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SI cx tRAL SCHOOL DISTRICT
STATE OF NEW YORK : COUNTY OF WESTCHESTER
IN THE MATTER OF THE IMPARTIAL HEARING BY (a REPRESENTED BY ESQ.
LAW OFFICES OF ia P.C.
PETITIONER,
AGAINST
Ic EN TRAL SCHOOL DISTRICT, REPRESENTED BY MS. (ESQ.
RESPONDENT,
BEFORE
GEORGE KANDILAKIS
IMPARTIAL HEARING OFFICER
OCTOBER 23, 2013
Preface
Motions
The Respondent School District submitted a motion to dismiss the proceeding for failure to prosecute. The Petitioner's representative indicated that due to conflicts with prior scheduling hearing commitments and court appearances that extensions were required. The Petitioner further indicated that any extension would have no impact on the child’s education during the conduct of the hearing since the child was attending a private school. On March 20, 2013, the District’s motion was denied.
[IHO 4]
The Respondent School District submitted a motion to exclude any reference to a CPS referral during the conduct of the hearing because it was made after the development of the IEP on June 15, 2012 for the 2012-2013 school year and was beyond the scope of the hearing. My decision was based on the former and on New York State Social Service Law whereby the identity of the person making the referral to CPS is confidential and all identifying information about the report or the circumstances in the report are exempt from disclosure. Secondly, the Petitioner attached a number of documents to their motion. There was ample opportunity throughout the hearing process to present evidence. Furthermore, any disclosure of evidence outside the hearing process would bias the hearing officer and deny the opposing counsel the right to challenge the relevancy of the evidence on the record. On April 22, 2013, the Respondent Schoo! District’s motion was granted. [IHO 5]
Impartiality
The Petitioner requested that | recuse myself because I was a Director of Special Education for the EEE District at one time. | last served in that capacity June 1995. I am a duly certified impartial hearing officer and have no personal and professional interest with either party that conflicts with my objectivity in the hearing. The request was denied.
The Respondent School District raised the issue of disclosure of my TM advocacy work with a parent whose son attended school in the District. The advocacy work took place on June 16, 2011 and was an oversight on my part not to disclose it. My comment on the record was that I have acted as an advisor to parents in many districts during their child’s CSE process. Some of my advocacy has been pro bono. I have not served as a student advocate in ‘ne REE District since June 16, 2011. There is no connection with the case before me and the other matter where | served as an advocate. | felt that | could be impartial in the hearing before me. Opposing counsel indicated on the record that he was not concerned about it.
In another matter related to disclosure was made by the Petitioner and was related to a witness before me at the hearing. , a BOCES psychiatrist, provided services to the District during my tenure there from 1980 to 1995. The number of times he was called upon was unknown to me at the time of hearing. | placed on the record that I have had no personal or professional relationship with Dr. Fsince 1995. [IHO 3]
DECISION
Petitioners [the parents] appeal the decisions of the committee on special education [CSE] and their recommendations for the 2011-2012 and the 2012-2013 school years for failing to provide their son [child] with an appropriate education during those two years. For the 2011-2012 school year, the Petitioner requests unspecified compensation. For the 2012-2013 school year, the Petitioner requests reimbursement for their son’s tuition costs at the School. The Respondent School District states that the individual educational program [IEP] developed by the CSE for the 2011-2012 and the 2012-2013 school years were appropriate and seek the Petitioners’ due process complaint be dismissed. At the time of the impartial hearing, their son was enrolled at the school for the 2012-2013 school year, an unapproved school on the Commissioner of Education list. While the burden of production rests with the District, the burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, meaning the burden of persuasion rests with the Petitioner. [D 64,T pp. 17, 46,. Weast v. Schaffer, 126 S. Ct. 528, 44 IDELR 150 [ U.S. Supreme Court [2005] ]
Factual Background
The child’s medical history was significant. The child’s mother contracted a virus during her pregnancy, which was passed onto her son prior to birth and led to the disintegration of the umbilical cord. Their son was born at 29 weeks, 3 pounds 10 ounces. He spent 7 weeks in a neonatal intensive care unit. He suffered with hypoplastic lungs [incomplete development of the lungs] requiring a ventilator for 3 months. For the first two and one-half years, he required an oxygen monitor due to his irregular respiratory system. He did not sit up until he was over one year old. He was walking and standing at about two and one-half years. He was diagnosed with |B yndrome which impacts his ocular movements, causing one eye to be stationary and preventing any peripheral vision in the respective eye. At one year of age, it was discovered that his baby teeth had disintegrated which impacted the normal progression of his secondary teeth. Though his gross motor skills continued to develop normally, his lower jaw muscles were delayed in developing affecting his speech intelligibility. As a kindergarten student, he was described as being more the size of a two year old. Steroids and growth hormones have been used to facilitate his growth [D-4, D-28, D-29, D-59, T pp 2509, 2515, 2521]
Kindergarten [2009-2010] [not at issue in this action]
During the 2008-2009 school year, the child was classified by the District as a child with a disability for his kindergarten year, but his parents chose to send him to the Nursery School/Kindergarten program. program was a private kindergarten. The District did provide x Th crapy, therapy as well as a 6 hr. teacher aide. There was no record presented at the hearing as to his progress while at the HERE School. [P-R, T pp 104-105]
On April 15, 2009, the District School Psychologist conducted an evaluation using the WPPSI-IIl in which the child obtained a Full Scale score of Both %] and in the low average range. His Verbal Scale score in conceptual abilities was fi and in the low average range and his nonverbal reasoning skills were [i [5th %] and in the Borderline range. His graphomotor processing skills were 88 [21st %] and in the low average range. Behavioral observations during the testing indicated that the child required redirection several times. He presented some articulation and voice differences. He benefited from directions shortened, explained and modeled. He exhibited limited body-in-space awareness.
On the various subtests it was noted by the evaluator that the child had difficulty defining words in isolation. His inattentiveness resulted in guessing rather than listening to the questions and integrating the information. He lacked the mental flexibility to change his answers especially with verbally presented questions. His difficulty with nonverbal abstract visual stimuli to analyze and synthesize a task was shown in his inability to recreate modeled designs. When presented with visual information for processing and reasoning, his attention wavered as items increased in difficulty. He was impulsive when responding to abstract categorical reasoning items as well as developmentally sequenced items. The evaluator noted that the child “may” have difficulty visually tracking across a line. Though, he was described as affable by the evaluator, he did not possess the social pragmatic skills to initiate interactions appropriately. Given the child’s distractibility, the evaluation results are
While in the District’s kindergarten program, Dr. _ considered to be a lower estimate of his abilities. [P-R psychiatrist, evaluated the child on January 8, 2010. He found the child’s thinking showed a significant amount of anxiety, although, he related “quite well” to the examiner. His defenses included regression and avoidance. His style tended to be controlling. Dr. GE concluded that the child had “a fairly narrow range of safety and security [systems]”. These feelings did not occur easily in the context of having demands made on him where he might not succeed or having to do work that he may find frustrating. > further stated that in those contexts, he tended to shut down, avoid tasks presented, become oppositional and at times aggressive. It had been hard to redirect him on a regular basis in the classroom. He concluded that the child was not in any immediate danger to himself or others. He also concluded that other factors may be present and should be ruled out. He diagnosed the child with an anxiety disorder His recommendations included a highly structured behavioral system in school and at home, which included outpatient mental health intervention. He believed that the child was open to play therapy so that he could improve the manner he approaches challenging tasks. He further noted that if the child’s behavior did not improve, a more therapeutic environment may be necessary, because his “needs are far beyond those of a very typical child”. [ D-59, Tpp 108-109 ]
The kindergarten teachers’ progress report dated January 28, 2010 indicated that the child attended a special education class for language arts and mathematics and was mainstreamed for science, social studies and specials. The teachers concluded that it was difficult to assess his academic progress due to his significant and pervasive deficits he exhibited in controlling his behavior. They did note that high interest activities motivated him to participate. He would complete classroom tasks as long as he controlled various aspects of the academic situation. Rewards and motivators lost their effectiveness quickly. His successful peer interactions came about when he was in full control of the social situation. His play tended to have an aggressive quality to it and required intense adult supervision in order to maintain amicable interactions. [ P-P ]
On January 29, 2010, a Functional Behavioral Assessment [FBA] was developed. The purpose of the assessment was to understand the child’s behavioral needs and identify appropriate strategies to support him in various settings. The target behaviors were: to reduce noncompliant, off task, self injurious and aggressive behaviors. Noncompliant behaviors that were targeted were verbal refusal, running away and turning away. Off task behaviors that were targeted were crawling under tables/chairs, running around the room, rolling on the carpet, laying on the carpet and climbing into the cubby. Self injurious behaviors targeted were licking nonfood items, spitting, hitting himself, running into walls, playing with dirty and soiled toilet paper. Aggressive behaviors targeted were ripping up materials, attempting to stab the teacher with a pencil and kicking tables and chairs. Data would be accumulated and monitored. Antecedent variables were identified as transitions, unstructured activities and presentation of demanding tasks. Variables included low frustration tolerance, impulsive responses, attention/concentration, independent work skill and social pragmatics. Consequence variables were avoidance of tasks. He benefits from direct instruction in reading, writing, mathematics, simple problem solving and social skills training. Instruction should be individualized in a manner that was managed, flexible, within small group instruction, with clear and consistent consequences. Areas to be addressed included remedial education, executive function, social pragmatics, speech/Aanguage and grapho-motor skills. Antecedent strategies included carefully modulating academic challenges [ie high interest material, high rate of success between instructional and independent levels]. In the social area, clear establishment of rules with an eye on prevention of problem behavior such as precorrection of problem behavior using positive language. Other strategies included checking for understanding, review of behavioral expectations, providing the child with some control over his schedule, limit tasks with high probability of invoking problem behavior. Using the principle of behavior momentum whereby successful experiences precede difficult tasks, tasks should be of the length where success can be achieved and tasks would have scheduled activity breaks. Consequences for interfering behaviors included the removal of tokens when the behavior persisted. The child’s removal from the location where his behavior becomes aggressive. Use of gestures for minor in appropriate behaviors. [ P-A, T p 1335 ]
On April 19, 2010, the WIAT-Il was conducted. The evaluator noted that the child displayed a variety of inappropriate behaviors throughout the testing [ie banging on the table, picking his nose, writing on the table]. His reading testing indicated inconsistent ability in identifying all the letters of the alphabet; inconsistent in his ability to identify the word that does not rhyme; inconsistent in identifying two words that begin and end with the same sound or blend. He was able to match letters to a sound, but not to blends. His Word Reading score was in the 21st % with a standard score of 88. In mathematics, he was able to identify missing numerals and could write the numeral 3, though not 10. He could count 8 pennies and write the corresponding numerals. His numerical operation score was in the 12th %, with a standard score ofl He was able to use whole numbers to identify quantities, use geometric and spatial reasoning to solve problems. He had difficulty using graphs to make comparisons, draw conclusions, solve money problems, tell time, using time to compare and order events. His reasoning score was in the [ij with a standard score of P| No reliable score was achieved for spelling. [ P-M ] The Behavioral Analyst report dated April 30, 2010 indicated that behavioral plans were implemented, but avoidance of academic work remained. Breaks from instruction outweighed work productions. The child continued to employ self-injurious behavior when the activity was non preferred. However, his cursing had decreased. In the play scenarios, when he was successful, he interacted better with peers, The consultant recommended |iiiprinciples be employed and that he be assigned to a teacher trained in a behavioral approach to teaching. She further recommended home and school communication system in maintaining consistency. [ P-B ]
The teachers and psychologist’s report dated May 19, 2010 reported that the FBA and the BIP were put into place on January 29, 2010. The report indicated, that various medical issues and an initiation of daily hormone therapy may have impacted his behavioral and academic functions negatively. His mood upon arrival at school was dependent on events that occurred before boarding the school bus, events that occurred during the ride to school or events that happened upon arrival. His mood state was critical in his effective engagement in the morning meeting time. Precorrection and warnings before tasks were successful in reducing his impulsive behavior, but despite these behavioral intervention strategies, he was not engaging academically or behaviorally in a manner expected of a kindergarten student. The child’s frequency of engagement in academic activities was limited to self directed activities at self directed times of the day. His behavior was most compliant during mathematics. Socially, he was able to engage his peers in play activities providing they follow his lead. He received social skills counseling, which resulted in an improvement with peer activities but still required adult support and guidance. His inappropriate behaviors revolved around hygiene, turn taking and empathy. It was summarized that the child continued to struggle with accepting limits, rules and routines. He required significant and direct adult facilitation and support in order to comply with academic and social demands. There was no indication that the child engaged in outpatient mental health intervention as per Dr. recommendation during his kindergarten year. [ P-Q, T p 1335 ]
A CSE meeting was held on May 21, 2010. The parent reported that her son had difficulty applying behavioral skills and that the use of growth hormones could be stressful to her son. The school psychologist reported that counseling focused on social and emotional issues. His attempt to manipulate situations, thereby controlling the outcome impacts his learning progress. The behavioral consultant’s report indicated that the current behavioral plan was not working and that a plan using Applied Behavioral Analysis was recommended. The i therapist reported that avoidance behaviors were also observed in the therapy sessions. The therapist reported that when in control, he participated in the activities. The student’s need to control was also noted in his special education class and due to his inappropriate behaviors during the achievement testing, the evaluator could not be assured of the validity of the test scores. His general education teacher also observed avoidance behaviors. He required individualized support to manage routines and focus on directions. She also noted that “he requires a significant amount of attention from others”. [ D- 58 ]
First Grade [2010-2011] [not at issue in this action]
On May 21, 2010, the CSE developed an individualized education program [IEP] and recommended that the child advance to first grade and that his program include a special education class [12:1:1] for language arts and mathematics, 135 min. per day; an GE consuttant, 60 min. per week; counseling 30 min. weekly; 1-1 teacher aide daily; speech/anguage therapy 60 min. weekly in the therapy room and in the classroom; parent training 60 min. monthly; special busing as well as an extended school year program [ESY]
Goals for 1st grade are summarized as follows.
[1] study skills-refocus and attend to activities; follow 1 step directions; follow through with self help activities; smooth class activities transitions. [2] readng-recognize the letters of the alphabet; identify kindergarten sight words; identify the likenesses and differences of sounds in words; be able to sequence a story. [3] writing-write his name; write words and phrases; spell kindergarten sight words. [4] mathematics-identify spoken numbers to 15; read whole numbers to 30; solve single digit addition problems; solve single digit subtraction problems. (S| ET » criorm oral motor movements, perform range of motion of the tongue and jaw; identify temporal concepts; follow multistep directions; recall and comprehend a sequence of events; attend to a speaker’s presentation.
[6] social/emotional/behavioral-identify the emotions of others; participate in group activities; participate cooperatively in associate play; accept and follow rules during group games; decrease playing with mucus behaviors; comply with classroom rules and teacher directives; complete assigned class work; reduce or eliminate atypical/self stimulating behaviors; express displeasure or frustrations verbally rather than withdrawing from activities.
[7] motor-improve fine/grapho-motor skills; improve print writing. [D 58]
In preparation for the 2010-2011 school year, the behavioral specialist prepared the behavioral intervention plan [BIP] for first grade. She testified that she first met the child in the final weeks of his kindergarten year. She conferred with the child’s classroom teacher, the teachers aide and the school psychologist. She reviewed the FBA, which had been completed prior to her arrival. The behaviors she observed included his urinating in a public place, spending a significant amount of time in the bathroom, under tables, under the easel and the cubby. She did not attend any CSE meetings during the kindergarten school year and therefore did not participate in the IEP development. [T pp 1325, 1326 , 1328, 1347] vs the special education first grade teacher, testified that in his special education program there were four kindergarten students and five first grade students. The child was assigned to the first grade mainstream classes. Mainstreamed classes included specials, science, social studies, lunch and recess. The child was also part of a social pragmatics group that focused on turn taking, listening to others in the group and participating in an appropriate manner. The child was also assigned a one to one teacher aide throughout his day and on the bus. His teacher testified that the child’s 90 min. ELA block included a reading and writing block in the Fundations program at the kindergarten level. The Fundations program is based on the Wilson Reading System, a research validated system for phonological/phonemic awareness, phonics and spelling skill development. It was taught in a small group where he read aloud and responded to his reading, Along with Fundations, he had guided reading, writing workshop and reading workshop. When the child entered the first grade, he read at Level A [one word per page] and approximately at the beginning kindergarten level. He knew his letters and most letter sounds. The initial focus was for the child to develop his decoding skills and move towards actual reading skills. In mathematics, he was on grade level. He could compute one step word problems and understood concepts taught [ie place value, money, patterning]. Progress within the mathematics curriculum was depended upon his ability to focus, attend to tasks and control his behavior. In his writing workshop, he could easily come up with a topic to write about when “he was willing”. He had great ideas to write about. Pictorially, he could sequence the beginning, middle and end of a story. The occupational therapist was working with him on spacing and the mechanical part of writing. [P- J, T pp 515,524, 526-527, 541, 546, 563, 565] re a oo the parent maintained a Communications Book on the child’s transition to first grade. September was generally a positive month with the child’s inappropriate behaviors managed within the context of the BIP. For October, the month was described as generally a positive experience for the child, though there was one incident where his behavior was problematic. In that incident, he kicked a glass wail. [D-67] a Behavioral Consultant, reported that the parent had observed that her son’s behaviors had “improved noticeably” and that he was proud of his accomplished schoolwork. The parent also noted that the family had begun counseling and was hopeful that the family dynamics would improve. Ms. EEalso noted that the child’s behaviors had improved significantly since June of 2010. [D 86]
During the month of November, he hit an adult and in another incident refused to listen to his teacher. The parent wrote in the Communications Book that the “family” had a difficult weekend with the oldest son, who was affecting and upsetting his younger brother. The parent reported that her older son was very physical with his brother. She also stated that she had not seen progress after multiple therapy sessions. Despite incidents in school, the staff were able to provide the necessary supports to get him back to his school routine and complete his class work through social skills activities. Also, during this month, he went on a field trip in which he functioned appropriately. [D-67, D-86]
In December, he was quite productive in reading, writing and mathematics, but there were times when he had difficulty settling in to his daily routine. He would use curse words, say negative things about himself and use inappropriate language [ie nipples, humping and raping] Mother corrected the one word as rap not rape. The mother also indicated that those [words] were “not things said in our home” and he was influenced by his brother. She believed that he had figured out how to get attention with [those] words and did not know what they meant. The parent reported that they would again pursue counseling. [D-86, P-H]
The CSE met again on December 22, 2010 to review the child’s progress during the first few months in his first grade placement and as a follow up to the May 21, 2010 CSE meeting Attendees at the CSE meeting included the chairperson, the school psychologist, the special education and general education teachers, the occupational therapist, the behavioral consultant, the «20's and the parent of the child. The parent reported to the CSE that the behavioral supports that have been put in place, had “assisted” her son. He had become a “happy” learner. She reported that her son was being tutored at home, but continued to be concerned about his reading progress. She also reported that her two sons were beginning out patient therapy. Though no evidence was presented at the hearing that out patient therapy ever took place. His classroom teacher reported that, when there was conflict with his brother at home, it often carried over into the classroom. The child's inappropriate behavior took the form of inappropriate language. The special education teacher agreed with the parent that reading continued to be a challenge for the student and this was one of the many challenges impacting his behavior in the classroom. In the mainstream, the general education teacher reported that the child was doing well socially in her setting. Ms. pe Behavioral Consultant reported that the behavioral plan had been fully implemented by the school team and had been extremely beneficial to the student. An ABC [antecedent, behavior & consequences] with a duration and frequency of the patterns of behavior were put in place. The child’s behaviors were more positive. He was using replacement behaviors like asking for help, a break and identifying the difficulties he was experiencing. A recommendation for a reduction in teacher consultation time was made. First quarter notations indicated that the child had progressed on his goals and had achieved specific goals, namely: in recognizing the letters of the alphabet by reciting and naming each letter; writing his first name; indicating how many are ina set up to 15. The CSE recommended the continuation of his current program/services with the change in the staff/consultant’s services time. [D-60, T pp 567, 582, 685-688, 703, 1348-1349]
Notations in the Communications Book for the month of January were essentially positive. His 1-1 reading sessions began in January, 2011 and were in addition to his special class reading program. These sessions focussed on sight vocabulary and targeted skills. He appeared to enjoy those sessions, He displayed some impulsivity when he read, which prevented him from using the reading strategies that he had been taught. It was also noted that objects [toys, pencil case, pens and pencils] brought to school tended to be a distracting influence and caused many problematic issues throughout the day. The parent reported that they had hired a tutor for her son. In the mainstream, he demonstrated appropriate routines. He also became agitated when a birthday celebration came to an end and he had to transition to another class. He used inappropriate language, gestures and was uncooperative, but after given a break, he recovered from the incident and was cooperative and a participating member of the group. [D-86, P-H, T pp 1344, 1356-1357]
Notations in the Communications Book for the month of February were positive both behaviorally and academically. He was picked as the Person of the Week during this month. The parent reported that her older son continued to be aggressive with his brother and caused a bump on his head. The parent was also pursuing a healthy diet for her sons in the hope of reducing their hyperactivity and impulsivity. The child’s bus behavior was potentially dangerous, even with the teacher aide on the bus. This was shared with the parent, who agreed to talk to him. [D-67, D-86] March notations in the Communications Book were mixed with positive academic production in the special class, He was uncooperative and a negative influence on the bus, though some improvement on the bus was noted later in the month.
Progress Report on the child’s IEP goals dated March 1, 2011 indicated that he achieved [A] the following:
attend to and follow one step directions [30 %] sit and take turns talking at circle time [380 %] reciting and naming each letter of the alphabet [50 %] write his name [40 %] write words, phrases, captions or labels to describe a picture story [40 %] indicate how many are in a set of 15 [50 %] solve single digit addition problems [30 %] solve one digit subtraction problems [S80 %l] correctly identify other peoples emotions [75 %] participate in a small group activities with an adult [40 %] decrease playing with mucus [40%] [D-75] Formal testing for reading and mathematics was completed on March 3, 2011 and March 10, 2011, respectively. On the Stanford Diagnostic Math Test on Concepts and Applications, the child scored in the 12 %, 3rd Stanine, which was in the range. On the Woodcock Reading Mastery Test for word identification, the child’s standard scored po in the below average range; for word attack the child’s standard score was [Min the below average range; for passage comprehension, the child’s standard score was P| in the below average range. His classroom teacher, Ms. GR testified that standardized tests were a grueling process for the child and they do not reflect the progress he had shown in the classroom. For this child, achieving accurate results on standardized tests were limited and an anomaly. The parent reported to the teacher that she had observed that her son was more available to learn. [D-3, T pp 702-703, 708]
On March 22, 2011, the occupational therapist prepared a progress report. In her report, she indicated that the child received occupational therapy twice a week. She reported that he had transitioned “nicely” to first grade. Had made some positive gains in the grapho-motor area. His progress in this area was intimately tied to his ability to regulate himself and attend to any grapho-motor task. He continued to require adult support to accomplish writing and drawing tasks. [D-1]
His special education and general education teachers reported on March 22, 2013, that the child’s phonological awareness improved in his ability to rhyme, blend and segment words. Decoding had improved with simple texts using simple CVC words. He had increased his sight word vocabulary and was gaining confidence as a reader. He read simple text repeatedly to increase his speed and accuracy. When read to, he “easily answers explicit and implicit comprehension questions”. The child could write a simple story with a beginning, middle and end. He had begun to utilize punctuation marks and upper and lower case letter “a bit more independently”. He had improved his ability to use lines and spacing when writing. He was able to spell some sight words from memory. He could “easily” compute basic mathematical problems accurately. He understood patterning, money, time to the hour and could interpret graphs. When focused, he could soive one step problems. He had begun to show more pride in his work. When focused and willing, the child could follow single and multi-step directions. He looked to adults to help him process and discuss change and disappointments. When not distracted, he could “easily” unpack and pack his belongings. When there was a topic of interest, he would “eagerly” participated in class discussions. He could express his needs and wants using expressive language. Socially, the child got along well with his peers. He could initiate play activities and participate in conversations . He was described as “kind and loving” with adults. He was capable of following the school’s routines, but preferred the unstructured part of the day [ie recess]. He was able to take turns and follow the basic rules of the game type activities.
The child’s needs in the academic achievement areas persisted. They were: to be more consistent in the use of taught strategies in decoding; to increase his sight vocabulary and vocal fluency; to rely less on pictures as aids to improve his reading comprehension and his understanding of the text. Where in the past, written expression primarily focused on getting his ideas down on paper and not the mechanics of writing, he now needed to use correct punctuation. Additionally, he needed to utilize new spelling words in his writing. Penmanship remained a difficult task and required reminders to properly line space his letters. I[n mathematics, he would often guess at an answer in an impulsive manner, even with mathematical skills known to him. His impulsiveness often led to careless errors and needed to be in better control. This was prevalent when solving word problems. He had yet to master the concept of a double. He was concerned about his progress and was aware of other students’ progress. This would affect his attitude towards peers. Adult relationship also hinged on the challenging academics presented to him. When he got frustrated, he would demean himself [ie calling himself stupid] or remove himself from the group. If the schedule was changed without warning, he would act out or remove himself from the activity. He responded to a clear concise and consistent behavior plan in which he could work toward a reward he desired. Management wise, he could follow single and multiple directions, When interested, he could focus and participate in class discussions. He had begun to express his feelings in words rather than behave inappropriately. He needed to adapt to changes in routine and disappointments. His needs were in his own internal and external distractions. He would get off task. On occasion, would act out by leaving the group or when finding the content too challenging. [D -2]
In March 2011, parent communicated to Ms. Varsames, that she was focusing on setting up a calm environment at home using the strategies they had previously discussed. Also discussed was a school/nome behavioral plan for the bus. Increased 1:1 academic instruction was proving to be beneficial in his sight vocabulary and decoding skills. In mathematics, he continued to do well. A review of his productivity in the mainstream would take place in April. [D-86, P-H]
ABB report developed on April 1, 2011 indicated that he had shown growth in his ability to perform repetitive and alternating lingual movements. Those movements could become imprecise when he speeded up his speech rate and not carried over to spontaneous speech. He had the ability to perform dissociated movements of the tongue and jaw,. He could identify and use temporal concepts, but when it was embedded in a verbal direction, he could have difficulty. He could follow oral multistep directions; be a self advocate; recall and comprehend a sequence of events presented to him orally and in short paragraph form. He tended to lose focus when others were speaking. Factors continuing to impede his progress were oral motor skills, understanding temporal concepts, listening skills and conversational skills. [D-4]
April notations in the Communications Book indicated for the most part, that he was productive in his school work. There were days after the school vacation when he came into school upset and refused to talk about what was troubling him or what had occurred at home. In the mainstream, he participated and attended to story time, but he found it difficult to remain in his class when there was a writing activity. His schedule was adjusted by allowing him to return to his special education class for reading instruction. Behaviorally, he had made progress in his regulation in the academic areas, but continued to be problematic on the bus. New strategies would be put in place to address his inappropriate behaviors. [D-86_PThe Group report dated April 6, 2011 indicated that the focus of the group counseling was to learn to cope with conflicts, learn to compromise, learn to deal with feelings and learn to be cooperative in group settings [ie taking turns, sharing materials]. He had shown growth in his ability to play with others cooperatively and to be more tolerant. His difficulty persisted when he would lose in game situations. The counselor’s recommendation was to continue to provide guidance on his application of socially accepted behaviors [ ie being aware of other students feelings and the appropriate responses in those situations]. [D-5]
During the month of May, it was noted in the Communications Book that the child often came to school upset. He was in a very emotional state, but there were no communications from home as to why he was upset. He expressed lots of anger towards his brother and himself. He would be crying, acting out, used negative self talk [“] hate myself, kill myself.”], throwing things, yelling at everyone. In school, there did not appear to be antecedents in particular that were setting him off. It was not known what occurred over the weekend, but the net result was he had a “rough week” in school. The parent offered to reward him with $ 1.00 a day for being good at school. The staff felt that particular reward would bring about greater anxiety. The teacher concluded that what upset the child was not his school work, but issues that were occurring at home and overlapping to school environment. The parent reported that nothing had changed [at home] to warrant the school behavior other than to state that his brother was going away to boarding school in September. vs ME informe the parent that her son believed that his brother was “being put away”, meaning going to jail. [D-67, 86, P-H]
Notations in the Communication Book for the month of June indicated that the child continued to show inappropriate behaviors in both the special education and mainstream classroom. He would cry, destroy his work assignments, climbed on furniture and refused to work. The parent indicated that she would explore medication for ADHD over the summer. [P-H, T pp 582, 685-686, 687-688, 737, 767, 770, 788, 796]
Ms EE surmarizea the child’s grade experience in the following way. By the end of first grade, he had mastered the kindergarten Fundations program in guided reading, he was at Level D, which included more text and demanded more comprehension. He had gained confidence as a reader, he increased his sight vocabulary, he could rhyme phonetically, blend and segment words, he was comfortable with CVC words, read texts repeatedly to increase his fluency and was confident in explicit comprehension. In mathematics, he was on grade level. He showed progress in his written expression. He could come up with topics to write about and could sequence his ideas. He could read and spell instructional sight words. She concluded that based on parental input, previous records, previous team information, he had shown much progress between the beginning of the year to the end of the year. She further testified that she never expected him to be on the first grade reading level by the end of the year. She also believed that outside influences, unrelated to the demands of the curriculum, affected his behavior and progress in school. Some of them related to his relationship with his brother. Some of them were related to his lack of flexibility, others had to do with the lack of timely medical and psychological interventions on the part of the family. She also believed that a child with learning disabilities does not act inappropriately in the manner he was demonstrating to the frustrations he was experiencing. The CSE’s recommendation to promote the child to 2nd grade was the best course of action because of the involvement of the parent, the possible referrals to the pediatrician involving the exploration of medication for and GR th crapy, the commitment of the school team and finally the inappropriate relationship the child had with his older brother would hopefully be resolved by his brother being placed in a boarding school, it was believed that all of these factors should help the child be ready to get back on track and continue his educational achievement. [D-67, P-N, T pp 530-531, 546, 554, 559, 563, 569, 570 ,582, 593-595 611-612, 687-688, 696 710, 773, 1331-1332, 1365-1366, 1367-1368, 1378-1391 ,1622, 1629]
Second grade [2011-2012] [the year at issue]
On April 6, 2011, a subcommittee on special education met to ve the IEP for the 2011-2012 school year. The attendees included Ms. chairperson, Ms. I psychologist, Ms. special education teacher, Ms. yeneral education teacher, Ms occupational therapist, Ms. en Nerapist, Ms. behavioral consultant, Ms. [IEP consultant and the parent.
The evaluations and reports included the GE progress report, i cport, MM therapy progress summary, educational progress report, test results from the Woodcock Reading Mastery test and the Stanford Diagnostic Math test.
The current first grade placement was special classes for language arts and mathematics, mainstream for science, social studies, specials, lunch and recess. Related services include a 1-1 teacher aide, therapy, ET therapy, SE parent training.
Summary of the CSE minutes included a report from the special education teacher that the attentional issues were negatively impacting his academic progress. The general education teacher reported that the child was very social and got along with all his classmates, however, he was unwilling to take academic risks and avoids class work that he does not like to do. The parent reported that she continued to have concerns about the son’s progress in reading and writing. He continued to be behind grade level in both areas. She request additional individual special education teacher support in reading and writing. The psychologist reported that the child had shown growth in his ability to play with other children. He had improved in turn taking during activities and was more effectively using self soothing techniques when he was upset. The speech/language therapist reported that he worked “hard” to improve his oral motor skills, and was learning to find the right times to interject his thoughts in conversations The occupational therapist reported that he had made improvements in the grapho-motor area, but continued to have difficulty focusing even in a 1-1 setting. Based on the information presented at the meeting, the CSE members recommended that the current classification continue, that he be promoted to second grade, in a special education class for language arts and mathematics in a 12:1:1 setting for
135 min., speech/language group [5:1] and individual [3:1] for 60 min. respectively, occupational therapy [2:1] 60 min., counseling group [5:1] 30 min., school consult 60 min. alternate months, parent training 60 min. alternate months and a teacher aide [1:1] 5 hrs daily. Also determined at the meeting was to conduct the triennial reevaluation. Included in the reevaluation would be a psychological evaluation, an educational evaluation, classroom observation, updated social history, updated physical examination, adaptive behavior assessment and a teacher report. [D-9, 10, 61, P-8]
Special alerts on the IEP included medication for breathing and lung function, which may cause distractibility as well as the diagnosis of Duane’s syndrome, which affects his vision.
Academic achievement, functional performance and learning characteristics, one of the four criteria, indicated that the child cognitive functioning was within the low average range, but was viewed to be a minimal estimate of his ability due to his inattentiveness and impulsiveness. His academic performance in the reading area indicated that decoding continued to be difficult when the text increased in difficulty and when he did not apply learned strategies; more progress was needed with sight word vocabulary and was impacted with his unwillingness to participate; overall fluency needed to improve; comprehension skills were affected by his weak decoding skills. In the writing areas, he needed assistance in organizing his ideas and applying the correct punctuation. In the area of mathematic computations, he knew basic addition and subtraction rules, but his impulsiveness affected his accuracy. Mathematical concepts were affected by his inability to stay focused on the task at hand. His problem solving skills benefited from adult support and positive reinforcement to keep him on task. CO indicated that he could perform repetitive and alternating lingual movements. His ability to follow multi-step verbal directions had improved as had his ability to recall and comprehend a sequence of events.
The child was inconsistent in his social development with both peers and adults and was affected by the nature of the activity and the challenge it presented. His interactive behaviors ranged from appropriate to inappropriate with peers and adults.
The child's physical development was impacted by multitude of medical issues ranging from his pulmonary and opthamological needs. Medications depended upon for his health could had the effect of over stimulating him. Grapho-motor tasks continued to challenge him, but were necessary in all his writing and drawing activities. Gross motor abilities were age appropriate.
Management needs were impacted by his short attention span, his ability to cope with transitions and inconsistent organizational skills.
Measurable annual goals are summarized as follows:
Study Skillswill attend to seat work activities without distraction [60 %] will attend to a task without distraction in a small group [60 %l] will attend to a task without distraction to class lessons [50 %] if distracted will refocus to an assigned activity [60 %] at the beginning and end of the day will attend to self help activities [70 %] will clean up materials at the end of each activity and the end of the day [50 %| will take turns talking during group activities [65 %] will transition between activities [60 %] Readingwill identify and use first grade sight words [60 %] will identify the likeness/differences of sounds in words [60 %l] will pronounce short vowels in CVC words [65 %]
will write words, phrases, captions or label to describe pictures, drawings and stories [60 %] will spell basic sight words at the first grade level [60 %] Mathematicswill read whole numbers up to 30 [60 %] will imitate isolated, repetitive and alternating lingual movements in the oral motor area [80 %] will perform dissociated movements of the tongue/jaw [80 %] will identify and use temporal concepts [75 %] will follow multistep directions presented orally [75 %l will recall/comprehend a sequence of events presented [70 %] will attend to verbal exchanges [75 %] Social/Emotional/Behavioral will participate in large group activities [60 %] will express his feelings in an appropriate manner [55 %!] will participate in small group activities [70 %] will accept and follow rules in games [70 %] will comply with classroom rules/directives [60 %] will complete assigned class work [60 %] will reduce withdrawing from the task, when displease, [60 %] Motor will exercise precision in fine motor tasks [3/5 trials] using upper/lower letters, will use them in a sentence [75 %]
Reporting the progress on the child's annual goals to parent will occur three times a year. Modifications/Accommodations refocusing and redirection positive reinforcement plan directions repeated check for understanding reteaching of materials directions read and explained social skills training [1 x per week for 30 min.]
Other school personnel supports
Behavioral intervention consultation for the team and parent training [1 x per alternating months for 60 min.]
Special transportation accommodations inciuded a bus attendant.
Discussion
Statutory Background and the Substantive Adequacy of the IEP
Under Rowley, a school district complies with IDEA’s substantive requirements if a student’s IEP is “reasonably calculated to enable the child to receive educational benefit[s].“ * 195 Rowley, 458 U. S. at 201, 102 S.Ct.
3034. A school district is not, however, required to furnish “every special service necessary to maximize each handicapped child’s potential.” id at 199, 102 S. Ct. 3034; see Carlisle Area Ach. v School P., 62 F. 3d 520, 534 [3d Cir. 1995] [school districts “need not provide the optimal level of services, or even a level that would confer additional benefits, since the lEP required by IDEA represent only a ‘base floor of opportunity’] [quoting Rowley, 458 U.S. at 201, 102 S. Ct. 3034] citing in Walczak, 142 F.3d at 132. Rather, a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression,” and if the IEP affords the student with an opportunity greater than mere “trivial advancement.” Walczak, 142 F.3d at 130 [quotations omitted].
A FAPE is offered to a student when [a] the board of education complies with the procedural requirement set forth in the IDEA, and [b] the IEP developed by the CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F. 3rd 186,192 [2nd Cir. 2005] ] While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [A.C. v. Bd. of Education., 553 F. 3rd. 165, 172 [2nd Cir. 2009; Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381[2nd Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb 9, 2007] ] Under IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive FAPE only if the procedural inadequacies [a] impeded the student’s right to a FAPE. [b] significantly impede the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or [c] caused a deprivation of educational benefits [20 U.S.C. 1415 [f] [3] [E] [iii]; 34 C.F.R. 300.513 [a] [2]; 8 NYCRR 200.5 [j] [4] [ti]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE [20 U.S. C. 1415 [f] [3] [E] [i]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [Rowley, 458 U.S. at 203]. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through the IEP” [Walczak v. Florida Union Free Sch. Dist. 142 F. 3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189]. The statue ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” [Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore, 873 F.2d 563,567 [2d Cir. 1989]; see Gim 346 F.3d at 379. Additionally, school districts are not required to “maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d. at 132]. Nonetheless, a school district must provide “an JEP that Is “likely to produce progress, not regression”, and....affords the student with an opportunity greater than mere trivial advancement” [Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see P. v. Newington Bd. of Education, 546 F.3d 111,118-119 [2d Cir. 2008]; Perricelli, 2007 WL 465211,at * 15]. The IEP must “reasonably calculated to provide some “meaningful benefit” [Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192]. The student’s recommended program must also be provided in the least restrictive environment [LRE] [20 U.S.C. 1412 [a] [5] [A]; 34 C.F.R. 300.114 [a] [2] [i], 300.116 [a] [2]; 8 NYCRR 200.1 [cc], 200.6 [a] [1]; see Newington, 546 F. 3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs [34 C.F.R. 300.220 [a] [1]; 8 NYCRR 200.4 [qd] [2] [i], establishes annual goals related to those needs [34 C.F.R. 300.320 [a] [2]; 8 NYCRR 200.4 [d]
[2] [iii], and provides for the use of appropriate special education services [34 C.F.R. 300.320 [a] [4]: 8 NYCRR 200.4 [d] [2] [v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented [8 NYCRR 200.4 [e] [7]
As previously, stated, the reading system used was Fundations, a Wilson Language Program K-3 and meets the Common Core State Standards [CCSS] in reading, writing, speaking, listening and language. Upon entry into first grade, the child was taught Fundations at the kindergarten level [Level A]. He knew his letters and most letter sounds consistently. His program included reading aloud, reading responses, small group guided reading, writing workshop and reading workshop. The child had mastered the kindergarten Fundations program and in guided reading was at level D. Level D required reading of more text and a greater demand in comprehension and an increase in sight vocabulary. The child’s special education teacher testified that Fundations program was appropriate for the child. He was achieving all the Fundations language arts lessons. He was generally viewed to be at grade level in the mathematics mainstream program. Formal test results were inconsistent and depended on the child’s emotional state at the time of the testing, therefore unreliable. Despite that, the child gained a year In a year in reading, but remained a year behind his second grade peers. | view this progress to be more than “mere trivial advancement’. [See Cerra, T pp 524-525, 530-531, 546, 653, 726, 792]
The child’s social development was related to the degree and quality of his relationships with peers and adults, his self esteem and his social adjustment to his school and community. Much of what occurred in school was dependent on the challenges or stresses he felt with the curriculum such as his writing activities or conflicts at home that carried over into the classroom. The nature of the behaviors varied and were generally managed by the staff within the context of the school day and with implementation of the behavioral intervention plan. The conflicts at home between the older brother and the child were either shared by the parent through the parent training log, the communications book or by the child. His outbursts in the classroom or on the bus could take the form of aggressive behavior to an adult, refusing to work, using inappropriate language, distracted by objects he brought to school or kicking a wall. These outbursts had no antecedents and could occur at any time in the day, during any class activity or on the bus. The last two months of the school year were especially difficult for the child. It was about that time, it was reported that his older brother would be going to a residential school in September. His emotional outbursts took the form of crying, acting out, cursing, climbing on the furniture and negative self talk [ie | hate myself, kill myself]. When these events were occurring in school and were reported to the parent, there was no information provided by the parent that would explain her son’s repeated outbursts. It was clear that the child did not possess the means to self regulate his behavior when he felt stressed and chose a wide range of acting out behaviors. The information communicated to the parent through the communications book month by month of the child’s stresses during first grade did not facilitate the child being provided with outpatient therapy [play therapy] to address the stresses as had been recommended on January 8, 2010 by Dr. Sokal, school psychiatrist.
Despite the periods of the child’s inappropriate behaviors, the team believed that based on his academic achievement in reading and mathematics as well as his progress in the behavioral realm over the majority of the months in first grade, namely a reduction in inappropriate behaviors, he would be promoted to second grade with a special education program and related services. The team also felt that with the mother’s involvement and the possibility of a referral for outpatient therapy and medication management that his anxiety and stresses would be reduced [T pp 561, 572-573, 582, 602, 611-613, 628-629, 636, 679-680,685-688, 735-737, 773, 796, 1384]
The child’s second grade special education program began in the mainstream for approximately 20 minutes, then returning to his special education for ninety minutes. There were four students in his ELA class. The Fundations program included reading group, reading centers and writing. He was placed at the beginning of the first grade in the Fundations program. At 11:00 AM, he returned to the mainstream for snack, group reading or attending his program with the related service providers [ie. 3}<2py 0 therapy). At 11:45 AM, he participated in various specials [ie physical education, music, library and art]. Lunch and recess followed from 12:30 PM till 1:20 PM. His mathematics bloc began at 1:20 PM and concluded at 2:15, at which time he returned to the mainstream classes for social studies and science. Four adults were in attendance for science and social studies classes. One of the adults was a teacher aide who was assigned to the child throughout his day. His schedule changed in October whereby he was provided with one to one special education reading instruction at the 2:15 schedule time. This was agreed to by the parent. [T pp 828, 835-836, 898-899]
An _ informal developmental reading assessment [DRA] was conducted in September. The DRA assesses a child’s decoding and comprehension skills. The child’s frustration level was DRA Level 3, the beginning of first grade, end of kindergarten. His teacher testified that the child was comfortable with the Fundations program. She described the program as multi sensory for reading, writing and spelling [ie tapping, auditory, visual, manipulations] The other students in his Fundations group were all at the first grade level. The DRA was used throughout the year as well the Unit Fundations assessments. The latter included assessing letter sounds, letter clusters, applying words to spelling, use of words In writing a sentence and dictation. [T pp 840, 842-3, 845, 848]
His mathematics program was Growing With Math, a second grade program used by the District for all its students. His teacher testified that he was on grade level [2nd grade]. For example, during the months of September and October, he achieved 93 % and 88 % respectively on the unit tests. She further testified that the child understood mathematical concepts covered, that he liked mathematics and felt good about his achievement in mathematics. [T pp 887-889, 895]
During the first two weeks of the school year, though his behavior was somewhat inconsistent, his teacher testified he transitioned well to second grade. During the second and third week of school his behavior changed. He was easily agitated, lying on the carpet, going to his cubby, negative self talk, inappropriate language, bathroom talk, banging his head and in one incident, he kicked his aide. These behaviors could occur throughout the day, in the classroom, at lunch, specials, recess or walking in the hall. The behavioral plan to address these behaviors was a token system, rewarding positive behaviors. The behavioral plan worked inconsistently and triggers were not always clear, including when he came off the bus. Behavior on the bus was erratic, not sitting on the bus seat, moving about while the bus was in motion. Where the behavioral plan worked in first grade, it was not working in the early part of second grade. The behavioral consultant directed the staff to collect data for a week to ascertain what was occurring at the time of the behavior, their duration and where it occurred, the child’s response to consequences and the intensity of the behavior. There were 32 incidents whose duration lasted from a few seconds to 35 minutes. Most incidents lasted under five minutes. The staff were directed to document the time period the child refused to participate in his curriculum. The goal was to get him to work for 5 to 15 minutes. After the completion of he behavioral intervention plan [BIP], a copy was shared with the family. In addition to the BIP, on or about October 18, 2013, a safety plan was also developed because of the increase in intensity of his self injurious behaviors, inappropriate behaviors and his refusal to work [ie. “I am just going to keep walking straight into the glass window and knock my teeth out and throw them at people I do not like’, “I learned from my brother because he beats me up. My brother is a pig, | miss him’]. The parent also reported that her son was on Adderal for about two weeks and it was not working and was to confer with his pediatrician. [D-12, D-77, D-78, D-84, D-88, P-I, P-T, T pp 902-4, 912, 915-916, 1328-1329, 1387]
The parents did not agree to the implementation of the safety plan which would have involved them directly by picking up their son when his behavior became unmanageable or the behavior was aggressive. The parent requested home schooling. The District responded to the request for home schooling by scheduling a CSE meeting. [D-12, D13, D-15, D-71, D-78, T pp 924-926]
On October 17, 2011, the District sent a Prior Written Notice to the parent proposing reevaluations and a request for consent. The evaluations would include a psychological evaluation, and educational assessment, a social history, a physical examination and other evaluations presented to the CSE. It was noted that Procedural Safeguards had been received by the parent previously. [D-9, D-10]
On October 21, 2011, a CSE meeting notice was sent to the parent indicating that the meeting would be held on October 28, 2011 and it would be a program review. Expected to attend would be the chairperson, the school psychologist, the special education and general education teachers, the ]iinerapist, the iy therapist, the behavioral consultant and a parent member [which the parent declined]. The parent would have the right to invite a person to the CSE who has knowledge of students with disabilities. [34 CFR 300.503] The District also forwarded a letter to the parent indicating the matter of home schooling would be addressed at the CSE meeting. Currently, the child’s behavior was being managed in the current setting, suggesting that there was no immediate danger of the child hurting himself. [D-13, D-14, D-55]
The CSE met on October 28, 2011 to review the child’s current educational program, the BIP, ISP and to address the parents concerns. In attendance were the parent and her advocate, chairperson of the CSE, the school psychologist, the special education and general education teachers, the _ and ER therapist and the behavioral consultant. The parent provided the CSE with a list of evaluations that would be privately conducted in addition to those assessments there would be assessments conducted by the teacher and the related service providers. The parent indicated at the meeting that the learning struggles and lack of progress [ie. reading] continued to contribute to her son’s behaviors. She further indicated that he did well with his private tutor and can sit for lengthy sessions. She further indicated that her son’s medication had been raised and he appeared more cooperative and focused [at home]. The chairperson requested that the parent share information with the district of the child’s medication management. The school psychologist reviewed the FBA, BIP, ISP and indicated that the child’s behaviors remained inconsistent in the current school environment despite the support of a one to one teacher aide. She indicated that the ISP was developed in case an emergency arose whereby the child could cause harm or harm himself. To date the ISP had not been required. The general education teacher reported that the child often was unwilling to participate in the general education setting. The parent’s advocate indicated that there did appear to be no real pattern to target the FBA behaviors and that his current learning was being compromised at this time. The CSE recommended a complete reevaluation, which would also include a psychiatric. examination. Added to the child’s program was a one to one reading instruction. This schedule change would affect his mainstream science and social studies classes and begin November 4, 2011 and was agreed to by the parent. Therapeutic programs to be explored included JBOCES, I BOCES, i PEE and a program that the parent’s advocate recommended in the MMS chool District. The child would remain in his current placement in the interim. Consent was granted by the parent on October 22, 2011. [384 CFR 300.300] The district notified the parent summarizing the school referral and that the psychiatric examination would be conducted by Dr. Mboces psychiatrist.
[D-15, D-16, D-18, D-20, D-45, D-65, P-I, D-78]
A review of the log maintained by his special education teacher and the communications book indicated that they were not compatible. It was not clear why they weren’t compatible other to recognize that the decision was made by the teacher not to include all the behaviors in the parent communications. A review of the communications book, of the approximate 55 entries to the parent, the number days where there were some disruption in the child’s day due to his inappropriate behaviors, approximately 19 entries were made and stated: his refusing to do his assigned work, using inappropriate language, aggressiveness to his teacher aide or another student, his comments about his brother, walking into walls, throwing objects in the classroom or banging his head on a table. In the teacher’s log there were more explicit comments of a sexual nature or of a threatening nature to himself and others. His special education teacher testified that his behaviors happened throughout the day, in every part of the curriculum, lunch, in the hall and in the non academic part of his program. She also testified that in early October the child’s medication was changed due to the severity of his reaction to the trial. His teacher further testified that he appeared less agitated on the and was able to be more productive in class though his inappropriate behaviors did not cease. [D-84, P-l, T pp 931-932, 934-935, 936-937]
As previously stated, the child was assessed on the DRA at Level 3 at the beginning of the school year, which was at the end of kindergarten or the beginning of first grade. By April 23, 2012, his decoding was at level 10 [instructional], but his comprehension was in the independent level. He finished the year reading at Level 12 at an independent level with Level 13/14 at the instructional level. From his words list, he could read CVC words [69/80], blends/digraph [14/20], suffix-s [15/20] and words with glued sounds [16/20]. He had increased his sight vocabulary [70/84] and was able to apply them to his reading. His phonetic application had improved when applying it to simple text. He would confuse words that were visually similar. On the Oral Reading Fluency WIAT-III, he testec I SS and 27 % [1st grade] andMBS and the 5th % [2nd grade]. On the WIAT-III, on Early Reading Skills, the child's Predicted score wasfand his Actual score was I on Word Reading, his Predicted score was and his Actual score was on Pseudoword Decoding his Predicted score was fg and his Actual score was S| on Spelling his Predicted score wasI—Rnd his Actual Score was Hand finally on his Basic Reading his Predicted score was and his actual score was fhe results of the WIAT-II were based on a scaled score predicted, statistically, from the FSIQ and PRI. [D-28, D31, D 43, D-83, T pp 975-976, 1000-1001, 1068, 1074]
His mathematics skills were at grade level using the general education mathematic curriculum. Unit assessments % correct were as follows: Unit 1-two digit numbers, place value- 93 %
Unit 2 plus and minus strategies,fact families- 88 %
Unit 4- skip counting, computation to 100- 100 %
Unit 5- double digit, plus and minus strategies- 85 %
Unit 6- money, time data- 100 %
Unit 8- place value to 1,000- 57 % *
* Child had a very difficulty day, according to his teacher.
He understood all concepts covered in mathematics. He needed support in the application of strategies to solve problems. On the WIAT-III Math Problems Solving, the Child’s Predicted score wasfland the Actual score was i on the Numerical Operations, the Predicted score was i and the Actual score was i and finally, his Mathematics Predicted score was 90 and the Actual score was 78. The results are based on the scaled score predicted, statically from the FSIQ and PRI. [D-28, D31, T pp 1010, 1013]
His special education teacher charted the amount of time the child missed instruction and testified that it was approximately a total of 76 hours in the course of his year. The bulk of missed time occurred in October, November and December and lessened during the months of April, May and June. [D- 45]
Decision [2011-2012 School year]
Compensatory award to the Petitioner can only be awarded if the district failed to provide a FAPE during the year in question and any award would be limited to the education that was available directly within the schoo! districts curriculum and the harm a student incurred. A district that is defending against such an award can argue that a parent must present evidence specifically linking the type of relief sought and the type of harm the student suffered. Stanton ex rel. K.T. v. District of Columbia, 53 IDELR 314 [D.D.C 2010], Gill ex rel. W.G. v. District of Columbia, 56 IDELR 129 [D.D.C 2011] [Brownsville Area Sch. Dist. 30 IDELR 866 [comm. Ct. PA 1999]|
The District’s [EP must satisfy the procedural and substantive requirements of IDEA. To determine what services are appropriate, an IEP must be developed by the members of the CSE, which includes the parent, a special education and general education teachers, a representative from the local educational agency and persons having knowledge or special expertise regarding the student, including related services personnel as appropriate [as the district or the parent shall designate]. Develops an IEP that includes a statement of the child’s present levels of academic achievement [educational evaluations and assessments] and functional performance; goals were set to help the child overcome his educational weakness; a description of how the child’s progress toward meeting the annual goals with periodic reports on the progress the child is making; a statement of special education and related services and supplementary aids and services; based on peer-review research to the extent practical and the extent the child shall participate with nondisabled peers in regular education [LRE]. [CR Part 200.3 [a], } [Board of Education v. Rowley, 458
U.S. 176, [1982] [CFR 300.320]
The petitioner argues that the 2011-2012 IEP was inappropriate due to the child’s learning disability which had an adverse impact on his education and his social/ emotional well being. She further contended that the BIP was based on the District’s failure to conduct an appropriate FBA. She argued that an appropriate FBA was based on multi source data, direct observation of the student, information from the student’s teacher and related service providers and relevant information provided by the parent. In this instance, the parent lacked participation in the development of the BIP before it was put in place. Any data collected was insufficient to form a hypothesis. The ABC chart used to collect data for one week was not consistently filled in and that data was not collected data at lunch and recess.
GE the District’s behavioral consultant reviewed the FBA that had been developed, observed the child in the classroom, in the mainstream and at lunch and in the building and provided consultation/training to the “team” and to the parent. The BIP developed in first grade, she testified, had the targeted behaviors and antecedents that were the same that she had observed There were ongoing communications between the parent and the consultant concerning information about the inappropriateness of her son’s behaviors in school or on the bus. These serious inappropriate behaviors would need to be addressed. To minimize inappropriate behaviors, a one to one teacher aide would continue to be assigned to him and the support of four staff members would continue in the mainstream. The supports put in place were consistent with the federal and State regulations. The parent and the staff all agreed these were appropriate recommendations. [CFR 300.320 [4], [5], CR Part 200.4 [2] [v] [4], D-16, T pp 1325, 1327, 1328-1329, 1347. 1351, 1355-1357, 1365-1366, 1367-1368, 1384]
The teacher testified that at the beginning of second grade, there were factors in school and at home that were interfering with the child's ability to cope in the school environment. He did not possess the appropriate mechanism to respond appropriately to the challenges that he faced. ae |. behavioral consultant directed the teachers to collect data on the behavior, when it occurred, where it occurred, the child’s response, consequences, follow up and the intensity of the behavior. The data was collected from September 19 to September 23 and showed 32 incidents whose duration was from a few seconds to 35 minutes, with most under five minutes. [T pp 900-901, 909, 912, 915-916]
The Regulations of the Commissioner of Education defines a FBA to mean the process of determining why the student engages in behaviors that impede learning and how the student’s behavior relates to the environment. [Sec 200.1 [r]]
The results of the data collection by the child’s teachers was for the purpose of determining the need for a revised behavior plan [BIP]. The observations occurred in the special education class, the mainstream and lunch. The record confirms that the data collected was made by direct observation of the student and information was provided by the child’s teachers, but did not include the child’s parent. from the onset when the data was collected. There was testimony on the record that the BIP was shared with the parent. This omission is a procedural violation if the Child’s is denied a FAPE. This is not the case in this instances, because despite the child’s inappropriate behaviors, he continued to make progress academically as the shows both in reading and mathematics. [see Grim, CR Pat 200.22 [a], T p p 919-920]
Assessment of the child’s interfering behaviors were listed as:
refusing to participate laying down on the floor and ignoring teacher requests throwing items in the room and at his teacher going to sit inside his cubby crawling on the floor destroying his work/breaking pencils jumping on chairs/laying upside down in chairs making inappropriate statements in class, including sexually inappropriate comments Target behaviors and goals using a token reinforce system: child will complete an activity or task child will appropriately navigate his environment, while reducing inappropriate behaviors and demonstrating safety behaviors child will follow teacher directions child will request help or ask for a break when the task seems to demanding or challenging Antecedent management considers the token rewards should be utilized for appropriate on task behaviors the token system should be use for “not losing” the reward so as to gain access to an end of day reward the child would have a wait time activity folder for choosing a wait time activity catch the child being good allow flexible position during rug time give frequent breaks when necessary Consequence management: denying of a reward for inappropriate behavior use of planned ignoring for low intensity and attentions seeking behavior
Staff will document time periods of curriculum participation refusal. The plan should be reviewed by all staff and caregivers to that everyone is knowledgeable of its contents.[ D-77, T p 1607]
The District’s BIP was based on a FBA, which provided a description of the problem behavior, it was understood as to why the problem behavior occurred, namely transitions between activities, attentional issues, impulsively and writing and did provide intervention strategies that included behavioral supports and services to address the behavior.
The parent believed that the child’s learning disabilities were causal to his inappropriate behaviors, however the staff found no specific correlation to indicate that they were. The parent had on a number of occasions suggested the Orton/Gillingham program be used for her son and was reiterated in the parents representative’s brief. District’s are not required to use a specific educational methodology merely because a parent prefers it. Districts must be open to considering other techniques, but generally may choose any methodology that meets the student’s unique needs. When a district offers the student appropriate instruction, it was not required to employ a different instructional approach. The District used the Fundations program, a program based on the principles of Orton-Gillingham methodology to teach reading and writing. A complete review of the record indicated that the child made educational progress when using curriculum bench marks. The District’s argument not to rely entirely on standardized tests was a legitimate argument, given the child’s inconsistent behavior, his “distractibility and impulsive activity...... ... evident” was noted in the private psychological evaluation during specific subtest. As in the details noted in the Factual and Procedural Background and in the Teacher’s Report dated April 20, 2012, the child’s encoding skills showed he possessed knowledge of short vowel sounds, digraph blends, glued sounds [all, am etc.], was able to self correct with adult reminders, though applying skills independently with more automacy was needed. With regards to decoding and comprehension skills, the teacher indicated that the child could read CVC word, blends/digraph and words with glued sounds. His sight vocabulary increased as well as his application to reading of such. His phonetic application to simple text had improved. He still could confuse words that are visually similar. In mathematics, using the second grade general education's curriculum, he was on grade level. She noted that he understood all concepts taught, but still needed support in their application to solve problems. Though exhibiting good sequencing of ideas in writing, the process of the physical writing remained challenging. She also noted that during the period from October to March, his missed instruction time had declined by half. | dismiss the Petitioner’s argument that Orton/Gillingham needs to be the parent’s preferred instructional methodology. [Carlson v. San Diego Unified Sch. Dist., 54 IDELR 213 [9th Cir. 2010]. D.G. by P.O. v. Cooperstown Cent. Sch. Dist., 55 IDELR 155 [N.D.N.Y. 2010, D28, D-31,T p 1618]
The Petitioner argued in her brief that home instruction was not heeded by the District. Home instruction is defined in the CR Part 200. 1[w], 200.6 [i] as special education provided on an individual basis for a student with a disability confined to the home....because of a disability. Furthermore, the CSE determines the instruction and appropriate related
3/7 services in consideration of the student’s unique needs. Its recommendation of such a placement be in the LRE. For elementary students, a minimum of five hours per week, preferably one hour daily. The parent’s request for home instruction came after the development of the October 18, 2011 Safety Intervention Plan. Dr Director notified the parent that the home instruction matter would be discussed at the scheduled October 28, 2011 CSE meeting. The District’s response to the parent’s request for home instruction was consistent with the Regulations and therefore the assertion that that the District did not heed the parent's request is unfounded and therefore dismissed. [D-14]
The Petitioner’s representative argued that the parent was not afforded an opportunity to participate in the decision making process. The record indicated that the parent participated in the CSE meetings held on May 21, 2010, December 22, 2010, April 6, 2011 and October 28, 2011, the latter being where she was accompanied by a Student Advocate. Meeting notes of each CSE meeting included the parents statements at each CSE meeting, The parent did not object to any of the CSE meeting final recommendations, The parent received goal progress reports three times. Was kept apprised of her son’s educational and social/emotional progress through the Communication Book, various E-mails and parent training sessions with vs and va In each of these occasions, she had ample opportunity to communicate her concerns on an ongoing basis. I therefore dismiss the argument that the parent did not have an opportunity to participate in the decision making process at the CSE meetings or at any time during the course of the school year. [CR Part 200.4 [2] [iii] [c], [D-12, D-13, D-14, D-16, D-84, P-I, P-11, T pp 1325-1329, 1303-1306, 1435]
The Petitioner indicated in her brief that the child “did not exhibit extreme behaviors at home”. Testimony on the record from Ms. P| Ms. S| and Ms. P| the child and the parent’s notations in Communication Book, referred to the child inappropriate behaviors at home. For example, the oldest son’s aggressive behavior towards the child, where he received a bump on his head; the child’s observation of an altercation between the father and the older brother; the child throwing an object at a television set; aggressive behavior between the boys causing the child to be hurt; conflicts arising in the family automobile; the child’s statement that he made his tutor cry and drove her away and that he hated her. I do not agree with the Petitioner's statement that inappropriate behaviors have only occurred in school and not did not occur in the home. Inappropriate behaviors occurred in both settings The Petitioner’s allegation are inaccurate. [D-84, T pp 1088, 1367-1368, 1378-1379, 1303-1304,1713, 1964, 2611-2614, 2640]
Th evaluation process established and agreed upon at the October 28, 2011 CSE meeting by both the parent and the other members were two fold. One the school staff would conduct their reevaluations and assessments, along with a District psychiatric reexamination and the parent would provide the CSE with a private psychological evaluation and a private psychiatric examination. The last evaluation in the reevaluation process was completed on June 10, 2013 by the private psychiatric evaluator. For the District’s evaluations and assessments and the parents private evaluations to be considered by the CSE, the documents needed to be in the CSE’s possession. If there was any delay in the process, it rests with the private psychiatric evaluation being presented to the CSE in a timely manner.
Finally, the Petitioner asserts that the criteria used to determine success of a particular goal was too low. In some instances It was 60 %. The appropriate time to have raised that issue was either at the CSE meetings or once the IEP was reviewed by the parent and to raise her objection at that time. The parent is a college educated person and a CFO of her company and one who has been actively involved and knowledgeable of her son’s education. To raise this issue of a low bar at this time is untimely.
The preponderance of the evidence presented at this hearing supports the District’s claim that the 2011-2012 IEP was “reasonably calculated to provide some “meaningful benefit”; “likely to produce progress, not regression” and provides an “opportunity greater than mere trivial advancement”. [Quoting Rowley, Walczak and Grim].
The Petitioner’s entitlement to an award of compensation for the 2011-2012 school year is denied.
Third Grade [2012-2013] [the year at issue]
Petitioner’s son is years old and during the 2012-213 school year attended School as a day student. The Petitioner challenges the appropriateness of the District’s IEP for third grade.
Boards of education may be required to reimburse parents for their expenditures for a private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations supported the parents’ claim. [Florence county Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ. 471 U.S. 359, 369-70 [1987]. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA [471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sc. Dist., 489 F.3d 105, 111 [2d Cir. 2007]
Both the District and the parents agree that the current educational placement was inappropriate and an out of district placement was needed to meet the child’s special education needs for the 2012-2013 school year. Classification was not an issue at this hearing.
The child had attended the ES choo! District since kindergarten, having repeated that grade. Inappropriate behaviors had been documented since kindergarten. Ms. behavioral consultant testified that she found a series of behaviors in kindergarten very concerning. The child “urinated in a public place, he spent a lot of time in the bathroom wanting to be alone, he was under tables”. He was spending a lot of time underneath the easel. “He spent time in his cubby, a very narrow cubby, pressing his body into the cubby not wanting to be with people” as well as. destroying a project he was proud of. Though his inappropriate behaviors lessened in first grade and he continued to make academic progress, Ms. Ee stiticc that he would verbalize that “I’m stupid, | hate myself’, he would hit his head with his hand or an eraser, bang his head on the desk, leave the classroom, make disruptive noises. She believed that they were carryover from conflicts from home to the school environment. Though his transitioning to second grade was going well, Vv: special education teacher, testified that he became increasing agitated in the early part of the school year, laying on the carpet, going to his cubby, negative self talk, inappropriate language [bathroom talk], banging his head, kicking his aide. A review of the record since kindergarten indicated that the child’s behaviors had been inappropriate over a long period of time and occurred in a variety of situations and environments. [T pp 582, 900-902, 735-736, 1327-1328]
A CSE meeting was held on October 28, 2011 to conduct a program review with a follow up meeting held on June 15, 2012. At the June 15, 2013 CSE meeting, the participants at the meeting were: Karen P| chairperson, Jaime psychologist, Heather a education teacher, Betsy , general education teacher, Jackie po occupational therapist, Jennifer, speech/lan uage therapist, Dr. BOCES psychiatrist, Susan BE ch aviora consultant, Andrea ii Esq., District counsel, parents [father attended at 10:40 AM}, Peter Esq. parents counsel. Parent declined to have the CSE parent member present for the meeting. [D-16, D-47, D-23]
As previously stated the child’s early medical and developmental history were significant, leading to severe deficits in his physical growth, reading and writing skills, iand impaired physiomotor functioning. Dr. in his psychological evaluation described the child with significant variation in his cognitive and intellectual functioning. He identified the child as neurologically impaired, who exhibits emotional and behavioral self control. This found expression in an impulsive, sometimes overly aggressive and disruptive behaviors at home and in school. Thus, symptoms of rebelliousness and oppositional behavior are only a manifestation of his neurological developmental deficits. He was also prone to intense, exaggerated and even explosive emotional outburst. Dr. BE ound that the child’s memory of more discrete auditory and visual materials was within the average range. However, the child had much more difficulty organizing, manipulating and problem solving visual and orally presented materials. Dr. P| reasoned that those tasks required more complex conceptual reasoning and problem solving and were mentally stressful for him. He would become easily frustrated anxious and disruptive when confronted with these overwhelming challenges. Not able to see the whole picture and cope with the frustrating demands, he then was susceptible to emotional and behavioral disruptions. His strength was in his ability to reason, organize, integrate and problem solve visual spatial tasks. In terms of memory, he was stronger in the processing and retention of visual material compared with verbally narrative material. He was at his best when material presented incorporated his short term memory, since he had difficulty staying on tasks and attending to a task over time. Not sufficiently able to plan, abstract and use age appropriate judgment, he was going to have difficulty in “behavioral regulation” [ie inhibiting impulses, controlling his emotions and being able to adapt to changes in his environment.]. Thus, he doesn't respond to efforts by his teachers to stop and control his behaviors. [D-28]
Dr escrived the child behavior as having manifested itself over a long period of time. However, those behaviors alone cannot be attributed to the challenges he faced with his reading and writing activities in the learning environment As Ms. P| a teacher of many years, testified that a learning disabled child, where the difficulty is purely learning, children do not act inappropriately to their frustrations as this child had. The medication management, whereby there had been adverse reaction to the Adderal for a period of two weeks affected his behavior. His asthma medication tended to make him irritable and hyperactive. The family turmoil over the negative interaction of the two brothers certainly had a slipover effect into the classroom. To reenforce that view, or ME testitied that during his interview with the child about his relationship with his brother was revealing. The child stated, “What he likes best about his family is his brother, his brother beats him up. He likes that when his brother beats him up, his brother gets into trouble”. “He doesn’t know what he likes about that, except that his brother then comes back and beat him up again.” Ms RIE stiiod that when something occurred at home that upset him, it would have a negative affect on his class work production. He would say, “I’m not going to let this bother my day and its not going to make me lose my tokens for the day”. More noted in her log that the child shared with her that he “learned from his brother because he beats me up”. “My brother is a pig, | miss him”. [D-84, T pp 611-612, 1328, 1330, 1337, 1705, 1783]
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs [34 C.F.R. 300.220 [a] [1]; 8 NYCRR 200.4 [d] [2] [i], establishes annual goals related to those needs [34 C.F.R. 300.320 [a] [2]; 8 NYCRR 200.4 [d] [2] [iii], and provides for the use of appropriate special education services [34 C.F.R. 300.320 [a] [4]: 8 NYCRR 200.4 [d] [2] [v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented [8 NYCRR 200.4 [e] [7] ]
The IEP developed for the 2012-2013 school year was for a placement at the Green Chimneys School, a therapeutic day program, for third grade in a special class [12:1:1]. Related services included individual counseling 1 [80 min.] session weekly, group counseling 1 [380 min.] session weekly, speech/language therapy 1 [30 min.] session weekly [3:1] and another [30 min.] session weekly [5:1] and occupational therapy 1[60 min.] session weekly. The extended school year [ESY] included a special education class 12:1:, Occupational therapy 1 [60 min.] session weekly [2:1] speech/language therapy 1 [30 min.] session [3:1] and another [30 min.] session [5:1], social skills training 1 [80 min.] session weekly, 1:1 aide. [D-47]
The BASC Rating Scale, completed by a team of staff, Dr. and the parent indicated that the child had significant impairment in his capacity for behavioral regulation. He was unable to inhibit his impulses, maintain control of his emotions, remain flexible in his response to environmental changes. [D-28, D-23]
Dr SR recommended “a small class setting with a maximum of 12 children”. A classroom orientation that is highly experiential, the [child] actively engaged in his learning....” “This [is] consistent with the fact that the [child’s] strengths lie in the nonverbal arena”. Children with strengths in the nonverbal realm are “builders, enjoy hands on activities and... learn by seeing and doing”. The program with a trained staff that utilizes a well developed behavioral system of a structure of rewards and consequences to guide [his] behavior. The program must be flexible to provide an opportunity to engage in tasks that are of intrinsic interest to him. Opportunities for physical activity. A reading program that utilizes a scientifically based methods of teaching reading. and should be integrated into the rest of the classroom experience. Finally, ongoing psychotherapy is an essential component to his treatment to allow him to master one of the underlying psychological conflicts that remain, as well as psychopharmacological assistance given his complex medical, neurological and emotional condition. [D-28]
Dr. MB private psychiatrist recommended a smail structured class setting for children with learning disabilities. He also recommended psychotherapy to address issues related to anxiety, mood and low selfesteem. He would benefit from medication management. Other considerations include a trial of an alpna agonist in order to address the child’s underlying oppositional and impulsive behaviors and depending on his response to these treatments, consideration might be given to the use of a mood stabilizer, such as [J which might help improve his mood, lower his anxiety and improve his frustration tolerance. [D-29] or. BOCES psychiatrist recommended a program that provided a structured approach that was implemented consistently throughout the school day. Individual counseling and consultation to address the child's anxiety and frustrations. He also recommended outpatient individual for the child and family finally, an integration between the medical and mental health services. [D-25]
Curriculum unit assessments provided a more accurate report on his progress than standardized tests due to his short attention span and impulsiveness. At the end of second grade, his reading level was end of first grade with stronger comprehension skills. Mathematics was on grade level using the District’s mainstream mathematics program. The physical act of writing remained strenuous for him and MM therapy was recommended to continue. [D-31, D-68, T pp 887-888, 1000-1001, 1246] needs focused on temporal concepts and phonological segmentation. [D-35, D-47]
Social development needs appeared both in school and at home. In the school setting, he related well to his peers and enjoyed the unstructured part of the day [ie.recess]. He was somewhat rigid and could be inappropriate when playing a game with his peers. He enjoys being in control of the situation or play activity and had difficulty compromising or negotiating when he felt his idea was not being followed. At home, the parent testified that he had no friends outside the special education students in his class. Parents of mainstream students did not return her telephone calls when seeking play dates. [D-36, T p 1440, 1679, 2568]
Physical development needs are reflected in his early medical history, which treated through a variety of medications [Focalin, Advair, Singular, HGB]. There were no limitations or restrictions to activities, no environmental allergies [insects, pollen]. No special accommodations. No special health related concerns. Vision and hearing were within the norm.
[D-11, D-19, D-64]
The child’s management needs indicated that attentional issues interfered with school activities and routines. Coping with transitions was challenging. Expressing his needs and wants in appropriate manner was also challenging for him. )
To address the child’s needs annual goals were developed and are summarized below.
Study skills:
will attend to a task without distraction for seat work activities will attend to a task without distraction during classroom lessons will come to a group meeting, sit and take turns talking Reading: will read words from a list of words with double vowel letters will identify 15 new sight words each marking period will orally identify the rules for word attack skills regarding vowel with silent “e” endings will correctly decode whole sentences, paragraphs or stories using phrasing and fluency given a reading passage will answer who, what, when or why questions Writing: will plan out his writing with the use of a graphic organizer will spell words with the silent “e” rule will spell ten sight words will write a short paragraph with 5-7 sentences in a logical, sequential order Mathematics: will identify which operation to use and correctly solve the will increase his understanding of relationships between words that are related by semantic class features and to express those relationships will learn vocabulary related to the content area curriculum will recall and comprehend a sequence of events presented orally from a short story or paragraphs social/Emotional/Behavioral: will express his feelings verbally in an appropriate manner will communicate and interact in a socially acceptable manner with teachers and adults will comply with classroom rules and any teacher directives will use effective coping strategies when faced with conflict situations will express displeasure or frustrations verbally rather than by withdrawing from participation in school or class activities
There will be three written progress reports on the child’s goals during the school year sent to the parent.
Supplemental aids and services, program modifications and accommodations:
refocusing and redirection positive reinforcement plan directions repeated check for understanding reteaching of materials information in small sequential units allow opportunity for movement breaks
12 month service and program -7/9/12- 8/17/12
Special class 12:1:1 Sei 2:1], 1 [60 min.] session per week [3:1] 1 [30 min.] session per week [5:1] 1 [80 min.] session per week ocial okills training 1 [30 min.] session per week
Testing accommodations tests read for all state math tests extended time [1.5] for all state tests flexible location for all state tests
Special transportation
Child requires adult supervision-bus with attendant [D-47]
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE [20 U.S. C. 1415 [f] [3] [E] [i]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [Rowley, 458 U.S. at 203]. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through the IEP” [Walczak v. Florida Union Free Sch. Dist. 142 F. 3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189]. The statue ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” [Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore, 873 F.2d 563,567 [2d Cir. 1989]; see Grim 346 F.3d at 379. Additionally, school districts are not required to “maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199;Grim, 346 F.3d at 379; Waiczak, 142 F.3d. at 132]. Nonetheless, a school district must provide “an IEP that is “likely to produce progress, not regression”, and....affords the student with an opportunity greater than mere trivial advancement” [Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see P. v. Newington Bd. of Education, 546 F.3d 111,118-119 [2d Cir. 2008]; Perricelli, 2007 WL 465211,at * 15]. The IEP must “reasonably calculated to provide some “meaningful benefit” [Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192]. The student’s recommended program must also be provided in the least restrictive environment [LRE] [20 U.S.C. 1412 [a] [5] [A]; 34 C.F.R. 300.114 [a] [2] [i], 300.116 [a] [2]; 8 NYCRR 200.1 [cc], 200.6 [a] [1]; see Newington, 546 F. 3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]
The therapeutic day program at Green Chimney School is a program that admits children with attentional issues, learning and behavioral disabilities. They may include children who fall in the high end of the autism spectrum. The Wilson program, a phonetically based program is used to teach reading/writing. Teachers in the core subjects are certified in the Wilson program. The therapeutic/experiential program includes the farm, farm science, horseback riding, wildlife class, wood shop, gardening, life skills, music, art, gym, swimming and outdoor education [canoeing, kayaking, camping, rope and tower climbing]. The campus has a Health Center with a full time nurse and a pediatrician who is available twice a week to address the children's health needs. Related services such as parent training, social skills development, ER herapy, and MEtherapy are provided.
The Regulations require that students are placed together for the purposes of special education shall be grouped by similarity of individual needs [not by classification]. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each students social growth and maturity and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such a placement. No class profile was provided at the time of the hearing, so the makeup of the child’s class was not known and the petitioner had no way of knowing if children in the autism spectrum would be in their son’s class. [CR Part 200.6 [a] [3] [i] [ii], T pp 1533-1534, 1536, 1550, 1571]
Dr. and , both of whom are not trained educators as the Petitioner contends, described the type of special education the child would require that would be tailored to meet his unique needs. They both agree that a special education program be capable to address the emotional and learning problems, where the staff are sensitive to the emotional consequences of his learning problem and his medical trauma and where emotional factors that impact his behavior are also addressed. Dr. goes further to diagnose the child with post traumatic stress disorder, which reenforces the need for a therapeutic program. The petitioner believes that the CSE members did not consider the two private evaluations submitted by the parents, but | disagree. The recommendations of a special education program that offers experiential learning, hands on activities [learn by doing], activities that are presented in a flexible manner, which are geared to maximizing his educational experience are designed to meet this child unique needs. TheliEMspecial education program in a 12:1:1 class with related services in NE
I and | therapy and EEEEinerapy in a therapeutic environment meets the criteria the private evaluators set in their recommendations. Though there was a preference that the learning disabilities be address first not his therapeutic needs, it is unrealistic for a classroom teacher or support staff not to address the inappropriate behaviors whenever or wherever they may occur. It is unrealistic to believe that a teacher could purely address the reading/writing disability exclusively and believe that the inappropriate behaviors would improve simultaneously.
Throughout this hearing, there has been testimony by the petitioner, their witnesses and the school district of the severity of this child’s medical needs. However, he participated fully in recess and physical education activities. He is quite athletic having his own motor bike, playing field hockey, surfing, soccer and an active participant at recess. His attendance while attending Po has been quite good, miss five daysin first grade and fifteen days in second grade, the latter family away for two weeks, had pneumonia and was sick with congestion. [IHO # 1, D-78] etitioner raised the issue of the long bus ride iii” me... [though not part of the Complaint]. It is approximately
37 miles, but the route is a direct one via a major highway. He had taken field trips with his class, one being 30 miles a no report of illness. In the three years he attended [ie achers received no reports of his being ill in any of his field trips nor to the daily trips to and from school. 5: MEE co stition that the child’s health is at an overall risk due to his vulnerability to asthma attacks and pneumonia. This information was never brought to the attention of the CSE. Beyond the provisions of a aide for the child on the school bus, the CSE is obligated to obtain an opinion from a qualified health care provider as to whether the child could safely be transported. A CSE is required to determine whether or not the modifications to the specialized transportation was consistent with the provisions of FAPE and if required, to amend the IEP to reflect the changes. However, over the last three CSE meetings [April, October and June, 2012], the issue to change the transportation arrangement had not been raised by the petitioner, not had there been any medical documentation presented at those CSE meetings to support a need for a different form of transportation. Health forms received into evidence indicated that there were no restrictions to the child’s school activities, or any special accommodations nor any environmental allergies. [SRO 03-053, D-64, D-11]
Dr. testified when describing the child “this emotional fragility in combination with a ii 2c ability will require a program with the necessary therapeutic support to manage the emotional turmoil which can over take him. The testimony and the recommendations by the private evaluators were not consistent. The petitioner’s witnesses supporting their preferred placement conceded they did not know the CSE’s proposed placement well enough to comment on its appropriateness for the child. They never visited the School or spoke to any of the staff at the school. Their evaluations, which were considered by the CSE, offered a profile that was comprehensive and incorporated into the IEP. The goals developed included a statement of the child’s present levels of academic achievement [educational evaluations and assessments] and functional performance and goals that were set to help the child overcome his educational deficits. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. I believe that the IEP is likely to produce progress in the areas of executive function, reading and writing and in the behavioral and emotional realms. The IEP was formulated in a manner that adequately complied with procedural requirements of IDEA and with significant involvement by the parent, the private evaluators, the staff and the related service providers. [Rowley, 458 U.S. at 203, Z.W. v. Board of Educ. of Anne Arundel County, 47 IDELR 4 [U.S. Crt of App, 2nd Cir, 2007], SRO 08-086, T pp 2072-2073]
Having found that the a program which the CSE recommended for the child was appropriate during the 2012-2013 school year, I must find that the respondent school district has met its burden of proof with respect to the first of three Burlington criteria. As a result, the respondent school district is not obligated to reimburse the petitioner for the cost of the child’s tuition i School. [School Committee of Burlington v. Department of Education, 471 U.S. 359, 105 S. Ct. 1996]
The parties have the right to appeal my decision to the State Review Officer of the New York State Education Department. Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision [i] of CR Part 200.5 may appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of Part 279 of this Title.
October 23, 2013
PARENT EXHIBITS NO. OF PAGES
E. ExhibitA | BHCSD FBA, dtd 01/29/2010, | (8) ExhibitB Behavior Analyst Report 3 04/30/2010 (1) ExhibitC E-mail tron _ «BB c:c 6202012 ExhibitD Letter from csp ata 07/02/2012 (1) Letter — oy dtd 07/18/2012 (1)
F. Letter ron sp dtd 07/20/2012 (1) Exhibit G Communications Book 2009-2010, Po (138) Exhibit H Communications Book 2010-201 a, J (67) Exhibit I Communications Book 201 202, (86) Exhibit J Fundations Website Information, 2011 (4) Exhibit K Fundations Teacher’s Manual, K-1, 11/2010 (203) Exhibit L a... 9/24/2012 (2) ExhibitM WIAT II Results 2009-2010, MN dtd 4/19/2010 (2)
N. Report Card, JMata 2011-2012 (4) Exhibit O ae::.. dtd 3/14/2013 (123) 2011-2012
P. Progress Report: [NN ded 1/28/2010 (1)
Q. Bs» Progress Report, en: 5/19/2010 (4) Exhibit Psychological Evaluation, «15200 (6) Exhibit $ re...... 2011-2012 (various dates) (5)
T. RE «icen: Report, 10/17/2011 (1) Exhibit T(a) District Report to CPS, Reporter’s name redacted, 2/15 (year unknown) (1) Page | of 2 pages
U. Incident Report, Nurse] 6/19/2012 (2) Exhibit V CV, undated (2) Exhibit W Dr. I) Fite (various dates) (237)
X. Observation Report, 02/21/2013 (10) ID Only
Y. BE ccc: 2012 Progress Report (various E.H. authors)
Z. Progress Report (various E.H. authors) (24) Exhibit AA ae Testing, Melissa Giglio, 2012-13 (various dates) (53) ID Only Exhibit BB a. undated (1) Exhibit CC ae 6/14/13 (21) Exhibit DD [i Website, 2013 (167) ID Only 2013
EE. BE: 2 <rgency Placement List, NY Education Dep’t, 4/2012 (3)
FF. Progress Report, | 1 (6) Exhibit GG a. (undated) (5) Exhibit HH ae... received 6/28/2013 (various dates) (11) 2010-2011
II. E-mail betwee7/1 17/22/11 (S) Exhibit JJ CSE Audio, 5/11/2012 and 6/15/2012 ID Only Exhibit KK BE spi Records, _ iim dtd 12/8/12 (16) N/A
LL. Tuition Statement and Payment, ae (various dates) (2) SCHOOL DISTRICT EXHIBITS DATE Therapy Progress Report Annual Review (2pp) 03/22/11 Annual Teacher Reporting Form, Grade | (Spp) 03/22/11 Stantord Diagnostic Mathematics Test; Annual Review Special Education Report: Woodcock Reading Mastery Tests (3pp) 03/03/10 and 03/10/11 BE 2010-2011 |: <:2py Pcogress Report 2010-2011 pp) 04/01/11
Gh. | RS Report (1p) Letter from School District to Parents Requesting Prescription for Therapy services: Prescription for services from QR Pediatrician. (2pp) 08/01/11 and 09/06/11 Letter from School Psychologist to Parents (1p) 09/23/11 Behavior Intervention Plan (3pp) 09/26/11 Special Education & Related Service Provider Reevaluation Proposal (1p) 10/17/11 04/06/11
10. Prior Written Notice: Proposed Reevaluation and Request for Consent (2pp) LOAL7/11 I! School Health Services Form (1p) 10/17/11 12 Interim Safety Plan (2pp) 10/18/11 DOE
13. Email from ii Reevaluation (1p) 10/20/11 DOE
14. Letter from School District to Parents with CSE Meeting Notice and CSE Parents’ Member Form (Spp) 10/21/11 DOE
15. CSE Attendance Sheet (1p) 10/28/11 DOE
16. IEP (15pp) 10/28/11 DATE 2011-2012 DOE
17. Prior Written Notice: Proposed Continuation for Special Education (2pp) 10/28/11 DOE
18. Prior Written Notice: Proposed Reevaluation and Request for Parental Consent to Release of Information (2pp) 10/31/11 DOE
19. Social History Update (3pp) 11/08/11 DOE
20. Email from School District to Mrs. Brois (2pp) }2/08/11 DOE
21. Letter from o School District Requesting a Psychiatric Evatuation for i (ip) 12/12/11 22 Behavior Consultation Note (2pp) 12/2012 23 po Behavior Assessment (3pp) 12/20/11 DOE
24. Educational Progress Report (Spp) 01/03/12 DOE
25. Psychiatric Report (and Memo to Parents) (6pp) 01/13/12 DOE
26. CSE Meeting Notice (3pp) 02/08/12 DOE
27. | Progress Report (7pp) 02/17/12 DOE
28. Parents’ Private Psychological Evaluation (21 pp) 10/30, 11/19/11; 2/26, Fong a 3/6/12. Bedise Parents’ Private Psychiatric Evaluation (6pp)
Ob 10/12 ~~ P-13 > eth et ot wy 2 foe ‘ 29 - DOE
30. Letters from School District to BOCES, BOCES, and 5 (4pp) 04/12/12 DOE
31. School District Educational Progress Report (Spp) 02/20/12, 04/23/12 DOE
32. Annual Review Teacher Reporting Form Grade 2 (2pp) Emails between School District and Mrs. onceming Spp) 05/02; 08/12 Behavior Intervention Summary Note (3pp) 05/02/12 EE |. 2.200 (8pp) 02/27 & 05/02/12 DATE Counseling Progress Report (2pp) 05/03/12 CSE Meeting Notice (2pp) 05/09/12 Prior Written Notice: Proposed Reevaluation and Request For Consent (3pp) 05/16/12 04/20/12 DOE
39. Emails between School District and Mrs fen») O5/17/12 DOE
40. CSE Attendance Sheet (1p) 05/11/12 4] School District Educational Progress Report (3pp) 05/30/12 DOE
42. CSE Meeting Notice with Certified Mail Receipt (3pp) 05/17/12 DOE
43. WIAT-II Record Form (Spp) 05/30/12 DOE
44. Letter from School District to Parents (1p) Updated — Refusal to Participate in Class (1p) 06/18/12 06/07/12 DOE
46. School District Correspondence with Approved Out-of District Schools (13pp) various DOE
47. IEP (16pp) 06/15/12 P.2 2012-2013 DOE
48. Prior Written Notice Request for Physical Examination (4pp) 07/10/12 DOE
49. Unsigned School District Request for Parents to Release Information (1p) undated DOE
50. Letter from Mrs. Brois to Schoo! District Rejecting 2012-2013 TEP (ip) 07/20/12 pSchool District Answer to Parents’ Due Process Complaint & Email (14pp) Invitation to Resolution Session (2pp) 09/24/12 Email from Parents’ Counsel to the School District Requesting a New Date for the Resolution Session (1p) 09/25/12 Qe DATE 10/02/12 13 pages DOE
38. Invitation to Rescheduled Resolution Session (2pp) 09/25/12 Consents and Releases (8pp) various AM Bus Ride Time Chart (1p) 11/14/12 Subpoena Duces Tecum (1p) 01/08/13 IEP (16pp) 05/21/10 P- b 01/08/10 (- % 2010-2011 DOE
59. BOCES Psychiatric Report (4pp) 60 01/12/10-06/24/10 LEP (17pp) 12/22/10 P-7 DOE
61. IEP (15pp) 04/06/11 P-3 2011-2012 DOE
62. Prior Written Notice (4pp) 07/03/12 DOE
63. Attendance Sheet CSE Meeting (Ip) 06/15/12 64 Eagle Hill Documents (7pp) various DOE
65. School District Intake Packet (44pp) undated DOE
66. Cover Letter with Private Psychological Report (1 6pp) 03/06/12 67 varlous 68 Unit tests (2d Grade) (1 9pp) various 69 Fundations and Math Worksheets (2d grade) (73pp) varlous 70 2d Grade Questionnaire (1p) undated DOE
71. School Psychologist Contact Sheets (9pp) various 2011-2012 DOE
72. School Psychologist Observation (3pp) 03/06/12 73 Behavioral Assessment Notes (2pp) 12/23/11 74 ZB 2d Grade Social Skills Group worksheets (3pp) Progress Report for IEP Goals (2010-2011) (6pp) 03/01/11 undated DOE
76. Progress Report for Goals and Objectives (10pp) 06/22/12 DOE
77. Behavior Intervention Plan and Data (12pp) 09/26/11 78 P| Emails (18pp) various DOE
79. School Psychologist’s Parent Traming Notes (2011-2012) (Spp) varlous DOE
80. School Psychologist 2d Grade Boys Group Schedule (1p) undated 8] Behavior Assessment System for Children Teacher Rating Scales - Child Computer Entry Form (5pp) undated
82 ae... Grade Word Identification Score Sheet (2pp) 11/18/83 Spelling Assessment Sight Words (1p) 06/20/84 Observation Notes (18 pp) 09/19/11-06/11/12 Scoring Fundations Unit Test (1p) undated
86 Behavioral Consultant’s Monthly Consultation Notes and Parent Training Notes (23pp) 10/2010-06/2011 DOE
87. Behavioral Consultant’s Monthly Schedule Grid (1p) 11/20/10 DOE
88. Email Berween ll| Lov DOE
89. New York State Education Department Special Education Field Advisory (12pp) 03/12 DOE