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THE UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
x In the Matter of the Application of XX., a Child with a Disability, by his Parents, MR. AND MRS. XX ., for a Due Process DECISION AND ORDER Impartial Hearing,
Petitioners,
-against-
XXXX CENTRAL SCHOOL DISTRICT,
Respondent. x
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
243 West 99 Street (6A) New York, NY 10025
Telephone: 347-886-3967
PERSONS WHO APPEARED ON SEPTEMBER 18, 2012
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Father XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Supervisor of Special Education/CSE Chairperson (XX)
PERSONS WHO APPEARED ON OCTOBER 3, 2012
XXXX, Esq, Attorney for Parent XXXX, Mother XXXX, Attorney for District XXXX, Director of Special Education (PM session only) XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, AP LMS/504 Chairperson
PERSONS WHO APPEARED ON OCTOBER 4, 2012
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, School Psychologist (XX) XXXX, Special Education Teacher (XX)
PERSONS WHO APPEARED ON OCTOBER 12, 2012
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Father XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Principal (XXXX) XXXX, Special Education Teacher (XX) XXXX, Social Worker (XX)
PERSONS WHO APPEARED ON OCTOBER 18, 2012
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Social Worker (XX) XXXX, XX County XX
PERSONS WHO APPEARED ON NOVEMBER 16, 2012
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Father XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Supervisor of Special Education XXXX, XX County XXXXX XXXX, Special Education Teacher (XX) XXXX, Principal (XX)
PERSONS WHO APPEARED ON NOVEMBER 20, 2012
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Father XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Special Education Teacher (XX) XXXX, XX School Psychologist
PERSONS WHO APPEARED ON DECEMBER 12, 2012
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Board Certified XXXX XXXX, Pediatrician
XXXX, XXXXXX
XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Director of Special Education
PERSONS WHO APPEARED ON JANUARY 7, 2013
XXXX, Esq, Attorney for Parents XXXX, Law Student Intern XXXX, Mother XXXX, Father
XXXX, XXXXX
XXXX, Board Certified XXXX (via telephone) XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XXXX) XXXX, Director of Special Education
PERSONS WHO APPEARED ON JANUARY 23, 2013
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Father XXXX, Senior Clinician (XX) XXXX, Board Certified (via telephone) XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX)
PERSONS WHO APPEARED ON FEBRUARY 26, 2013
XXXX, Esq, Attorney for Parents XXXX, Mother XXXX, Father XXXX, Attorney for District XXXX, Supervisor of Special Education/CSE Chairperson (XX) XXXX, Social Worker (XXXX) XXXX, Supervisor Special Education/CSE Chairperson (XX) XXXX, School Psychologist (XX) XXXX, Nurse (XX)
On May 24, 2012, I was designated by the XX Central School District (“XX” or “the district”) as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, the matter of XXX. (“the student”), a child with a disability, an action brought by the student’s parents, against the district which claims that a free appropriate public education (“FAPE”) was not provided during the 2010-2011 and 2011-2012 school years. (Ex. 13)1
The student is currently XX years old and XX disability classification is XX (Ex. 20) Since XX, XX has been enrolled, pursuant to XX CSE placement and with the agreement of the parents, in XX (“XX”) in which XXX has been placed in a XX grade program. (T. 2123, 2218, 2219 , Ex. XVII) XX is a XXXX school which is authorized by the New York State Education Department as a school with which the district may contract to provide special education instructional services (“NPS”)
I. PROCEDURAL HISTORY OF THIS IMPARTIAL HEARING 2
By letter dated May 18, 2012, the parents filed a request for an impartial hearing. (Ex. 14)
By letter dated June 4, 2012, the district filed its response and a request that that complaint be dismissed for insufficiency. (Ex. 9)
On June 4, 2012, the parents requested that the response be stricken on the ground of untimeliness. (Exs. I, II)
By letter dated June 11, 2012, I denied the request to strike the response on timeliness grounds, determined that the May 18, 2012 complaint was insufficient and granted leave to file an amended complaint by July 2, 2012. (Ex. 7)
A resolution meeting occurred on May 30, 2012 but the parties did not come to agreement. (Exs. 8, 10,11)
On July 2, 2012, the parents filed an amended complaint (“the complaint”) which I accepted. (Exs. 6, III)
By letter dated July 12, 2012, the district filed a response and moved to dismiss the complaint for mootness. (Ex. 4)
On July 16, 2012, the parents stated that a reply to the district’s motion would be forthcoming. (Ex. V)
On July 17, 2012, a resolution meeting with regard to the amended complaint occurred but the parties did not come to agreement. (Ex. 3)
On July 20, 2012, the parents requested an immediate pre-hearing conference to which the district objected there was the motion to dismiss had not been decided. (Ex. V)
By letter dated July 23, 2013, the parents replied to the district’s motion to dismiss and asserted that there were issues that remained in dispute. (Exs. IV,V, 2)
On July 25, 2012, the district disputed certain allegations made by the parents and declined waiver of the balance of the resolution period. (Ex. VI)
By letter dated July 30, 2012, I denied the district’s motion to dismiss and proposed dates for a prehearing conference. (Ex. 1, VII)
The first pre-hearing conference was held on August 8, 2012, the first mutually available date after the conclusion of the resolution period, and hearing dates were scheduled. (T. 1-67, Ex. VII)
A second pre-hearing conference was held on August 14, 2012. (T. 68-126, Exs. VIII, IX, X)
A third pre-hearing conference was scheduled for August 30, 2012. (Ex. XI)) On August 29, 2012, the parties requested an adjournment of that conference in view of renewed efforts to resolve this matter. (Ex. XI) A brief adjournment was granted and the conference was rescheduled to September 4, 2012. (Ex. XI)
On September 4, 2012, a third pre-hearing conference was held. (T. 129-166) Immediately prior to the conference it had been learned that the student had been XXXXXXXXX XXXX matter and that placement XXXXXX following that XXXX was uncertain. (T. 130,131) The parents objected to further delay in resolving this matter. (T. 132, 134-135) 3 It was agreed that the hearing would commence on September 18, 2012, as previously determined. (T. 166)
The specifications of the Procedural History section are Findings of Fact. As further discussed infra, the student had commenced attendance on XX, pursuant to CSE placement, at XX, a XXXX NPS. At the time of the September 4 remand, the CSE was seeking a less “XX” XXXXX placement (T. 133, 139, 146, Ex. 20)
Hearings were held on September 18, 2012, October 3, 2012, October 4, 2012, October 12, 2012, October 18, 2012, November 16, 2012, November 20, 2012, December 12, 2012, January 7, 2013, January 23, 2013 and February 26, 2013, at the administrative office of the district, XXXX.
The compliance date is June 17, 2013.4 The record closed on April 18, 2013, upon my receipt of all post hearing memoranda. 5
II. CASES PRESENTED
A. A list of documents in evidence is appended.
B. The testimony of the following witnesses was presented: District
XXXX (“XX”), Supervisor of Special Education/CSE Chairperson concerning XX XXXXX (“XX”) which the student attended for the 2008-2009, 2009-2010 and part of the 2010-2011 school years;
XXXX (“XX”), AP LMS/ 504 Chairperson;
XXXX (“XX”), Supervisor of Special Education/CSE Chairperson concerning the XXXX (“XX”) XXXX placement (2010-2012 school year) ;
XXXX, XX school psychologist;
XXXX (“XX”), the student’s teacher at XX;
XXXX (“XX”), Supervisor of Special Education/CSE Chairperson concerning the XXXX XXXXXX placement (2011-2012 school year) and thereafter;
XXXX (“XX”), the principal of XXXX (“XX”) XXXXXX placement);
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted and written decisions were provided to the parties. (T. 135, 136, 634,-635, 1346-1347, 1735, 2066, 2260-2266, Ex. XV) Due to a number of circumstances this matter concluded and the record closed on a date later than all parties and I had anticipated. The record closed on April 19. I left the U.S. on April 24 pursuant to plans made when it had been anticipated that this matter would conclude in in January. The parties were informed that receipt of the decision would
XXXX (“XX”), the student’s teacher at XX;
XXXX (“XX”), XX school nurse;
XXXX (“XX”), the student’s social worker/mental health counselor at XX, employed by XX (“XX”);
XXXX (“XX”), XXX official concerning the 2011-2012 school year (including Summer 2011) and thereafter;
XXXX (“XX”), one of the student’s teachers at XX;
XXXX (“XX”), one of the student’s teachers at XX;
XXXX (“XX”), XX school psychologist who conducted evaluations while the student was at XX;
XXXX (“XX”), XX principal.
Parents
Dr. XXXX (“XX”), Board Certified XXXX (“XX”) who issued a report in April 2012;
Dr. XXXX (“XXX”); XXXXXXXXX who commenced a XXXXXXX evaluation in April 2012;
Father of the student;
Dr. XXXX (“XX”), pediatrician who examined the student in April 2011 after an incident at XX between the student and XXXXXX (the April 12th XX”);
XXXX (“XX”), the student’s clinician at XX.
III. Positions of the Parties
A) District
The district contends that in developing and implementing the challenged 2010- 2011 and 2011-2012 IEPs it took measured and appropriate steps based upon information available to it at the time and in proper consideration of LRE concerns and mandates. It therefore be delayed and indicated no objection. Subsequent to my return, illness and the consequences of a crime caused further delay. (Ex. XIX) claims that it complied with all procedural requirements and that each IEP was reasonably calculated to meet the student’s educational needs when it was created. The district denies the parents’ claims that their stated concerns were ignored. Further, the district asserts that the parents failed to cooperate with the CSE by the repeated withholding of relevant information concerning the student’s circumstances outside school and by persisting in removing the student early in the school day and engaging in other “enabling” actions thereby inhibiting appropriate therapies by school and therapeutic staff.
Further, the district asserts that equitable considerations warrant denial of any compensatory services in this matter in view of the parents’ actions and inaction. Finally, the district claims that the specific relief sought by the parents is not appropriate at this time because moot and/or it is not supported by evidence that it is appropriately related to the alleged denial of FAPE. (Ex. XVIII)
B. Parents
The parents claim that the district failed to provide a FAPE for the 2010-2011 and 2011-2012 school years. They contend that in a series of reviews in that period the CSE improperly failed to consider various appropriately restrictive settings in developing the student’s program and developing the IEPs in that period. They assert a persistent record of student XXXX and the absence of standardized test results as well as persistent XXXX issues and claim that necessary evaluative material was not obtained and that appropriate evaluations were not done. Further, the parents claim that the CSE failed to perform required XXXX (“XX”), develop appropriate XXXX (“XX”) and/or update various other XX assessments necessary to develop appropriate programs. The parents also claim that the district has failed to demonstrate that the student was provided with necessary XXXX and XXXX. The parents seek compensatory services as well as other relief. (Ex. XVII )
In their complaint the parent asserted improper composition with regard to the April 13, 2012 CSE review claiming that a required general education teacher was not present. (Ex. 6) However, there was no possibility of mainstream placement at that time in view of the student’s difficulties in the XX, XX was a certified general education teacher (T. 1475) and, further, in the circumstances here that procedural defect, if such there was, did not result in a loss of
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Initial Factual Findings as set forth below are based upon credible testimony and/or documentary evidence which was substantially undisputed and was unrebutted. The student’s mother, who was the principal contact with the district and school, did not testify. Additional factual findings supplementing the findings in this section and/or regarding disputed issues are included in the Conclusions of Law section of this decision.
A). Initial Factual Findings
The student, in XX grade at the time of complaint filing, has had at least eight XX between June 2008 and June 2012 and has had numerous diagnoses including XX, XX, XX, XX and XX with XX relating to XX and a history of XX having been noted. (T. Exs. 24, 47, 60, 68, 90, 98, 111, 117) Throughout the relevant period XX has had numerous XX. (Ex. 24) Physically XX was described by medical and instructional staff as a child who is very big physically for XX age but very immature in XX behaviors with XX and XX a younger level than XX chronological age. (T. 906, 969, Exs. 63, 68, 117 ) XXXXXXXXXX evaluations have varied and it has been speculated that they have been affected by XX as well as XX. (T. 695, Exs. 44, C, D) Significant XX delays have been noted. (Ex. 44) The student has been highly XX since at least XX attendance. (Exs. 44, 90, 101) Although the district’s psychologist reported that the last academic functioning level testing was in 2010, the evidence shows that there was some testing in 2011. (Exs. 31, 44)
[1]. 2008-2009 School Year 7
The student was referred to a district 504 committee at the end of XX XXXX year (2007/2008), with a diagnosis of a XX and XX. (T. 646, Ex. 98, 95) 8 XXX entered XX (“XX”) in September 2008 with a 504 plan which provided individual XXXXX and educational opportunity, seriously interfere with the parents’ participation in the IEP formulation process or deprive the student of educational benefits. Appeal No. 05-061 Although the programs challenged include only the 2010-2011 and 2011-2012 school years, the background is disputed and claims concerning it are relevant to a determination with regard to the CSE’s actions during the challenged period. In prior years, difficulties with XXXXXXXXX were reported. (Exs. 91, 100, 117) accommodations to address XXXX in school and it was noted that the student should be monitored to see if referral to the CSE was necessary in 2008-2009. (T. 611, Exs. 92, 95) XX staff was provided with the 504 plan prior to XX entry and conferred at that time with XX XX grade school. (T. 648)
On September 19, 2008, staff including teachers met to review XX that the student was already exhibiting in XX and recommended XXXXXXXXXXXXXXXXXXX for certain classes. (T. 616, 651-655, 657-658, Ex. 104)
On September 26, 2008, the 504 team met and continued the same 2007-2008 recommendations and added group XXXXX in order to provide additional support (T. 618, 649, 661-663, Ex. 94) On October 1, 2008, a XXXX (“XX”) was conducted which noted, among other XXXXXXXXXXXXXXXXXX. (Ex. 93) During that period additional building level interventions were put in place: XXXXX and XXXXX as academic support, XXXXXXXXXXXXXXXXXXX, and on-going parent communication. (T. 619, 620, 657, Ex. 91)
Dixon developed an XXXX on October 1, 2008, which created XXXXXXXXXX. (Ex. 93) By letter dated October 3, 2008, the parent requested a referral to special education. 9 (T. 676, Ex. 92) The parent noted XXXXXX. She also asserted that although the student had tested in the average range, XX had significant academic deficits. (Ex. 92)
A psychoeducational evaluation, dated October 20, 2010, was thereafter conducted. (Ex. 91) Among the XXXX observed by the evaluator during her classroom observations was the student XXX XX XXXXXXXX and she concluded XXXXXX. Failure to XX were reported. XXXX were also noted. (Ex. 91) She noted regarding what was required to enable the student to attend that XX “can XXXXXXXXXXXX.” (Ex. 91) No new academic functioning testing was done. (Ex. 91) The parent later asserted that academic testing XXXXXXXXXXXX. (Ex. 101)
On November 20, 2008, the CSE met to review various evaluations and the student was classified with XX. (Ex. 89) XX was placed for all academics in an
The term “the parent” refers to the student’s mother. References to the student’s father so specify. integrated special class (“the inclusion class”) and study skills, XX were continued as previously provided and modifications including continuation of XXXX were provided. (Ex. 89) However, the student did not immediately commence that program because XXX was not at that time attending XX. (T. 223)
In November 2008, prior to classification, the student had been referred to XXXX (“XX”) XXXX (“XX”) program. (T. 224) That program provided support for students XXXX and it supported XXXXXXXX to school. (T. 224) An XX evaluation noted XX. (Ex. 90) XXXXXXXl testing in view of XXXX was recommended. (Ex. 90) XXX staff diagnosed XX with XX, XX, and XX. (Ex. 90)
On December 16, 2008, while the student was at XX, the parent wrote requesting a program change to a self-contained class and expressed concern that a district “wait and see approach” would lead to XX. (Ex. 101) On December 15, 2008, XX, the teacher in the XX XX XX class, observed the student in the XX program and based upon XX observed XX in that program she concluded that XX XX did not warrant XX class but planned to further monitor XXX in the XX class. XX testified that her conclusion was supported by XX staff she spoke with at the time. (T.824-825, 826, 827, Ex. 105) On the same date, however, by letter, the student’s XX and XX informed XX that the student required XX for all of XX subjects with a lot of XX. (T. 801-802, 914, Ex. 88) They also reported an incident of the student XXXXXXX while in that program. (Ex. 88) The student attended the program for approximately XX weeks and transitioned into XX commencing in the beginning of XX 2009. (T. 231, 713, Ex. 87)
On January 22, 2009, the CSE met to consider the parent’s request. (Ex. 86) The student was just completing the XX. (Ex. 87) The CSE concluded that an evaluation of the student’s transition to the XX program from XX should be done before considering a referral to special education. (T. 721)
Commencing the first full week back at XXX the student continued to XX and all XXXX (“XX”) utilized were unsuccessful including those proposed by the student. (Ex. 84) The student was XXXXXXXXXXXXXX. XX teacher developed XXXX as a substitute. (Ex. 85)
On March 19, 2009, the CSE reconvened and noted, among other things, transition difficulties between XXX and XXX and that the student could not manage in the XXXX class “after a reasonable trial.” (Ex. 83) It recommended the XX (taught by XX) for all academics and study skills and continuation of the same XXXX. (T. 725, Ex. 83, 86, 89) The student’s transition into that class was troubled but he began to learn XXXX and made some progress in the 6th grade. (T. 831-832, Exs. 84, 102) For students in the XX class, the teacher was responsible for monitoring progress academically, emotionally and behaviorally. After transition to that class, the student no longer XXX
XXXX XXX. (T. 731-732, 809-810)
On June 4, 2009, the CSE convened to develop a program for the 2009-2010 school year (the student’s XXX grade). (Ex. 81) No additional testing/evaluations were indicated on the IEP. (Ex. 81) However, XX service was reduced. (Ex. 81) Dixon explained the reduction as XXXXXXXXXXXXXXXXXXX (T. 733-734, 811) The CSE noted, however, that it would reconvene subsequently to consider the student’s readiness for mainstream classes. (Ex. 81) (T. 734, 832, 834, Exs. 81, 102 )
2. 2009-2010 School Year Events
In early October 2009, staff requested, with parent agreement, revision of the IEP to include XX XX. (T. 835, 838, Ex. 79) On October 22, 2009, the CSE changed the student’s XX class XX (XX). (Ex. 78) In the same month the student was nominated for XX. (T. 735, Ex. 106)
The student made very substantial improvement and in early January 2010, staff requested, with parent agreement, revision of the IEP to add XXXXXX. (T. 838, Ex. 77) It was noted that the student was doing well in XX XX class and that XX was able to generalize what XX had learned in the XX class. (Ex. 77) On January 14, 2010, the CSE changed the student’s XX class to an integrated class (XX) and study skills in a XX class. (Ex. 76) The student had the same teacher for XXX. (T. 839) XX did well and by about March 2010, when XX’s recommendation for the following school year was due, she was going to recommend XX with her to which the parent agreed. (T. 840-841) However, XX XX started to deteriorate. Although XX indicated that began in March, XX testified that there had been a complete turnaround, not resulting from a school incident and placed it somewhat later. (T. 735, 738, 843) Eventually XX believed that the student’s issues, which included XX required XXX. (T. T. 744-745)
The student was admitted to XX (“XX”), through its XXX (“”XX”), on June 4, 2010 and remained there through June 28th. 10 (Ex. 75) A XX XX report stated that the school was concerned about the XXXXXXXX. It noted that XX had been worsening and that things seemed to get worse in March. (Ex. 75) XX was changed. (Ex. 75) Although XX had provided the parent with information about the XX, XX had not been contacted by XX and had not provided any information cited it. (T. 739-744) There is nothing in the record indicating that district staff provided the information referenced. The parent did not provide the CSE with the XX report. (T. 739, 750, 752)
On June 10, 2010, and aware that the student of the hospitalization due to XX XXX, the CSE convened to develop a program for the 2010-2011 school year. (T. 845, Ex. 74) The CSE noted that, although less frequently than in the prior school year, the student would XXXXXXXXXXXXXX, including when XXXXXXXXXX, would XXX XXXX XXXX XXXX. It was noted that when XX XXXXXXXXXXXXXXXXXXXX. (Ex. 74) In addition to material reviewed for prior evaluations, the CSE considered an educational evaluation, dated April 21, 2010, which was a WIAT-II from which math scores were obtained. (Ex. 74) It recommended a return to a full day program in XX’s XXX class (XX) (Ex. 74) The CSE noted the student’s need for XXXXXXXXXXXXXXXXXXXXXX and continued to provide the same number of total sessions but altered the configuration and provider, anticipating that the student would return XXX (T. 749, Ex. 74) The school XX would continue to provide XXXXXX. (T. 749) Program modifications and testing accommodations were unchanged from the previous IEP. (Exs. 74, 76) The parent did not object to the CSE’s recommendations. (T. 755) It is undisputed that there was no recommendation for a XXX at that time. XX, however, routinely recorded XX and XX for each of her students.
AIOP was similar to IDT in that it provided a therapeutic transition program but it was medically rather than educationally based. (T. 709) (T. 858, 868) The student was not in school for the rest of the 2009-2010 school year. (T. 751)
3. 2010-2011 School Year Events
School resumed on September 8, 2010. (T. 748, Ex. 73) Although the XX report was not provided, the student’s mother informed XX staff that XX had had a “XX” summer and had XXXXXX. (T. 753-754, 845) XX agreed to talk to the student but was unable to do so despite two attempts. (T. 755) On September 16, 2010, the student’s refusal to comply with a XX directive escalated and resulted in XXXX. (T. 756-757, 847, Ex. 71) XX, who had concluded that the student was XXX, contacted XXXX (“XX”) that day to XXXX and referred the student again XXXX. (T. 759-760) Although XX could XX the student immediately, the parents said they wanted to consider various options over the weekend. (T. 759)
The student was XX on September 20, 2010. (Ex. 70) XX assessments specify that the student had been XXXXXXXXXXXXXXXXXXXXXXXXXXX and had refused to attend XX scheduled to start on September 20th, XX, had had declining school performance as well as XX. XX commencing 1½ years previously was noted. The student XXXX . XX staff suspected XXXXXXXXXXXXXXXX. Although the student initially XXXXX, XX XXXXXXXXXXXXX. After being able to exhibit XXXXXXXXXXXXX, he was XXXXXXXX. The student XX on September 28th. (Exs. 68, 70)
On October 4, 2010, the student was XXX and agreed to XXX recommended. He XXX on October 19th. XX diagnosed XXX but diagnosis of XXX was deferred. It was noted that XXXXXXXXXXXXXXXXX. Testing was commenced at XX but the student was XXX. The therapist noted that the student required XXXXXX. However, the examiner reported, based upon WIAT-II results, that the student’s word reading and pseudoword decoding were at grade equivalents of XX and XX, respectively, and that spelling and numerical operations were at XX and XX, respectively. The student was XXX XXXXX with a recommendation of XXX XXXX. (Exs. 68, 70) It was acknowledged that the CSE was in possession of at least some of the XX XX documents, including those which referenced XXX, when the student was moved into the XX placement. (T. 330) There is no indication that the CSE did not have all the documents or, if not, that made any efforts or inquiry concerning them.
On September 21, 2010, the district, with the parent’s approval, had commenced application to the XXXX (“XX”) (Ex. 69) That program is housed at XXXX. (T. 369, Ex. 64) In the XX program, XXX provides the educational program and XX provides the XX component. (T. 900) Although XX staff works cooperatively with XX, they are not supervised by XX administrators. (T. 1009-1010) The numerous XXXX staff utilized as part of the XX program were, however, XX employees.
On October 14, 2013, while the student was at XX, the CSE convened and approved the district’s referral to XX. (Ex. 66)
On October 22, 2010, the XX administrative review had been completed and the student was admitted. (T. Ex. 67) The student commenced attendance on October 25, 2010. (T. 900, Ex. 64) XX assessment documents in connection with the intake reference the XX Assessments and details XXXXX. (Exs. 65, 110) 11
On November 23, 2010, the CSE convened to recommended a 10 month XX program, XXX for all academic classes and taught by a special education teacher, and XXX services (one individual 30 minute session per week and one 5:1 30 minute session per week.) (T. 1023-1025, Exs. 64, 74) The parent did not object to the recommendation. (T. 852) At the review, the CSE was informed that the student was making a good adjustment although XXX. (T. 331-332, Ex. 64) At about that time, XX was functioning mostly at grade level but XXXXXXXXXXXXXXXX. XX was permitted to use a XX and was not required to XXXXXXXXXXXXXXXXX. However, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1030-1033) Neither XXXX was conducted/prepared or proposed by the CSE when the transition to XXX, considered to be a XXXXXX setting, was made. (T. 342) XX had in place, however, a
XXXXXXXXXXXXXXXXXXXX. (T. 1027)12
XX intake records for XX dated November 2, 2010, prior to the CSE review, specify that the student’s first XX admission was following XXXXX and XXXX It also notes that the student reported having XXXXXXXXX prior to Spring 2010. (Ex. 110) The student attained the XXX once. (T. 1034)
At XX, XX and XX were diagnosed but XX were deferred. (Ex. 65) The program did not limit the student to the XXXX time specified in the IEP. (T. 1025) A XX XX Plan (“treatment plan”) was created which specified goals, target dates and method and persons responsible for achieving them. (Ex. 110) Staff, the parent and the student participated in its the formulation and review. (Ex. 110) The treatment plan scheduled three month reviews to determine, with student and parent feedback, to whether and what goals/objectives and strategies should be amended. (Ex. 110) The plan, which commenced November 21, 2010, shows that no XX goals or objectives were attained while the student was at XX. 13 (Ex. 110)
A variety of classroom strategies utilized generally by the student’s teacher including XXXXXXXXXXXXXXXXXXXXXX. (T. 909, 930) Particular adjustments were made for this student (T.1028-1029, 1031, 1032)
Additional building level XX utilized as the 2011-2012 school year progressed included XXXXXXXXXXXXXXXXXXXXX (T. 904, 911, 930) and, as XX, XXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 931, 1011, Ex. 55)
However, notwithstanding these strategies, the treatment plan reviews shows XXXXXXXXXXXX. XXXXXXXXXXXXXXXXXXXXXX were noted by January 2011, when he was XXXX. In the April 25 treatment plan review, a decline shortly after a brief improvement following another XXXXX was reported and increased XXXXXXXXXXXXXXXXXXXXXXXX were noted. (Ex. 110)
The student had been XXX on January 19, 2011 and XX records specify the XXXXXXXXXXXXXXXXXXXXX The report noted XXXXXX XXXX XXXXXXXXXX. XXX were changed and the student XXX on February 7, 2011. (Ex. 63)
Attendance records show that between that XXXX and the March 3 CSE review, the student was XXXXXXXXXXXXXXXXXXX. (Ex. 55) Although three of the absences are characterized as “ XXX”, it is noteworthy that XXXXXXXXXXXXXXXXXXX. (Exs. 55, 62)
It was, however, noted in November that XX had attained XXXX rapport and was performing academically to XX XXXX. (Ex. 110)
On March 2, 2011, XXXXXXXXXXXXXXXXXXXXX. (Ex. 56) Three similar XXX had been recorded in January prior to XXX. (Ex. 56)
On March 3, 2011, some 17 school days after XXX, the CSE met to develop an IEP for the 2011-2012 school year (9th grade). (Ex. 61) The XX principal (XX), the student’s teacher (XX) and the student’s XX social worker participated. The CSE received reports that there had been significant improvement in XX XXXXXXXXXXXXXXXXXXXXXX. (T. 1035-1036) The CSE was also informed that XX had been XXXXXXXXXXXXXXXXXXXXX. (Ex. 61) 14 The parent reported that XXXXXXXXXXXXXXXXX. (T. 1035, Ex. 61) However, although the student’s XXX were discussed, they were not the focus of the meeting. (T. 953)
The CSE considered an educational evaluation conducted on February 22, 2011, after the student’s XXX, and reported academic functioning levels as: math (XX grade level for math concepts and applications and XX grade level for computation and fluency but with XXXXXXXXXXXXXXXXXXX); reading (reading on an XX grade level with listening and reading comprehension XX, XX grade level for decoding and XX grade for reading fluency); writing (XX grade level with fluency at the end of XX grade and XX limiting XX writing ability). (Ex. 61-2, 3) The student was then in the XXX grade. The February 22, 2011 evaluation is not in evidence. The CSE noted that XXX prevented the student from performing on a consistent basis and recommended continuation of the same program (XX) at XXX, a XX high school with the same modifications and test accommodations as previously provided. Sometime after April 23, 2012, the XXXX began receiving XX service once a week for 45 minutes as a home-based service provided by XX. (Exs. 50, 110)
After the March 3 CSE review the student’s XXX deteriorated with XXXXXXXXXXXXXX. (T. 1036) XX informed XX teacher that XX did not need to XXX and that XXXXXXXXXX. (T. 1037) With regard to the student’s XXX from March on, XX teacher testified that she XXXXXXXXXXXXXXXXXXXX. (T. 1056- 1060)
It is noteworthy that these were singular events ant at least one occurred very early in the student’s enrollment.
On March 4, 2011, the student was XXXXXXXXXXXXXXXXXXXXXXX. The two were returning to the building after an unauthorized departure and ignoring staff directions. (T. 918-919, Ex. 56) This incident resulted in XXXXXXXXXXXXXXXX. (Ex. 56)
On March 10, 2011, at 9:15, the student returned to program XXXXXXXXXXXXXXXX (Ex. 56) Shortly afterward, XXXXXXXXXXXXX XXXXXXXXXXXXXXXX take XX home. (Ex. 56) The student was absent the next day. (Ex. 55)
On March 16, 2011, XX was XXXXXXXXXXXXXXXXXXXXXXXXXXXXX and XXXXXX on March 23rd. (Ex. 60) The only information XXXXXXXX provided to the district or in this hearing is a March 23, 2011 letter from XXXX to XX stating that he was XXXXXX. (Ex. 60) XXXX are not in evidence and the parent XXXXXX .
On April 4 and April 8, 2012, XX reports described XXXXXXXXX. (Ex. 56)
On April 12, 2011, the student was XXXXXX in class. The class was XXXXXXX. The student XXXXXXXXXXXXXXXXXXXXX (“the April 12th XX”). (T. 926, Ex. 56) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1857-1858, Exs A, B) 15 The student was in school the next day only briefly in connection with XXXX of the April 12 XX. (Ex. 55)
District staff was promptly informed of the April 12 XXXX by XXX and the parent. (T. 385, 978-979)
After return XXXXXXXXXX on March 23 and through May 3, XXXXXXXXXXXX continued. (Ex. 55) This period, however, includes the XXX spring recess.
On May 3, 2011, the student XXXXXXXXXXXXXXXXXXX. (T. 1041, Ex. 56) XXX was XXXXXXX. (Ex. 56)
No State examinations were taken by the student. (T. 936, Ex. 107)
None of the participants testified and precisely what occurred is disputed and, I conclude, not possible to determine from the evidence submitted. I note the testimony of XXX concerning XXXXX and find credible the testimony of XXX as to what she observed on May 12. (T. 1872, Ex. 116)
The student did not thereafter XXXXXXXXXXXXXXXXXXXX. (T. 932-933, 1042, Ex. 55) School officials were told XXXXXXXXXXXXXXXXXXX. (T. 936, 1045-1047)
Letters to the district and to the director of XXXXX dated May 27, 2011, were submitted by the parents and not contested. (Exs. E, F) The parent asserted therein that the attempt to XXXXXXXXXXXXX in the circumstances described was improper and that the student as a consequence XXXXXXXXXXXXXXXXXXXX. The parent requested that the district provide home tutoring for the balance of the school year. (Ex. E) There is no evidence of a response.
While the student was at XXX the principal spoke with the CSE chairperson at least 10 times. (T. 957) The chairperson testified regarding the student’s XXX that she assumed that XXX would bring issues to her attention if necessary. She was aware of the April 12 XX.
4. 2011-2012 school year events
The student did not have an XXXXX (“XXX”) program in the 2011-2012 school year. (Ex. 61)
In July 2011, the family XXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1245, 1248, Ex. 52) The parent later told the CSE, at the October 21, review, that XXXXXXXX XXXXXXXXXXXXXXXXX. (Ex. 50) The family agreed XXXXXXXXXXXX XXXXXXXXXX. (T. 1242-1245, Ex. 52)
XXXX, a XXXXXXXX assigned to the XXXXX site, supervised students at that site who XXXXXXXXXXXXX and the student was included in her caseload. (T. 1235- 1236) Her duties included meeting with such students XXXX, conferring with school and therapeutic staff and attending meetings concerning those students. (T. 1237) XXXX had meetings during the summer at which the family informed her that they XXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1047) She was informed that the student XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXX
XXXXXX. (T. 1047, 1252)
During that summer, at a July 19, 2011 XXXX quarterly treatment plan review, the parents reported the XXXXXXX. They told XXXXX staff that student’s behavior at home was appropriate except XXXXXXXXXXXXXXXXXXXXXX; XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 110)
The student commenced attendance at XXXXXXXX in September 2011. The school does not socially promote students but rather requires that a student complete the curriculum in order to pass. However, students work at their own pace and if a course is not completed by the end of the school year, students continue when they return in September where they left off. (T. 1390)
XXXX has a XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1380, 1400) As in XXXX, the XXXX component of the program was provided by XXXX. XXXXXX, an XXXX licensed XXXXXXXX met with the student frequently during the school year, for XX scheduled XXX as well as XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1066, 1069, 1074, Ex.
74)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX. (T. 1075-1077, 1081-1082) The XXXXXXX report does not indicate any significant or sustained progress. (Ex. 110) It is noteworthy that XXX October 25, 2011 report specified, among other things, that XXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 110) The parents were attempting to XXXXXXX. Parent efforts reported to XXXX included XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX which was effective only for a short period. (T. 1261)
On the student’s first day XXX XXXXXXXX without permission and went to XX XXXXX after a misunderstanding concerning the regarding what was expected of students during a conversation with XXXXXXX (“XX”), XX English and Math teacher. (T. 1069-1071, 1260, 1386, 1391, Ex. 50) Later that day, XX father (“the father”) visited, explained what had occurred and proposed XXXXXXXXXXXXXXXXXXXXXXXX that the family believed to be appropriate. (T. 1260) The father also informed staff about the April 12 XXX, asserting that the student was
XXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1212) 16
The student was instructed by XXXX in the morning for English and Math and by another teacher (“XXX”) after lunch for science and social studies. XXX was relatively successful in XXXXX’s class in the beginning. (Exs. C, D) Although reluctant to XXXX, XXX was XXXXXXXXXXXXXXXXXX, participating in group lessons, reading and sharing materials with other students. (T. 1394-1395, 1908, Exs. C, D) At XX request, XXX was permitted to take XXX tests without having done certain preliminary course work and if achieving a high enough score getting credit for the section. That XXXXXXXXXXX and XXX initially had substantial success. (T. 1395, Exs. C,D) XXXX described XXX as XXX socially but the student had XXXXXXXXXXXXXX in XXX’s class. (T. 1396, 1398-1399, Exs. C,D)
However, the student had substantial and continuing difficulty in XXXX’s class commencing almost immediately and by November XXXXXXXXXXXXXXXXXXXX. (T. 1405-1407) Difficulties including XXXXXX XXXXXXXX
XXXXXXXXXXXXXXX. (T. 1409)
On October 21, 2011, the CSE met at the request of the parent to review the student’s program. (T. 1414, Ex. 50) The student attended this meeting as did XXXXX. (Ex. 50) The CSE was informed that the student showed substantial XXXXXXXXXX XXXXXXXXXXXXX. (T. 1413-1414, Ex. 50) The CSE was also informed about the student’s XXXXXX from April through June 2011 at XXXX, inconsistent XXXXX in September-October at XXXX and XXXXXXX at XXXX (XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX. (T. 1414, Ex. 50) Staff observed that when the student was XXXXX XX was not capable of XXXXX. (Ex. 50) The parent reported that the student did XXX at XXX, that his XXXXXX at XXXX was minimal and that the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 50) The CSE was informed that XXXX’s goal was that the student XXXX (Ex. 18) It rejected the parent’s suggestion of a XXX XXXXXXX because the student’s
The father testified that his conversation occurred late in the week but I note that that is inconsistent with XXX records and the testimony of XXX, XXX and XXX. I conclude the father’s recall was inaccurate. XXXXXXXXXXXXXXXXX which would preclude a XXXXXXXXXX. (Ex. 50) Additional home support through XXXXXXXX was to be considered.17 (T. 1084-1089, Ex. 50) Preparation of XXXXXXXXX were recommended so that XXX could follow through because it was acknowledged that some things were not working at XXXX. (T. 363, 1090, Ex. 50) With regard to a XXXX program, discussed that XXXXXXXXXXX XXXXXXXXXXXXXXXXXXX. The student was opposed and the parent was not interested in that at that time. (T. 364, 1556-1558, Ex. 18) 18 The possibility of XXX was also discussed. (Ex. 50) The student’s XXX program remained the same. (Ex. 50)
A subsequent XXX, dated October 26, 2011, was conducted by XXXX school psychologist XXXXXX (T. 1090-1091, 1560, 2275, Ex. 49) with the assistance of XXXX and XXXX staff. Staff informed XXX that the XXXXX XXXXXXXXXXXXXXXXXXXXX. (Ex. 49) XXXX attempted to but did not meet with or observe the student prior to the completion of XXXX because of XXXXXXX but relied upon the input of XXX staff and various evaluative material and XXX records. (T.1091,1560-1561) The XXX was, however, created on November 9, 2011 with the student’s input and XXXXXXXXXXXXXX (T. 1563-1564, Ex. 49) The XXX provided XXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 49) Very limited data was XXXXXXXXXXXXXXX. (T. 1414) XXXX inquired about the XXXX in January. (T. 1455)
By November, however, the student was demonstrating XXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(T. 1404-1405, 1411)
The student was again XXXXXXXXX at XXXXX from November 16, 2011 through November 21, 2011 after XXXXXXXXXXXXX. (T. 1098-1099, Exs. 36, 47) A XXXXX change was made. (T. 1100, Exs. 40, 47) It was reported that while at XXXX XX had a XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
At home XXXXXXXXXXX had commenced in Spring 2011. XXXXXXXXXXXXXXXXXXXXXXXX was to be implemented. In addition, referrals though XXXX can also be made by XXXXXXXXXXXXXXXXXXXX (T. 362- 363, 573, 575)
The evidence shows that in practice, however, a XXXXX placement as a XXXXXX is extremely rare. However, in discussions around that time the parent stated that although not desired by her, she would not object to a XXXX if that would be better for the student. (T. 1092, 1269) (Ex. 47) The XXX assessment stated that XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXX. (Ex. 47) XXXX sessions focused on XXXXXXXXXXXXXXXX XXXXXXXXXXXXXX (Ex. 47) The student reported XXXXXX during the summer. (Ex. 47) XX was XXXX with a diagnosis of XXXXXXXXX and no recommendation of a XXXX placement was received by XXXX. The district did not receive the report at that time.
Initially there were some positive changes in XXX behavior and XXX had positive XXXXXXXXXXXXXXXXX (T. 1101, Ex. 47) However, after XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX continued. (T. 1415)
From XXXXXXXXX until the holiday break the school recorded some XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 23) On January 4, 2012, a XXXXXXXXXXXXXX claiming that XXXX attempts to rectify the school related problem had been exhausted. (Ex. 45) The school stated that the student was
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXX. (Ex. 45) The student, and parents, thereafter agreed to participation in the XXXXXXXXXXXX program with regard to that XXX as well. (Ex. 41) The record is not clear with regard to precisely when the parents XXXX they had XXXX. It is noteworthy, however, that they had by December made clear their interest in XXXXX. (T. 1274-1278)
A XXXX evaluation was completed by XXX on January 17, 2012. She noted a history of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. She concluded that various XXXX results could not XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. No XXXXXXXX was conducted. (T. 374, 1571-1581 Exs. 31, 44)
In mid-January 2012, while the XXX was being pursued and at the student’s request, XXX had been permitted to do the classwork for XXX Science and Social studies classes, held after lunch, in a smaller class taught by XXXX , rather than being required to attend XXXX’s class. (T. 1078, 14-25-1426, 1428, 1479, 1487-1488, 1523, Ex. 43) The student had indicated that he thought it would help XXXX XXXX. (T. 1479) Initially, for about four weeks, he did well in the class. (T.1427, 1479, 1529, 1530) However, although “role-model” behavior was reported in class, XXXXXXXXXXXX XXXXXXXXXXXXXXXX. (Ex. 40)
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
(T. 1282) On February 6, 2012, the CSE met for XXXXXXXXXXXXXXXXXX XXXXXXXXXX. (Ex. 45) The student attended this meeting. (Ex. 45) Contrary to its opinion in the October review, the CSE at this time found that XXXXXXXXXXXXX XXXXXXXXXXXXXXX. (T. 369, Exs. 40, 50) XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (T. 527, 1103-1104, 1192, 1219, 1229, 1288)XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX(T. 360, Ex. 40) The XXXXXX XXXXXXXXXXXX evaluation was not presented or considered although XXXXX was present. (T. 1605, Ex. 40) Although the increased XXXX support had been recommended in October, the student was apparently not yet receiving the skills building support from a XXXX worker discussed in the October review, when the February XXXXXXXXX was conducted. (Exs. 40, 50) 19
On February 10, 2012, the student XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX. (T. 1097, 1284, Exs. 24, 29) XXXXXXXXX XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX . (Ex. 29) XXXXXXXXXXXXXXXXXXX XXXXXX resulted and XXX was assigned as XXXXXXX. (T. 1285) XXX’s XXX plan following the XXX XXXXX was substantially the same as the XXX plan but the parents refused XXXXXXXXX , specifically objecting to certain references XXXXXXXXX. (T. 1299)
Thereafter, the parent informed XXXX that the family’s relationship with XXXX was effectively severed and the parent opined, in the presence of the student, that XXX should not be in that program/school. (T. 1303-1305)
The services had been approved on December 1st and the student had met the XXX worker later in December.
In mid-February, after about four weeks in XXXX’s class, the XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX (T. 1479, 1530) The student stated that XXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1531) XXX stopped
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXX. (T. 1532-1534 )
The student stopped attending XXXXX sessions on March 5, 2011 (but for one day in May) telling XXX to close his file because XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX (T. 1107, 1111, Ex. 31). When contacted by XXX, the parent denied that that was the case although it was acknowledged by the father that there had been discussions at home concerning XXXXXXXXXX. (T. 1139) XXXX’s subsequent attempts XXXXXXXXXXX were rebuffed by the student. (T. (T. 1107, 1112) The student also began to tell XXXXX that he did not XXXXXXXXXXXXXX. (T. 1301)
By letter dated March 22, 2012, received by the district on March 27th, the parents, through counsel, requested an independent XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX. Specific providers were not named. (Ex. 35) The parent also wrote XXXX expressing concerns about the program. (Ex. 32)
On April 3, 2012, XXXXXXXXX Dr. XXXXXX, XXXXXXX XXXXXXXXXXX independently consulted by the parent, met with the parent and student for an hour. (T. 1767, Ex. 33) She also reviewed certain documents, including XXXXXXX reports, but did not speak with XXXX or district staff concerning the student. (T. 1766, 1821-1823) The student did not XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1767, Ex. 33) In a written report dated April 4, 2012 (“the XXXXX report”), she recommended a variety of interim measures. (Ex. 33)
On April 13, 2012, the CSE met for a reevaluation review concerning the balance of the 2011-2012 school year. (T. 371, Exs. 31, C, D) By this time the parents had XXXXXXXXXX XXXXXXXXXXXX. (Ex. 31) Counsel for the district and parent were present and participated. Also in attendance were XXXX staff. The student and XXXX did not participate in the meeting. (Exs. 31, C,D) The XXXX XXXXXXXXX evaluation was reviewed. (T. 1582) The CSE considered reports from XXXX staff that, among other things: the student was XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX. It was noted that academic testing was not conducted in February 2012 because the student XXXXXXXXXXXXXXXX but testing in February 2011 was claimed and it was reported that the student was currently at the same level as peers. (Exs. 31, C, D) The CSE also discussed XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX. (Exs. 31, C, D) The home services then in place through XXXXX were reviewed. (Exs. 31, C, D) 20 The CSE requested that the parent not XXXXXXXXXXXXXXXXXXX. (T. 386-387, Ex. 31) The XXXXXXX report’s recommendations were discussed and the CSE approved an XXXXXXXXXXXXXXX evaluation and the addition of a XXXXX to the IEP but rejected others. (T. 1435, 1437, Ex. 31) The parents’ requests for an independent XXX and an independent XXXXXXXXXXXXXXXX evaluation were agreed to but approval of the parents’ chosen providers was conditioned upon submission of information showing acceptable credentials and fees. (Exs. 31, C, D) 21
A XXXX placement was not requested by the parent at that time. (T. 1584, Exs. 31, C, D) The CSE recommended continuation of the XXXX placement but added program modifications. (Ex. 31)
On April 23rd , a XXXXXXXXXXXXX Review was conducted which resulted in a list of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX but the student was subsequently reported not to have utilized any XXXXXXXXXXXXXXXXXX. (Ex. 28)
From the time of the review April 13 review through May 15, records show at least XXXXXXXXXXXXXXXXXXXXXXXXXX. Ex. 51) The student XXXXXXX
Although the student initially appeared to enjoy the skills building and respite services provided by a XXX worker, that service was discontinued subsequent to the CSE review after XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX. The father testified that the student reported that XXXXXXXX XXXXXXX
XXXXXXXXXXXXXXX.
XXXXXXXXXXXXfrom May 15th through the end of the school year on June 12th , XXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 23)
In April 2012, prior to the district’s approval of him as the evaluator, the parent had contacted and met with Dr. XXXXXXXXXXXXX with regard to a XXXXXXXXXX evaluation. (T. 1916) The student appeared for two sessions and XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1885, 1916, 1935) The evaluation was to resume in May but although the student arrived, the parent was XXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1939-1940) 22 It is undisputed that the district was unaware of XXXXX.
In May 2012, the parent requested that XXX implement XXXXX to provide a XXXXXXXXXXXX placement. Extensive paperwork and record gathering is required for that and the first available date for consideration of the completed request was in July.
By letter dated May 18, 2013, the hearing request was filed.
By June 25, a decision was made to XXXXXX XXXXXX in view of XXXX XXXXXXXXXXXX with the XXXXXX plan. (T. 1356, Ex. 26)
By letter dated May 18, 2012, the parents filed a hearing request. (Ex. 14)
5) Post Hearing Request Events
The CSE convened on June 20, 2012, and recommended a XXXXXXXXXX program. (Ex. 28) The parent thereafter agreed to XXXXXXX, a CSE proposed placement, and it was, on June 26, 2012, placed on the IEP. (Ex. 25)
The student commenced attendance at XXXX on July 10, 2012. (Ex. 24) After XXX first few days there, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXX was approved to do XXXXXXX by the June 20, 2012 review. (Ex. 28) XXXX was approved to provide the XXXXXXXXXXX evaluation by letter dated August 2, 2012 after delays in connection with the district’s claim that necessary consents had not been received. Efforts from May through August to continue and complete the XXXXXXXXXXXXX were unsuccessful. (T. 1939- 1940) Authorization for the conduct of XXXX ’s evaluation at district expense had , however, been provided. (Ex. 113) It was agreed by the parties that XXXXXXX’s review required the student to be settled into a school at the time. XXXXX from July 31-August 3rd. Although XXX presented well at the XXXXXXXX meeting, there were XXXXXXXXXXXXXXXXXX. Further, at times the student
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXX. However, the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX commenced before XXXXXXXXXXXXXXXXXX. On August 15, the student was XXXXXXXXXXXXXXXXXXXXXXX staff. XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX. As a result of XXXXXXXXXXXXXXXXXXXXXXXX XXX the student was in attendance for less than one-half the summer program. The three key areas of concern, the parent agreed, XXXXXXXXXXXXXXXXXXXXXXX. (Exs. 17, 20)
On August 23, 2012, the CSE convened and it was agreed by all that the CSE would look for a different, XXXXXXXXXXXX placement. (Ex. 24) The parent was emphatic that the student at that time needed a facility XXXXXXXXXXXXXXXX XXXXXX. (Ex. 20)
During Summer 2012, the student still had XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX. (T. 1356, Exs. 19, 24, 111) On September 4, 2012, XXX XXXXXXXX placement at XXXXXXXXXXXXXXX (“XXXXXXXXX”) XXXXXXXXXXXXXXX. (Ex. 111) The student was placed in XXXXXXXXXX after XXXXXXXXXXXX from XXXX. When the XXXX concluded that a CSE placement, XXXXXXXXXXXXXXXXXXXXXX, would be acceptable, 23 the CSE recommended XXXXXX, the parents accepted and the student commenced in mid-October.
The student’s class was XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX. (T.2158) XXX provides, in addition to academics,
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 2127-
2129, 2140) An XXXXXXXXXXXXXXXXXXXX had been developed for this student. (T. 2247-2248) Further, the student requires daily support with regard to XXXXXXXXXXX. (T. 2140) There is close coordination between XXXXXXX XXX XXXXXXXXXXXXXXXXXXXXXXXXX. (T. 2148-2156) Although the student
A XXXXXXXXXXXXXXXXXXXXXX was scheduled for January 2013. Information concerning the student’s current XXXXXXXXXX has not been provided. XXXXXXXXXXXXXXXXXX during XXX first week there (T. 2287), as of January 23, 2013, XXX had adjusted well and was making progress. (T. 2133, 2136-2138, 2161- 2163) With specific regard to XXXXXX, XXXXXXX staff noted XXXXXXXXXXX XXXXXX and XXXXXXX‘s XXXXXXX was in the process of
XXXXXXXXXXXXXXXX. (T. 2163-2165, 2247-2248)
B) Conclusions of Law
1) Parents’ Claims that a FAPE was not provided
a. General Considerations
In New York State, the district bears the burden of production and persuasion as to whether a FAPE was provided and on all related matters, except the appropriateness of a unilateral placement in a private school when tuition payment is sought. N.Y. Educ. Law § 4404[1][c]; M.P.G. v. New York City Dep’t. of Educ., 2010 WL 3398256, at *7
(S.D.N.Y. 2010).
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). However, that placement must provide the special education needed by the student. (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 C.F.R. § 300.116).
Further, New York State regulation requires the district to conduct an FBA for students whose behavior impedes his learning or that of others. 8 NYCRR 200.4(b)(1)(v) When a student’s behavior impedes learning a BIP must be developed with strategies to deal with problem behaviors. 8 NYCRR 200.22 (b) The Second Circuit has observed that “[t]he entire purpose of the FBA is to ensure that the IEP’s drafters have sufficient information about the student’s behaviors to craft a plan that will appropriately address those behaviors.” R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d 167, 190 (2d Cir. 2012) However, although failure to develop an adequate FBA is a serious procedural violation, the mere fact of absence of an FBA, although a procedural violation, does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behaviors and specifies strategies for addressing them. Id. See also A.C. ex rel M.C. v Bd. of Education of the Chappaqua Sch. Dist., 553 F.3d 165, 172(2nd Cir. 2009). 24 Nevertheless, although the “efficacy” of IEPs’ treatment of behaviors in particular cases may be considered, the routine omission of an FBA is not permitted. R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d at
Further, there is no support for the parents’ claim that a CSE is required to routinely consider a more restrictive placement. What is required is to provide a program reasonably calculated to enable a student to make meaningful educational gains in the least restrictive environment, not a consideration of whether a more restrictive program would maximize the student’s potential. In Appeal No. 08-103, cited by the parents, a residential placement had been requested by the parent and recommended in various evaluations submitted to the CSE and by a team member but not considered.
b) Analysis
The parents made various claims concerning the period prior to the June 2010 IEP which were not withdrawn although no evidence concerning them was presented by the parents. I conclude what occurred during that period is relevant to a determination with regard to the CSE’s recommendation in June 2010 and whether that IEP was defective.
Persuasive and undisputed evidence shows that district staff acted promptly when the student entered XXXXXXXX in September 2008 with a 504 plan in which actions included a timely referral for evaluation and CSE review. Upon the student’s return from the XXXXXXXX in January 2009, and after initial reluctance, by March the CSE placed the student in a XXXXXXXXXXX class. I make no findings with regard to procedural or substantive defects in the IEPs created or the programs provided during that period. However, uncontradicted evidence shows that the student progressed and was moved
An FBA means the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. It shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors), and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it (8 NYCRR 200.1[r]). Appeal No. 11-034 n. 16 slowly into XXXXXXXXX classes in certain subjects, with the agreement of the parent, as XXX demonstrated progress.
However, at some point in the last quarter of the 2009-2010 school year there was a substantial turnaround and when the June 2010 CSE review (for the 8the grade) occurred the student was XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
The CSE returned the student to XXXXXXXXXXXX class full time, and continued to provide counseling, testing accommodations, program modifications and goals addressed to XXX needs. Data considered was principally the material obtained at the time of the student’s Fall 2008 entry into the school with the only recent data WIAT- II results in math areas. However, the data considered was less than two years old which is well within the permitted time period. The most recent XXXX at that time was created in October 2008 and there is no indication that it was considered at the meeting. The XXX prepared at the same time had been abandoned. However, XXXXXXX routinely XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX the student had previously progressed. Further, oral reports were obtained from participants who knew the student well. The student was then in an XXXX, the purpose of which was to XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX. I conclude that the CSE had a basis for relying at that time on the efficacy of the supports provided in the absence of an XXXXXXXXXXXX. The fact that the CSE did not specifically schedule another review/evaluation upon the student’s expected September return does not alter that conclusion in the circumstances here. I turn to subsequent CSE reviews and the student’s program at XXX at XXXX and XXXX.
With regard to these XXXXXXXXXXXXXXXXXXXXXXXXXXX schools generally, I note that XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.25 The CSE Chairpersons during both placements communicated frequently with XXXXXXX officials concerning the student. XXXX spoke with the XXXX principal at least once a week. XXX spoke with the XXXXXX principal at least 10 times and expected and assumed that she would be kept informed of any problems. XXXXX website
The CSE began looking for a placement on September 21st , immediately after the student’s XXXXXXXXXXXX, and XXXXXX accepted the student in October. It is undisputed that an XXXXXXXXXXX was not developed and no new CSE testing was done by the CSE prior to the XXXXXXXXX placement. Although the November 2010 CSE Chairperson had received assessment information from XXXXXXXX, the evidence does not indicate that it was presented to the CSE.
The IEP created in November 2010 was essentially unchanged but for the placement at XXXXXXXXXXXXXXX. That program is a “XXXXXXXXXX” program and is more restrictive than the XXXX placement. XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXXXXXX
and other supports and accommodations were provided as well as a XXXXXXXXX program. The IEP identified problems and specified a variety of strategies to address XXXXX XXXXXXXXXXX and also specified management needs. I note that many of the supports at XXXXXXX were similar to those at XXXXXX, for example XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Further, XXX and XXX staff were at the review and reported positive changes and the parent reported positive response to XXXXXXXXXX. Although the CSE did not consider an XXXXXXXXXXX, I conclude that that the procedural defect, while troubling in view of the change in placement, did not result in denial of a FAPE at that time. I note with regard to that conclusion that the student was moving directly from XXXX to XXXX which had XXXXXX support that included a regularly XXXXXXXXXXX plan.
However, the district asserts that the student made progress thereafter in the XXXX program. I conclude that progress was insignificant, intermittent and unreliable despite a variety of XXXX strategies specifically utilized for this student. The evidence shows no progress in achieving XXXXXX goals. Rather the evidence shows ongoing and escalating difficulties XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXX, similar to the problems demonstrated in XXXX.
The CSE met for an annual review on March 3, 2011, some 17 school days after discharge from XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. 26 On the day before the review, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXX.
The CSE recommended continuation of the program at XXXXXX, a similar program with regard to staff and approach but significantly more challenging with regard to academic expectations. There is no indication that XXXXX was discussed although the student’s record is replete with reports XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX. Indeed, the XXXX principal testified that XXXXXXXXX were not the focus of the meeting. The CSE appeared to rely on oral and anecdotal reports of improvement, including in XXXXXXXXXXXXXXXX, since XXXXXXXXXXXXX XXXXXXX less than a month before. However, apparently unconsidered were
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX. Indeed a XXXXXXXXX and alleged improvement was referenced in the preceding IEP (November 23, 2010.) The March 2011 IEP notes an Educational Evaluation conducted on February 22, 2011, not in evidence, but no new XXX evaluation. Again there was no XXXXX. In the circumstances at this time, I find no reasonable basis for reliance either on the claims of improvement or on the efficacy of the supports the CSE continued to propose to address the student’s XXXXXXXXXX. I conclude that the procedural defect in failing to conduct an XXXXXXXX at that time resulted in a denial of a FAPE for the 2011-2012 school year. I note that an XXXXXXXXXXXXXXXXX that the student was exhibiting, including XXXXXXXXXXXXXX. (T, 1991) 27 Further, I conclude that the district has failed to establish that the program for the balance of the 2010-2011 school year was appropriate.
It is noteworthy that although the district argues that relevant information concerning difficulties at home was withheld and unknown, the evidence shows, as discussed below with regard to remedies, that there was information at that time in The evidence shows that XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX. The parents had XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Exs. C,D) I note that even a failed attempt or the development of a XXX which was not effective could have provided information to aid the CSE in determining whether the placement and program were appropriate. (T. 1907) District records reporting XXXXXXX. Further, the parents’ difficulties, and apparent inability, in XXXXXXXXXXXXXXXXXXXXX were known. The CSE possessed sufficient information at the time of the review to require different CSE action. What it might have done with additional detail is speculative and indeed no claim with regard to that has been made. The district’s claims concerning a parental noncooperation will be considered with regard to the relief requested.
The evidence shows that after the March 3 review the student’s XXXXX deteriorated with less XXXXXXXXXX and more XXXXX in class and otherwise including XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. After the XXXXXXXX that followed, the student engaged in a variety of XXXXXXXXXXXXXXXXXXXXX and was, on April 12, XXXXXXXXXXXXXXXXXXXXXXXXXXXX. The principal and the parent immediately informed the CSE Chairperson. Further, if the chairperson was not informed as to the student’s XXXXXXXXXXXX since the review, which I find unlikely, she should have inquired. The CSE took no action. XXXXXXXXXXXXX issues continued. On May 3, the student XXXXXXXXXXXXXXX while in the course of testing.28 The CSE took no action. The school year ended on June 22 with the student not having XXXXXXXXXX since the test incident. The CSE Chairperson testified that she could not recall if she was informed but she would not have inquired. No CSE action was taken. The undisputed evidence shows that the parent wrote by letter dated May 27 and informed the CSE that the student was XXXXXXXX and requested tutoring. Regardless of how the April 12 incident came about, an effect on this student’s XXXXXXXXXXXXXXXXXXXXXX is not surprising. There is no evidence of any CSE response. I conclude that the CSE had sufficient information at that time to inform that the development of XXXXXXX was required but took no action. The student entered a new and more challenging school in early September with no XXXXXXXXXXXXXXXXX and with no plan to conduct one. The student had difficulties from entrance. That the student had difficulties XXXXXXXX, I consider not
The evidence shows long history of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and which was known to the CSE. relevant with regard to the CSE’s failure. Further, I note that prior to the student’s entrance, XXXXXXX staff was timely informed by the parents of what had occurred.
The parents requested a reconvene to reconsider the student’s program and the CSE met on October 21, 2011. The parents had XXXXXXXXXXXXXXXX in early July and the student was XXXXXXXXXXXXXXXXXX .The evidence shows that the CSE was aware that the parents could not XXXXXXXXXXXXXXXXXXXXXXX. Kennedy informed the CSE of her concern that the student “XXXXXXXX” and XXX staff reported continuing XXXXXXXXX. XXXX staff had concluded that that the program at XXXX, now including a 45 minute home-based session, was not working and that an XXX was required. By that time the parent had informed both XXXXX and XXXX that she would not oppose a XXXXXXXX placement. At the review, the issue came up only tangentially, not as a CSE proposal for consideration, and I give no weight to any expression of opposition by the parent at that time, for which I note there is no documentary support, because of the circumstances of the student’s presence and opposition.29 The CSE’s sole action was to require XXXXXXXXXXXXXXXXXXXX so that “all” can follow through, a CSE acknowledgment, I conclude, that that may not at that time have been the case in the absence of XXXXX.
With regard to those documents, developed within a few weeks, I find persuasive the testimony of Dr. XXXX that the district’s XXXXXX were inadequate. (T. 1781- 1788) Further, it appears that little XXXXXXXXXX and no XXXXX was submitted in this proceeding. I also note that there is no evidence of any inquiries from the CSE concerning the results of the XXXXXX and that there was no discussion of it at the April 13, 2012 review. In considering the district’s actions and inactions in this matter, I conclude that the XXXXXX are effectively nullities.
By November 2011, the student was demonstrating increased XXXXX XXXXXXXXXXXXXXXXX again. Despite some positive change, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, continued. The XXXXXXX Although the parents characterize information provided to the student about the XXXXXXXXXXXXXXX as “threats” and the cause of the student’s opposition to XXXX, I find otherwise. I note the student’s long reported XXXXXX and also that information about XXXXXXXXXXXXXX would also be expected to come from fellow students. Moreover, the statements concerning the possible consequences of XXXXXXXXX were not misrepresentations. A purpose of both XXXXXXXXXX was to promote XXXXXX. followed on January 4, 2012. A XXXXXXXXXXXXXXX was held on February 6th. Although the CSE stated thatXXXXXXXXXXXXXXXXXXXXXXXXXXXX, I give that no weight. Rather, I conclude that that result was in order to ensure that a XXXXXwould be in place upon withdrawal of the XXXXXXXXXXXX. I note with regard to that finding that the XXXXX XXXXXXXX evaluation, finding among other things, XXXXXXXXXXXXX XXXXXXXXXX, was not considered although it had been completed and she was present. Further, I note that the fire alarm incident, one of the two incidents described by XXXXX as indicating that the XXXXXXXXX, occurred in November when the XXXXXXXXXXXXXXX was imminent. See e.g. Appeal No. 11-XXXX (insufficient evidence to support a conclusion that XXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX).
Although I credit the testimony that the student was doing well in XXXXXXXX’s class until about mid-February, I find no support for a conclusion that the program at XXXX was showing enduring progress and would have continued to do so. I note with regard to that finding that the student’s record includes numerous instances of initial improvement and subsequent decline and, further, that the decline coincided with the XXXXXXXXXXXXXXX XXXXXXXXXXXX. Further, the evidence of improved XXXXXXXXXX generally is anecdotal in nature. Although I find that the evidence shows that the family effectively detached from the program in February-March 2012, as discussed below, in view of the student’s history and the absence of data or appropriate assessments, a conclusion that the student would have otherwise progressed is merely unsupported speculation.
The CSE reconvened on April 13 at the parents’ request to consider the student’s program for the balance of the school year and various requests made by the parents. It made no changes in the student’s 2011-2012 program about which I have found the district failed to establish that it provided a FAPE. With regard to the parents’ claims, specified in the amended complaint although not asserted in their closing memorandum, concerning the implementation of the XXXXX report, I conclude that the report was meaningfully considered by the CSE. Further, concerning the suggestion of online courses at that time or as a result of this proceeding, in view of the student’s XXXXXX, I conclude that there is no support in this student’s extended history for a conclusion by the CSE then or by me now that he would for any sustained period be able to independently and systematically utilize them. I note particularly the father’s testimony concerning the reasons for his difficulty in XXXXXXXX’s class and Dr. XXXXXX’s testimony. (T. 2006) With regard to the parent’s request for independent evaluations, I find that the district’s requirement that the credentials and fees of the proposed evaluators be submitted not unreasonable and I find persuasive the district’s claim that delays in approval were a consequence of delays in receiving requested information and releases.
In view of the foregoing findings I do not substantially address the parents’ other claims. However, I note with regard to claims concerning the absence of standardized test information that district attempts to test the student XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX unsuccessfully addressed. It is also noteworthy that Dr. XXXXXX was XXXXXXXXXXXX even though not in a school setting and attempted with the encouragement and support of the parent. With regard to academic results, however, the evidence shows that when testing had been conducted, at least in part, the student demonstrated accomplishment at the appropriate levels in many areas, consistent with repeated teacher reports that he is able XXXXXXXXXXXXXXXXXXXXXXXX. Accordingly, the unreliability of certain test results has been noted and warned about.
Having determined that the district has failed to establish it provided a FAPE as set forth above, I turn to consideration of the requested relief.
V. REQUESTED RELIEF
The parents seek compensatory services and other relief.
While compensatory education is a remedy that is available to students who are no longer eligible for instruction, additional services have been awarded to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could not be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047; see also Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]). See also Appeal No. 11-027, citing P. Newington Bd. of Educ. 546 F. 3d 111, 123 (2d Cir. 2008) (stating that IDEA allows a hearing officer to fashion an appropriate remedy, and compensatory education is an available option under the Act to make up for a denial of a FAPE) However, compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Parental responsibility in whole or in part for the alleged loss of services may be a basis for denial or reduction of the relief claimed. See J.G. v. Kiryas Joel Union Free Sch. Dist., 2011 WL 1348845 at *25 (S.D.N.Y. March 31, 2011), citing Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d
692, 701 (S.D.N.Y. 2006).
Further, under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).
In the instant matter, the parents specifically request an Order that:
(1) requires the district to contract with an approved NPS for the provision of XXXXXXXXXX and to continue to provide a program and placement in a XXXXXXXXXXXXXXXXXXXXX placement until such time that the doctors and providers working with the student determine readiness to XXXXXXXXXXXX;
(2) requires the district to provide training to all staff on the IDEA, including, but not limited to requirements of scientifically-based methods of teaching and counseling, and the use (or alternatives to use) of XXXXXXXXXXXXXXXXXX;
(3) requires the district to convene a CSE meeting within ten (10) days at which time they will develop an appropriate IEP with the participation of XXXXXX, Dr. XXXXXX and Dr. XXXX in order to develop an appropriate special education program, complete with appropriate related services, accommodations and transition plan;
(4) requires the district to provide the student with corrective services to compensate for district failures to develop and implement an appropriate program and placement for the 2010-2011 and 2011-2012 school years, to be used at the parents’ discretion and without an expiration date.
With regard to request (1) concerning continuing placement at a XXXXXXXXXXXXXX, an impartial hearing officer lacks jurisdiction to order that relief as it “prematurely addresses future events regarding the offer or provision of a FAPE to the student for school years not at issue in the parents’ due process complaint notice…(see 34 C.F.R. 300.511[d]; 8 NUCRR 200.5[j][ii]” Appeal No. 11-027
With regard to request (2) concerning mandating training, the evidence in this matter does not demonstrate that such training is required and, further, the parents cite no authority for the broad district wide training they request and I conclude I have none.
With regard to request (3) seeking a reconvene of the CSE and the inclusion of specified participants, the CSE will be ordered to reconvene within 20 days of the issuance of this order to consider the student’s current program unless the parties agree otherwise. Persons invited by the parents to participate may do so.
With regard to request (4) seeking unspecified “corrective services” I find as follows: 30
The district asserts parental noncooperation and/or misinformation as a basis for denial or limitation of the parents’ claim. With regard to district claims that was misled or not appropriately informed about XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, I note that the district made no claims as to what the effect would have been had the allegedly omitted information had been disclosed. However, I find the evidence does not support the broad claims the district has made.31 Rather I find that substantial relevant I note that during the course of the hearing, the parents articulated a request for a specified number of counseling and academic tutoring services as compensatory services based upon the days the student was absent. The district noted that parents had apparently included absences due to illness, vacations and hospitalizations during which the student received academic services paid for by the district That specific request, I conclude, has been withdrawn. (Ex. 118) I do not address references in the district’s post-hearing brief concerning to incidents following the filing of the hearing request which are, I conclude, irrelevant to the issues before me. However, I find the description in medical records persuasive and find not reliable the father’s testimony that they were inaccurate. information with regard to these issues was in the possession of the district directly either through records received or by the parent and additional information was known by school XXXXXX staff as detailed herein above. With regard to claims that the parent deceived the CSE by responding that things were “XXXX” at home at the XXX hearing and subsequently, I note that absent a context for the inquiry and the answer no conclusions can be drawn. Further, but for the XXX incident, about which the parent knew the district was aware, there is nothing on the record concerning any XXXXX subsequent to the October 21 meeting. At that meeting the parent had reported that the
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXX. The district’s claim with regard to XXXXXXXXXXXXXX is similarly overstated. The record does not support a conclusion that XXXXXX was more than isolated instances or that that was a significant factor in the student’s difficulties in school. With regard to the student’s XXXX it appears to have been limited, not a factor in his school difficulties and known to school treatment staff from the time he entered XXXXX. Further, I note that the CSE knew in October 2011 XXXXXXXXXXXXXXXX’s “XXXX” goal. It is difficult to believe that experienced professionals did not know how to interpret that. I conclude the claimed failures do not constitute a basis for a limitation or denial of appropriate compensatory services in the circumstances here.
However, district claims of noncooperation are supported by undisputed evidence establishing that the student effectively ceased attendance from
XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXX. This period constitutes the bulk of the non-hospitalization absences. The evidence supports a conclusion that the parents made unilateral decisions, without discussion or notice to the CSE or school, to effectively withdraw the student from the full program despite urging to do otherwise. Although the father testified, his testimony was limited. No satisfactory explanation or justification for these actions has been provided by the parents. No indication as to what the student did during that period was provided to the CSE. In these circumstances, I find that equitable considerations weigh against compensatory services. Although there has been a denial of a FAPE in the instant matter, I note that the student is repeating XXXXXXXX grade at XXXXXX and accordingly is being provided with an opportunity to make up what he missed academically.
Further, it is noteworthy that the parents do not describe the services they request except that they be unlimited with regard to time of use and to be exercised at the parents’ sole discretion. The student is currently at XXXXXX. Dr. XXXXXX discussed the importance of comprehensive integrated program with all XXXXXXXXXXXXXXXXXXXXXXXXXXXXX (T. 1998-2001) Dr. XXXXXX also stressed the importance of consistency. The testimony of the XXXX clinician made clear that there could be no additions to the program there 32 What the parents seek are supplements or substitutes for an as yet to be determined post XXXXX program at some unknown point in the future to be utilized as they see fit. Compensatory services are to make up for benefits lost. The record indicates that the proposed relief in the circumstances here might exacerbate the student’s difficulties in the future. I note with regard to that conclusion that discussions about XXXXXXXXXXXXXXXXXXXXX, his current age, have been acknowledged.
However, the necessity for appropriate evaluative material in view of this student’s complex needs is well established. Further, the district’s failure to provide that is similarly established. Although not requested by the parent, continued access to utilization of the independent evaluations, to be exercised at the option of the parent, will be ordered.
ORDER
1) The CSE will reconvene with twenty (20) days to review the student’s current program, unless the parents and the CSE agree otherwise. At the option of the parents, XXXXX, XXXXX and XXXX, or similarly qualified persons, may participate.
I conclude that although the clinician indicated that home-base assistance for special projects might be helpful, the limits he placed on its use support a conclusion that it would not be feasible in the circumstances here.
2) The authorizations for a XXXXXXXX evaluation by XXXX and XXXXX by Dr. XXXX shall continue until such evaluations are completed. At their option the parents may substitute other providers, with appropriate credentials, to be paid at their usual and customary rate.
3) If the student is transferred from XXXX to another facility, the district will: provide authorization for an independent XXXX at the new facility by a provider selected by the parent, upon the submission of appropriate credentials and evidence that the fee charged is that provider’s usual and customary rate.
4) If the student remains at XXXXXX, the district will provide authorization for an independent XXXXXXXX by a provider selected by the parents upon submission of appropriate credentials and evidence that the fee charged is the provider’s usual and customary rate.
Dated: June 10, 2013
______________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
EXHIBIT DESCRIPTION
DISTRICT
SD 1 IHO decision on mootness, 7/30/12, 2 pgs. SD 2 Parents' reply to motion, 7/23/12, 6 pgs. SD 3 District memo, 1 pg., 7/17/12 SD 4 District motion to dismiss, 7/12/12, 67 pgs. SD 5 District resolution mtg. invitation, 7/9/12 1 pg. SD 6 Amended due process complaint, 7/2/12, 8 pgs SD 7 IHO decision re insufficiency, 6/11/12, 2 pgs. SD 8 Parents' reply to resolution agreement, 6/8/12, 2 pgs. SD 9 District motion to dismiss re insufficiency, 6/4/12, 6 pgs. SD 10 XXXX e-mail to parent, 6/1/12, 6 pgs. SD 11 District memo to file, 5/30/12, 1 pg., SD 12 District resolution mtg. invitation, 5/24/12, 1 pg. SD 13 IHO appointment letter, 5/24/12, 4 pgs., SD 14 Demand for due process hearing, 5/18/12, 7 pgs. SD 15 Parent letter to district, 9/5/12, 1 pg. SD 16 District letter to parent, 9/15/12, 2 pgs. SD 17 District letter to parent, 8/30/12, 4 pgs. SD 18 CSE chronological contact form, 8/23/12, 19 pgs. SD 19 District letter to parent, 8/23/12, 5 pgs. SD 20 I.E.P., 8/23/12, 8 pgs. SD 21 Release of information for XXXXX, 8/23/12, 1 pg. SD 22 XXXXXXX ltr. transmitting records, 8/2/12 , 1 pg. SD 23 XXXXXX attendance, 3 pgs. 8/2/12 SD 24 XXXXXX summary plan, 7/13/12, 6 pgs. SD 25 I.E.P. requested review, 6/26/12, 16 pgs. SD 26 XXXXXXXXXXX letter, 6/25/12, 1 pg. SD 27 XXXXXXXXXX report card, '11-12, undated, 8 pgs. SD 28 I.E.P. annual review, 6/20/12, 16 pgs. SD 29 Psychiatric assessment, 6/18/12, 4 pgs.,
SD 30 District ltr. re: transportation , 4/17/12, 1 pg.
SD 31 I.E.P., CSE mtg. re-eval, 4/13/12, 18 pgs. SD 32 District letter to parent, 4/5/12, 1 pg. SD 33 Dr. XXXXX Program Review Report, 4/4/12, 3 pgs. SD 34 XXXXXX forms, 3/26/12 , 4 pgs. SD 35 XXXXXXX ltr. to district req. indep evals., 3/22/12, 1 pg. SD 36 XXXXXX incident reports, 3/7/12, 32 pgs. SD 37 Good behavior report, 2/12/12, 1 pg. SD 38 XXXXXXXXXX release of records request, 2/6/12, 1 pg., SD 39 District letter to parent, 2/6/12, 3 pgs. SD 40 I.E.P. XXXXXXXXX , 2/6/12, 4 pgs. SD 41 XXXXXXXX letter, 1/26/12, 1 pg. SD 42 Physical exam record, 1/19/12, 1 pg., SD 43 Good behavior report, 1/17/12, 1 pg. SD 44 Psychoeducational eval., 1/17/12, 5 pgs SD 45 XXXX complaint form, 1/4/12, 2 pgs. SD 46 Social/Health information, 11/17/11, 3 pgs. SD 47 XXXXX records, 11/ 16/11, 9 pgs. SD 48 Good behavior report, 11/10/11, 1 pg. SD 49 XXXXXXXXXXXX 11/9/11, 5 pgs. SD 50 I.E.P. requested review, 10/21/11, 4 pgs. SD 51 Student attendance, 9/6/11, 1 pg. SD 52 XXXXXXXX ltr., 7/18/12, 1 pg. SD 53 XXXXXXXXX release of records request, 1 pg., 7/11/11 SD 54 XXXXXXXXX report card 8th grade, undated, 5 pgs. SD 55 XXXXXXXXXX report card 8th grade, 6/1/11 SD 56 XXXXXXX incident reports 5/3/11, 35 pgs. SD 57 I.E.P. amendment, 4/25/11, 13 pgs. SD 58 I.E.P. amendment proposal, 4/21/11, 1 pg. SD 59 I.E.P. revision request form, 4/15/11, 1 pg. SD 60 XXXXXX letter to XXXXX, 3/23/11, 1 pg. SD 61 I.E.P. annual review, 3/3/11, 14 pgs.
SD 62 Parent letter re: absences, 1/31/11, 1 pg.
SD 63 XXXXX records, 1/19/11, 7 pgs. SD 64 I.E.P. requested review, , 11/23/11, 10 pgs. SD 65 XXXXX intake/diagn. assess. (admit) 10/25/10, incl. psychiatric 7 pgs. SD 66 I.E.P. requested review, 2 pgs. , 10/11/10 SD 67 XXXX intake disposition, 10/22/10, 1 pg. SD 68 XXXXXX Records, 10/4/10, 6 pgs. SD 69 XXXXXX referral, 9/21/10, 4 pgs. SD 70 XXXXXX records, 9/20/10, 15 pgs. SD 71 XXXXXX incident report, 9/16/10, 1 pg. SD 72 XXXXXXX attendance, , 6/30/10, 2 pgs. SD 73 XXXXXXX report card, 6/24/10, 1 pg. SD 74 I.E.P. annual review, 6/10/10, 10 pgs., SD 75 Psychiatric eval., 6/9/10, 3 pgs. SD 76 I.E.P., program review, 1/14/10, 8 pgs., SD 77 I.E.P. revision request form SD 78 I.E.P. request review, 10/22/09, 8 pgs. SD 79 I.E.P. revision request form, 10/5/09, 1 pg. SD 80 XXXXXXX attendance, 6/30/9, 3 pgs., SD 81 I.E.P. annual review, 6/4/09, 8 pgs., SD 82 XXXXX incident reports, 4/24/09, 5 pgs. SD 83 I.E.P. requested review, 3/19/09, 8 pgs. SD 84 Evaluations of interventions, 3/19/09, 4 pgs. SD 85 XXXX plan, 3/13/09, 1 pg. SD 86 I.E.P. requested review, 1/22/09, 2 pgs. SD 87 Transition form XXX, 1/5/09, 3 pgs. SD 88 XXXX letter, 12/15/08, 1 pg. SD 89 I.E.P. initial referral, 11/20/08, 7 pgs. SD 90 XXXX eval, 11/12/08. 3 pgs. SD 91 Psychoeducational eval., 10/20/08, 32 pgs. SD 92 Parent referral to CSE, 10/3/08, 2 pgs., SD 93 FBA,10/1/08, 4 pgs. SD 94 504 Plan, 9/26/08, 2 pgs. SD 95 504 plan, initial referral, 6/23/08 3 pgs. SD 96 WIAT, 4/11/08, 1 pg. SD 97 TOWL-3, 4/3/08, 3 pgs. SD 98 Psychiatric diagnosis, 3/27/08, 1 pg. SD 99 OT/PT screening, 12/4/07, 1 pg. SD 100 Psychoeducational assessment, 5/30/06, 5 pgs.
SD 101 Parent letter re: CSE recommendation, 12/16/08, 2 pgs.
SD 102 XXXXX 6th grade report card, 6/25/09, 2 pgs. SD 103 XXXXXXXXXX attendance, 11/5/10, 2 pgs. SD 104 Child Study Team Minutes, 9/19/08, 1 pg. SD 105 Screening sheet, 12/17/08, 1 pg. SD 106 Letter to student, 4/22/10, 1 pg. SD 107 2010-11 testing schedule, 10/10, 1 pg. SD 108 Letter from district to XXXX, 5/11/11, 1 pg. SD 109 Letter from XXXXXX to XXXX CSD, 5/11/11, 1 pg. SD 110 XXXX Intake-Diag Assess incl. Compre. Trt. Plan to 4/26/12, 31 pgs. SD 111 XXXXXXXXXXXXX Records, Sept.-Oct. 2012, 24 pgs. SD 112 XXXXXXXReport Card, undated , 2 pgs. SD 113 Letter from XXXX to Dr. XXXXX, 8/2/12, 2 pgs. SD 114 XXXXXXXXXXXXXXXXXXXXX Booklet, undated, 10 pgs. SD 115 Progress report and report card, undated, 2 pgs. SD 116 2010/11 cumulative health record, 2 pgs., undated SD 117 Psychiatric assessment (“Bridges”), 3/27/08, 4 pgs. SD 118 XXXXX pay. to XXXX for tutorial serv. 2011-2012, 20 pgs.
PARENTS
P- A XXXXXXXXX examination notes, 4/12/11, 1 pg P- B XXXXXXXXX medical report, 4/13/12, 2 pgs. P- C Transcript 4/13/12 CSE Review P- D CD of 4/13/12 CSE Review P- E Letter to Ms. XXXXX from parent, 5/27/11, 1 pg. P- F Letter to Ms. XXXXXX from parent, 5/27/11, 1 pg.
IMPARTIAL HEARING OFFICER
I E-mail from parents object. to district resp. to hearing req, 6/4/12, 2 pgs.
II E-mail from district re parents object. to district response, 6/4/12, 2 pgs.
III E-mail from IHO re parents amended complaint, 7/6/12, 2 pgs.
IV E-mail-parents’ reply to district resp. to amended req, 7/16/12, 2 pgs.
V E-mails- parents requesting prehearing conference, district objection, and
IHO response, 7/20/12, 7/25/12, 7 pgs.
VI E-mails re pending PINS and JD, parents and district, 7/25/12, 7/26/12, 5 pgs.
VII E-mail from IHO attaching decision motion to dismiss and re scheduling, 7/26/12, 1 pg.
VIII E-mail from IHO re scheduling second prehearing conference, 8/8/12, 1 pg.
IX Letter from district re, inter alia, second prehearing conference and evaluations, 8/9/12, 2 pgs.
X Letter from parents responding to district 8/9/12 letter, 8/13/12, 5 pgs.
XI E-mails re 8/30 telephone conference and adjournment and rescheduling requests, 8/27-9/2/12, 5 pgs.
XI1 E-mail from district re disclosure and subpoena releases (attachment omitted), 9/10/12, 1 pg.
XIII E-mail from district re disclosure and subpoena releases, 9/14/2012, 1 pg.
XIV E-mails re adjournment of the 10/10/12 hearing and the scheduling of CSE
review re new placement, 9/27-10/2/12, 3 pgs.
XV Compliance date extension request decisions XVI Subpoenas
XVII Parents Post Hearing Memorandum
XVIII District Post Hearing Memorandum
XIX Emails concerning record close date and decision
Footnotes
[1] References to the hearing transcript are noted as “T.”. References to exhibits admitted into evidence are noted as “Ex.” with a number designation (District), letter designation (Parents) or roman numerals (Impartial Hearing Officer.)