to
CH. Access VR and DCMH was invited to the last CSE, D47 T370. Young adults with developmental disabilities are linked with agencies through Medicare service coordinators who work with the family in OPWDD T371. The student qualified so the parents did not have to pay after the student reached 18, but before the dependent reaches 18 years of age, they may qualify based upon the family household income T374. D46 is the information provided by Access VR for the CSE meeting T375 which does provide services out of state in certain circumstances
T376 up to the SUNY rate T377. GL reviewed D47 the April 23rd 2012 CSE meeting documents at which DVE and travel training were discussed as well as Think College, which is a college level curriculum with assistance and is a growing national program, T382. The district’s Think
College is located at I College which is located nearby. Some out-of-district placements are placed into the district’s Think College if IDEA eligible, T383. GL explained that the program is very individualized so prospective candidates and their families cannot observe the students in the program T384. The father asked about residential component T384 because the father had concerns about independent living skills and the need for residential placement to reinforce that on a regular basis T385.
There were no ACT prep classes at the district. DG supervised the jobs internship program. The father had concerns about the accuracy of the SBA report. GL contacted GG and
GL believed information was added and wording was changed. GL Indicated that the mentor students attending master level courses of special education at I College accompanied the participating students to the classes at the Think College provided pretesting and post testing of the classroom materials.
The district’s next witness was Dr. K the psychologist at SW BOCES, currently assigned to the therapeutic support program for fragile students at I Middle School T395. Dr. K spent three and a half years at the therapeutic support program at the high school, is currently assigned to the middle school T396. She has 15 years’ experience at BOCES, two years at the elementary program and nine years at the middle school. Dr. K has a BS, a MS in educational psychology with a specialty in school, reading and learning disabilities, a MS in clinical psychology and psycho-educational, a PhD in clinical psychology T397. She has experience prior to BOCES for 11 years at a WJCS program, at PC Middle School, and at B Hospital servicing cross-section types of children and as a psychotherapist in crisis intervention T398. Dr. K has experience with
Autistic and Asperger’s patients ages 2 through 21 T399. Dr. K is New York State licensed as a psychologist and New York State certified as a school psychologist T399. Dr. K’s position at the high school was to provide individual and joint group counseling 30 min per week, crisis management, consultations with classroom teachers, and observations in multi-therapeutic environment. The student was getting individual and group counseling and the witness has known the student from ninth grade as a provider, plus had daily contact which is an integral part of the program T401. She has had contact with the student in the hallway, bus duty, and the cafeteria T402. Dr. K would see the student outside of scheduled sessions ranging in a frequency from one to two and half times per week to five to six times per week for multiple reasons which varied over time T403. During the ninth grade, there were a lot of crisis, the student would cry and become upset needing immediate intervention, but over time the number of crisis would decrease and the shift in counseling was toward more positive things T404. The ninth grade program was housed at S High School; Dr. K was there two and a half years then moved to I
High School when the two locations were combined for financial reasons. Dr. K’s case load ranges from 18 to 22 students T405. There were 65 students at I High School with 10 to 15 students on her case load T405. Some teachers moved over from S High School to I High School but not all. All the students, approx. 13 of 18, in the student’s program moved to I High School except four that graduated and one that was returned to a district placement. The student knew approximately half of the students. S High School was bigger school but smaller program.
At I High School it was a smaller school but bigger program, there were more students but they were spread out T408. The TSP for Fragile student’s program academically was average to above average IQs with students who internalized emotions T409. The behavior modification is built into the program T410. There was a gifted program includes more academic mainstreaming but less of a therapeutic component than the student's program T413 which the student was not recommended or requested by the parents. According to Dr. K, the student was progressing academically based upon recent IQs testing which increased over previous IQ testing which is unusual. TSP has a more therapeutic component than the gifted and talented program.
The teachers have dual certifications content area and special education T412. The programs were consolidated in September of 2011 T413. Initially, there were problems with schedules partially due to inputting data and causing delays in providing computerized schedule, printouts to all the students, but the student had handwritten schedules T413. The student had no difficulties negotiating the building T415. There also were three class trips, two of that Dr. K went on, one at the Metropolitan Museum of Art and the other at the JB Film Center T415. The class trip to Metropolitan Museum of Art included three buses into the city, and the students were divided into groups of four or five. The classroom teachers gave list of tasks which at the art museum were to be performed by the students T416. There was lunch and a return trip to school. The student forgot his lunch money, but Dr. K lent him 20 dollars for admission and lunch T4118. The second trip, a film trip, was at JB after class, watched movies, had lunch and dinner. The student had no difficulty in talking in class based upon Dr. K’s observations of the student who has a lot of things to say from his unique perspective T419. During 12th grade, the parent did request mainstreaming, but the parents did not want to stress the student out because he was getting ready to graduate. Dr. K believed Dr. P listed on the IEP page 6 was a typographical error, referencing her who recommended mainstreaming in gym because the student was very athletic, participated in extracurricular sports T421. The student liked gym and was easy to introduce without a worry of academics. Often, there are fewer issues with mainstreaming into physical education. The parents were worried about placing the student in mainstream PE so he was not placed in a mainstream class for academics or otherwise. Dr. K reviewed D25, the ACT results; Dr. K felt that they were not an accurate reflection of the student’s abilities because many students have problems with standardized testing T423. The student was scheduled for tutoring. The student did not miss many counseling sessions. The student participated in sports outside of school, i.e., ice hockey and Krav Maga. The student was eligible, but his parents chose not to participate in athletics or teams T424. The student tore his
ACL and stopped ice hockey and karate. There were clubs at I High School, the student was encouraged to participate but did not want to T425. Dr. K did not agree that the student was coasting T426. There are three free periods scheduled which can be used for study hall, lunch, and academic support. The student was provided an opportunity to do homework or long-term projects in study hall T427. Dr. K’s first student counseling occurred when the student would tantrum at times, be engaged in behaviors, become overwhelmed and stressed and refuse to move on. The student made much progress, by the end of the 12th year the student could deal with multiple sources of stress, advocate for himself, ask for help, and cope with changes T428.
There was an incident which the student missed the bus and the student was upset that he got stuck at school and nobody told the bus driver to wait, T429. The student was able to make decisions on how to use nonscheduled class periods, i.e., go to the library, listen to headphones, go to cafeteria, do homework in school or hang out with peers, handle lunch money, and express preferences T426. The lunch period they had at S High School, the TSP students sat at the same table during the same lunch period with all students except for two or three. However, at I High School, there was no one lunch period; lunches were staggered, students were not required to sit at specific tables, nor were they supervised. However, the student made a decision and chose not to sit with the other students T432. The student was encouraged but was adamant. However, at
S High School that was not an option. The student reported that he ate alone at home T434. Dr.
K felt the student did not need an FBA because he was responding to the program interventions but showing progress because the program design included counseling therapeutic input, positive reinforcement in small class sizes T435. The student benefited from the program during the challenge of last two school years, the student made educational progress and behaviors do not interfere with educational benefits T436. Dr. K stated the student was encouraged to attend the CSE meetings during 2010-11 and during 2011-12 to develop self-advocacy, T437. Dr. K also noted that there were no travel issues in the school, the student was able to navigate the building and behaved on the bus T441.
Dr. K next reviewed D37, her counseling report for the 2011-2012 school year dated February 17th 2012 as a tool to assist the transition of the student to college T442. The student exhibited better coping skills, better skills with peers and friends. He was concerned about the process of leaving school which was a very big issue for the student, was important he became more of an agent for himself, was able to cope with changes in his routine T442. The student was still challenged to take on another’s perspective; however, he was accepting the rules of behavior. He did not empathize with other students, but he would not say hurtful things T444.
The student was pre-occupied about college but was unsure whether he wanted to go away or live at home T444. The student was concerned about life after high school though he wanted to get a job and have his own family. He is unsure about going away to college and he discussed dormitories, singles, doubles, and suites; however, the student did not exhibit any travel concerns. There were socialization issues in school and coping issues, dealing with ways to react, understand the differences between sarcasm and humor T445. The student still had deficits in areas of self-determination and ability to make his own decisions. The way he behaved with others, at times he will become annoyed with his sister or the housekeeper T446.
The topic of parent training was also discussed by Dr. K, the frequency of her communications with the parents varied depending upon what the concerns were either by her or on behalf of the parents. The nature of the concerns varied but dealt with behavior T447. During the 2010-2011 and 2011-2012 school years, there were inputs from the parents raising a concern that student was not being exposed to skills at home T450. Dr. K spoke with the parents on multiple occasions, both to each parent separately and in person. The team at the TSP BOCES felt there is more to be done at home to facilitate the transition to the real world by asking the student to accept more responsibilities at home T451. The student, during counseling sessions, indicated he did not pick out his own clothes or go clothes shopping or food shopping nor clean his own room. The student explained his mother felt he was a pain in the neck when he went shopping.
Dr. K made suggestions to the parents that the student make his own bed, and be taken to the mall and taken to the supermarket starting with small steps, carrying the groceries from the car into the house, for example T451. Regarding the student’s clothing, there was an issue where the student would prefer to wear sweatpants in school, and the witness counseled the parents about purchasing jeans so the student could fit more into what the typical peers were wearing. The specific recommendations were to take baby steps, make his own bed, and pick up a quart of milk to improve his experiences outside of school, T452. The student and others are always invited to CSE meetings. When in school, the student would be more independent; however, high school cafeteria could be chaotic with pushing and grabbing, placing orders; however, the student was able to manage ordering, purchasing his food without problems, T452. The witness was unsure if the student could operate a microwave by himself.
Dr. K explained that she has observed and was working with the student but believed he could handle those chores. He has the ability to handle the chores and has had conversations with the parents. However, at a meeting at the district with the case manager, the team shared their concerns and the mother and father were of the opinion that it was a teacher’s job to teach the student how to go shopping and do banking, that their job was to love the student and the district’s job was to educate, T455. Dr. K continued to work with the student; she has observed the student in the cafeteria in the lunch line paying for his food purchases T456. The witness next reviewed D13, the educational evaluation administered by Dr. K, said report stated
December 1st 2010 when the student was in eleventh grade. The student was average in most categories or above grade level indicating the student had progressed academically T457 and believed the program was appropriate and that there were no real concerns about the student’s academics.
However, it was acknowledged that the IQ test WIAT was an individualized, achievement test and was not a timed test either. Dr. K was asked about D1 and D38 the strength-based assessment dated April 21st 2010 and March 16th 2012 respectively, T458. The evaluative tools were to assist in transition from high school to post-secondary education to establish abilities, hopes, and a desire consolidating the understanding of the teachers, parents, and district of what is needed to be put into place. The student reported in D1 the earlier strength-based assessment that he wanted to get a good job perhaps in the areas of science or medicine and liked videogames. They acknowledged that he was pressured to complete tasks and that the student does tend to procrastinateT460. In evaluating D38, the March 2012 strength-based assessment, the student’s hopes and dreams did not change much, he still wanted to go to college but the parents would help him decide where, T461. The school’s role in developing the strength-based assessment is to provide a different perspective to determine if the student was ready to go to college T461. The student was to proceed to get his Regents diploma.
There are no concerns about leaving the high school by graduating. The witness Dr. K did not feel that the student needed academic support to go to college, needed contact with an individual or college to check in with, but in the opinion of Dr. K the student would be successful at college with support, T463. The witness next reviewed D47, the parent invitation response form, indicating an intent to attend the meeting of the CSE on April 23rd 2012 as evidenced by the minutes on pages 4 and 5. Dr. K reported that at the CSE meeting, it was said that the student was doing well excelling in academics, the transition to I had been smooth, T463. The processing and speed had been an area of weakness, Dr. K was working with the student to improve his self-efficacy and self-determination, T465, but the student did not attend the CSE meeting. The witness reviewed page 6 of D47 in particular the area of medication management, and his parents did not want the school to become involved T466. The witness does not have any personal knowledge of the Think College, her opinion is the student could attend and be successful in college T466. The witness next reviewed D37 and the student could graduate from
I High School; all were invited, the student did not attend although the student expressed a desire to participate that he would speak with the parents but decided not to attend.
On cross-examination, it was revealed that the witness started at BOCES and was placed at the S High School in January in the middle of the student’s ninth grade school year, that the difference between the I and H High School programs were they were at different locations but they were the same educational program T471. In I High School there are 65 students in the program T471, 16 were assigned to the witness T472; however, there are two other psychologists. Currently, she is assigned two days a week at a neighboring school district, is scheduled to be at I High School Monday, Wednesday, and Friday, and in the event of the crisis or emergency she can return, if not, one of the counselors would counsel the student. However, the student did not encounter a crisis requiring the witness to return or to other psychologists to visit with the student T473. She reports directly to BOCES as it is a BOCES run program T475.
Her interaction was with the school district case manager FF, and her role is to follow the student’s IEP and attend the district’s CSE meeting T475. The witness had contact with FF and recalled there was an issue pertaining to the student attending high school BOCES TSP program during specific religious holidays and that the student wanted to attend school for fear of falling behind in his academics. However, the school required contact information and none could be provided so that the student was in school and emergency occurred that a representative of the family could not be contacted. Progress reports are provided four times a year that she has frequent communication with GL, the transition coordinator and case manager of the student.
She has performed group counseling to student from grades ninth through twelfth. The witness also reviewed D3, IEP from the June 16th 2010 CSE meeting, and in particular pages 8 and 9, and that the witness indicated that she provided the language in draft format for socio – emotional goals 8-12 to the CSE for discussions resulting in a recommendation of the services based upon the consensus of the CSE members and Dr. K worked on these goals T489. Some of the other language of the IEP was provided by the district. There was discussion with the CSE chair FF regarding an AIM program which should provide some additional functional living skills, T504. Also, there was discussion regarding Excel program; however, the levels of cognitive functioning of those in the program are well below that of the student’s T506. There was a process where they did look at other programs and it was felt that the BOCES program was the best but could be supplemented with district-provided services such as travel training including involvement in community exposure and banking T508. However, it was acknowledged that the travel training was recommended in April of 2012, only several months prior to the student’s graduation T512.
The witness also revealed that there is another BOCES program which has a career vocational focus and half-day academics which is also Regents diploma oriented and that the student could pick a particular vocational area T535. Additional mainstreaming was brought up by the parents and rejected by the parents because they did not want the student stressed out and there would be little benefit from attempting this in April of 2012 shortly before graduating, but the witness felt PE was an appropriate class to start main streaming because there were no academic stressors T545. The witness reviewed D13. The witness felt the scores were commensurate with the student’s academic levels T552, observing scores in a low average range for the student for reading and listening comprehension T553. The witness next reviewed D25, the ACT scores which indicated that the student was not college ready for math, reading, or sciences T556. The witness indicated the student could have had senioritis, T562. And the team tried to attach the student to other students T566. The witness suggested a medication review
T570. The student seemed to enjoy more relating to other students in the beginning of his eleventh grade and less toward the end T572. The witness revealed the student using cash at lunch T575. The witness reviewed P-H the student schedule revealed the student had three study hall periods which included a lunch because non-academic periods are listed as study halls T585, as a transition to college life T589. There were many attempts by the team to support the students developing friendships T592. There were many benefits to the combined program at S high school T595, but the student did not take advantage of this opportunity. The student had concerns about transitioning out of high school T602, but was not interested in mainstreaming into a classroom T602. The family tended to have family dinners on Fridays, but on the other days the student tended to eat more on his own T603.
The witness also reviewed the Vineland diagnostic test which was performed by a district staff member that was requested by the parents T608. The witness did not use the evaluative tool for the student because it focused on lower cognitive levels and lower functioning students,
T609. The witness felt the student’s behaviors do not affect the student’s ability to learn T613.
Dr. K believed the student was college ready both academically and functionally because the student demonstrated those skills in high school, even though the student had not experienced a mainstream class room. A factor in the decision to mainstream is the interest and motivation of the student and parents. The students’ mainstream elective initially was set for September 2011 which was delayed until January 2012. Due to delays caused by a transition of the consolidation of the I and S BOCES TSP locations. The educational team had discussions and informal meetings with the student and guidance counselor who made the decision. However the parents were not in favor of implementing the mainstream class in January 2012. Dr. K believed the student could participate in other college programs with supports and that the parents have an obligation to assist the student in preparing for the SAT/ACT and PSAT’s. Dr. K is familiar with the Vineland adaptive behavior skills test having administered it within in the past five years during the summer program of TSPDD. Dr. K did not agree with the selection of that diagnostic tool because the student appeared to be at a higher level. BOCES did not approve an after school private pay program. Dr. K explained that the S High School had a Senior Option
Intern Program that the I High School did not, but did have a similar program. Some of the counseling sessions were due to student absences and if the school psychologist witness was detained elsewhere. Dr. K reviewed D-29 the psycho educational evaluation of January 9th and 12th of 2012 which tested the student cognitive levels using the WIAS IV, the adult test testing the same skill as the WISC IV. The scores indicated the student made gains because the student was better able to access his cognitive abilities which was consistent with the student’s classroom performance. Dr. K, at the CSE meeting of May 26, 2011 stated they were no threats but FF, the case manager, and CSE chair discuss alternative programs.
The parent called JM the occupational therapist who performed an OT evaluation on January 20, 2012 which is marked as P-K. She is board certified with 14 years experienced, is a contract employee performing evaluations for WCTS on whose behalf she performed an evaluation of the student, T1002. She is experienced in performing evaluations on individuals birth through twenty-one years of age also has provided direct services, T1002. She remembers the student because of the age. She does evaluations of students sixteen and over, approximately one a year, T1003. Dr. K from the BOCES Program set up the evaluation, T1010, which was very specific to school functioning performed at the I High School and the evaluation was performed and obtain information regarding his underlying performance components as relates to vocational tasks within school settings, T1004, including vocational and lifestyle tasks within school settings , T1011 for the most part the evaluation took place in the student’s classroom during the class with his back to the other students in the back of the classroom which the witness indicated was a familiar setting the student who was comfortable, T1009. The second part of fine motor skills is performed in the library, T1009. Her goal was to perform an evaluation of vocational skills within a school setting, T1011. Life skill tasks includes ADL’s, hygiene, food prep, money management, scheduling management and transportation to post secondary activities, T1012. The witness defined ADL’s to include self-care activities, hygiene, toileting, feeding, managing personal materials, money management, meal prep and snack prep are important in the classroom, this affects functioning day to day. Dr. K was sole source of info about the program, T1014. The student was described as an average student who was capable of meeting his academic goals and tended to rely heavily on modifications and accommodations,
T1017. The student’s program was primarily academic not ADL’s and prevocational skills,
T1019. Although the parents are interested in post secondary education through college, it is uncertain if the student has the underlying skills for post secondary “opportunities”, T1020. The student’s keyboarding skills are better than his handwriting skills. The witness indicated there were only a handful of tests available for a standardized evaluation for students of this age,
T1021. She was of the belief that this student had little exposure to many ADL activities, which interferes with the student’s functioning in the classroom and in social settings. She has lots of experience with Asperger’s and students on the Autistic spectrum, T1027.
On a cross examination it was revealed that she was paid by the agency for her time to testify, T1034. This was later contradicted by the Director of the agency. Over her sixteen year career she has provided direct services to approximately direct services for twenty to twenty-five students on the Autistic spectrum, T1035. She spoke with Dr. K in order to obtain background as to the student’s abilities and deficits in the academic program. He spoke in the hallway as he walked to the classroom, T1037, spending approximately ten minutes with Dr. K, T1038, even though the report says that Dr. K provided information that the ADL’s were vital to a student’s academic functioning. She cannot recall if that was the doctor’s words or if she paraphrased,
T1039. She spent approximately one hour with the student and was unable to identify what the optimal setting for an evaluation was, T1040. The OT did not observe or assess the student grooming, hygiene, T1047, toileting, brushing teeth, making a meal, T1047, if it was not part of school program. The OT did not assess grooming, meal prep, laundry, T1051. The student’s living skills could be addressed after school program, T1051. The OT witness did not have an opinion if the life skills would be addressed at home or through an agency, T1059. Interesting to note in terms of the appropriate setting she felt the appropriate setting was a natural setting.
However there were no ADL’s evaluated in terms of life skills in a school which raises doubts concerning the weight to be placed on the evaluation.
The district’s next witness was JF, she is a licensed certified social worker employed by the JCCA assigned to the Campus Project and involved in that I College, Think College Program recently renamed GAEL RICE program, T857. Her role is to provide transition counseling as students progress into post-secondary education, T858 and provide coaching which is not provided by the natural college courses focusing in on executive functioning, T858. She’s been with JCCA for five years having obtained her Masters in Social Work in 2000. The clinical social worker has experience in a law firm as a paralegal. She focuses on providing post-secondary experiences to students with disabilities with typically developing, T859 peers providing work, internships, ADL’s which has a threefold experience in academics, world of work and living skills, T860 and has a research based component. The program was redefined as the GALES RICE Project, T865. The witness reviewed D66 which was a power point presentation at a meeting she attended and identified by case, T865. The witnesses described the program as a person centered program which focuses on the dreams of the students and the parents. There is an academic component which involves grad students serving as mentors in which everyone receives a graduate student mentor, T869. A goal is to have to supports faded away, T870 and work on improving organizational skills so the students can rely upon the natural supports provided by the college, with improved self-advocacy so student can contact professors and utilize tutors, T871. The program provides support in areas of academic needs, plus support in study skills and notes inside the classroom so the student can take on responsibility, T871. It also includes talking to the parents as part of the program, T872.
Participants of the team meetings includes the director of the graduate student is Dr. C and the grad student. SC has a masters in psychology. The meeting focuses on areas of growth and needs, T 874. Also there is a focus on group activities, T875. Focus is on dependent living skills, money management, budgeting, lunch cards, T875. There is constant follow up with assessments, T876. They work toward getting the student’s involved in the internship programs including hygiene, social and dress code as a group, T877. Since it is an individualized program the program depends upon the student’s levels. The student’s program dealt with travel training, on working with calendars, apps, computers e-mail, T879, cell phones, T880. They also work on social shopping skills, T881, grocery stores, establishing menus and shopping lists. The typical college experience is two years and eventually goes on, hopefully to a two year or four year college or internships, T883. There is off campus aspects including student internships, money matters. There is a program support called Best of Buddies which includes the natural supports from the college. It was also revealed the program became up and running in spring of 2012 based upon the witnesses’ best recollection with one student, T888. Two students were added in the fall of 2012. The witness further explained on cross that the mentors provide support academically, and with social activities. The coach enhances organizational skills and functioning skills and work skills. ADL’s focus on skills needed to be independent, T892 academically, which are important, T893. Life skills include nutrition, dressing, friends, boundaries, travel training, community resources, medication management T895. The mentors meet with the students in the classroom. There were two students in spring of 2012 and three in fall of 2011, T899. The other two students in the programs are verbal, and have strong writing skills. Social emotionally, they want friends and cognitively they are very bright, T901. During winter break, they worked in an internship, T902. There is a conference room which is in the library used as a classroom for direct instruction. The witness used it as a pre-teaching place engaging in role playing, worked on a code of ethics, plagiarism, also some group activities working on cell phones, emails, money and nutrition, T903. This was used two times a week with formal lessons that focused in on travel training occurred at the mid-point of last semester, as a methodical clinical approach is based upon student’s levels and progress, T909. Travel training included many community activities which initially focused on money, money management, shopping, restaurants, tips, etc., T919. As clinicians the teams are assessing the students as they go, T920. Also self-advocacy is a living skill, T919.
One of the next witnesses called by the parent was JG who is the supervisor in charge of the student’s program at CH, which is an agency for individuals with disabilities to come and learn independent living skills, T923. She has previous experience as a special education teacher and reach program, supervisor at an adult transition program. She has a dual certification in elementary and special education, a masters in special education in autism, T 925. The ASAT is a residential program and is a two year program with different curriculum between her first and second year, T927. Her responsibilities initially included teaching class and a case management.
Currently she supervises special education teachers and advisors. There are currently thirteen students in the residential program, T927, and two advisors who are the special education teachers, T928. In addition the staff consists of the special education, speech language pathologist and a cognitive a behavioral special, T928. The residential units are two separate multi-family houses and which are staffed overnight, T928. They focus on social communication, self-determination, college and vocational skills, independent living skills,
T929. There are direct instructions, one on one meetings with staff which reports are prepared.
Currently there are six advisors, two of which are special education teachers; they provide instruction in cooking, apartment maintenance courses, and the staff receives training in CPR, first aid, policies procedures, T930. The ASAT is a twelve month seven day twenty-four hour program structured over a year term which allows students to apply skills learned in different settings, T931. She is familiar with the student; he’s in a residential program and has been since July 2012, T932. It is important to generalize skills they learn across different settings, T933.
The student also attends unstructured activities such as meeting with advisors. Since July 2012, the student has had outings accompanied by staff and instruction in laundry, bus riding, navigating, banking, transition skills, also skills in communication, T936. It is difficult for the student to build relationships but they continue to work on same. She is not directly involved in providing service to the student. The witness is aware of admission process which includes an application, interview, visits, observations, and interview after a day visit, T938. The admissions criteria include eighteen and over being emotionally, behaviorally stable, motivated to learn, able to benefit from instruction and curriculum, T939. There is a vocational component. The residential units are two family buildings where the student has a roommate. There is a forty-five day report to review the transitions, T841, set goals for the next six months. The student’s advisor is KA, T942. Regarding the residential component, there is a communication at the transfer of shifts. The night shift takes attendance, sets a curfew, sets the alarms, then is stationed and awake from ten p.m. to eight a.m., T943. The first year focuses on independent living skills which include, shopping, transportation travel training, cleaning, all ADL’s lead towards independence, T947. There is also grocery shopping, fitness classes, communication gains, ice skating, cooking classes, all the life skills necessary to be able to live independently,
T949. There is one on one time for planning and schedules, T950. Grocery store activities include planning meals, grocery lists, T952. They work towards looking up bus schedules and scheduling. There is work toward budgeting and providing a list to purchase only what’s necessary. There are informal assessments, there’s travel components and stages with assessments at each stage; safety, travelling by foot, stopping at crosswalks, T954. The student had trouble initiating with friends, T955 and improved initiating seeking access to clubs and groups. He showed progress initiating with roommate, T956, watch movies, dinner, other activities and clubs, T956 and proved willing, T956. The student tends to get frustrated with his peers that did not think the way he did. There is a pathologist and works in the social communication competency groups, T958, groups providing goals and objectives, sponsors that take a break, knowing which is unstructured activity, the student has gone, social skills were important to meet small groups, works on communication skills. The student has improved in tolerating other opinions, T960; he will listen even if he does not agree and at times is overwhelmed, T961, but has opened to staff. There is a change in the program in the fall after initial adjustment period, T962. There was less frustration by what others said. Review of bus schedules were helpful, bus transportation is important for travel to college, grocery shopping, independent living skills, and the student attended college class with support for travel by foot and by bus, T964. There was some difficulty with leisure time attending social activities program, T965, refusing support. Support was provided for banking skills, including opening bank accounts, checking accounts, and savings accounts. There was involvement with medication management, and trips to the pharmacy, T967. There was difficulty in understanding why things are expected, T968. The student understands but has difficulty applying it to himself i.e. bus transportation. It was difficult to understand the steps beyond the next bus stop and the big picture. The program changes for the student was a difficult adjustment, T970. There was progress with the student; he appeared to be more open to what others think, T970. There was instruction regarding laundry skills, household skills, including laundry, i.d.’s, money, T971, student has showed progress. The program also included instruction in hygiene, T972. There were prompts to take showers, cleaning, arranging, and straightening bedrooms and other rooms, hard cleaning behind furniture items, T974. Other instruction focused on safety of the students in the community, and a focus on telephone skills, checking voice mail on cell phones, house lines, emails, T975. Some instruction focused on meal planning, preparation in cooking, T976.
The student has difficulties in social awareness. There was also a physical fitness component with traveling to a local gymnasium and physical exercise, T978. The program at CH provides support transportation to and from. Support is one on one completing steps towards independent living, T979. There were no concerns about the student’s behavior in the classroom, T982. The program included assessing community safety i.e. I.d., cell phones and attention when in the community. There would be student assessments. The student began accessing take a break night which was a voluntary social activity, T987. Involvement with the roommate included pizza for dinner, T988. The social network support included planning activities, T989. In the class they would focus on emotional regularity with one on one support with a cognitive behavioral specialist, T989. Classes included stress management, emotional regularity and anger management, T989, with an attempt to find how the student would feel. The student did have deficits of social awareness, T991. There was progress indicating manner of speech and modulating speech patterns, T992. Another emphasis of the program was self-determination and self-advocacy, T993. A component of self-advocacy included using the right language to obtain help which requires being assertive and with self-esteem. They would work on improving confidence so he could ask for support including at the campus at SCSU through accessing staff and resources in a classroom college setting, T994. The college class at SCSU which was a general class. There are approximately two hundred with community outreach services, T996 the student was making progress, and there is comparisons to the day program where the students did not reside in the facility, T999.
Cross examination of JG, Supervisor of the program reviews the 45 day progress report, but does not provide any direct input, T1171. There is a more current report after his six month stay. The reviews are generally in December or January. CH is post-secondary state approved school, T1173. Most students have graduated from high school. There was a second evaluation after six months. There are currently fourteen students in the residential program including the student with the capacity of fifteen, T1173, range of ages is fifteen through twenty six, T1174.
The witness stated four have graduated with IEP diplomas but was unsure how many had local diplomas, T1174. The program is a two year program, T1175. The witness was unsure of the exact cost; the first year is geared toward fundamental skills increasing independence, T1175.
The second year they work towards certificate programs, college course, the student goes to go to a University. The student is taking a single non-matriculating course, T1176. The goal is to eventually become a matriculated student. The student has been there approximately six months,
T1178. There is a contact throughout the day and some one on one meetings. The student participates in the review meetings. Over the past six months there have been two meetings, after forty five days and six months and the student participated in both, usually last one and a half to two hours, T1180. The witness observed him in the residential unit, but did not know how many times, T1180, in which she approached him on one occasion because he was feeling upset or down about some group activities that happened at a bus outing, T1182. He has difficulty seeing the bigger picture, T1183. The student has been social and is learning. The staff credentials have BS’s, T1186, have received training regarding HIPA, abuse, The purpose of the staff is to support students where needed. There are some support groups, a morning meeting and the staff stays 24/7, T1189. The student was making progress interacting with peers, T1191 and the witness does not expect the students to have prior experience living away from their parents, T1200. There are some social activities that he participates in unstructured on weekends, some are not mandatory that the student has become involved in. For example, take a break night, T1191. The purpose of the all-day benefit of the residential 24/7 twelve month program helps the student generalize across different settings, T1194. She was not aware of the student receiving in T1197. The student has a difficult time which appears because he is smarter than they are, T1198, he has difficulty seeing the big picture. He has problems with life time and life skills issues. Some of the courses include anger management with a cognitive behavioral therapist to deal with some of the stress related issues, T1202. He appears to need to have things broken down to him in steps and he needs to see progress made accordingly. The aides accompanying the student to SCSU are not college age, T1208. The student has been making consistent progress and has specifically benefited from the design of the ASAT program, T1211.
The student was questioned regarding experiences of previous and current placements as a witness for the district, T1069. He is currently at CH entering a class at SCSU, T1069. The course he is taking deals with creative inquiry, T1070, in the areas of the expression, exercising the mind in creative sections, T1071. The student felt like he was in kindergarten again, was able to draw. The course deals with interesting topics, poems, racking areas of the brain, T1072, and he manages his apartment with assistance, T1071. He discussed the issues of CH staff,
T1079. He is accompanied to the college course by CH staff. The student attends the class by himself; the staff member waits outside the door. The staff provides him direct instruction in the area of first aid, cooking, chores, T1080, he does, T1085, use an alarm clock. They do not think he will be able to live alone. He likes his roommate D, T1075, who he met at CH. They hang out. They have similar interests. They are both very into the computers. They do play some video games together. They hang out but are not really friends. Some of the residential students in the same program, like his roommate are two year kids and have responsibility of paying all of his own bills, phone, TV. They both are responsible for apartment maintenance, cooking, cleaning. There is no cafeteria. He does walk to class, but he does not walk alone. The CH classes are not academic classes but teach you how to live independently, T1080. He was not sure if the other students were attending college. He thought some attended college who live at the campus seven days a week. The student goes home occasionally on weekends, T1081. His mom has someone pick him up. Household chores at CH includes training in, dishes, clean the bathroom, living room, T1084, check the voice mail, some other chores including laundry,
T1084. There is no mass transit but the store is in walking distance to get medications and he goes by himself. He does his laundry at the Laundromat and uses a laundry card, he also get approximately $115.00 a week for living expenses, T1085. If there is a member of the team, the staff gets him up if the alarm does not; he has an alarm set on his phone now. The one at home he didn’t like it, it was too loud, T1086, he did not think it was necessary to get up with an alarm.
He uses phone now because his mom calls because it is unlike at home, where there was frequent contact with his mother, T1087. CH is more a community then a school. Regarding the TSP
High School program, he liked S, but it was boring but he knew his way around, T1089, he did not like the new school at I. There were new students and it was harder to make friends. At I there was a lot of free time but he had no friends. The people he knew, he would rather not sit with them, T1090. He will have conversations with them. He adapted by eating his lunch and then visiting his friends in another area, T1110. He was questioned regarding the staff at CH, knowing where they were was random, but were accessible most of the time but it is not a perfect system, T1092. At times it could be somewhat inefficient, T1094. There are staff shifts
KI is his advisor, she is off Monday and Tuesday. She has taught him some independence with her flaws and holes and her accessibility, T1093. He was learning various life skills, cooking, how to access bus schedules and shopping. The parent provided some instruction which helped as a base. His father was helpful, providing basic cooking instruction, T1096, but the student didn’t have to do it so it didn’t really register. It does when it’s a necessity, T1097. He did not do the laundry at home. He threw his clothes down the chute. He had a housekeeper do that,
T1096. He would play with the dogs but he wouldn’t have to take them for his walks, his father enjoyed doing that. He enjoyed playing various video games, T1098. He has a good supply of clothes he does not have to go shopping often because his mother does a good job at buying him clothes, T1101. He does work on his own personal hygiene including showers, T1103, and brushing his teeth. He’s adapted a schedule of showering around his roommate’s schedule. He enjoyed going to summer camp, T1104, he was there for approximately six summers, and most of it was sports and recreational activities, T1105. He recalled not liking to dance, had difficulties when the gym teacher said he could get a zero or dance, he’d rather have a negative one. He enjoyed ice hockey and liked playing on the team. At CH they like sports but not like he does, T1107. He enjoys going to the gym because he can work out on the treadmill and the machines, T1108. He has one in the basement at home. His dad helped him use, T1108.
Lunches at CH are normally pretty informal. He does not usually eat lunch with his roommate,
T1110. He does know how to work the microwave. His favorite book is Hunger Games,
T1111; he liked it, very in depth book, T110. His reading goes in phases, sometimes he likes to read, and sometimes he does not. His favorite part of CH is learning to be independent, T1114.
He has learned to do things in school. He feels he has to do these things and is now more open to learning them. He complained of having too much free time at I TSP program, T1116. He would like to complete college and be in the medical field as a veterinarian or pediatrician,
T1116. He signed up to volunteer at a hospital, T1117 and does not understand why it is taking so long. In HS he remembered his grades were good. He liked Math and Spanish, T1118. He talked in classroom when called on. He didn’t get an allowance at home because it was not necessary. There are clubs at CH that the graduates and second years C H people join and he joined the Anime, T1122. He likes the action games on the computer. He has some friends at
CH. He is making more friends but many are different than he is, especially those he does not like, T1126. He is glad when he meets people that see things the same way he does. Some people need to be more in control and be more mature. He does have a superior intellect and some of the kids are 18 or 19, he gets along with some and he does not, T1128. He has a female friend who sees things the same way he does, T1128. He didn’t go to graduation he didn’t think he would be necessary to get a physical diploma because he already did everything in school and it was not necessary, T1130.
The student was cross examined by his parent’s attorney and it was revealed that the student likes the classes at SCSU because he’s never been in a class like that before, T1131. He’s never been in a mainstream class before, T1132. CH is designed to promote independence and obtain training in a lot of different areas, T1133, T1134. There is a tutorial travel training looking at bus schedules, T1133. Also instruction as to how to travel to walk there and travel back to class. He is hoping to obtain a bus privilege to take the bus to and from but acknowledge that has to be earned, T1136. The student explained that regarding the SCSU staffer walking him to class and goes into class and will wait for him to finish class and they will leave together,
T1135. It will be awkward for them to sit in class with him. He felt that if he had a shadow, it would be indication that he had a mental problem, T1136 and it would look bad. It will be unnecessary because he was very intelligent. He did acknowledge apprehension the first time and there were concerns about college. Of course he initially had apprehensions he was concerned the kids would not like him. He was afraid the teachers would be mean, T1137. He was apprehensive that he could not adapt to that level. College mainstream classes had a great deal of uncertainty, T1138, and no detailed explanation. He was afraid to say yes because he was not ready for it. It was very unfamiliar, no reassurance, topics were not discussed, there were a lot of questions, they were not answered, T1139, but kept a lot of questions to himself.
The student was too scared to say yes to mainstream gym class. Dr. K had some answers, often he would have to wait T1141, to meet with her, but others had priorities. There were casual conversations but were not very helpful, T1142. At the time they did not meet on time or the appointment was cut short, approximately thirty percent of the time, T1142. They would look at the bus schedule. High School is more or less academic and learning independence was not a priority. The parents tried teaching independent living skills. It was helpful as an informative base line of information. The student at CH could not have a better roommate, T1148. They got along, are acquaintances not friends. They would clean, have dinner but not lunch. It was accessible to the staff when staff was usually nearby. There was a problem with the dancing class, T1152 the teacher offered to give him a zero if he did not dance, student does not really care much, T1153. There was vocational training provided at college, travel training. The student had problems jumping into it. He didn’t know how difficult it would be to live on his own, T1158 and T1160. During lunch at high school, he would sit alone because he did not want to interact with certain students; he spent time to be productive but didn’t have much in common.
At times wanted to go home, T1164.
The mother testified regarding the student who was born on June 18, 1994. She has two other girls, ages 16 and 12, T1215. She could see right away that the student was different,
T1210 had difficulties in pre-school, would zone out, had tantrums, the issues escalated at the
PCSE, T1218. The PCSE initially denied classification; he received AI and PCSE Services from
Manhattan, T1220. The student proceeded to kindergarten and the student was classified with a re-evaluation on the autistic spectrum, T1219/22. The student received OT, PT, S-L and private psychiatric counseling, T1225. The student was engaging in violent behaviors at home and in school, T1225. Dr. W was providing medical evaluations and prescription management. The student was subsequently placed at PW, T1228, a private school, of autistic children in grades 1 through 5 and it is decided to transfer the student to the district’s appropriate school beginning of the middle school years, T1234. They switched psychiatric providers from Dr. W to Dr. H attempting to get a second opinion to modify the medical prescriptions. The student had ticks and would perseverate, T1233. After fifth grade the student had attended the middle school at the I middle school, was placed in the TSP Fragile program, T1235, because the student was emotionally fragile, T1237, for sixth, seventh and eighth grades, T1237. Initially Dr. J was the school psychologist explained things for hours, T1236. Dr. K started December or January. The student enjoyed summer placement at S Camp, which is in Pennsylvania and got a six year jacket and obtained some socialization, ADL’s etc. Eventually the student received services at home from the Home Program, T 1244, seeking consistency, T1245, he went to school and constant communication to try to maintain the same page, T1246. The student’s IEP did not contain certain services. The parents sought services from the JCCA, the Matan program of WJCJS program, T1247, the Aspen. The Friendship House obtained bio feedback, T1249, including horseback riding and ice skating, T1250. There were additional services the parents felt that the student had to come more connected, T1251. Dr. H was very accessible, T1253, the mother felt the student was spiraling, T1253. The mother discussed the situation at S, the student didn’t like
S and sat in on various programs. S TSP the I TSP and the I AIM program, T 1259. There was a gifted and talented class which they agreed the student was not appropriate for, T1260. The program AIIM was a more vocational track, T1258, did provide life skills but was lower cognitive level function students. The student started at ninth grade at S, T1266. The mother indicated there was a lot of communications with Dr. K during the student’s years, but no parent training, T1265, especially the twelfth year where there was discussions about the SAT’s and
ACT’s, T1268. In addition, there was a College Transition Fair, T1269, the mother felt there was not enough information provided to deal with the transition from high school to post-secondary education. Also there was no travel training, no hygiene training, no other information; he did make his own bed at home, T1276. The mother did take the student shopping, T1277, although he hated it, she would lay out his clothes but he had his own preference as to clothing styles, T1278. He would get himself dressed and clean. The witness never saw D-60 before, T1280. The student transitioned into senior grade he transitioned from the S to the I program. The mother was shocked because this is the first time she had heard of the program changes, T1286. The witness reviewed D-21, the 5-22-11 IEP, T1289. Eventually they ended up with Dr. K but no J. The mother was dismayed because the student did not have an actual copy of his schedule, T1290. He was angry, the commute to the school was longer, and he had a hand written schedule, but was upset by the transition, T1290. The mother complained and was told they were working on it, but the student was angry and confused. The mother approached Dr. K and confirmed to the mother they are working through the problems. She complained about multiple free periods. The student felt it was a waste of time. There was an October meeting and a constant shuffle with personnel, this one had four free periods and no lunch, T1129. The student would have enough classes to graduate, T1297. Dr. K said they did not have enough teachers to provide additional academic classes, T1298. There was no discussion of using free time to provide instruction in independent living skills, T1290. The goal was to have mainstream classes in astronomy by midyear. The mother communicated with MB from BOCES at a meeting. The mother was concerned because of the free periods and whether the student would have enough credits to graduate. There were also concerns about of ADL’s and life skills, the mother was in contact with Dean I, who was involved in college counseling, but he did not know the student and had no knowledge of his IEP, T1300. There is a list of college programs which may be appropriate for the student the IC Think College Program was not listed, T1303. This was later rescinded by means of the brochure. Several colleges felt the student was not eligible because he did not have a minimum of two years mainstreaming, T1302.
The mother complained about the bus route, it was eventually changed, T1304. The mother indicated many of the students friends were studying, prepping, taking the SAT’s. She contacted the district regarding the PSAT’s and ACT’s. The student missed the deadline but eventually GL got involved in terms of scheduling the student and obtaining modifications for the exam, T1317.
The mother was offended because GL says that he could write a letter, T1322, as part of the admission process. The mother indicated there was a problem with the incident that occurred in gym class, where the student, based on the student’s report to the mother, indicated he was unwilling to perform the dance steps in line dancing as required, T1325, offered an alternative solution, was steadfastly rejected by the gym teacher and Dr. K. The student was traumatized, broke down, had a melt down and had to be picked up by the mother. The mother was critical how the situation was handled by BOCES staff, T1338. The mother next testified regarding the Transition College Fair, she went out of her way to find GL, with the various programs, attempt to find information so they could make decisions regarding the student’s future, T1340. There are various programs there they were familiar with, for example, Compass. Many of the programs the student was not eligible for because he did not have two years mainstream experience, T1347. Materials that were available regarding Dr. K. No parent training, no goals, no plan, no ADL’s, but sent copies of information, T1350. The parents had no concerns about the student doing well academically. The student was still fragile because he was on four medications, T1351. During the Transition Fair, the mother was able to meet GL and eventually had a meeting to discuss the student. Additional concerns regarding Dr. K was lack of life skills to make it on his own. Dr. K felt was not her responsibility, not her job to teach, T1352.
In cross examination, the mother was questioned regarding P-Y regarding compliance with notes. The mother was critical because notes were not provided to her son. It was revealed that she went to the IEP on D21, page 8. There was no requirement that a copy of notes be provided, on pages 12, or for test taking, T1351 on D28 page 11. The mother was questioned about when the student was younger and classified by the New York City Board of Education, T1356, the mother was unsure as to what services were provided but he was not placed in a special school. When they moved, the student was placed in a Hebrew Day School, T1357. The mother’s other children are placed at a private Jewish school, one is in high school, one daughter is in middle school, T1358. Regarding the CSE meeting the mother observed different programs that were offered as options, T1360. She was not in favor of many of the programs. The mother requested the student attend the BOCES program, TSP Fragile Program, but he was not appropriate for the vocational track or the gifted track. The student attended the I middle school program, T1362. There was social skills component as part of program, T1362. Initially Dr. J was really great, and parents were very comfortable, T1363. The parents also have the student go through summer camp for six years, which is a special education program. The student received training and experience and exposures to ADL’s, T1364. The student was very successful, T1365. Eventually the student became a leader in a three and a half week segment and was a participant in another three and a half week segment. The mother discussed the dance incident, was not sure what time of the day it occurred, but it might have been before lunch,
T1360. Also the issue of the bus ride was resolved, thanks to prompting from the witness, but still was resolved, T1367. The mother is unfamiliar with the protocol of the CSE meetings, especially during issues regarding standardized tests and ACT’s, spoke with BK from BOCES and other individuals but never requested a CSE meeting to resolve, T1368. The mother never requested a change in placement, T1368. The mother further indicated there was a great deal of support at the summer sleepover camp, and he was tired when he was done. Of course there were bumps at summer camp, as always with transitional issues. The mother received college information from GL. The student attended six through twelve in BOCES program, T1379. The witness testified that when the student was at I, he had two free periods and lunch period, T1380. The mother had tried many services and programs that were on the District provided list, but the mother wanted more, so the student could be successful, T1386. At that point, the following exhibits were admitted: D-39, 68. The experience in 2011, the mother was concerned with
ADL’s, Dr. K was not aware of any problems with ACT’s. It was problematic because the student was more preoccupied with properly filling in the bubbles than the responses to the test questions and the mother was distraught over that.
Testimony of Mr. L, father of the student, admitted that there was three excellent years at
I, T1391, then the student transitioned from the middle school to the high school. The father went to Dr. G for recommendations. Initially S was great except for the hallways, until he learned that special ed students transitioned either before or after the bell, T1394. The other than case at S TSP Fragile Program, there were options with some more vocational track programs,
T1396. The father has an understanding of the student’s IQ and disparate scores, T1397. The students in the vocational tracked program were all lower functioning targeted toward menial jobs, such as Wal-Mart bagging merchandise, T1399. At first they thought S would be perfect,
T1399 and T1400. The father attended the CSE meeting for the sophomore year and there were two issues, T1400. One issue was after graduation did he get necessary prep to live independently. The student, he is getting good grades, but struggled with homework. The father noted that in his junior year the student struggled with term papers, T1401. The father believed that there might have been grade inflation at work. He is getting A’s and B’s, T1402.
The student enjoys Spanish and Math but mainstreaming was not contemplated with those courses, T1434, but Dr. K thought that gym would be more appropriate, T1420. Father felt that it was better to have mainstreaming in a more structured environment, T1422, unlike gym where there is little. The father indicated that initially they sought the involvement of Dr. H who was in charge of the medical prescription management, T1406, and then the student would need increased dosage that Dr. H oversaw the providing of more than one medication to suit the student’s medical needs. As he approached junior and senior years the student was involved in video games, T1405. The father wished there was more positive activities based on Dr. H’s suggestion, golf and things of that nature, T1407. Then Dr. H would prescribe medications to the student. There was a lack of skills of independent living, or travel skills, T1411, fast forward and transfers proved not to be appropriate because of the logistics of the situation. There were discussions regarding travel training and transitions with ADL’s. The father reviewed D-3 page
5, and disagreed that the student had adequate ADL skills, T1417, and wanted the Vineland test administered to evaluate his ADL’s, T1418. The comments portion of D3 indicated that the parents wanted to increase keyboarding skills, T1419. The witness reviewed D3 page 5, regarding the June 16, 2010 CSE meeting, T1410. The meeting was chaired by FF and the parents felt that they were being threatened by the student being placed in a vocational program,
T1414, in which the father suggests that utilizing the Vineland diagnostic test to determine the student’s levels of functioning, T1418. The father was concerned about the student’s keyboarding, he was typing with two fingers, T1419. The father remembers a story where the student was five years old that went to a doughnut shop for dinner, and he eventually with help from Dr. H, indicated he had to break things down into steps and steps, and provided the structure and the student responded appropriately. The father gained an awareness of the student’s disability, T1425. For issues regarding the student’s activities, the father was very active in getting the student acclimated to different skills, T1420, he attempted to do it as a parent without proper training, he used map quest and making the student read the directions, as they traveled to and from hockey practice, T4129. The father dealt with the physical and sexual abuse issues, T1432, hygiene, showers and combing of hair. There are issues of mainstreaming, which were never really resolved, T1434. The father was critical of the OT services that were provided because of lack of progress from two finger typing, T1447, regardless of the student typing which went from fifteen to twenty, back down. The student was also much delayed in his telephone skills, the father worked on that diligently at home with limited progress, T1448. The father reviewed D38; the skills based assessment, T1453 and was critical of the interview process, and in particular because the dad requested a notation that the student does not walk the dogs because it is not necessary, because there is a doggie door, and a fenced yard, but was not included, T1454. The father also reviewed D47, D48 CSE meeting comment notes and IEP from the 4-23-12 CSE in which YG chaired the meeting and it was the first meeting that YG chaired and the father was concerned that he did not feel that they knew his son because there is no plan.
YG was determined to mainstream the student to a district program. Other issues include regarding passing the regents and the ACT’s. There has been issues about travel training, but there is no parent training on how to teach travel training. Going back to the sophomore year, it was offered but never implemented. The father discusses with GL by email and other ways regarding colleges, CH was on the list but not IC Think College. The father was aware that the student had qualified for OMRDD but no thanks to the district, they did that on their own.
Regarding the diploma, parents did not feel and the student agreed that it was necessary for the student to obtain his diploma. There were discussions regarding the April 27, 2012 CSE meeting and in subsequent there too was a long discussion regards to a series of emails, and somewhat confusingly marked as parents Exhibit BB and subsequently broken down into sub categories based upon segments of email strings. There was additional discussion in testimony regarding the Think College at I College that it appeared to be a program in the process of being developed, the father did ultimately tour with GL who met with a program director who indicated they were two students to the program, one non verbal, one not autistic. The father was concerned about the profiles of the students which did not appear to be consistent with the other programs that he was familiar with based upon their own independent research and fact finding.
Furthermore, the father reviewed D51 a letter dated May 7, 2012, from YG as a director of special education that there be no further services offered if he went to graduation, and the student was eligible for graduation. The witness also reviewed D52 a letter from parents to YG the date of June 4, 2012 but there was a tuition agreement dated March 2012 between the parents and CH . The father indicated he would be willing to forfeit the $4,000.00 deposit, if he was able to obtain an appropriate placement by the district. Notwithstanding he did make progress in various areas at CH in life skills, cleaning, cooking, phone, checking voice mail, travel training, budgeting and future monies and bank and checking cards, these are all things the father looks forward to, but currently there is an allowance provided by the student in the amount of 500.00 per month, which is incorporated as part of the tuition payment the parents contracted it for.
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The father’s cross examination commenced with questioning regarding the student’s living skills.
The father started providing life skills training when the student was in junior year and now he can use cell phone and computer keyboard. The IEP D42 provided keyboard training when the student was sixteen and he could type twelve words a minute and in D35 the student was able to type thirty five words a minute, T1499. Dr. H’s primary purpose was to prescribe and monitor the student’s medications and would see as needed, T1501. However there was no set schedule for the student to see Dr. H and visits were in response to the student’s needs, T1503. Dr. H never spoke to anyone at BOCES, never visited BOCES either or, T1503. T1504, the father was aware that OMRDD provides the services of school age children when they leave high school and to adulthood. T1506, the father believed the student’s perfectionistic tendencies to fill in ovals impacted his ACTS scores. The father did not think it was appropriate for the student to schlep from I to the District, T1507. When the student was younger, encountering melt downs and difficult times, the student was never placed in a residential setting. Nor was the student’s primary grade placement at PW recommended by the District, T1508. The father had no recollection at the sophomore CSE meeting, about placing the student in the NR high school, but they were discussing vocational replacements, T1513. The father voiced his opinion; he did not want the student moved to a vocational program, T1515. He felt he was not involved in decisions since his opinions was completely ignored, T1516. However the IEP continued the previous placement, T1516. Nor did the father ask the student be moved from the S program,
T1518. The father clarified by indicating he wanted the student to remain in the S program, provided the supplemental services of necessary daily living skills, T1518. When given it was the father’s preference that the student remains in the BOCES Fragile TSP program, T1520. The witness was questioned regarding I College Think College program, which was contained in an e-mail from Dr. K to parents, BB-5, and the date of the e-mail was December 7, 2011, T1521.
The father identified Dr. J as the source of information pertaining to the vocational placements of the student’s in the BOCES vocational program. As the parent was acquiring information prior to the student entering ninth grade, T1523, and he was comparing programs, T1523. The witness reviewed the student’s transcripts, 56, in which the student scored even better on regents exams,
T1525. The father has administered the Vineland test before it is a questionnaire or an interview depending upon your style, T1525. The witness reviewed District 47 establishing April 23, 2012 as the day the CSE meeting, and that the letter to the District seeking reimbursement for CH.
District 2 was dated June 4, 2012. The parent indicated that he pulled his e-mail relating to the case, though might have missed a few, T1533. And at the time, the parent visited I College in April 2012; the student was already enrolled at CH. The father testified that he was offered travel training in April of 2012, but he rejected that since it was tied to the student’s graduation,
T1535. The student met other requirements for graduation, D49. The father indicated that travel training to the student would not have been a disruption in his schedule but Fast Forward would be, T1535. Witness reviewed D47 and the witness was questioned. The father testified that he would not be surprised in the least if the District’s provided travel training sessions that were included in the IEP post-graduation, T1548. The father indicated that he would not accept travel training if it was at the price of the diploma or tied to the diploma. The father never asked anybody if he can get these services after graduation, T1539. The witness reviewed D 51 in which the District asked the parent whether the District should proceed with the travel training,
DVE and Fast Forward and the father responded with D 52. The program at CH costs approximately $85,000.00 per year and it is his understanding that it is a two year program.
There is no breakdown of the College tuition component at SCSU, T1540. The $500.00 monthly food and allowance payment is included in the tuition to CH, but the father believed there was a
$5,000.00 cap toward College tuition. Since it’s a twelve month program the father believed CH was less expensive than other programs they looked at, T1541. But the father did not know how much the College course cost, T1542. Regarding the OT typing evaluation, initial assessment, the student could type thirty five words per minute using two fingers. But the student could type fifteen words per minute at the time the new report was completed. The BOCES I program is forty to twenty five minutes driving distance away based on traffic. T1548, the father would have been in favor of the student receiving ADL’s and life skills support even if it meant changing locations. The father felt there were no other options other than the S BOCES program. Regarding travel training the sophomore year, the student and the parent did not reject it, T1550. T1552, the parent was never told by the District they would continue providing services beyond graduation. The father wrote D 36 but the parent in D 51 indicated they were going to reject the program and seek reimbursement, T1553. GL in an e-mail in BB-4, indicated he would arrange for a compass project, travel training with permission slip so there was a follow up, T1554.
The parent’s last witness was Dr. H, V8 P6, (the transcript pages referenced for Volume 8 will be designated by the letter P since the pagination was not continued through the last day of the hearing. The Volume transcripts1- 7 shall be designated as the letter T) who testified based upon a stipulation qualifying the witness as an expert in the areas of Autism and pharmacological services. Dr. H has been providing services to the student for the past twelve years, V8 P6. The doctor has been in private practices for over twenty six years having treated approximately two hundred and fifty patients on the Autistic spectrum, of which applies for two thirds, P7, were eighteen or under and one third over eighteen, P7. He started treating the student when he was six years old, presented with social issues, having difficulties interpreting social signals, was emotionally explosive, P8, would perseverate and had difficult in transitioning which created anxiety leading to temper tantrums. The doctor’s primary focus is medical management and because of the severity of the student’s problems he focused in on the explosive behaviors and the temper tantrums, P8. The doctor’s treatment of the student included office visits with the student, the student and a parent, and telephone communications with the parent. The student’s medication needs changed over time because of severe behavioral issues have improved leading to tapering of medications, P10, over time he became aware of his deficits. It increased his depression, P11. The witness has provided additional medication which has seemed to help,
P11. Commonly with individuals with the student’s profile as they grow, things tend to change.
As a result the student’s medications have changed, P11. The witness has seen the student through his high school years, P12. At times he has demonstrated social interest and leadership qualities, P11, but still has difficulties reading non verbal social signals relating to unexpected things, lashing out, or tending to get worked up, the student also has an attention issue at times, sleep difficulties and difficulty advocating needs. As the student lacked and needs assistance to be put in place. The student’s IQ’s are based upon a BOCES evaluation of April 2009, P14. The full scale IQ of 105 with perceptional reasoning was in the range of 119, P14. The student’s verbal skills do not match non verbal, P14, and the student has a hard time with ADL’s. The student has deficits on travelling, meals, organization, medical management, money management, which are needed to live independently, P15. It is not unusual that there is a disparity between IQ intelligence and ADL’s, P15. The witness defined the ADL’s as simple tasks that adults perform to be able to live independently, including laundry, meals, budgets and medications, P16. The doctor reviewed his notes and there is an incident in April 2010, P18, where the student had a hard time, banged head, resulting in an increase in Depakote dosage as a mood stabilizer, P18. There were also issues with attention focus and he started a regimen of
Vyvanse, P18. On May 2010, they reviewed the Vyvanse and its side effects because the student was having difficulty focusing in school. In April 2011, there was review of his Tenex, P19,
Depakote, and Aflexir, and the dosages contained therein and again in September 2011. There was a review in, the student was taken off Tenax and the Depicot dosage was reduced. In April 2012 the student was encountering a great deal of addictive behavior including computer games and videos, become obsessed, and had to be told to get off the computer, he was not getting enough sleep, was showing difficulty with school and would perseverate. In June 2012, the student needed help with disruptive behaviors, he would get stuck on an issue and have difficulty moving on. They reviewed his disruptive behaviors. The witness informed of the student’s program as part as of the discussions of the parents and student. He used to engage in social difficulties perseverating and the student was not making progress with ADL’s. The student had difficulty with transition which he would need skills in order to live independently in a college setting. He was not able to budget money or manage medication. The student did not have the skills to live independently. The witness indicated that the parents were very involved in the student’s medication, thinking of options. The parents were engaged in mental health fields. It was revealed that the witness no longer had his office notes when he first started treating the patient from 2002 through 2008, however, he does have notes from 2008 to present. The witness reviewed a letter of report dated 2009, which indicated the patient had bipolar features. He was not sure this was a formal diagnosis; the bipolar disorder is treated primarily with medication,
P36. The witness reviewed type and quantity of contact with the student, P38. At the end of 2008, it was reported there was one office visit with the student and in 2009 there were three visits, two in the office, and one by phone, P38. In 2010 there were four visits, three in the office and one by phone. In 2011 there were three visits, two in the office and one by phone, P38. The witness indicated that the student’s personal hygiene skills were such that he could shower, dress, and feed himself, brush teeth and toilet himself, which is described as basics, P40. The doctor indicated that he had conversations with the mother, which it was reported to him that the student questioned the meaning of life. The doctor changed the student’s medication based upon the mother’s report, P42, without seeing the student based in part on the parent’s familiarity with the student and the accuracy of their reports, P42. There is a report of January 4, 2013 regarding the litigation with the District D43. The last time the disruptive behavior was reported was in September 2011, when the student was having difficulty with modulation, he was lashing out and tearing up, he was physical and verbal explosiveness to himself and others, and with some talk of suicidal ideations, and which included head banging, P45. The doctor never visited the school nor remembers speaking with Dr. K, P47. He was shutting down becoming anxious and upset, reported on 3/6, 3/30, 4/1 of 2009, P48. It was reported by the mother that the student had a decline in his outlook of life but it was not programmatic, P49. There was a negative session in March 2009, but was not program related. June 2012 was the last time the witness physically saw the student, P51. The witness was quizzed regarding the clinical diagnosis of the student from 2009 and the student still exhibits features of bipolar disorder, with components of clinical depression. The bipolar features are symptoms that are often seen with students with diagnoses on the Autistic spectrum, P54. Autism is a developmental disorder of long term, lifelong impact on life, P55. And the impact upon the student’s life is long term. This long term life long impacts include substantial deficits in ADL’s, but interventions can impact the effect those symptoms have on their lives, P57.
DK, testified she was the director of the Agency for whom JM the occupational therapist performed an evaluation of the student, P70. She testified that JM misunderstood; the Agency does not pay for contract employees to testify, P72. She also indicated that evaluation of ADL’s for activities done at home, are normally not evaluated for school based assessments, P73. She did read the report of JM and continues to act as a contract employee for the Agency. The student’s standardized scores were in the average range, P74. However, other skills that were assessed do not have standardized scores, P75. DK indicated that normally for school based OT assessments, the evaluator will focus on ADL skills which are utilized as school based environment, P76, i.e. meal prep, P77. For example; handwriting is a frequent skill which is targeted by OT since it is utilized in a school based environment and impacts learning.
Additional ADL’s are typically sensory motor skills needed in an academic environment that interfere with academic functions and with the learning process include handwriting, buttoning, removing and placing of coats, P81. However, skills such as meal prep, and money management are not skills utilized or assessed in a school based environment, because they are not a district’s obligation, P83, D 70 & 71 were admitted, P92, although they commonly are in a medical rehab setting.
The District’s next rebuttal witness was YG, who indicated that the process for placement by the District into a BOCES program includes a review by the BOCES Central
Intake team, P93, which reviews packets, reports and assessments. The BOCES team includes case managers who make recommendations to a specific program, P94. The BOCES I & S high school programs were the same therapeutic support program, P95. Dr L., the father, did not go to BOCES on his own, P96, and it was the CSE that recommended the student to S & I high school BOCES TSP Fragile Program, P96. The witness, YG, testified regarding the CSE process noting that she chaired one CSE meeting those CSE meetings she did not chair she reviews the IEP’s, consult to with staff regarding the CSE meetings. Based upon the above, regarding the student, the CSE discussed and considered District programs as part of its obligation in reviewing the student’s program and in reviewing LRE, P98, considerations. The District has in the past created supplemental programs and other options to support students, P98. The
District’s custom and practice is to assist in development of ADL skills that interfere with the academic program. There are programs which focus on ADL skills with approximately ten to fifteen percent or fifty to sixty students in the high school, P101. An example of said program is the TIP Program. The TIP Program is an individualized program which addresses individual student’s needs, P102 who have deficits in the areas of personal hygiene that impact upon interpersonal relations in an academic setting which impact the learning process, P103. Our student with deficits in ADL areas are not at the level that impact his ability to access programming within the school environment. An area the student had a deficit which impacted of the learning process is medical management, however the parents opted out with assistance from the District. The student did not have travel deficits navigating the school building in the school environment, T105. The parents were unwilling to subject the student to a change of locations, T108, and have the student schlep from the BOCES placement to the high school.
The District recommended providing travel training to supplement the BOCES training provided at the TSP Fragile placement, T109. However, said services would be provided after past graduation and the parents were not willing to accept the services if they were tied to the student’s graduation. Additional items reviewed by the witness include D48 the last IEP recommend by the District CSE, which included shared programs at the high school including the Fast Forward, T107, implementation of the travel training also a DVE evaluation which involves a more intensive evaluation of student skills, a DVE is not commonly done, and is typically done after a phase one or phase two vocational assessment, T107. The witness chaired the CSE meeting which resulted in D48, did not know about the pending law suit, T108, and chaired the meeting based upon the request of GL since YG is familiar with county resources,
T108. Traditionally PSAT’s, SAT’s and ACT’s are accessed by the students contacting the school’s students guidance counselor. Many college programs did not require two years of mainstreaming, T110, Think College does not. The resolution session is mandated by regulations. The District offered some programs but they were not required to. The witness reviewed D64, T116, which was not obligated to provide beyond high school graduation. The witness indicated that the District CSE recommended the BOCES TSP Fragile Program was appropriate, T124; however there were other programs that were appropriate to meet the student’s needs. The witness fully clarified the District’s TIP Program, T124, which is previously known as PAT, T122, was not recommended. The TIP provided in the District would have provided for additional supplemental supports without the need to schlep to the District which included community based culinary, T125, and money management by using only lunch cards and buying supplies. The District provided an additional program available in the District which was the Home Living Center, T133, which is a special education program that provides kitchen skills, including washing and meal prep.
ISSUES
The District argues that the student earned 2.25 credits with a GPA of 91.76 and passed all Regents exams with an 80 or better and as a result it ends the student’s eligibility for services and concludes the District’s obligation to provide FAPE. The District argues that the parent’s alternate claim is for compensatory education. The District also argues that after graduation post-secondary adult services are provided by public funded agencies. The District claims that the student has made substantial progress, but the parents have no independent evidence to support their claims. The parents were unwilling to accept services offered to the student. The District claims the adequacy of the IEP’s must be reviewed based on information available at the time of the placement decision.
The parents argue the following, the District should be found: 1. Gross FAPE violations including failing to timely evaluate the student or transition and other related progresses. 2.
Failing to provide appropriate transitional services and support. 3. Failing to provide IEP goals to address transition needs, including independent living skills, College readiness skills. 4.
Failing to provide parent training and counseling. 5. Failing to develop appropriate IEP’s. 6.
Improperly issuing a diploma and graduating the student over the parent’s objections. The parents withdrew claims regarding speech and language, OT, tuition and cost at SCSU from January 2013 and transportation to and from SCSU.
Prong 1: Procedural violations of the IDEA: The District argues that it offered the student FAPE, that the evidence shows that the District complied with procedural requirements of IDEA. The District argues that it was not required to provide an IEP for the 2012 & 2013 school year since the student was no longer eligible for services which will be dealt with under separate topic, that there is no evidence that an FBA was needed since there is no evidence that behaviors impeded the student’s learning. The sole incident that was described during the hearing that had an impact on the student’s learning resulted in the student leaving school early occurred in gym class when the teacher attempted to persuade the student to participate in line dancing. There was insufficient proof that the behavior was such that the counseling component in the TSP Fragile Program was insufficient and required an FBA and I so find. Also that the parent training was provided by a comprehensive parent training component of the program.
SRO 12-035. This was provided by Dr. J who would sit for hours with the parent’s, Dr. K., GL,
BL, and the parent’s opted to reject the advice provided. The District also claims that the student was invited to meetings. Dr. K testified that the student was encouraged to self advocate for himself including attending CSE meetings. This testimony was not contradicted. I find the student was invited to CSE meetings. Please also note D61, the CSE invitations. The parent’s alleged procedural violations include the District failing to properly evaluate. The parent argues in its brief that the District failed to properly assess the student’s pre-vocational and independent living skills and provide transitional services.
The record contains proof that the District had an OT evaluation, 2 SBA’s and the Vineland test at the request of the parent’s. In addition the District’s CSE in its IEP recommended a vocational assessment, and IQ tests have been performed. These evaluations cannot be disputed. The timeliness is also raised by the parent. The IQ test, Vineland and SBA were administered in a timely fashion. The DVE was offered in the last IEP. Since these evaluations were not performed it is difficult to find based upon results the test was performed too late. The argument can be made at the DVE test provided at or near the end of school year gave the District up to date evaluations as to the student’s PLEPS to provide quality transition services. I find the District properly evaluated the student in a timely fashion.
Prong 1.2 Substantive violations of the IDEA leading to a denial of FAPE: The District argues that it provided FAPE for the student’s junior year 2010-2011 and the student’s senior year 2011-2012. The District argues that the BOCES TSP Fragile program was appropriate for the student. When the student transitioned into high school from middle school the parent looked to Dr. J for recommendations. They discussed several BOCES programs including the
Gifted and Talented, the AIM and the District’s therapeutic programs. The BOCES TSP Fragile program was recommended based upon the strong preference of the parents. Based upon a review of the testimony, the parents were not very critical of the student’s junior year 2010-2011 school year. The parent’s were more critical of the student’s senior school year at Iton except for the lack of parent training, a lack of transition, planning transition services, mainstreaming community living skills including banking, budget, and travel training. There were very little complaints concerning the academic component of the BOCES TSP program at Sdale. There were very little complaints about the TSP Sdale regarding the student’s social emotional domains. The parent’s were critical in the matter of which the BOCES Sdale program was eliminated forcing the placement of the student at Iton. There was a lack of formal schedules there was a lack of advance warning. It was initially difficult at Iton because of the lack of written schedules, too many frees, lack of scheduled lunches, and a lack of mainstream classes.
Although it cannot be denied that there were some difficulties in the transition to Iton. The hand written schedules was a source of anxiety for the student. The student received sufficient credits to graduate and received 80 pluses on Regents exams. I find that the academic component provided the student FAPE.
The parents disagreed with the District regarding the mainstream general education class.
The District planned to introduce the student into a general education program in physical education because of the lack of academic stressors, and the student’s enjoyment of sports. The parent’s disagreed believing that the physical education class was too unstructured and instead of attempting the physical education proposal the parent’s disagreed and second guessed the opinions of the District and BOCES personnel.
The parent’s were critical of the too many frees, although based upon question by this IHO; it appeared that there could be only one more free period than at Sdale. The parent’s were critical of the BOCES staff allowing the student to eat alone at the lunch table. The BOCES staff encouraged the student to sit with others. The student’s program was designed to develop the student’s sense of self advocacy skills and self determination skills. The student chose to eat alone not unlike many dinners at home. I find that the District provided appropriate services resulting in social emotional progress of the student.
The father discussed how he felt coerced and threatened by the CSE into accepting the placement at BOCES TSP at Iton and indicated that the program, i.e. the BOCES TSP program needed to be supplemented by additional services in the areas of parent training adaptive and independent living skills.
The lack of parent training was a recurring theme throughout the hearing. The father claimed that he attempted to teach the student how to cook and how to travel. The student testified that he had learned basics of cooking from his father. The District performed a diagnostic test at the request of the father who admitted having administered the test on prior occasions. Both the father and the mother are in mental health professions, with the father often being called Doctor. The student’s own psychiatrist relied upon reports of the parent because they are reliable, although it was unstated; there was reason to believe that their professional education and training was a factor. Because of the above the parent’s are already in a possession of basic knowledge and information to deal with their son any apparent training would be above and beyond their current level of knowledge. Furthermore, the District argues that the parent’s were not receptive to the District and BOCES guidance and counseling or there was in making beds, going to the store. The parent’s held specific views about these issues and were unwilling to yield, bend or attempt these on a trial basis or create an incentive for the student to perform them. Some of these things the house keeper would do for the student.
Furthermore, there were referrals to JCCA and a transition affair. As a result I find that the District did not fail to provide FAPE by not providing supplemental parent counseling and training.
The parent’s were critical that District for failing to properly and timely evaluate the student’s vocational skills, the latest IEP contains in it a recommendation for a vocational assessment.
1.3 Transition Goals
The District’s IEP was from the June 16, 2010 CSE meeting occurred when the student was 15:11 years. It provides in D3 pg5, the student’s family will be given information about
VESID, transition person from BOCES will begin the process of college exploration. These things were accomplished. Regarding the Acquisition of Dailey Living Skills it was reported that the student has adequate daily living skills, the program will look to incorporate improvement of his social skills, prepare the student to mainstream for some academic classes; program psychologist will counsel the student to improve self-advocacy skills. Many of these things were accomplished and a Strength Based Assessment was completed. In D21 pg5 it was reported that the student’s measurable post-secondary goals is to attend college. However under the independent living skills the category, it is reported only “when appropriate “and it was reported as N/A appropriate. Also on D21 pg9 the set of transition activities and community experiences are unchanged from D3, development of employment and other post-school adult living objectives indicated that the student has participated in career assessment and inventories and discussion to assist in deciding on a career path of interest. The student and family will identify resources they will access for post school adult living in employment opportunities. The student’s daily living skills were reported as being adequate in activities of daily living.
Regarding the functional vocational assessment, the student was to have completed an SBA to facilitate choice of career goals and will consider school age vocational opportunities during
2011-2012.
D48, the IEP from the April 23, 2012 CSE meeting: in the comments portion it was reported that the parents were concerned that the student was not college ready because of ACT scores and continued to need support in adaptive and social skills. The transition plan will include travel training and a Diagnostic Vocational Evaluation. The transition plan indicated the BOCES community social worker provided linking agencies and information. It is interesting to note that in the IEP that the student will live in a post-secondary college program with support.
It should also be noted that the Director of the agency which provided the OT evaluation explained the thrusts of OT services and any subsequent evaluations are focused within the confines of the school environment and deal with activities relating to education.
The legal standard was set out in SRO 02-111 regarding transition skills as it relates to independent living skills
“Among the purposes of the IDEA is the preparation of students with disabilities for employment and independent living (34 C.F.R. § 300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living (34 C.F.R. Part 300, Appendix A, Part III; See also 34 C.F.R. Part 300, Appendix A, Part III, Question Nos. 11-13). Consistent with this, the IDEA regulations set forth specific requirements related to transition planning and transition services (id.). For students 14 years of age and older, the IEP must include a statement of the student’s transition service needs in the applicable portions of the IEP (34 C.F.R. § 300.347[b][1]; 8 NYCRR 200.4[d][2][viii]). For students 15 years of age and older, it must include a statement of the student's needs, taking into account the student's preferences and interests as they relate to transition from school to post-school activities including post-secondary education, vocational training, integrated competitive employment, continuing and adult education, adult services, independent living, or community participation (8 NYCRR 200.4[d][2][i][c], 200.1[fff]). For such students, the IEP is also required to include a statement of needed transition services, including if appropriate, a statement of the interagency responsibilities or any needed linkages with other service providers (34 C.F.R. 300.347[b][2]; see also 8 NYCRR 200.4[d][2][ix]), as well as a statement of the student's projected post-school outcomes, based on his or her needs, preferences, and interests, in the areas of employment, post-secondary education and community living.”
The SRO further stated:
“Transition services are defined as: a coordinated set of activities for a student with a disability that – (1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;(2) Is based on the student's needs, taking into account the student's preferences and interests; and (3) includes -(i) Instruction;(ii) Related services;(iii)
Community experiences;(iv) The development of employment and other post-school adult living objectives; and (v) If appropriate, acquisition of daily living skills and functional vocational evaluation. (34 C.F.R. § 300.29; see also 8 NYCRR 200.1[fff]).”
In SRO 02-111 the following crucial testimony was relied on by the SRO:
“The student's psychiatrist testified that he had long been advocating an away-from- home living situation for the student (Transcript p. 726); that the student needed very close supervision to learn appropriate skills of living, including self management, transportation, money management, meals, clothes, and leisure time (Transcript pp. 726-
28); that he had "tremendous reservations" about the student living at home, fearing that he would not acquire necessary independent living skills (Transcript pp. 732-33, 767); that if the student did return home, it would be very easy for him to fall back into infantile and immature patterns and he would not gain the necessary skills to be independent (Transcript p. 733); that when the student was home from Glenholme, he became infantile, engaged in inappropriate talk and touching with family members, and that the longer he stayed home the worse this would become (Transcript pp. 773-74,
795); that this would not happen if petitioners' son were not at home and in an appropriate setting (Transcript pp. 794-95); that the student needed a place where he could be taught to become a young adult (Transcript pp. 735-36); that the program recommended by respondent was not appropriate because of his concern that the student's self-care skills would regress (Transcript pp. 766-67); and that a residential component was a crucial component of the student's program Transcript p. 768).”
This compelling testimony was not present from the student’s psychiatrist who observed him first hand infrequently with large gaps in between visits. Nor was there the comparison between
CH and home. There was no proof that the student regressed when returning to CH from a visit at home. There was no proof that psychiatrist advocated for years of the student's need for residential placement. Nor were there any other reports submitted to the CSE from the students psychiatrist that a residential placement was necessary.
“Further, the student's IEP (Exhibit 1) did not adequately describe the student's transition needs, including his independent living and vocational training needs, areas of particular importance in light of the fact that the student was 18 years of age (see 8 NYCRR 200.4[d][2][i][c], 200.1[fff]; see also 34 C.F.R. § 300.347[b][1]). Moreover, the IEP's statement of his educational needs and learning characteristics did not include an assessment of his needs relating to activities of daily living and adaptive behavior which would be relevant to the delayed development of the student's independent living skills (8 NYCRR 200.4[d][2][i], 200.1[ww]). Importantly, notwithstanding the fact that petitioner's grandson was 18 years old, the CSE did not have an adequate vocational assessment of the student (see 8 NYCRR 200.4[b][6][vii][ix], 200.4[d][2][I][c]) but only one that provided inadequate and too limited information (Exhibit 7). Although the IEP includes a set of long-term adult outcomes (see 8 NYCRR 200.4[d][2][ix]), they are general and inadequate. Long-term outcomes are required to be based in part on the student's needs, preferences, and interests, in the areas of employment, post-secondary education, and community living. The deficiency in long-term outcomes may have been a reflection of respondent's inadequate evaluation of the student's vocational needs.”
Often those at a higher the levels of functioning have a greater the range of vocational options. At the lower end the options are more limited. It is commonplace for college bound students to fine tune the career and vocational interests as they progress through there college programs. SRO 09-121
“The student has significant academic deficiencies in numerical operations, spelling, and written expression. He is socially immature and lacks age appropriate social skills, including social language skills. He needs support and supervision in this area and would benefit from the presence of peer role models, as he has significant difficulty in relating to students his own age. Independent living skills are also an area of significant importance to the student, and he needs an environment that will facilitate independence and learning in this area to assist him to become a functioning adult. The student's transition needs require a program that provides significant vocational experiences in the context of authentic and real life situations (District Exhibits, 7, 11, 23; Transcript pp.
427, 446, 448, 449, 450, 738). Petitioners’ son is not ready for completely independent vocational experiences. At the present time, he requires the assistance of a job coach to help him find an interesting and challenging vocational opportunity, to be present at the work site at the beginning of the job to make sure that the task is clear and within the student's abilities and that he understands his responsibilities, and to be available to work with the student and supervisor during the vocational experience to address the problem solving, communication, and interpersonal issues that would arise because of the student’s deficits (Transcript pp. 418, 461-63). The student also needs to become more realistic relative to employment possibilities and career opportunities.”
The same may be said for the student herein. I find that the student’s transition goals as contained in the above IEP, I reasonably calculated to provide educational benefit providing more than mere trivial progress.
1.4 Community Living Skills:
The IEP from May 23, 2012, D48, interesting enough provides for special transportation as it has in the past without objection by the parents, which was door to door with a matron, D48,
P14. It was recommended that the student be placed in a mainstream setting in physical education for the remainder of the year. it is also interesting to note that D48, P13, the CSE recommended the student participate in travel training with the school District and family being responsible for providing same. There was testimony regarding that District’s travel training policy which is to be provided in a real life environment. There was no testimony regarding what instruction if any would be provided to the parents to assist in the delivery of the services.
The travel training would consist of twelve hours. The comments portion indicates that the transition plan will include travel training which would be for twelve hours, from May 6, 2012 through June 22, 2102. The parents alleged generally that it’s too little too late. The student’s
45 day report at CH is approximately the same six week duration and the student made progress.
The question then becomes if that is sufficient level of advancement. The student’s psychiatrist indicates that the student’s disability is from a lifelong disorder raising doubts that the student would ever progress to the point of being totally independent. The student’s goal is to be in college program with support. It is not anticipated based upon that, if the student would ever be able to function without support or at least in the relatively near future. The level of support will vary according to the level of interest and motivation but intellectually the student is able to retain the information related to travel training. It should be noted that the transportation component was not implemented or arranged for or by the parents. As a result it is unclear if the parents would have tagged along to learn what the student was instructed, nor is it clear if there was any publication literature regarding the do’s and don’ts of travel training, but the plan was to implement public transportation. It should also be noted that travel training is not part of the
TSP parental program, and the parents did not want the student to schlep to a District school after school. The District scheduled travel training at the end of the school year. As a result of the above I find that the additional services recommended in the May 23, 2012 IEP was reasonably calculated. It is stated in D38, P4, the strength based assessment with an interview of March 16, 2012, it was reported that the student’s states that he is unsure if he will be home or in a supervised apartment or dorm. EG testified the student had no immediate plans to move into his own apartment. Based upon the above, I find that is the level to which the student sought to achieve and also is the District’s obligation to design an IEP reasonably calculated to provide meaningful progress towards that goal. Regarding Math and money management in D48, it was reported that the student scored an 80 in Algebra. The student is allowed use of a calculator as an accommodation. It should also be noted that the student at the 45 day level was able to clean and follow instructions to complete basic cooking. As a result of the fore mentioned I find that the IEP of the District was reasonably calculated to provide meaningful educational progress.
Additional factors considered include the student was able to purchase foods in the cafeteria, learn travel training, which begins with an assessment which include parent perceptions. Also there was a travel component in the Think College program, with soft skills, travel and money management. It should also be noted that many of the soft skills were available through the
JCCA, although the mother was not receptive and lacked follow up. In addition, DK, the director of OT services, indicated many of the soft skills pertain directly to school learning environment and others are outside the scope of school services. Dr. H however indicated that the student would get stuck, not stay on path, had a hard time making successful transitions. He does not have the skills to live independently. The last time he physically saw the student was
June of 2102.
I find that the student’s vocational, occupational and transition PLEPS were appropriately evaluated.
Prong 1.5 Compensatory Education: District argues that the standard for awarding compensatory education is a gross violation of IDEA and denial of FAPE. The gross violations of IDEA and denial of FAPE are the same except that the parent argues that the violation should be elevated to a gross violation level because of the continual and long lasting nature of these violations. The standard to be implemented is not what a loving parent would seek for their child, but an IEP reasonably calculated to provide an educational benefit. The standard is not what the parents want for their child based upon being a parent or a health care professional. I find that the District has provided FAPE to the student and there were not any gross violations either. It should be noted also that the parent’s compensatory claim was triggered by the District’s reliance upon the student’s achieving sufficient credits to graduate. Achieving a Regents Diploma is a basis for determining that this District was no longer obligated to provide educational services to the student. In addition, I find the parents and the student refusing to accept the diploma does not avoid the impact of earning sufficient credits to graduate and passing his Regents exams. A review of SRO 10-124 indicates the proper review is of graduation status
“Turning to the merits of the district's appeal, an independent review of the hearing record demonstrates that the student did attain graduation status prior to the 2008-09 school year, contrary to the impartial hearing officer's decision (see IHO Decision at pp.
6-8). Although neither an impartial hearing officer nor a State Review Officer may pass upon the academic standards required by the State of New York for graduation in an impartial hearing, which must be limited to the special education programs and services provided by the district (Application of the Bd. of Educ., Appeal No. 05-037; Application of a Child with a Disability, Appeal No. 02- 011; Application of a Child with a Disability, Appeal No. 96-67; Application of a Child with a Disability, Appeal No. 94-
31), both an impartial hearing officer and a State Review Officer may, in the context of a due process proceeding, render factual findings relating to whether a student has met the stated graduation requirements (see Application of a Student with a Disability, Appeal No. 09-145; Application of a Student with a Disability, Appeal No.
09-056; Application of the Bd. of Educ., Appeal No. 08-071; Application of a Child with a Disability, Appeal No. 02- 011; Application of a Child with a Disability, Appeal No.
98-6). In this case, the principal testified that in order to earn a Regents diploma, the student had to earn "22 credits in designated subject areas" and pass one Regents examination with a minimum score of 65 (Tr. pp. 130-39;
Dist. Ex. 32). Having reviewed the student's transcripts, the principal concluded that the student had earned 23 credits in the designated subject areas and passed four Regents examinations with minimum scores of 65 by June 2008, and thus, the student had earned a Regents diploma (Tr. pp. 136-38, 142-51, 164-65; Dist. Exs. 16; 31-32.”
I find that the District is not obligated to provide the student educational services subsequent to the end of the 2011-2012 on June 22, 2012. Furthermore, the refusing to accept the diploma as a basis to continue the District’s obligation to provide services as a Prong 3 equitable factor does not benefit the parents.
Compensatory education is often used to remedy services that were missed or denied. Although there were some allegations regarding missed counseling sessions but there were also indication that the student was afforded the opportunity to make up missed sessions. This was not the case as in SRO 10-037 where the “…impartial hearing officer rendered his decision (IHO Decision at p. 37). He determined that the student had not received services pursuant to pendency for approximately eight weeks (id. at p.33). In order to remedy this violation, the impartial hearing officer granted the student 8 weeks of compensatory education consisting of the
Genesis autism consultant services, which should include community experiences, individual and group counseling, family counseling, and parent training (id. at pp. 33-
34).”
The exception, of course exists for what services that was contained in its last IEP and not provided.
1.6 Compensatory Education under DRACUT
The parent argues the DRACUT SCHOOL COMMITTEE vs CA applies. I find that it is not controlling since it was based in part upon Massachusetts Law. The district court ordered a remand was in part due to determining compensatory education because the student received his
Diploma. It appears that the Massachusetts Law does not apply a gross violation standard as a basis for awarding prospective compensatory education where there is no finding of missed classed as it’s utilized in New York State. It should also be noted that in DRACUT there was no meaningful assessment in two years. Also as part of the remand it was to determine the standard the Hearing Officer was utilizing awarding compensatory education whether it was from his classes or for not providing for a potential maximizing solution.
1.7 Admissibility of Think College Testimony
The topic of the Think College program at I college arose in two ways. It was a program listed as a recommended service in the district’s proposed resolution settlement agreement. Like in SRO 09-055 the Resolution agreement was not agreed to or executed
“Based on the evidence in the hearing record, I find that the draft stipulation was an offer to compromise and that there is no testimonial or documentary evidence in the hearing record that the district actually agreed to the terms set forth in the unsigned, undated stipulation of settlement.”
I find the resolution proposal is not admissible as an offer and comprise.
It was also stated in SRO 09-055
“The resolution of disputes by agreement through settlement is preferable to litigation (see Application of a Child with a Disability, Appeal No. 06-039; Application of a Child with a Disability, Appeal No. 98-33; see generally Mitchell v. New York
Hosp., 61 NY2d 208 [1984]), and reliance upon evidence regarding an offer of compromise made during confidential settlement negotiations that relates to the disputed issues is generally disfavored due to the negative effect of discouraging settlements (see
Moubry v. Kreb, 58 F. Supp. 2d 1041, 1043 n1 [D.Minn 1999]; Charles Hyman, Inc. v.
Olsen Industries, Inc., 227 A.D.2d 270, 276-77[1st Dep't 1996] [holding that reliance upon a draft settlement offer in establishing liability was improper because it was an offer of compromise]; Sabin-Goldberg v. Horn, 179 A.D.2d 462, 463 [1st Dep't 1992] [holding that offers to settle or compromise are not generally admissible]; see also 34 C.F.R. §
300.506[b][7]; 8 NYCRR 200.5[h][1][v] [providing that discussions in mediation sessions must be confidential]).”
As a result there were no changes or amendments to the IEP either by a CSE meeting or
Resolution session. As the SRO stated in 12-103
“Next, I will consider the adequacy of the April 2010 IEP. The parents argue that the IEP is deficient and urge that review of the IEP must be limited to the "four corners" of the document, contending that the district cannot be permitted to present testimony at a due process hearing in an attempt to subsequently cure deficiencies in the IEP. As the Second Circuit recently articulated, the determination of whether an IEP is reasonably calculated to enable the student to receive educational benefits is a prospective analysis and includes the consideration of only the information known at the time the IEP was developed (R.E., 694 F. 3d at 185-89 [explaining that with the exception of amendments made during the resolution period, the adequacy of an IEP must be examined prospectively as of the time of its drafting and that "retrospective testimony" regarding services not listed in the IEP may not be considered]). However, the Second Circuit rejected a rigid "four-corners rule" that would prevent consideration of evidence explaining the written terms of the IEP (R.E., 694 F.3d at 185-89). As set forth below upon application of a prospective analysis, an independent review of the entire hearing record supports the district's contention that the recommended 6:1+1 special class with the related services set forth in the April 2010 IEP was reasonably calculated to provide the student with educational benefits and sufficient 1:1 support in the least restrictive setting.”
However this does not bar testimony from witnesses explaining the services recommended in the IEP. The SRO stated in 12-069
“The Second Circuit has recently explained that under the "snapshot" rule, this evidence may not be considered because it constitutes "retrospective testimony" regarding services that the district failed to list in the IEP (R.E., 694 F.3d at 185-88 [explaining that the adequacy of an IEP must be examined prospectively as of the time of the parents' placement decision and that "retrospective testimony" regarding services not listed in the IEP may not be considered, but rejecting a rigid "four-corners rule" that would prevent consideration evidence explicating the written terms of the IEP]; see B.R. v. New York City Dep't of Educ., 2012 WL 6681046, at *5 [S.D.N.Y. Dec. 26, 2012];Reyes v. New
York City Dep't of Educ., 2012 WL 6136493, at *6 [S.D.N.Y. Dec. 11, 2012]; F.L., 2012 WL 4891748, at *14; Ganje v. Depew Union Free Sch. Dist., 2012 WL 5473491, at*10
[W.D.N.Y. Sept. 26, 2012]).”
The topic of Think College or the GAELS RICE program was discussed as a listed program at the Transition Fair and as a result is relevant in determining the appropriateness of the district’s transition planning and parent training. It was also an available program and run in junction with the JCCA.
Prong 2: The Appropriateness of the Parental Placement at CH. The District in its last IEP recommended travel training to be provided over the summer and also Think College. The
District argues that there is no proof of any educational or transitional benefit. The academic component is based solely upon the fact that the student is enrolled in a single non-matriculating college course. There are no reports or grades on how much success or how the student was progressing in the college course. It was stated that there was potential for the student to take additional college courses or even matriculate. There was no counseling provided by certified counselors since the program relied upon the student’s individual mental health providers and
CH staff. The CH Program did provide support with support and instruction in independent living skills. The student cleaned his own apartments however there are no specifics as to how he performed those tasks, what he learned and how he progressed in learning these skills. There was testimony about banking and money management; however there was no proof other than the student going to the store alone. The student in high school accessed food in the cafeteria but is unclear if the student performed or cannot perform these things at a higher or more advanced level. Regarding travel training there were no specifics regarding how much progress the student was making. It is not possible to compare the items against the District’s recommendations since the District’s recommendations were not implemented. There were conclusory statements that the student needed repetition and consistency to learn these skills. Nor is there any indication that he could not learn these skills in a non residential setting. The CH placement contains a residential component that was not offered nor requested of the District. The Director of Special Education was of the opinion that based upon LRE considerations the student be placed in the District’s therapeutic program. The CH residential component is extremely restrictive. The parent’s claim that the residential program is appropriate to provide the student with consistency or repetition in a structural environment so that the student learns independent living skills including money management and travel training. The student himself during his testimony, indicated that he knew how to make his bed and cook but there was no reason to since many of those things were performed by the housekeeper. It was reported that the mother stated that college kids do not make their beds. In a way, the student is similar to typically developing peers of his age; they do not perform many of those things because someone else has done it for them while they were growing up. The student is similar to his typically developing peers because they have the basic knowledge to perform these tasks, but lack the inclination. Certainly the travel training facilitating participation in a college non-matriculating course is appropriate.
However the services were available to the student. The student made available to the student summer programs at the college however the parents opted out of those programs, instead chose to continue the student in the summer camp. By all reports the student liked summer camp, did well in summer camp, both as a camper and as a helper. This is an indication that with the right support the student can function outside the parent’s home. The student testified about the lack of similar minded student’s at the CH program. The student got along well with his roommate. The student got along with a female student. But there were many others that he did not share similar views. There were also reports that the student was experiencing depression. The student’s psychologist acknowledged that the student’s deficits were lifelong. As a result I find that because of LRE the parent’s parental placement is not appropriate.
Prong 2 .1 Progress at CH the Private Parental Placement
A review of PW, the 45 day evaluation from EH indicates in the overview, that the student has been learning a lot. In participation group/community activity it was reported the student does tend to voice negative opinions inappropriately if he is unhappy with the situation and at times when a situation has not appealed to the student, he does refuse to participate. This is consistent with his behaviors while at the BOCES TSP Program. Regarding highlighted achievements/accomplishments, it was reported that the student’s personal space is always kept tidy and only ever required basic cleaning. This is indication after only being in the program a short period of time, roughly the same amount of time remaining between the last IEP and the end of school. However, there is no indication if these skills had been transferred to a general setting such as his home. Social communication indicates that regarding highlighted achievements and accomplishments, it should be noted that after 45 days in the program, the student has achieved levels within a short period of time raises doubts as to whether a residential component is necessary. Regarding standardized testing, based upon the comprehensive assessment of spoken language CASL, the student’s scores range from 92-116, where the average score falls between 85-115. Other than ambiguous sentence subtest, the student’s percentile ranking appeared in the low average range. Regarding initiation, it was reported that the student occasionally initiates conversation with peers but in a classroom setting the student appeared to be doing well. Regarding listening skills, it was reported that the student exhibited appropriate listening skills in small settings, but at times drifts off, perseverates out of a score of 100 percent accuracy and one component. Of course the concern is how quickly into the program the student scored 100 percent; also the student seemed to understand perspective of adults better than his peers. Regarding the GESTALT processing, the student seemed to understand main ideas of lectures. Regarding social relatedness the student appeared not to engage with peers. He reads facial expressions very well. Regarding expressive communication the student is 100 percent intelligible. Regarding conservational skills, the student engaged in small talk but tends to lecture in class rather than engage and reciprocate conversation. This is similar to the student’s levels at the BOCES placement. Self determination was reported the student was at the early stages of development. Regarding health and medication, the student was showing a system which he was learning while recurrently he relied on staff to check his medication. Regarding laundry, grooming and hygiene, the student has had no knowledge of how to do laundry. When the student entered the 45 day level stage, and presently relies on prompts for personal hygiene. The student is able to maintain apartment maintenance.
Regarding meal prep, the student lacked experience in food prep, cooking and cleaning before arriving at CH. However, at the 45 day level the student was able to do basic food prep following step by step recipes with prompts from staff but expresses that he is not motivated to cook. Also food shopping, the student was able to navigate quite well. Regarding banking and budgeting, the student did not previously manage his own money, but at the 45 day mark he has developed an understanding of banking and budgeting. The student also has been very responsible with his spending habits. Regarding transportation, the student has not mastered independent mobility skills, but has been able to travel to different locations by foot accompanied by staff. Based upon the above it appeared that the student progressed during the first 6 weeks of his say at CH, in areas of deficit.
Prong 3: Equities:
3.1 Proper Notice
Regarding the district’s claim that the parents failed to provide proper timely notice of their decision to unilaterally place the student at CH, the SRO stated in SRO 07-032
“With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.
v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir.
2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty
v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]; see Application of a Child with a Disability, Appeal No. 05-098)”
The parents rely upon the following: P-U a letter dated February 15, 2012, to New Rochelle CSE indicating “… we are quite concerned at this stage that [ the student] has not nearly acquired the range of basic prerequisite skill sets that he should have learned. …But we are giving consideration to other options and relief that we may be due to our son.”
The above language is ambiguous at best.
P-M a letter dated February 3, 2012 from CH to the parents indicated and welcomed them into their program requiring a down payment which was a refundable deposit which would be applied towards the cost of room, board and associated program expenses.
P-V is the parent’s executed tuition agreement with CH dated March 3, 2012. The parents were provided a copy of the IEP by means of a letter dated May 16, 2012. P-P, the parents respond by P-Q, a letter to YG, which is dated June 4, 2012 advising YG that the parents were in disagreement with the District’s proposed placement, and putting the District on notice. The parents intended on placing their son at CH and they will seek reimbursement and or perspective funding or both for these costs and expenses; Speech and language, occupational. Also requesting reimbursement in a perspective funding of full tuition and all related costs including travel for the student and the parents, and all hotel expenses associated with any visits. It should be noted that services pursuant to the IEP which were terminated on June 22, 2012, the notification was within the requisite time frame for providing the District with prior notice. As a result I find that the parents provided proper notice.
3.2 Equities
The District argues that the equities of the case are such that the parent’s should be denied reimbursement, I agree, and so find for the following reasons. The parent’s strongly advocated for the BOCES TSP Program. The parent’s had strong opinions about the student’s program and were unwilling to accept any suggestions or recommendations of the District and
BOCES staff. The IEP contained the same elements as provided by CH although not necessarily in the same order. The last IEP was to contain a vocational assessment and travel training, Think
College. At CH the provision of independent living skills, travel training and college courses with support. The student’s independent living skills would be supported through adult agencies.
Furthermore, these agencies were financially supporting the services. This is not a situation where the student would not get these services if they were not successful on their claim for reimbursement. Nor is there any proof that the services rendered and provided by the adult agencies would be inferior or not appropriate.
FINDINGS
I find the student was invited to CSE meetings.
I find the District properly evaluated the student in a timely fashion.
I find that the academic component provided the student FAPE.
I find that the District provided appropriate services resulting in social emotional progress of the student. I find that the District did not fail to provide FAPE by not providing supplemental parent counseling and training.
I find that the student’s transition goals as contained in the IEP is reasonably calculated to provide educational benefit providing more than mere trivial progress.
I find that the additional services recommended in the May 23, 2012 IEP was reasonably calculated.
I find that is a level to which the student sought to achieve and also is the District’s obligation to design an IEP reasonably calculated to provide meaningful progress towards that goal.
I find that the IEP of the District was reasonably calculated to provide meaningful educational progress.
I find that the student’s vocational, occupational and transition PLEPS were appropriately evaluated.
I find that the District has provided FAPE to the student and there were not any gross violations either.
I find the parents and the student refusing to accept the diploma does not avoid the impact of earning sufficient credits to graduate and passing his Regents exams.
I find that the District is not obligated to provide the student educational services subsequent to the end of the 2011-2012 school year on June 22, 2012.
I find that because of LRE the parent’s parental placement is not appropriate.
I find that the parents provided proper notice. I find that the Equities do not favor reimbursement to the parents.
ORDER
It is hereby ordered that the parent’s claim is hereby denied in its entirety.
PLEASE TAKE NOTICE:
Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 may be obtained by either the parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states:
“ 279. (2)(b).13 Notice of intention to seek review.
(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:
Notice:
(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of
(name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.
(b) The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.
( c ) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.”
Dated: May 20, 2013
PAUL T. BUMBALO, ESQ.
IMPARTIAL HEARING OFFICER