Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK STATE EDUCATION DEPARTMENT IMPARTIAL HEARING OFFICER In the Matter of the Impartial Hearing requested by | anc o/b/o their Disabled Chik DECISION OF IMPARTIAL HEARING OFFICER ~ against — The School District

INTRODUCTION

This Impartial Hearing was brought on by a Request for Due Process Proceedings dated December 6, 2012 on behalf of a Disabled Child __.. _is a 13 year old child who resides with his Parents within the ~~ School District (“District”). The Demand, on behalf of a child with some significant alleges that the District did not abide by the suggestions fron 's prior placement in a School District in the State of | . The Parents’ Demand states that whet. __. transferred into the - District’s schools the District changed his recommended grade level causing him anxiety’ and stress. The Demand also alleges that the District did not have appropriately trained personnel, namely a Psychiatrist grounded in understanding and that, as a result, the District could not appropriately program fo . By letter dated December 27, 2010 District Counsel answered the Due Process Demand asserting tha aad been enrolled in the District’s school since June 2011 and that he is in his appropriate grade placement. It further asserted that the District’s professional staff is appropriately trained and there is no need for a Psychiatrist.

The Impartial Hearing was initially convened on January 23, 2013. At that Impartial Hearing session the Parties atternpted to resolve the matter short of an Administrative Hearing but, to no avail. After the attempted resolution, the District was prepared to go forward with its case in chief but the Parents had a medical emergency at a local hospital and requested a continuance. Tr. 5. It was mutually agreed that the Impartial Hearing would be rescheduled for February 28 and March 1, 2013 with the understanding that there would be no additional continuances. Tr. 6. The Impartial Hearing was reconvened on February 28, 2013 at which the District presented its case in chief and a Parent made a sworn statement on the record. Testimony at this Impartial Hearing was taken over the course of one (1) day resulting in a transcript of 281 pages. Admitted into evidence were 23 District Exhibits, 1 Parent Exhibit and 1 Impartial Hearing Officer Exhibit. Each party was given a full and fair opportunity to present witnesses, documents and testimony.

ISSUES PRESENTED

The primary issue before this Impartial Hearing Officer (‘THO”) is whethe . . was appropriately placed, in the proper grade level, when he first entered the District’s schools in the 2011-2012 school year and whether his placements during the 2011-2012 and 2012-2013 school year were appropriate? Further, there is the question of whether the District has the appropriate expertise to educate a child witb difficulties when there is nc on staff?

STATEMENT OF FACTS enrolled in the District in June 201]. Tr. 92. The District received records and information from ‘s past school placements. Tr. 92-93. In June 2011 the District’s Psychologist performed a Psychological Evaluation of J.-L. Tr. 96, SD Ex. 5. Background information obtained by the District’s Psychologist included information tha had previously been in a School District in _and had a classification in the ‘ *. Tr. 98. Cognitive testing demonstrated the had a full scale IQ of which is in the range or otherwise known as ° ”. Tr. 99, SD Ex. 5. Achievement testing demonstrated scores, below the percentile in reading, math and spelling. Tr. 99, SD Ex. 5. When the District’s Committee on Special Education (“CSE”) first met on June 20, 2011 it considered the District’s evaluation as well as information it had received from i prior placement in the School District in Tr. 99-101, SD Ex. 5-6. Thereafter, the District developed its first Individualized Education Program (“IEP”) fo: Tr. 102, SD Ex. 7. J.L. was recommended for a developmental special class for an Extended School Year Summer placement as well as for his school year placement beginning in the Fall of 2011. Tr. 103, SD Ex. 7. On or about August 5, 2011, the District’s CSE reconvened to review its recommendation based upon . performance over the Summer of 2011. Tr. 104, SD Ex. 8. Upon its review, the District’s CSE again recommended that __. be placed in its developmental special class, a ratio, and receive Parent Counseling, an individual aide, specialized transportation and be designated as a student entitled to alternate assessments. Tr. 105-106. SD Ex. 8. The District also recommended that receive ; ” Evaluation Evaluation and an Evaluation so as to obtain current levels of functioning as a basis for determinations regarding related services to be made sometime in September. Tr. 106. The program recommended by the District is one which serves students with delays. Tr. 106. The focus of the program is to address functional academic and adaptive living skills. T. 106. The CSE recommended be placed in a sixth grade program located in the District’s Middle School. Tr. 107, SD Ex. 8. Although the Parents expressed concern about zing promoted to Middle School, the District believed that would be better placed in the District’s Middle School program because of his chronological age and cognitive abilities. Tr. 107. It also believed that he would be placed with similarly situated and more appropriate peers in the Middle School. Based on their desire to keep in an elementary school placement, the Parents refused to sign the IEP offered at the August 5, 2011 meeting. Tr. 112, SD Ex. 8. Thereafter, the District conducted the recommended Physical Therapy Evaluation. Tr. 115, SD Ex. 10; conducted a Speech Therapy Evaluation, Tr. 116, SD Ex. 11; and later an Occupational Therapy Evaluation, Tr. 117, SD Ex. 19. On or about September 27, 2011 the District’ s Sub-CSE met to review those evaluations. Tr. 117-118, SD Ex. 12. Based on that meeting and a review of the evaluations, the CSE recommendec receive , services two times per week in a group Services one time a week in group, one time individually, and one time per week individually. Tr. 118, SD Ex. 12. The District’s CSE reconvened on or about December 21, 2011 to discuss whethe. ss 1:1 aide should be converted to a 2:1 ratio. Tr. 121, SD Ex. 13. The Parents were not in agreement with the change so the 1:1 aide remained wit _ Tr. 121. The District’s CSE again reconvened on or about March 12, 2012 to review Parental concerns abou‘ s reading ability. After that meeting remained in his then current program. Tr. 122, SD Ex. 15. The District’s CSE met for an annual review on or about June 5, 2012. Tr. 124, SD Ex. 21. At that meeting the CSE recommended . receive Summer programming in ¢ Special Class along with ~ jervices. Tr. 125. For the Fall of 2012, the District’s CSE recommended a continuation o ”s placement in the Class. Tr. 125, SD Ex. 21. It was also recommended that receive “herapy one time a week in a small group, one time a week individually, Therapy one time a week individually, services two times a week in a small group and Parent Training and . one time monthly. Tr. 125, sD Ex. 21. Likewise would remain a student entitled to an alternate assessment and would receive |:1 aide services. Tr. 125, SD Ex. 21. started in a classroom with teacher —. at the beginning of the 2011-2012 school year. Tr. 36. Swasa .... . . : classroom and _. had his own aide therein. Tr. 36. It was a classroom made up primarily of children with deficits who are in the 6, 7" and 8" grades. Tr. 34. The students ir ' classroom receive alternate assessment, a portfolio based assessment, demonstrating proficiencies towards learning standards. It is a program which stresses basic life skills, adaptive skills and communication skills. Tr. 34. . is described as a delightful, happy child desirous of pleasing adults and children within his classroom. Tr. 37. He is compliant with rules and scheduling, fits in the classroom and seems to welcome the structure of the pee aTM Tr. 37. . struggies with reading and math and i ‘level in all academic areas. Tr. 37. 3 program addresses functional academics as well as rareness and Tr. 39. It was reported that -nade _ steady progress during the 2011-2012 school year. Tr. 40. It was likewise reported that . made friends in the classroom and that there were not behavioral issues in that classroom. Tr. 41. On the New York State alternate assessment in Mathematics for the 2011-2012 school year sceived a level . vhich is the highest level indicating that he met or exceeded expectations. Tr. 61. Likewise, in the English Language Arts alternate assessment for the 2011-2012 school year, scored at leve SD Ex. 18, Tr. 61. At the District’s CSE meeting regarding “s 2012-2013 schoo! year held June 5, 2012, it was recommended that he continue in the same program in which he had been placed for the 2011-2012 year. Tr. 62. At the Impartial Hearing it was reported tha’ —. was doing well in his ~ 2012-2013 school placement. It was reported that he is more comfortable, he is taking more risks, he is becoming a self-starter, he knows the routine, and he is participating and learning at his level. Tr. 63. — . seems to be of the | of other students in his class. Tr. 67. ‘oes experience and does frequently. Tr. 68. However, many of the students in the class have » behaviors. Tr. 69. The curriculum presented in the slassroom is not based upon grade level, but is individually geared towards the students. Tr. 78. Although the curriculum may be geared towards 6", 7” and git grade students the content is not separated by grade level but rather taught at a single level. Tr. 78. Most of ; reading skills are taught him at about the 1° grade level. Tr. 80-81.

Written expression skills are taught him at the ‘evel. Tr. 81. is in the high average range in his classroom in his math skills. Tr. 84. While at the School, had a classification of vhich was changed to when he came into the District’s program. Tr. 147. At that time the District’s Executive Director of Pupil Personnel Services was told that ad ind Tr. 155. The District’s CSE believed that cognitively, developmentally, socially and emotionally J.L. should be with students his own age at the Middle School rather than placed at the District’s elementary school. Tr. 172. J.L. had been in the 4" grade in the School District during the 2010-2011 school year and his Parents believed, therefore, that he should have been placed in the 5" grade for the 2011-2012 school year. tr 183-184. Nevertheless, the District placed him in the 6" grade during his first year in the District. Tr. 184. The Parent testified that his communication with the School District Psychologist, led him to believe that would do well at the 5" grade level in the District”. F School, an elementary school. Tr. 199. According to the Parent it was the intervention of the District’s Executive Director of Pupil Personnel Services that led tc s initial placement into the District’s Middle School. Tr. 200. Initially, and the Parents, to date, remain in opposition to : placement in the Middle School. Tr. 201. Apparentl, . had missed a great number of days in his prior school placements and the Parents believed he was not ready for a middle school setting. Tr. 202. Upon his entry to the District, a Parent concern was the starting time of .’s classes. Tr. 219-220. The District agreed that could have a later start time in the Middle School. Tr. 220. The Parent testified th . is , home and has causea ~ io the family home. Tr. 203-204. The Parent attributes that to and in school. Tr. 204-205. As a result, the Parent believes that there should be a Psychiatrist in the school in which _ placed. Tr. 207.

LEGAL STANDARD

The IDEA requires participating states to provide “all children with disabilities” a free appropriate public education (““FAPE”). See 20 USC 1412[a][I][A]. A FAPE is offered to a student when (a) the board of education complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (“IDEA”), and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Board of Ed. v Rowley, 458 US 176, 206, 207 [1982]. Petitioner’s December 6, 2012 Request for Due Process Proceedings alleges that. | s IEP from was not followed when the District changed his grade level causing ~ and The New York State Commissioner’s Regulations provide guidance regarding IEP implementation in interstate transfers. The Regulations read: Transfers from outside New York State. In the case of a student with a disability who transfers school districts within the same school year, who enrolls in a new school district and who had an IEP that was in effect in another state, the school district shall provide such student with a free appropriate public education (“FAPE”), including services comparable to those described in the previously held IEP, in consultation with the Parents, until such time as the school district conducts an evaluation pursuant to this section, if determined to be necessary by the school district, and develops a new IEP, if appropriate, thatis consistent with federal and State law and regulation. 8NYCRR200.4(e)(8\(i)). In the case hereir —~ ‘cansferred prior to the beginning of the 2011-2012 school year and the District, in such an instance, was free to conduct its own evaluation and determine the necessity for and develop a new IEP. Even i _ were to have transferred mid school year, the requirement on interstate transfers is solely that the New York school district provide the student comparable services. There is nothing that would mandate an identical grade or program placement. As such, I find that the District has not engaged in any procedural violations by placing in a different grade than that recommended by the ° School District. Therefore, the consideration herein will be whether 's IEPs provides him the FAPE to which he is entitled as a disabled student. Thus, this IHO’s review will be limited to substantive violations, if any. An IEP will not be substantively defective if it is reasonably calculated to enable ~ to receive educational benefits and will likely produce progress. See Walczakv. Florida Union Free Sch. Dist., 142 F3d 119, 130 [2d Cir 1998]. The Second Circuit has stated 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 Ed, 287 F.3d 138, 151 [2d Cir 2002 ](citations omitted). The Second Circuit has confirmed that the “appropriate education’ mandated by the IDEA does not require states to ‘maximize the potential of handicapped children.”” See MH. v. New York City Department of Education, 685 F3d 217, 245 (2d Cir. 2010)(citations omitted). The Second Circuit quoted Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (DC Cir, 1984) and confirmed that “because public resources are not infinite, federal law does not secure the best education money can buy, it calls upon government, more modesly, to provide an appropriate education for each disabled child.” See id at 246 (citations omitted). I find tha _ was clearly afforded IEPs in both the 2011-2012 and 2012- 2013 school years that were likely to produce progress, not regression, and afforded him with an opportunity greater than mere trivial advancement. An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives (in some instances) related to those needs, and provides for the use of appropriate special education services. See Application of the Bd. of Educ. of the Granville Cent. Sch. Dist., Appeal No. 06-010. An TEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in the Commissioner’s Regulations. The four areas are (1) academic achievement, functional performance and leaning characteristics; (2) social development; (3) physical development; and (4) management needs. 6 NYCRR 200.1, ww][3][i]. The annual review of a student’s IEP shall consider the following factors: (1) the strengths of the student; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the most recent evaluation(s) of the student; (iv) academic, developmental and functional needs of the student; (v) the special factors described; (vi) the educational progress and achievement of the student with a disability and the student’s ability to participate in instructional programs in regular education and in the least restrictive environment. See 8 NYCRR § 200.4((1). The Record establishes that the District took all of these factors into consideration when crafting J.L.’s 2011-12 and 2012-2013 IEPs. Upon ___ s registration in the District a health and social history was completed. See District Ex. 3. The District’s Psychologist performed an evaluation o om June 17, 2011. The evaluation, although somewhat sparse, has an intellectual assessment as well as academic assessments. In sum, the evaluation finds tha’ is functioning in the range cognitively and has “; academic skills. The goes on to find that 1” presents “as a child, who was cooperative during the assessment period”. SD Ex. 5. The recommends a special education class designed for students with ind delays and further recommends that _. participate in alternate assessments. Finally she recommends additional evaluations including ’ * therapy, therapy and speech therapy and that may need the support of an individual aide. SD Ex. 5. The IEP developed by the District on June 20, 2011 recommends a | class, for both summer programming and the upcoming 2011-2012 school year. SD Ex. 7. Additionally, there are recommendations for Parent Counseling and Training and for an individual aide. Further, the goais and objectives ir s 2011-2012 IEP address academics in reading and mathematics as well as developing goals for : skills, and daily living skills. I find that the TEP adequately offers services to address _—.’s_ needs. What the IEP does not do is plac- in a 5" grade, rather than a 6" grade, class as requested by the Parents. However, testimony at the hearing demonstrated that the CSE listened to the Parents’ concerns, but, upon reflection, determined that } .. would be with similarly situated students, both chronologically and developmentally if placed in the 6" grade class in its Middle School. I find that the District’s grade placement of —. was based on the information and evaluation before it, well reasoned and appropriate under all the circumstances. Subsequently, the District performed a physical therapy evaluation, a speech and language evaluation, and an occupational therapy evaluation. Those evaluations were reviewed at a CSE meeting on or about September 27, 2011 and, as a result, _ therapy, herapy and therapy were added to s program. SD Ex. 12. These services further enhanced his program. a. The 2011-12 and 2012-2013 IEPs Provided a FAPE to ”s 2011-12 TEPs have all the requisite Learning Characteristics, Social Development, Physical Development and Management Needs’ sections with ample descriptive material serving as the basis for accommodations, modifications, supplemental aids and services, and most importantly, appropriate goals and the special education services required to meet s needs and address the articulated goals. As more evaluative information was gathered about ~. the CSE reconvened and added services as appropriate. The IEP included specific services and aids to addres: '. disability and were reasonably calculated to enable to receive educational benefits and produce progress. See Walczak, 142 F3d at 130. The CSE convened on June 5, 2012 to prepare an JEP fv for the 2012-13 school year. SD Ex. 21. The proposed IEP contained results of the evaluations performed and reports completed. The June 5, 2012 IEP contains significant information regarding . s academic achievement, functional performance and learning characteristics, as well as social development, physical development and management needs. It contains goals and short term objectives which address reading, writing, mathematics, : SON eee re . and issues, deficits, as well as basic cognitive and daily living skills’ needs. The IEP proposes that ve placed in a self-contained developmental class with an individual 1:1 aide and receive therapy services, 7 services, therapy services as well as parent counseling and training. There was testimony that had thrived in such a placement during the 2011-12 school year and was likewise benefiting from his placement therein during the 2012-13 school year. J find that the IEP for for the 2012-13 school year more than adequately addresses 3 educational needs and is thereby appropriate. THE PROGRAM DOES NOT NEED A PSYCHIATRIST The Parents allege th * program is not appropriate because it does not include a Psychiatrist trained to understand sf at school. However, there is no evidence in the record that the District materially failed to aff afi appropriate education because of the lack of a Psychiatrist in program. There is nothing in the record to > demonstrate tt é . issues ssues 0: issues rose to the level of a need for a Psychiatrist to be in his program. primary teacher was appropriately credentialed and certified and the District appears to utilize other personnel in its employ who are likewise appropriately credentialed and certified. I find that delays can be adequately met with appropriately trained teachers and related service providers and there is nothing in the record that would demonstrate his need for a Psychiatrist or any psychiatric intervention while he is in the school setting in order to benefit from his educational opportunities. I am convinced that the District has experience in the education of _ _ impaired students and, was bringing that experience to bear 1. education and, as such, was appropriately educating . HAS THE RIGHT TO RECEIVE EDUCATION THROUGH THE END OF THE SCHOOL YEAR IN WHICH HE TURNS 21. Not only have I found th. 3 IEPs were appropriate, | concur with the District’s position that it would be a disservice at this point intime to ho.. _. back a year. The testimony demonstrated that he was appropriately placed with similarly situated peers within the appropriate age range. Finally, the Parent should rest assured that the District’s refusal to keer oack a year in no way jeopardizes his entitlement to a FAPE through the end of the school year in which he so long as he has not received a recognized High School Diploma. 8NYCRR 200.1(zz). In light of the nature of © . disabilities, should he not receive a Regents Diploma (he is currently deemed to be IEP Diploma bound), federal combined with New York State law assure 3 right to remain in school through June 2021.

CONCLUSION For all of the aforestated reasons I find that the District afford: “1. appropriate program for the 2011-12 and 2012-13 school years. Dated: April 24, 2013 So Ore ; iN ——— i

NOTICE OF RIGHT TO APPEAL Within 35 days of the date of this decision, the parent and/or the Public Schoo! 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 hearmg 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

Parents’ Exhibits: EXHIBITS Exhibit Date Descrintion Pages 1 02/28/2013 Letter from D 1 THO Exhibits: Exhibit Date Description _ Pages 1 01/07/2013 Letter t and ‘om [THO ~ 3 School District Exhibits: Exhibit Date Description Pages 1 12/06/2012 Request for Due Process 2 2 12/27/2012 Answer to Complaint l 3 06/14/2011 Social History 2 4 06/14/2011 Social History Narrative 2 5 06/17/2011 Psychological Report 6 6 03/31/2011 School District IEP 14 7 06/20/2011 TEP 9 8 08/05/2011 IEP 10 9 08/05/2011 Letter from Dr... to the Parents 5 10 09/26/2011 Cherapv Evaluation 3 ll 09/27/2011 °°. | Evaluation 2 12 09/27/2011 IEP Addendum 4 13 12/21/2011 TEP Addendum 4 14 12/21/2011 Prior Written Notice 2 15 03/12/2012 CSE sign-in sheet i] 16 03/12/2012 Prior Written Notice 2 17 08/24/2012 NYS Alternative Assessment for Math (2011-12) 2 18 08/24/2012 NYS Altemative Assessment for ELA (2011-12) 2 19 05/31/2012 Occupational Therapy Evaluation 4 20 02/16/2012 Physical Therapy Report 2 21 06/05/2012 TEP with Prior Written Notice 19 22 09/07/2012 TEP with cover letter 16 23 01/15/2013 Letter 1 mm Attornes .with FedEx receipt 2