Impartial Hearing Decision

IMPARTIAL FORMAL HEARING PURSUANT TO

EDUCATIONAL LAW SECTION 4404(1) AND

COMMISSIONER OF EDUCATION REGULATION

SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,

IMPARTIAL HEARING OFFICER

___________________________________ In the Matter of the Complaint of D.B. as a Parent of a M.B. a Student with a Disability

Petitioner, Case No. 83176

____________________________________

PROCEDURAL POSTURE

This Impartial Hearing Officer was appointed on February 13th, 2014 the Resolution Session commenced on 2011, 2014 and ended on March 13th, 2014. A Scheduling Order was issued on February 19th, 2014 commencing the Due Process Hearing. A pre-hearing conference was held on March 24th, 2014 where Hearing dates were discussed; 4 days being anticipated and being the length of the Hearing. IHO Exhibit ^[1] is a list of Joint, District and Parent Exhibits. IHO Exhibit ^[2] is a series of extensions were requested and granted as evidenced by copies of the letters documenting said extensions herein. In all there were 6 days of testimony occurring on the following dates: April 30th, 2014, May 1st, 2014, May 14th, 2014, May 15th, 2014, May 28th, 2014 and May 29th, 2014.

The following exhibits were admitted into evidence Joint Exhibits 1-7, Joint Exhibits 9- 12, 14, 17, 18, 22, 23, 24, 25, 26, 28, 29, and 30. Parent’s Exhibits E, I, J, T, W, X, BB, CC, DD, EE, and FF were admitted as joint exhibits.

District’s exhibits were admitted by stipulation 13, 15, 16, 19, 20, 21 and, 27, 31, 32.

Parent’s exhibits that were M, N, O, P, Q, R, S, U , GG, HH, II, JJ, KK, LL, MM, NN, UU PP, QQ, RR, SS, and TT

It should be noted the petitioner is D.B. also referred to as S.B., Gramma Sue, parent and guardian. As a result of after school care and transportation issues the student at the end of her school day would enter the hearing room and wait for D.B. or poppy to take her home. The student verbal skills were at issue a brief digital recording was used to preserve the student’s utterances which were subsequently emailed to this IHO as an Exhibit.

SUMMARY OF TESTIMONY

The district’s first witness was KP, the student’s special education T35 teacher in a 12:1:1+^[3] setting. She worked in a residential ED self contained program with juvenile delinquents and has done home tutoring. She is permanently certified T37 in special education. She has participated and attended in-services provided by the district and has attended training sessions from the K center dealing with autistic students. There are 4 fulltime students and a 2/3 student T38-39; one is verbal and one is not. Some are at pre-school developmental levels and some read on a 2nd and 3rd grade level some exhibit behavior, with a ranging from dropping on the floor to scratching T39. All have social needs. Cognitively the students range from 18 months to 6-8 years old and there is one that is 21 years old T40. There is one fulltime aide and two part-time aides are worked into the schedule.

The student started in the district in September 2013. A typical day for the student starts T41-42 with getting off the bus with backpacks and coats, Pledge of Allegiance, individual folder work, personal hygiene including doing hair before breakfast, then breakfast. The student is pulled out T42 for related services. There is reading, writing and group time at the smart board, then lunch. In the afternoon there is science, and cooking, walking or computer time. They work on IEP goals T43 of recognizing her name, reading comprehension T44 writing her name T43, social behavior, and independence; i.e. pulling pants on after toileting. She has a beautiful smile and was happy, but transition to the district was tough for her T44. She had behaviors such as hair pulling, scratching, which was described as digging with her nails. She tends to lack focus. She is interested in what is going on. They are working on her being less aggressive. In language usage she is verbal but with a lot of self made words T45 i.e. bopping means swimming which she uses for a number of things. She is working on sentences. She uses a picture board for her schedule T46. There is notebook communication T45 with the parent T61 who is described as the paternal grandmother who has custody with whom the student lives with. At times she has made progress in terms of behavior T48. She is very active with hair pulling and scratching, would dig in the hands of the witness but much less now T48, then in the past. She has gotten up and moves to the boards, she is socially aware and her focus has improved T49. The witness reviewed goal 1, out of three names she points to her name she is not consistent with the last name. Her writing is below emersion level and her overall independence is functioning at an 18 month to 3 year level T52. The witness feels that the intent is to gain attention with her scratching and digging nails. There was an FBA done at the K center, the student has made some progress with some tapping T53, she does not always grab, and sometimes says “hi” then you give her attention. The staff works on using positive T55 ways to be able to get people’s attention T53. They would avoid eye contact when she was T55, not behaving. Her strengths include: she is very social T58, happy, wants to please, making progress by not scratching. The student struggles with medication changes T59 and at times she sleeps and other times she is overactive. She was very active before vacation T198, however when they got back she was better. Home and school use a notebook for communication back and forth. The witness in puts information obtained from related service providers.

On cross-examination T62 the witness indicated that she was under the belief that there was a variance T63 with the age span for this class and school year. The oldest was aging out and the class would no longer need a variance or a waiver for next year. The class profile was from 3, a third grade level to below pre-K T65. The student is the lowest for most of the things and the PLPs T66, speaking of skills and things in motion. The 21 year old is included in earth science and is non-verbal T68-69 but the curriculum has been modified and she functions much higher than the other students in the 12:1:+3. She had problems with other student T70 and would disrupt the class, but they worked with the K center strategies, TT who gave recommendations T71. The student at times would say she missed her prior district and her grandmother Sue. The student scratched another student 1 or 2x T73. The staff used the intervention of separating the student and there has been progress. Lately they introduced other things i.e. tap on shoulder T76, but she has strong fingers, and uses nails to dig. The witness indicated that the student did and was physically aggressive 3x T77 toward other students. Now that it happened one time they stepped up the process and there are rare occasions. The witness reviewed D20, Page 8 T83, and the notes from the K program. The student needs help more than the average student but they have not restrained the student not since April 7th. There have been T86 approximately 17 restraints T87, which are described as a small child restraint. They hold the child from behind, cross-cross their arms, hold them by the elbows and sit her down until she calms down, which is usually very effective. It was never communicated T88 to the parent. The witness would tell the parent that they were having a rough stretch T89 and they would know what that means. They stopped calling T90 after the hearing request was filed at the direction of the special education director and who wanted to be present on speaker phone during such communications T91. She thought it was best that they just kept communicating with the written log. There were no math goals from the OC. With math they use a group of pictures T92. They work on very basic counting skills with the student T93. Comprehension is fair when focused however she is distractible and losses focus often T94. The social issues T95 are not on the IEP. However, they work on greetings and peek-a-boo. In terms of toileting she wears underwear over pull-ups. The grandparent wanted the school staff to try not using the pull-ups. They had a few accidents and went back to pull-ups but have renewed those attempts. Her language is not very clear T98. She tends to create her own words in sing songie. Peek-a-boo is clear. They use some signs and pictures T100 which are effective medications were not right, so conversations took place. The witness reviewed J23 T101 the first quarter report card that was not dated, also J24 T101 the 2nd quarter. They used hand over hand instruction. She was able to write “M” T102 without starting up and down and not needing assistance T104. The student navigates the hall and she is always with an adult T105. The witness reviewed the full FBA T106 which was limited to the school based assessment. She reviewed the BIP T107 which is a school based plan, but felt that it could be utilized T108 outside of that domain, but this was never provided to the parent. KP estimated that she has had 15-20 T108 hours of training with TT from the K center. KP has concerns with safety awareness, but they work on that since it is a deficit T115. The student is always with an adult at all time T116. They attempted to set up a meeting with the K center T122 and the parent but it did not work out. They try not to focus on negative events such as flopping on the floor T124. There is a work study T126 component and they were trying to break the student in, with washing tables in the cafeteria. The student’s aggressive behaviors are diminishing T126, she is making progress. The first time she heard about the parent wanting residential autistic program T129 at SR was on September 13th, 2013 at the CSE meeting.

I.I. is the school psychologist T148 employed by BOCES assigned to multiple districts and is at the district 3 ½ days per week T149. He has a BS, MS and SAS T149. The school psychologist is certified by New York State as a school psychologist and has been employed by BOCES for 4 years T150. He was informed T151 by the guidance office that there was a new student entering the district. The witness reviewed records including a psycho-educational evaluation. The district did not obtain consents to evaluate nor do a psycho-educational evaluation T151-152. He also reviewed the IEP from the prior district which is D5 he looked at the student’s needs and standardize testing. The student had limited contact T153 with biological mother. There was no disability diagnosis. The witness reviewed May 2005 T154-155 Slosson Evaluation for students, 2-7 years old. The student scored in the first percentile and the prior district attempted cognitive testing but the student T156 could not participate because of behaviors and the inability to engage tasks. The OC district tested everyday living skills T156 utilizing an ABA rating scales from teacher, parents and care givers. The student had deficits in literary skills with difficulty learning letters and sounds, math concepts, interacting, has social behaviors and, ADLs. The student needed a structured T159 small class with multiple adults.

The witness reviewed the psycho-educational reports T512 J7 the IEP brought by the guardian when the student was enrolled in the district. The student was recommended for 12:1:3 T 161 OT, PT, speech/language APE notwithstanding LRE considerations. The program T162 at the district integrated related services in the classroom in a push-in fashion and the witness felt the students T163-164 needs were similar. The verbal skills and motor skills were limited and so that the resource related services were of similar levels.

On cross examination the witness was quizzed regarding J12, Pg7 T166-167 which recommended speech 2 xs per week individually for 30 minutes in the classroom, group 1x per week for 30 minutes in the classroom T167. The implication was made that the student should have received additional support T167 based on the autistic disability. The witness reviewed J1; P2 HR T168 not reviewed and met the student on September 13th, 2013 CSE T169 meeting but there was no formal classroom observation. He did not get consents or do a consultation after September 13th, 2013 he was not involved because the K Center was T170 normally he obtains the consents if he is performing the evaluation. The witness reviewed J5 T171 the evaluation which was attempted but was unable to be completed because of the student’s behaviors. He reviewed T172 the behavior plan from the OC district J12. They used parts of it and it indicates that there is a need for behavioral strategies but there T173 is no BIP attached. Regarding academics the student’s levels were low T174 in reading, math, social interaction, ADLs and, emotional behavioral. The student had very basic reading skills not able to read and had very basic math skills based upon the 2011 T175 evaluations. The student had social skills issues. The witness reviewed the 12:1: +3 T176 the ages of the students are normally within 3 T177 years but the part-time student is 21 years of age and will be opting out soon .The question was how this would be appropriate with the student population with such a vast age span. There was 1 non-verbal T176-178, 1 limited, 1 had strong skills. The staff would provide similar instruction to address the student’s verbal deficits T179 and push-in for related services that were better suited for the providers and the students. The OC district’s IEP provided for charting behaviors and sign language T180. The IEP did not provide for extended school T181-182 year services. That determination is usually based on a request at the end of the school year which would have been May 2014 in preparation for the 2014/2015 school year. The summer of 2014 would have been included therein. This determination T182 is based upon the annual review T185 and there was no annual review performed in the CSE meeting since it was an initial transfer CSE/IEP. Nor did the parent return the consent form T191-192. The witness was quizzed about the DSM 4 transitioning to the DSM 5 and where the different levels of the autistic spectrum T192 and have been combined in the DSM 5 to comprise one classification and there are no subcategories for PDDNOS or Asperger T192 .The witness did not believe that the student would fit under T193 the autistic classification. The witness’s role with the student was different because he was not providing counseling T195 and did not do the FBA, plus there was a built-in behavioral plan T195 in the classroom. The witness reviewed the BIP from OC which was not a BIP as defined by regulation T195. The 12:1:+3 has a BIP that is built into the classroom. The witness was told that the grandparent had told the guidance people that they moved into the district because the prior district would not approve residential. On re-cross it was indicated the witness did not obtain any consent T199 nor see any consents for the FBA performed by the K center T201. The witness saw exhibit T209 P but not Q, R or S T196.

The next witness on May 1st, 2014 T210 was TT, employed by the K Center T211 providing autistic services across the life span and she currently is a consultant. There are a home, parent and school T214 programs. She became a behavioral specialist providing consultation T212, training, and support for 5-21 school age with 72 residential day school students on her case load. She also worked at any K Center T213

Autistic programming in Massachusetts where she received her MA and ABA T214. She was a case manager, behavioral coordinator, residential manager for teenage girls on the autistic spectrum providing home based ABA. Her education includes T214 a BS in Psychology, MS and ABA Board Certified behavioral since 2005 when she completed her course work with supervised hours by certified instructors. She will be licensed in New York State T215 when the new law is implemented allowing for certification. Her involvement with the district is by a case to case basis providing services for the students. She initiated her visit in April 2013 T216 to consult with the staff providing individual consult to school staff for any work support and social skills.

She helped develop the 12:1+3 T221 program with JH. After specific training and consultation the witness felt the 12:1+3 placement in the district provided LRE for students with this profile and the program started in July 2013 with 2 fulltime and previously had seen T220 P and Q but did not know about R and S T221. Her role is to do basic review of the current supports. The witness reviewed T222 PP and PQ the support plans from the prior district and did not approve of the removing the hair ties,

PQ to address behavioral concerns T223. It was her opinion that the positive behavior management is a better approach to controlling problem behaviors using adaptive behavior approach with a goal to reinforcing a positive and minimizing the negative. Her belief T224 was that the hair tie plan would encourage misbehaviors and would require

NYSED approval as an aversion technique. She was in KP’s class 1x per week T225-226 for a few hours and met the student the first week for an initial review and general suggestions. She met later with KP for progress update to follow-up on strategies to implement proactive and positive behavioral management T224 so it would be less likely to continue bad behaviors and exhibit adaptive behaviors which can be implemented in the classroom without a BIP. The BIP was not implemented until after the BIP was updated, because there were some behaviors the first week T226. They were trying to identify the triggers. There was some transition, a honeymoon period, a regression and change in behaviors, then they saw old behaviors coming back, and there are medicine changes T227 that are very frequent and a change one residence to another. The student has low cognitive T228 functioning and difficulty transitioning. Typically the BIP is implemented for 3 weeks to see if strategies are supported and if they are helping. The student communicated with grabbing and hand gestures but after settling in the student was transiting T230 well.

There were good days and bad days. They were setting expectations with challenges.

There was transitioning T230 and tracking within the classroom T231 and regressing with the goals. They struggled with consistency, redirecting behaviors dealing the safety and targeted behaviors and there was concern after T232 the transition period. The, looked at the data, talked to the team regarding the student’s struggles and it was unclear what the triggers were and what was maintaining the behaviors. There were antecedent behavior consequences tracking in November. There was data in the FBA,

T237 KP broke down every 30 minutes to find out the ABC’s of what happened first with particular behaviors such as scratching, hair pulling and to see what the triggers were. There were a minimum of 3 dates T234 most went for 2 weeks. They were based scientifically on classroom staff or data collection and other classroom observation. There was a letter to the parent for a consult for school or home based programs. They used a communication log to setup dates. The grandparent missed the meeting T235-236 on November 13th. The FBA is a process of collecting base line data, review the records with prior plans, psycho-educational evaluations and assessments.

There were concerns about staffing and staff T236-238 safety and how to react to avoid staff injuries to ensure they were properly supporting the student and then making sure the staff is within the guidelines to address behaviors appropriately. Behaviors such as pulling, scratching and hair pulling are not unusual behaviors. She has dealt with more students with the severe behaviors of hitting, biting, scratching, tantrums and screaming. In November they attempted T239 to include the family at the time to determine what behaviors there were, depending on the setting. They attempted to setup the meeting but they did not set it up because, they needed additional support added to the revision. They determined that the purpose was to escape tasks and gain attention. The trigger was ending of T240 preferred activities. They reviewed the BIP of

J17 the FBA was J18, the goal was to provide extra attention by praising the student but there was behavioral redirection T243, boards, figurines, pictures, praise for the safety, consistency with the predicators establishing clear boundaries i.e., no play with hair so there was no confusion. The replacement behaviors are still in progress. The goal is to reinforce by using adaptive behavior, reinforcement appropriate behavior, increasing appropriate approved behaviors T243, visual tokens and tangible rewards for good behaviors T244. There was a profile in the classroom to increase ability to request attention saying “I”, not to tap shoulder or tug. Student would travel with board student would earn tokens on board by completing tasks and, following the rules. When the student had all 5 T245 the student could trade them in for items or activities T245.

To reinforce the profile there were a variety of things to reinforce and motivate T246, preferences, peek-a-boo, boot ands, music, signing, planned ignoring, ignoring behavior that was inappropriate but not the child, using verbal and visual redirection, behaviors, staff redirection while staying calm. If not things could escalate. They would use visual cards, nice hands, and then they would refer to the school safety plan. The witness reviewed the D27 T247 the tally sheets for the behaviors that were reported, red- hair, and green-grabbing, blue-scratching, grab not harmful T252. The intensity of behaviors is not; just the frequency was reported on a chart T253. The binder would travel with the student. There was formal integrity of checks to implement T254 the protocol so not to misunderstand. There was training with the classroom teacher and related service providers. It was difficult T250-254 because of the student’s low levels and behaviors; there were reported medicine changes and many inconsistencies in behaviors. The hair pulling T258 and scratching continued on a lower intensity but decreased, grabbing, reaching, squeezing, were replacement behaviors now, but less digging. They are shaping responses tapping is closer to the original goal but it still indicates there is a need for additional work, with intensity. Most days it’s a 1 or 2, 4 days with 3 with TCI interventions a small child restraints which is a seated basket hold on January 27th, 2013 T257-261 there were 20 or more at level 1 with moderate to harmful at 3. The home life TT met with KP, the phone T262-264 was busy she called 9 times. K Center does provide family training.

The witness discussed her attempts to contact T264-265 the parent in March 2014 spoke to setup a time to call back. The second day the phone was busy. She called 9 times T262. They scheduled to meet with the classroom teacher through the communication log. HomeT254-261 data collection would be helpful because there are behaviors at home T258, and triggers at home. It would be helpful to determine if the confounding, variables were due to changes in medications or changes at home. Since they were addressing behaviors in school to be consistent at home. It would be therapeutically important to use the same strategies at home and in school. The witness was quizzed regarding J18 the FBA, BIP T266-268 which was put into effect before January 30th, 2014. The witness did not obtain consent to evaluate T267 they discussed aversion behaviors is an aversion effect. Taking away and, removing play thing was based upon and contingent on behavior. There was an extra level of scrutiny T271-272 for aversion techniques to see if they are warranted. They are not recommended. The witness was quizzed T268 regarding the restraints where data collection started on and TT did not get consents the January 27th, 2014 there were 10 restraints since January 27th , 6 are clustered T269 over 2 dates during the week of March 31st T273 and there were confounding variables and because of clusters TT doesn’t believe that they were increasing. The agency contracts T274-275 with the school for a number of hours. She was aware that Granma Sue T275 had a disability with no vehicle and there were not physical restraints T276 in the plan, but they refer to the school policy. There were reports that the student’s medications T278-280 had changed but nothing from the doctor or the parent regarding the psychiatrist. It would be useful information but they had no control T280 over the medication or what was recommended. They use proactive support of the student T281, in general, targeting behaviors. They send a letter to all parents but no personal conversations. They would not review the BIP/FBA T282-283 because it applies to school. There was a reactive intervention and the staff is trained with specific direction. No parent training which is requested with a student with autism T287. Referring to the binder T284 there was an encounter form documenting visits on November 22nd, 2013 T289. There was speech therapy D20, P7 T290 January 22nd, 2013 to November 22nd, 2013 there was a PC conference with concerns about restraints if a child requires frequent use of a restraint then On October 29th D20, Page 9 there was an incident with another student T295 which was a second student that had an incident with the student herein T296 proactive strategies but did not need permission for restraints. It should be in the BIP not if child requires it for safety. There were 17 xs in the school year. What is the protocol, typically varies by district D20, P8 T290 the November 1st, 2013 updates T294, the student did exhibit some pica on the D20, Page 10 October 4, 2013 T297. They keep track of it in the student binder J28 data collection sheets, on April 23, 2014 there in the morning from 8-91 scratch and 3 grabs, intensity a 1, attempted aggression with another student without contact T303. There was an incident at PT with intensity of a 3 T303 collecting data in binder T298 did not go home,

TT was the first witness on today’s date May 14th T313. She is an APE T314 provider from ONC BOCES; has a BS, MS, and PE certified but not APE she has been with BOCES since O7. Majority of her students are APE, they cannot participate in General Ed because of safety and disability reasons. She had previously met the student T315 at OC District, providing her services. She was very low T315. She tested below three years of age, needed hands-on and had delayed reaction skill level could not walk independently, needed her hand held. There were no ball skills T316 or manipulative skills. She was not T316 age-appropriate and there are delays in motor skills. She tested at a less than three year old at the OC District T316. She attended a CSE meeting T317 the middle of September, reviewed the student’s needs, and entered the program. She was in a self-contained T317 class with pullouts for related services including APE. They worked on lifetime fitness skills – walking, running and ball skills. The student is very low T318, tested below a third grade level. She was much more verbal in September T318- 319 then at OC school, she can say what she wants. The witness saw her two times per week T318 for 40 minutes between 11 and 12 o’clock. IEP goals; they worked on ball skills T319, throwing and catching, and kicking. The student has made great progress T319. She walks independently, asks for her hand, can kick the ball and catching on demand. She can ride a tricycle with assistance T319. The student’s communication skills were: she needs to verbalize needs i.e. wants more; occasionally does a shoulder tap, although grabbing behaviors since September 13 are less frequent, less intensive. She enjoys walking T320 and snowshoeing but also enjoys sitting and watching other students. She loves snowshoeing. She sits without assistance. The witness also reviewed J22 T321, pages 6 through 10 progress notes.

On cross-examination, it has revealed T322-323 that the witness is not APE-certified. She took Special Education T323 courses in college and as part of her masters, but it was not her focus. The focus of her education was non-special education. She has been seen students with autism and received training workshops, and working with the students primarily since being at ONC. The witness indicates T324--325 she has taught snowshoeing at one time previously at OC and one time at the District. There was a three-part unit T325 but two were not done because of the weather being too cold. She meets with the student two times T325 a week for 40 minutes; they are working on independent walking every session. They work on school property T327 but they have not been on a public sidewalk mall or highway. The witness does not T328 have any direct communication; it was the grandparent and KP who wrote directly into the log. The student can walk on a sidewalk safely T328. The safety issue arises near the end of the sidewalk or end of the parking area because there’s no “Stop look for cars.” The witness performed the assessment TGMD-2 T329 on September 2003 and the student was last seen in third grade level.

The witness also reviewed J22. She is working on 2 IEP goals; throwing and, kicking a ball, Goal 6 T330, was not achieved through January. She would hold and drop the ball. Now she pushes it toward T331 a target quarter 5 feet away with a big ball and goes through throwing motion which started in the third marking period. Goal number 7, during the current marking, She reported lack of anticipated progress T333. However TT reported that may be achieved with kicking goal. Now she’s looking at the ball but now the throwing is much more inconsistent. The student is more willing to kick the ball T334. She catches the ball on commanded. She works on a tricycle T335 which she did back in OC but a different tricycle. At OC she was strapped and could not steer on her own. The student now is not strapped in and navigates and steers on her own. There was no assessment T336 of the student in OC. Regarding the student behaviors; the grabbing of arms, occurred in the beginning of the year, and recently but less times and less frequently. She grabbed the witness T337. 338 -339 on the arm briefly, maybe a second, a couple of weeks prior but for a short duration. She occasionally pulls her hair, TT did not hurt but she does pull her hair about two times per. The witness reviewed J25 entry for November 12, 2013 T340-342, there couple attempts of scratching, the student who had a rough time with behavior, drawing the Ape’s blood.

The witness was quizzed regarding T343 where she provides the APE services to the student, maybe because there was a notation of noises but they were by the gym not in it. The gym T344 is not near the cafeteria though the classroom is. They walked by the cafeteria, she stops and looks in and disrupts instruction. Sometimes the witness uses the stage T343 but she prefers a larger area so sometimes the hall and sometimes elsewhere T344 but is a shared sensory room. .Regarding the January 28, 2014, it was reported the student had a slow response. The witness reviewed the IEP T347 which we reviewed after the CSE meeting obtained online. The BIP was distributed as second half for the school year; she did not have direct input into the BIP. She discussed with TT the student grabbing for attention T348, APE is one-on-one. Nice hands is when they put hands together for 10 seconds, T349 good job, she never had to restrain the student. She observed the special education teacher more than once. The witness reviewed J7 T351, the OC IEP from 04/12/13 which the witness did not see as part of the CSE process but based upon her prior work with O.C. which was a couple of years ago. They work on life skills which may be different in school T363 setting as you need to walk to enter general education P.E. class. Although running may be necessary for safety and emergency situations or job. The witness does not sign the log T366, the classroom teacher does that. She occasionally uses sign language but it is not on the IEP. There is an overlap between OT and ball skills T360. The witness reviewed J-29 T368, TGMD the test of gross motor development testing is done with the student at the same level as peers and identified deficits,

On re-direct, the witness assesses the student’s T371 progress based upon professional observations. There is improvement in catching on regular basis T372, kicking and throwing, progress with basic skills. Ball skills are important because it would help her interact with her peers. The only sign that she uses is to stand up, they use the picture system to go and to do things. There is a discussion regarding the CSE meeting T373 on September 2013 on the IEP and the goals and whether this witness had any input into those goals T375. She observes the special education teacher twice using the small child restraint to calm her down, occurring at the end of March or April. The witness’s case load is 15 students T374 spread over three schools. Regarding data tracking, TT at K Center observed and talked with the APE during session with the student. Communication skills of the student are minor, progress reports are as of April 11th T376 mail out of date. There progress since the student’s able to use the track on more diverse terrain. She attended field trips but not as the student’s provider T378-380.

The next witness on May 14th, 2014 was NF T383, she is employed by NOC BOCES as a speech/language pathologist has been there for 15 years T384 with 3 year previous experience providing services in a school based setting. She has a BS, MS T385-386 in communication disorders and is required to have for 25-30 hours of conferences to maintain her speech/language pathologist license for which she passed an exam. It is the witnesses 8th year

T387 at the district and has attended autism training and conferences. In school the student gets 1x per week T387, group 30 minutes in the classroom provided by the witness, 2x per week individual for 30 minutes provided by another speech/language therapist. She attended the CSE transfer meeting, identified the student’s needs T388-389. The student did not receive speech/language therapy before at the OC district. The witness did make observations of the student’s communications at the CSE. The witness reviewed DJ7, T389-390 Pages 12 and 13 the IEP from the ON school district which the student was having access to sign language for safety and everyday living skills but her signs were not consistent or clean T391. The student needs to work on increasing receptive and expressive languages. Receptive means to learn more words

T392-393 and expressive means understanding language. The witness felt that the goals were appropriate for someone that did not have services beforehand especially for someone that is non-verbal. The student’s conversation skills were impacted. There was difficulty with expression of wants and needs. She was very limited T394. The student exhibited misbehaviors such as crumpling paper, failing to follow directions, grabbing, and hair pulling. She is at the 18 month level T394 in terms of phonological development with single word utterances, difficulty understanding languages and exhibited play skills at 1 ½ year to 2 year level. The witness does different activities T395 with the group each week. Regarding progress the student would understand when asked to complete tasks. They used pictures, and they employed scaffolding

T396 which is increasing skills by working above present levels of performance. Initially there was much hand over hand instruction but less as the year progressed, she would use correct sentences. Today the student is functioning phonologically at 3-3 ½ years T397, play skills are at a 1 ½ -2 years of age T394, phonologic is the sound system of language. Many of her words are made up and difficult to understand such as BLON is bathroom. The witness has had informal contact with the student greeting in the hallway. The witness would engage and reviewed J22-4 T399 speech/language goals and her progress in the 3rd quarter marking period.

There was progress plus there was additional progress since the end of the 3rd marking period and increased T400 of utterances. They would follow pictures and there was less redirection.

She would communicate with Granma Sue T400. The witness reviewed J25 T401 November 18th entry. There was a meeting with a representative about an augmentative device, when it is medically necessary to facilitate communication T402-404. There was an evaluation. They were looking for the best fit and, there was a pro-slide with 84 buttons. They attempted to utilize technology and tried another device. They tried different devices to obtain Medicaid payment.

The witness would communicate with the student’s T404-406 family through the notebook. The witness raised questions about the student’s hearing and concerns based upon the speech pattern. The witness felt that the student would cut off the beginning of the sounds of words

T406, which is consistent with a mild hearing loss T406. There was an evaluation assessment.

Before the November 26th, 2013 there was a question of the communication on December 2, 2013 with family about prior auditory evaluations before the Due Process Request of December 2nd, 2013 T407 it was a reminder because there was no response regarding the auditory evaluation T408-410. The witness did not get any previous evaluations. There was testimony regarding the go-talk device which would assist the student in communicating. You press buttons based on pictures to communicate. The witness reviewed J30 T414 a group session of October 10th, 2013 T416 and individual sessions sections of billing statement for purposes in the classroom setting. There were some 10 minutes sessions and not full 30 minute sessions and some were informal with the witness accessing teaching opportunities. Some were cut short T418 because of a problem with another student. There is an April 7th entry it was an informal unscheduled session. There was one on May 1st which is low tech go talk evaluation and one with an IPad T409 which is considered high tech.

Regarding cross examination, it was revealed T411 that the group language sessions started approximately in the first week of October and, individual started later on after coverage was secured. The voice output device T415 button would have a picture T425-428. You would press the button to communicate. In class they also used pictures and the student would benefit if it was used at home T426. The individual was other SLT T428 providing individual services 2 xs per week for 30 minutes and is a speech/language therapist who is also employed by BOCES T429 who discontinued in December when her husband passed away T430. PC started in January T430 providing speech/language therapy. The witness reviewed PW1 an annual speech/language report dated May 12h, 2013. The witness did not see a prior evaluation from the parent. There were 2-3 word phrases T431, but they were not intelligible. They were in gibberish. There were informal opportunities to teach the student and the student knew her own name but the letter was unclear. They were to perform T433 a functional evaluation. They would have to follow a conversation T434 to determine language age to facilitate playing with friends. Voice production was poor. It took several months T434 for the student to say the “N” with Nancy T435. The student had difficulty making certain sounds. The witness would model the sounds to help teach the student how to pronounce the sounds. The expressive outplay was 2-3 words, the witness reviewed J22-4 T436, 4.1 bench mark. The student knew her consonants and vowels, articulation and shaping. She does well at times but the final consonant sound was not there. They used tactile cues to help the articulation of sound and the student at times had attention issues with difficulty focusing. Three weeks ago the student started saying “N” it T441- 442 came together in February or March. The student was working toward 6-7 words T444 in a sentence and can say for example “I want to drink, please.” The district provided 3 xs per week for 30 minutes T445, because of intense therapy and language therapy and there was progress T446 with the speech/language pathologist, the student had severe deficits. The witness would like to see her 3 x per week individually and 1x per week group. The student says peer greeting at times. She is at 18 months phonological with expressive language. Play skills, one sentences T448. They did mirror work to develop skillsT453. Regarding behaviors the student did pull the witness’s hair but did let go, grabbed her arm and let go. There was no injury or pain. The witness never had to restrain the student. She received the BIP sometime in March of 2014

T454-459. The augmented approach was a good idea. Extended school year would be reviewed at the end of the year to determine progress and eligibility. She never saw P-W because it is too old and difficult to determine PLPS.

The next witness was JH the CSE chair person T460 and, speech/language therapist. She has been with the district since 2004 and is also the 504 coordinator and the PCSE chairman. She has a BS in speech pathology T461, MS in reading, post-masters in district administration and leadership. She is certified as a school district leader, superintendent, and school building coordinator T466 and is responsible for 80-100 students. She has been familiar with the student from early September 2013 and was notified that the grandparent was transferring the student into the district. She obtained the IEP from OC T463 along with the registration and paperwork. She scheduled a CSE on September 13th, 2013. The student was previously in 12:1:1 T464 program with speech/language indirect consult, OT/PT, APE sign language as a program T465 modification with an aide 5 xs weekly for 30 minutes and charting for behaviors. The witness also referred to as 12:1+1 and 12:1:1+3 believed that they could replicate that program in the district. They implemented T466 a 12:1:3 program with 2 fulltime students and 1 part-time student along with a teacher and 2 fulltime LTAs T467 and as 3 additional students are added an additional aide would be added. The program was put together with an approval of the NYSED regional associates. The witness has also visited SB T467-468 and other places including a day program at SB. The main distinction is that at SB there would not be an opportunity to interact with typically developing peers and would be totally segregated in a special education school with only disabled peers T470. It appeared that based upon JH’s tour there are many students who are medically challenged T469 although not all were non-verbal. Some were non-mobile, and all had autism T469. The profile of the 12:1+3 program is 3 males that are autistic, a student who is classified multiple disabled, and 1 part-time student who is OHI. The verbal levels are spread. There is 1 non-verbal using augmented devices. The other students’ wants and needs are articulated, able to greet people in the hallway and, all have cognitive deficits. The witness sought out the support from the K Center in the spring of 2013 T471-472 for dual purposes of training and conferences for staff record review, and service for students on IEPs. They have weekly contact with K Center. Regarding the admission process, the witness reviewed J5, J6, JP, JO, JR, and JS. Regarding the September 13th, 2013 CSE T462 meeting they started with introductions. They had the IEP T463 from the previous placement. They sought the assistance of the K Center T472 for transition services, help with goals and objections and wanted T464- 465 to add speech/language therapy services. The grandparent toured a 12:1:3 program T466- 467. The school year had already started so the placement options were limited in terms of related services. The eligibility for extended school year services T479-480 is based upon substantial regression which is determined at the annual review in the spring of 2014 for this district which was delayed due to this pending Impartial Hearing. The witness reviewed P12-7 T479 the extended school year’s determination and is deferred pending review. Speech language therapy services the student is receiving 3x per week for 30 minutes, 2 individual and 1 group T481 , is an intense level of services because of the student’s needs. In the 12:1:3 T482 they work on speech curriculum along with language therapy, ELA skills and expressive language. In parent training and consultation which included the K Center which was included for the teachers and the family, there was no meeting set-up to meet with the family which would be on an add needed basis, literature was possible that K Centers behavioral specialist could push-into the home. However the services were not provided since they were was not a meeting to implement same and discuss same. The witness reviewed J14 T483, plans and services from K Center. TT is a consultant T483 but the parent did not accept the program services even though the phone call attempts were made T484. There was an email confirming same T485. The witness acknowledged that the student is on medication and receiving an afternoon dose. The attempt at a communication notebook T483 is a daily log between home and school that was to be maintained and kept in the student’s classroom and not travel from or throughout the school.

The witness indicated that it takes a while to develop the FBA T479 with data collection and creation of the BIP T494-496 and that there is a classroom reward system. However the FBA did not necessarily establish triggers or behaviors and the BIP is currently being used to control behaviors such as grabbing, scratching. The witness would say the frequency and intensity has decreased. No one has been injured to the extent of seeking medical treatment T496, neither staff nor students. Field trips T497 would be available to the student along with extra-circular activities. District transportation is handled by a small bus with an aide T498, a lap belt, and away from other students. There were changes to the accommodations. There were problems T499-500 waiting for the bus because of the high school commotion, it would be chaotic and overwhelming and cause other problems. Triennial review is to take place in September 2014 T501 and consents are necessary for those evaluations. The witness reviewed T503 the district response which offered updated testing and adjustment of the IEP as necessary including parent training as an additional service. The witness did not feel that it was necessary to obtain T504- 505 a variance based upon D31 and D32. The letter was for the extended school year program and a wavier was not needed either. The witness is familiar with TCI restraint system T509-512 that is taught by BOCES. There is also a small child restraint to avoid the dangers and risks of the student and others. The protocol is to follow-up with an incident report with nurse interviews.

SB also has a similar restraint they call them skip-holds T513 or 2 person restraints. SB also has a day school T514 with opportunities for interaction with general education students which is approximately a 40 minute drive T515.

JH indicated that 12:1+3 T520 is a program that she is proud of; she helped create it. She does not feel that residential T521 is not appropriate for the student T521. The parent did not discuss residential at the CSE meeting of September 13th, 2013 T521-523 in which the CSE recommended the 12:1+3.

The witness on cross-examination reviewed D19 T524 the email from the witness to the

TT T527 in which the witness indicated that in her view the student was not appropriate for residential, and there was no input from the team but it was the witness’s opinion. TT’s original involvement T527-528 with the district was to train staff, consult with family and the position evolved to doing a preliminary overview T528 of the program with NA from K Center which was done in late Spring/June 2013 T528. The summer program started in July 2013 with the extended school year program as part of the 2013/2014 school year T528. There was no need to get an age range variance because of the special needs of the student and high ratio of adults to students. The witness felt that the needs of the students T529 are similar to those of the students in the program even though she is 3 years younger than most of them. There are 2 females; the other female is a 21 year old about to age out T531. The 14, 15 and, 16 year olds are boys. TT was invited to the CSE in September 2013 T535-536 but did not attend. It was a team decision to request an FBA for which a parental consent is needed. On February 26th T534 the consent was sent out and they did not get them back and they never sent a 2nd mailing T536-538. There was not a follow-up by certified mail or phone calls. There was a resolution session T539 and the consents were prepared. Parent counseling and training was not recommended. There was a discussion about the K Center. They would discuss with Granma Sue about parent training and counseling, since they had a right to parent training and counseling under the IEP. The witness reviewed J5 T540. There was no consent for evaluation on September 13th, 2013 T540. BOCES inquired T543 about the consent, but they did not T542 send any request about the consent until the Resolution Session. The IEP was reviewed from OC and those were not listed. The witness reviewed P-PP goals T547-550 for 2012/2013from the prior OC district. There was no communication no discussion at the September 13th, 2013 meeting and there is nothing in the IEP about toileting needs. The witness reviewed J14 T553-557-559 a letter from October 28th, 2013 which was hand delivered to the parent and which were attempts from TT T560-562 to schedule a meeting and appointment with the parent and the guardians to discuss parent train and counseling. The communication log was used for daily communication and was used to exchange information about the dates. The parent has a disability affecting mobility T563-564. The district did not offer to transport parent to visit TT from September T565 to January. There was an offer at the resolution session to transport. JH indicated the parent had demonstrated adequate transportation at the CSE meeting and picked up the student frequently. The witness did not know whether there was a written district policy T570-574 about TCT but BOCES training includes non-verbal students. The witness reviewed LRE considerations; the student is exposed to general education students in the cafeteria T574, transitions in hallways and at the work stations. Breakfast is before the school day and she has lunch with non-disabled peers T576. During the day there are job center activities and in breakfast there are general education students but she normally sits by with kids and adults. There are field trips T576, such as project perfection where the students interact with disabled and non-disabled participants. The witness spoke with the parent T577-578, grandparent and guardians in the early Fall about transportation. The witness is familiar T579 with the SB program. There was a boy student who transferred from SB to the district and was placed in the student’s 12:1:1+3 class. The boy’s cognitive functioning and the student’s needs are comparable. The boy is verbal and ambulatory and, interacts with the peers. The witness never had her hair pulled or grabbed by the student. There was a change in OT for personal reasons around Christmas T524. JH spoke with the student’s teacher at OC and the distraction strategies they used such as to the water activities with her hands, nail polish and hair things but not talk about restraints. Regarding classroom safety plan during fieldtrips T584 and also in the halls the strategies are implemented by the staff that are trained and provide safety techniques wherever the student is. In TCI T585-589 there should be a decrease in restraints if it is consistent with interventions and then a need to review. The extended school year program is a continuation of the 12:1:1+3 T591-592 which is if there are 1- 3 students 1 SET and 1LTA, if there are 3-5 students 1SET and 2 LTA, if there are 6-8 students 1 SET and 3 LTA, so it is a base 3:1:1 with an additional aide for every third student with up to 12 students in a classroom. The 12:1:3+1 explains it better because for every 3rd student an aide is added T59. the September 13th, 2013 CSE T593-596 meeting was a transfer meeting and a review of the prior district’s IEP upon the transfer of the student into the district, but there was no additional medicals provides by the parent T595, there were no objections by the grandmother or advocates. JB participated. She is the Medicaid coordinator from SB. She helps to coordinate services, but she is employed by SB. The CSE did not review residential placement because it was not requested at the September 13th, 2013 T597 CSE meet nor was the student’s prior placement a residential. There were no follow-ups on the consents as the parent’s attorney was involved. The office declined.

The parent’s first witness was CB the school RN T607 who is also a licensed foster parent for 6 years in the county and has been employed for 23 years with the district. She is familiar with the student and administering her medications in the afternoon, Clonidine T609 .1mg. Also she checks the student for injuries once a TCI is utilized. She checks for bruises and or scratches and she has never seen bruising or scratching from restraints. The witness reviewed QQ T640 the classroom special education teacher documents restraints in which each page is a separate incident. There are 19 restraints T611. The report must be completed by the school nurse that day to determine if there are injuries to staff or the student. She has observed scratches on staff T612-613 where skin is broken but no blood, but not as a result of the restraint. She was familiar with the respite from SB T614. She was contacted by CPS but she declined since she has a 5 and 11 year old T615-616 of her own and the student requires constant supervision T616.

On cross-examination it was revealed an agency owns and supervises the respite home in B’Field T616 in Delaware County. The agency cannot say no to a placement offer from CPS. She is familiar T617 with the operation at these agency homes; there are a lot of teenage truants, difficulty following rules but it is not a therapeutic setting T617. She observed scratches on staff 5-6 times T618 as an estimate or more. The medication Clonidine is administrated T618 and there was a change in the dosage. It was stopped and restarted. She spoke with Dr. T619 and the student psychiatrist there was some question whether to take the medication 3 xs per day or 2 xs per day. The parent self adjusted eliminating the bedtime dosage because the student was having difficulty sleeping at night. That resulted in a 911 call T620-621 and the Troopers did not remove her from the house. But it appeared that the student was placed in the hospital temporarily.

The parent’s next witness was JB T621-623 who’s background and qualifications include a BS in elementary education, 54 credits T622, 30 hours certified elementary. She is employed by SBA T622 an agency dealing with intellectual disabilities. It has a residential units, day treatment program, Medicaid services and home services. She first met the student approximately in October 3 ½ years ago T623, but was aware of her back in 2007. The student has multiple disabilities with behaviors, signs of autistic tendencies; her behaviors include punching, digging, pulling hair T624. She is a danger to injure others and herself through open wounds and, handfuls of hair with blood. The profiles of students at SB are broken into different houses T624-627. There are autistic, non-verbal students and students who unable to feed themselves and ambulatory But student would fit into the school. The witness thought T625-626 the Granma Sue was very competent and had a working relationship with call backs and scheduled meetings. There was a Medicaid T625 service agreement and an ISP which is reviewed and adjusted according to different services. There are also community benefit services offered by the program. SB activities include T629-631 recreational club, with bowling and swimming. The aides provide transportation. JB indicated that the respite aides T629 get burned out. They often leave and quit because of the student’s behaviors which include grabbing, punching, hair pulling. She would grab people in the store. Granma Sue needs more support including hygiene T633. The student engages in self injury behaviors, head banging, injuries to Granma Sue, scratching, hair pulling. She would run out of the house and interlope. They would need to get the fire department to retrieve her. There was a hospitalization in April during spring break T635-637, Granma Sue was having a hard time T635 and she called the State Police. The student was agitated. They would not take her. They called CPS who did an emergency placement in a hospital bed in Bloomfield and DSS got involved to assist in the crisis providing respite. The student went home about 2:30PM T638 there was no support at home and there was regression on vacations. The witness was not familiar with the BIP T638-639. She would be followed all day along from school to home, vacations, and weekends 24 hours at SB which would be effectiveT639. She is too young for job training however the classes include academics, jobs, copying, using the soda machine.

On cross examination it was revealed that the witness spoke to no one at OC about restraints or the district regarding the program the student attended the recreational program 2x3 for 52 weeks T643, she was present there 50% of the time. HCBS aide or recreational staffs at a minimum need a high school diploma but not restraint training T645 in recreational program. Regarding MCS the supervisor can enroll a student at SB there is a residential school and an admission program for services that are community based. But there is not a decision to admit right now. There was 10 minimum 1 x per month observation of the student in the classroom is 12:1:1+3 did email with the classroom teacher and special education teacher when she first came in September T647, the student is fond of the witness, so when she saw her the student did not stay on task, but she did not her scratch, or pull hair. The second visit lasted 30 minutes T648 observation. There is a 12:1+3 at the district and she connected with KP 1x per month by email on how the student was doing, what the concerns were but there was no communication T656 with TT regarding behavioral issues and academics T657 are more effected and worries more about behavioral issues especially regarding related services at the district T658. The office of OPWDD T650 the student qualified for service at a residential placement. There is AROC T659- 660 packet waiting for a placement and a priority list and she may not be at the top of the list yet. This is for the IRAs for the placement for 11th grade T659-660. The respite is Bfield they did not do any diagnosis for the parent. The DSS is working on the ICF placement. They have been to the DB’s house T654. SB does not have any IRA’s for children T652.

There were questions about head banging and the witness did not know how many times the student was involved. The parent started with SB T646 approximately 3 years ago, but that was before this witness 2 years before the CSE on September 13th, 2013. DB were considering residential for 2 years. There have been no recreational respites because there was no one to aide and transport. There was parental transportation to bring to SB. The BIP was requested of B County Catholic Charities T656. There was an agreement that the agency provides ISP services. They are reviewed every 6 months, but the witness was not sure if the district had a copy of the service plan. The student loves swimming T658, receives SSI, SSDB, food stamps. Changes are difficult i.e. changes in her life as well as changes in school and residence. Changes are difficult to transition; the safety assistance was in fencing but not at the current residence.

The next witness was AM T661-663 she was the clinical professor of Law at Cornell University with a BS in English, OMS in Special Education and Law degree and the original author of the TCI T661 curriculum which is a whole approach. The physical restraint is only a minor component. The curriculum they trained trainers to interact, prevent and deescalate. They used restraint in a therapeutic setting T663. They are currently on the 4th edition of TCI and when restraints are administered the protocols require that there is also a crisis intervention management plan T667. The BIP should be included in a crisis intervention plan. They should tell parent, student and staff to avoid further trauma. It should be updated for the student with development disabilities with DD and DB life space with interview T668 it is very verbal, but to do the processing they do not need verbal, so you can get a feeling of what to do, TCI can be frightening for a child. Everyone in the building should be trained so that no one gets injured. There is a practical session where trainers are updated T668 but, there is no such thing as a one person/child restraint T675. There is a restraint with 3 people, i.e. prone with 3 people T670, or standing with 3 people there is a small child utilizes the wall and a small child must be a child smaller than you, approach from behind, non-verbal, kept to the side, crisscross arms and push to the floor T671-672 but first sit and deescalate and de-stimulate. There was one de-escalation period T675-676 at least 10 minutes t677 until they calm down and do not re-injure otherwise it can negatively affect a child by traumatizing the child.

On cross examination the witness was voir dire T685 as to her background qualifications, she had taught in the Bronx as a special education teacher of multiple handicap students for 5-6 years T686 in the early 70’s she was dealing with children with IEPs and classified as 10-20 on the autistic spectrum. There is no safe place or way to do a child restraint on a bus especially if it is moving to escalate, 8 minutes in duration T691 is fine but 1 minute is not enough, 5-7 is not extreme.TCI should be done entirely in school T693and not in a vacuum. The witness did not know the K center T695. The next witness was TR, Granma Sue’s daughter; the home community based social worker having been employed by SB since September 13th, 2013 T708. She received 8 hours of training and works approximately 4-5 hours 2x per week. Her training includes HIPA health safety issues and watching a video on autistic children. She has spoken with 2 of the other student’s previous respite workers to deal with the student’s behaviors of grabbing, hair pulling, plopping and, head banging which she has observed for herself along with scratching others, kicking and drawing blood T710. The student needs 1:1, 24 hour attention. There does not seem to be any warnings because the student impulsively engages in these behaviors and she cannot control herself T711. She is involved in home and community based services, going to stores, parks, shopping, restaurants T711. The student needs to be reminded to wash her hands and needs assistance in toileting T712. Her other behaviors include grabbing, throwing chairs, knocking things off shelves and, head banging T712, although they appears to be spontaneous T713. The witness explained the different versions of incidents and episodes. One was when she was driving the student sitting in the backseat on the passenger side, the student attacked TR while driving pulling her hair. The witness indicated that she had to pull off to the side of the road T713, slam on the breaks because she pulled her hair so hard she could not view the road. Another incident happened a couple months ago in a store when she pulled a ladies hair in the checkout line, the women was yelling and the witness had to pry the fingers out from around the women’s hair T715. The student was laughing T716. Another incident occurred in February 2014 when the witness was shopping with the student. The student was not right next to her and she grabbed a young women’s arm and would not let go T716. The student had a blank look on her face T716-719. The student attacked her in the store, putting her fingers in her mouth, scratching and pulling till it bled T720. TR gave her a bear hug but was never trained in restraint T720. The student has also attacked DB, pulling her hair out, scratching and drawing blood T721. Her plopping occurs every couple of times, head banging has occurred 4 xs since September. The witness has observed violence directed at DB at least 15x since September 2013 T723. The frequency of these incidents since September 2013 to present has stayed the same T724. The student has left scars on the witness including one on her breast T725. But the behaviors have gotten more severe over the past two years T727. The witness keeps a log and reports to SB T745 as the respite worker, but never filed incident reports and she did not need medical care or treatment. The student needs assistance toileting in public and washing hands afterwards T727. They go to Petco 1x per week T740 because she likes seeing the fish. She was not sure what strategies to use other than, hand squeezing and the hair ties and, tell her “nice hands”. It was reported that she did escape from Granma Sue out the front door and down the driveway, but there are no locks, fence or alarms. She requires constant supervision T732. Regarding her verbal deficits, she utters and chatters when happy and more has difficulty getting words out when she is upset which upsets the student even more T729. She is also aggressive when not angry T730. Also TR does not believe the student understands change T733. On cross-examination it was revealed that TR watched a video about autistic people, adults and kids but received no other training for autistic or mentally disabled children T735. She used techniques from the prior respite work that were used to distract the student, not a behavioral modification program T733. While in the car of TR’s husband, the student would sit in the backseat and the student would bang her head against the window T738. She never talked to school staff or SB about modifying the student’s behavior T739. They both use some sign language T740. During the incident in the store, TR was checking out or looking the other way T740. The respite is 4-5 hours in the community T742; TR has never observed the student at OC District.

She is employed by Delaware Opportunities. She has a BS in social work and she is the family residential independent living skills director operating T752 under a contract with DSS providing foster care with 6 homes in the area housed with house Parent and 2 staff members T753. The population include those who are hard to handle, juvenile delinquents, PINS (persons in need of supervision), teenage mothers and, drug and alcohol dependent users. House Parent get 6 week training, and are New York Certified Foster Care T753. There are 3 NYS foster care providers certified per home plus 2 aides and the stay lasts from 21 days to 2-3 years. She is familiar with the student from Bfield Home from a respite stay in April 2014 T756. During spring break this was initiated by the Department of Social Services Case Workers T757 who gave the director 30 minutes providing her name, age and no additional information concerning the student’s behaviors T758. The stay lasted from 2-6PM she was transported backed by 2 case workers. The student was brought in by BB since the respite care can be up to 21 days, and she thought that student would be spending the night. They had a half hour notice that the student was coming in. The case workers provided little information only, name, age, and the student was autistic. They had no knowledge of the student’s behaviors. When they observed the student she was outside in the car in a rocking motion T759. The student was pulling hair of the case workers when they were on the porch. The case workers (4 adults) T760 had to carry the student into the house. She was pulling hair and was resistant, there was no scratching T760. The witness introduced the student to the other 2 students. A male 12 years old that was developmentally delayed and whose mother was a drug addict and alcoholic, and a girl who was 14 years old and a truant. The students were then requested to return upstairs because of the student’s behaviors T762. The case worker said there was a new case and there was not a lot of information. They contacted the grandparent. When the student heard Poppy’s name the student started behaviors, gabbing glasses, pulling hair T761. The only method that would get the student to stop would be to feed her. She would eat a crayon T763. There was constant grabbing. She is very strong. She grabbed the witness’s hair, pulled her face to the table T763. She had to remove her earrings and jewelry. They were looking for gloves because they were told by school personal that they would wear gloves. It went downhill after she heard Poppy’s voice, she grabbed hair, and she got her hand under the shirt of one of the worker and grabbed her breast and would not loosen her grip T764. The worker was bruised and bleeding and was afraid she was going to rip her nipple off T764. They took her to the emergency room. They all had bruises on their hands and arms T765. They tried to calm her down, using nice voices and also using the term “nice hands”. The witness never saw behaviors of that nature. She was grabbing and laughing. They were not prepared for the student’s behaviors T766 and by 4:00PM they called the Department of Social Services, who called the Sheriff’s Department. When the female deputy arrived the student was awful T767. They also called Crisis Intervention Emergency for an intervention. Two men appeared and she walked calmly out to the car with the men for hospitalization T769. In her 7 years she had never seen anything like that level of attack not even in other MR students T769. They did not know how to control her T771. The witness believed that the triggering event that leads to the intervention was the student had an incident at a store where she was knocking things off a shelf. She already had attacked another child T774. She was already agitated and this occurred during school recess while the student was not in school T774. In terms of the foster Parent training there is 4 hours a night 1x per week for 6 weeks T775. They received no training regarding restraints, behaviors, autistic children, de-escalation. Training is very minimal T775. The witness acknowledged that 4 adults carrying the student into the building was scary T776. The student was agitated and did not know any of the individuals there and that one of the case workers was going through her belongings T777, though the witness did not believe the student was aware of that. She had very little experience with student who had limited verbal skills T778.

The next witness was WL from SB. SB has different sites and WL works on O Campus. The residential school is in P Ville and community homes in the 3 county area T784, preschool, day habs and site based habs T785, He has been with SB for 11 years and has prior experience as the Medicaid service coordinator and is currently the home community service to coordinators T785. His primary responsibility includes supervising the home workers. There are 4 basic respite services offered: respite, respite recreation, they had days without walls, and residential. Respite is a break in care services T786. The respite provides a break for the Parent or guardians so they can get out of the home T788. He was familiar with Granma Sue and Poppy and he hired TR, Granma’s daughter back in September 2013 T789, because it was difficult to get respite workers, due to the student’s behaviors. Primarily the student pinches, grabs hair, pulls hair and will not let go and throws things off shelves T790. The day without walls was linked with the respite with some sessions providing social interaction. The recreational respite provides bowling and swimming services when there is an adult present T792. He was aware of the student and as a social coordinator made an application in the office of OPPD for residential place approximately 3 years ago T794. As far as the witness was concerned the student’s behaviors have not changed as she continues to be disruptive in the community. Out of the 85 individuals on his case load the student is the most behaviorally challenged T797. He believes the student should be in a residential setting T796 and believes that SB can provide behavioral support and behavioral support plans in a home or school setting with implementation of the BIP across the board T798. He is familiar with the student based on ISP meetings every 6 months T805, where they determine valued outcomes and transfer to goals. No one has taught restraints because those students are in residential settings. He was engage with the student grabbing his glasses, pulling them off his face and scratching him in the face T808. He believes that residential is appropriate because it provides 24/7 BIP support and is consistent with carry-over from classroom to residential T809.

On cross-examination it was revealed that the witness did not visit the District to observe the student, and thought that they were not at the District. He did not review the communication log and had no idea how the student was progressing in the program T812. He was not familiar with the IEP with the District nor did they have the District’s IEP with them. He sees the student T816. They receive day training through the department which is an 8 hour orientation course, but no training with autistic, MR’s, or behaviors T816. The witness explained the reporting system. There was a daily log and incident reports T815. But there are no incident reports filed for the student T816 which are only recorded when and if there was an injury. Respite workers are primarily babysitters T818. Regarding the training of a prior respite worker, there was no de-escalation training DH spoke with the people at OC District and the witness is not employed by the residential and was unaware if safety equipment T820 was provided to Granma Sue and Poppy at the new location, he has no experience with behaviors T821.

Granma Sue confirmed her address at 15 DS Road. The witness reviewed P-BB a registration form turned into the District on 9/11/13 T822. The spelling of street name was reviewed, not correct on registration form T923 initially to street number was incorrectly stated as 18. P-CC which was signed on September 5, 2013. There were some school records from OC and P-DD, records from OC, FF, a form indicating the home language is English, and the copy of the IEP there is no Parent training T851 were to be sent directly by OC to the District providing the District with eight days advance notice before the CSE meeting but the witness was not sure if OC did that before September 13th 2013 CSC meeting. The witness acknowledged that the student did struggle with changes in transitioning and she had multiple changes from different house, different school, different staff, and different class room T927. This had an effect upon the student. It has been noted that the student’s prior teacher at OC had the student from kindergarten to fifth grade T931. In the District’s first CSE meeting, the mother brought several people to assist and participate at the CSE meeting including her Medicaid Service Coordinator, JB, two advocates and WL a SB coordinator T928.

The student had a hard time T929, initially and the Grandmother started taking the student to OC District from September 5th through the 8th 2013. The witness reviewed Joint 7 page 6, it is the pre-existing OC District IEP which indicated that the student did not need a BIP T932, and also it is reflected that there are no goals in said IEP for toileting T933, showering, speech/language, signing T933. It was also noted that in terms of progress report the student had engaged in 82 attempted scratchings T935 since September 2012 at OC and is reduced down to seven per week as of March 2013 T935. The student attended an integrated pre-school program for three- to four-year-olds T936. The witness was surprised that the student was diagnosed with speech/language deficits but was not receiving speech language therapy at OC because the student had deficits in the speech/language T937. She first had been thinking about residential placement in 2011 after she had a severe heart attack T937, contacted the OPWDD for placement in an ICF residence T838 which did not include an educational setting. Initially, the witness spoke with KP, the student’s special education teacher once a week and received maybe four or five phone calls back from KP T939. She is thinking whether the student was having a bad morning over camps, or over other things which she thought the teacher should be aware of.

The mother was worrying about the Project Perfect field trip T939. The mother was quizzed regarding behaviors at home of which she told KP. The student would attack her often. The student almost tipped over her wheelchair but she did not ask for help from KP or ask about other options T940 or ask for a CSE meeting T942. She did tell the mother about the K Center and that TT was going to speak to her. She had an appointment but she could not get out of the house because of the weather conditions. She wanted to meet to create a BIP for the home. She is worrying about the student and KP discussed restraints T942. The Granma Sue told her no and that they need to talk about it further. The mother discussed residential plans at SP because the student’s behaviors may be too severe for school setting, but she brought four participants to assist her in creation of the IEP at the September 13, 2013 IEP meeting. She was not sure if she received the procedural safeguards notice or procedural rights T943, but they discussed toileting issues and tripping i.e. bathroom scheduled visits twice a day at CSE meeting T943.

The witness reviewed which medication log: the following entries regarding medications were discussed an entry on September 18, 2013 in regards to a concern about the student’s medications and describes T945 and visits on September 23rd, 2013 maybe the incident related to her medications as entry on October 3rd hearing on clonidine reaction T946. The student was taken off clonidine based upon a pediatrician but the student’s psychiatrist would review. October 10th, the student was put back on clonidine by the student’s psychiatrist T947. On January 13th, 14th the student’s psychiatrist increased the student’s medications to three times a day, but on January 29th, 2014 the pediatrician reduced removing the third pill T949. The student went on medication Seroquel; she went into a crisis center mode. She was given p.r.n. for emergency for ten days because she was uncontrollable T948, was acknowledged that there are a lot of medication changes for a small child over a short term, and her behaviors interact T949. On October 7th, there was a small problem by which re-directed at home. October 13th, some hair pulling but stopped with hair removal ties. October 16th some tantrum at school T950 October 21st, a good weekend on October 22nd good evening there was hair pulling act T952. November 4th was a nice day. On November 5th, she scratched a specialist T957. November 5th, good evening, the 12-second bad morning half resolved. There was an audio logical evaluation performed, difficulty with the TC scheduled T954. The witness is willing to accept the BIP for the home because she needed help to their son. J2 is the District response to the hearing request.

The student was energetic and enthusiastic. On March 25th, the student participated in the Smart Board class T964. The witness indicated she was intimidated by being required to talk on a speaker phone T966. She told her that diagnostic placement was important even though the student does not do well with changes T967; it would take a couple of days and then would settle in. She acknowledged that if the student is upset, it would be difficult to see the real student. There were efforts to learn about the student in her home. The student has special needs with different people and different support.

Requesting home therapy. The student does receive counseling with Dr. P, the psychiatrist. The mother was trying to get help and was looking at the program in SB. She was feeling that the student met the requirements for residential, but there is a possibility the student will be placed not at SB T969.

On re-direct or re-cross or whatever it all, the witness reviewed the address registration and the student normally has trouble with changes but adjusts after two or three weeks T973. SB has therapeutic diagnostic placement, which was important to the whole person with big adjustment with different the District, school, and teachers, but the hair tie plan was effective which was discussed at the CSE meeting and during which it reviewed docs. On the 9/13 was a transfer meeting with that, familiar with all the CSC social education rules, review Parent PP goals for 12/13 T981. Toileting, life skills are included. Registration forms are released in 2011.

Continuing the Parent’s concerns regarding November 21st 2013 restraints, she was not aware of any being utilized. The witness reviewed QQ, a log on November 7th 2013 and October 31st. She also reviewed J26 to January 27th 2014 entry, spoke with the counselor. October 16th, was a bruise on the student’s forehead. J1, the due process hearing request, the witness filed on February 11th 2014. The answer was filed on February 20th and J2 page 1. There are no guarantees the student will be placed even by the District at SB. It was closed, witness filed appropriate based upon least restrictive environment.

DECISION

LEGAL STANDARDS

FAPE

The following is well established

“.…to meet its burden of showing that it had offered to provide FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]). 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 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y.

1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002

WL31521158 [S.D.N.Y. Nov. 14, 2002]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. ' 1412[a][5]; 34 C.F.R.

' 300.550[b]; 8 NYCRR 200.6[a][1]).

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 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). Federal regulations require that an IEP include a statement of the students present levels of educational performance, including a description of how the student’s disability affects his or her progress in the general curriculum (34 C.F.R. ' 300.347[a][1]; see 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student’s present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).’

The appropriate standard of review is as follows:

“The statute ensure an "appropriate" education, "not one that provides everything that might be thought desirable by ‘loving’ parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3dat 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at 15). The IEP must be "reasonably calculated to provide some meaningful' benefit" (Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).”

Burden of Proof

The district argues that it has provided FAPE to the student. The parent argues that the district has denied the student FAPE.

The district argues that it developed an IEP that was reasonably calculated to provide the student with educational benefits in the LRE at the time it was formulated. The substantive issues will be dealt with herein.

The SRO in 12-007 stated “Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). However, under State law, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law §4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).”

DISTRICT ARGUMENTS

The district argues the following points. The student has been provided FAPE by the district. Even if the district did not provide FAPE to the student, residential placement is not the Least Restrictive Environment. The district’s decision to consider extended school year services in the spring is appropriate. The parent request for ABA is methodology is not appropriate because it is methodology. Relief requested in the DPHR was offered to the parent in the district’s answer. The district contends that they offered the student FAPE based upon the September 13th, 2013 CSE meeting which reviewed the appropriate evaluations that were made available to them and which were the basis for the prior district’s IEP. The district created an IEP for the student that meets the student’s needs in all areas. The student was placed in a developmentally disabled classroom pursuant to the commissioner’s regulations 200.6(h) (4) (iii)"... the class size for those students with severe multiple disabilities, whose programs consist of habilitation and treatment shall not exceed 12 students. " Also the chronological age range within special classes of students with disabilities who are less than 16 years of age shall not exceed 36 months ...However , there shall be no chronological al age-range limitations for groups of students placed in special classes as described in subparagraph (4)(iii). The student’s placement is exempt from age restrictions for other classrooms. The student had behavior problems which were expected due to the changes and transitions from one district to another as well as one home to another. A primarily goal of the district was addressing and rehabilitating the students behaviors. An FBA and BIP were created by the K Center. Furthermore intensive speech services were provided by the district and the classroom was designed and recommended by an IEP that provided educational progress in areas of development, management, academic, social and physical. The student’s triennial evaluations are due in the fall of 2014. The parent’s concerns are primarily limited to behaviors at home.

The district argues that even if the district did not provide FAPE the student failed to show that residential placement as is the Least Restrictive Environment. The student was placed in a 12:1+3 placement which is a programmatic placement in a school based facility. A fulltime residential placement would ignore that the student has made substantial gains and progress. Even if the district failed to provide FAPE there are levels of care to be explored between the 12:1+3 program and a residential placement in order to satisfy IDEA’S less restrictive environment. The parent is unable to show that the student is unable to progress in a less restrictive environment.

The district was proper in its decision as concerned extended school year services in the spring in a 12 month program based upon part 200.6K.

The parent requests applied a behavioral analysis which is methodology which is not required to be placed upon the student’s IEP. Much of the relief requested in the Due Process Hearing Request was offered to the parents in the district’s answer response.

PARENT ARGUMENTS

The parent argues in its brief that this IHO should not credit the testimony of the district staff because KP the district’s special education teacher, TT the adaptive PE teacher, JH the school’s CSE chairperson do not believe the student requires a residential placement. .The overwhelming weight of the evidence indicates that the student’s behaviors have worsened since she has begun attending the district in September 2013. The district has abandoned the successful hair tie behavior plan based on the opinion of TT from the K center it was an aversive technique. The student’s behaviors have gotten worse by evidence of the incident at the B-Ville respite home described by CG the family resident independent living schools director. The Medicaid Service provider, TR the respite worker and Aunt of the student all have indicated the student’s behaviors have escalated. The escalating use of physical restraints is inconsistent with the district’s testimony that behaviors have improved. With one restraint in December, three incidents and five restraints in January, two incidents and two restraints in February, three incidents in March, five incidents and six restraints in April there were two more incidents and two restraints in May which indicates that the behaviors are escalating and not improving.

The district’s staff testimony is not trust worthy and the district’s deceptive manner in which they have dealt with the parent in the beginning, never informing the parent of the restraints, doing an FBA and a BIP without consents, the parent’s involvement and requiring any telephone communication from the grandparent/guardian being on speaker phone in the presence of CSE chairman JH. TT testified that she had attempted to reach the parents on numerous occasions. JP knew the parent was opposed to physical restraints but employed them anyhow. The next point is the district’s 2013/2014 program denied the student FAPE because the district failed to include the parent in the development of the FBA and BIP and denied the student FAPE which is post September 13th, 2013 CSE meeting. Nonetheless pursuant to part 200.22the FBA must be based in part on any relative information provided by the student’s parents. Implementation should include regular progress, monitoring and frequency, duration and intensity of the behaviors. The FBA should be based upon information provided by the parents which ties into the district’s failure to obtain consent for the FBA and failure to involve the parent in the development of the FBA and BIP and failure to inform the parent of the results of the monitoring. Procedural violations and the secrecy regarding the FBA and the BIP significantly impede the parent’s ability to participate in the decision making process and to address the student’s behaviors.

PROCDURAL VIOLATIONS

Failure to Obtain Consent

The Parents allege that the district failed to obtain consents to conduct the FBA evaluation. I.I. the school psychologist did not obtain consent to evaluate because he did not do the FBA. TT from the K Center stated that she did not get consent indicating that normally someone else obtains them before she gets involved.

This is not a situation like in SRO 03-008

"Respondent’s contentions are without merit. Indeed, if respondent believed that petitioner had withheld or withdrawn consent to evaluate (which is unlikely on this record) respondent had legal remedies for that situation. Regulations provide that "[i]n the event that parental consent is not obtained within 30 days of the date of receipt of the referral, the chairperson shall document attempts made by the chairperson or other representatives of the committee to obtain parental consent, and shall request that the board of education initiate an impartial hearing …" (8 NYCRR §200.4[a][8]; see also 34 C.F.R. §300.505[b]).3 The school cannot on the one hand claim that it lacked consent to evaluate and on the other fail to heed the procedural remedies set forth to address that very situation. As such, I find that respondent failed to timely evaluate this child. " In SRO 13-177 the SRO stated where the parents refused to provide consent “Having found that respondent failed to comply with the procedural requirements set forth in IDEA, I must now address whether the failure resulted in a denial of FAPE. I conclude that it did not under the circumstances of this case. "Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent’s participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE." (Application of a Child with a Disability, Appeal No. 02- 015, citing Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3f 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 U.S. 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, F.2d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1990]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 44, 153 [D.Conn. 2001]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2nd Cir. 2000] [relief is warranted only if the procedural violation affected the student’s right to a FAPE). Nor is it a situation like in SRO 08-109, where the SRO stated “…the hearing record indicates that the district's school psychologist spoke with the parent, who requested the inclusion of "speech" on the student's IEP (Dist. Ex. 13 at p. 1). At that time, the district psychologist offered the parent the opportunity to request a reevaluation, but the parent "did not want to have [the student] receive another evaluation" (id.). In addition, the hearing record reveals that with the exception of a request for an assistive technology evaluation during the 2012-13 school year, the parent did not allow the district to evaluate the student, but preferred to exercise her right to obtain "her own outside evaluation[s]" (see Tr. pp. 115-17, 218-19, 229-30, 280-87, 289-90, 295-97).

Here, the parent's failure to consent to the district's request to evaluate the student in September 2011, and the parent's failure to avail herself of an opportunity to have the district reevaluate the student in September 2012 effectively thwarted the district's ability to obtain updated evaluative information concerning the student, which the parent cannot now use as a basis upon which to conclude that the district failed to offer the student a FAPE for either not evaluating the student or as a basis upon which to conclude that the October 2011 and October 2012

IEPs were not appropriate because the district lacked sufficient updated evaluative information concerning the student. Additionally, the hearing record shows that the parent provided consent for the OT, speech-language and psycho educational evaluations—which she specifically requested in the due process complaint notice—during the course of the impartial hearing and that these evaluations have been completed at this time (see Tr. pp. 173-80; Answer & Cr.

Appeal ¶ 9). Consequently, the issues raised with respect to district's alleged the failure to conduct updated evaluations of the student as a basis to conclude that the district failed to offer the student a FAPE are no longer justiciable."

This however is not a situation where the parent has refused to consent to the evaluation prior to the filing of the DPHR. There was a follow up request for consent after the filing of the DPHR but that occurred through the resolution session. The testimony from I.I. was that he normally obtains consents when he is administering or conducting the evaluations. The testimony from TT was that the K center does but BOCES does and she was not sure why not. I find the District failed to obtain the consent of the parent DB to perform, the FBA

BIP/FBA

BIP/FBA

The parent argues that the district’s IEP is not appropriate because it failed to incorporate the prior district’s hair tie behavior plan, failed to provide sign instruction and failed to implement toilet training. A district is not required to adopt a prior district’s IEP based upon an in New York State transfer if it develops, adopts and implements an IEP that is consistent with Federal and NYS law.

Part 200.4(e) (8) states the following

“(8) Students with disabilities who transfer school districts. (i) Transfer within New York State. In the case of a student with a disability who had an IEP that was in effect in this State and who transfers from one school district and enrolls in a new school district within the same school year, the new school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district adopts the previously held IEP or develops, adopts and implements a new IEP that is consistent with Federal and State law and regulations.”

Nonetheless a comparison of the two IEP’s reveals the following. TT was opposed to the hair tie removal because it was an aversive technique. The parent argues that it is not an aversive technique as defined by the Commissioner’s regulation. Part 200.1(lll) Aversive intervention means the same as such term is defined in section 19.5(b)(2) of this Title.

Part 200.7 (b) further states (8) Aversive interventions prohibited.

“(i) Except as provided in section 200.22(e) of this Part, an approved private school serving school age students with disabilities, a State-operated school, or a State-supported school is prohibited from using aversive interventions to reduce or eliminate maladaptive behaviors of students.”

Aversive intervention generally means an intervention that is intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors, including such interventions as: contingent application of noxious, painful, intrusive stimuli or activities; any form of noxious, painful or intrusive spray, inhalant or tastes; contingent food programs that include the denial or delay of the provision of meals or intentionally altering staple food or drink in order to make it distasteful; movement limitation used as a punishment, including but not limited to helmets and mechanical restraint devices; or other stimuli or actions similar to the interventions described above.

The term does not include such interventions as voice control, limited to loud, firm commands; time-limited ignoring of a specific behavior; token fines as part of a token economy system; brief physical prompts to interrupt or prevent a specific behavior; interventions medically necessary for the treatment or protection of the student; or other similar interventions.

I find that the hair tie removal is not an aversive technique because it is a similar to a token economy. I further find that it was a diversion or a distraction strategy created based upon trial and error and without the benefit of an FBA. P-Q nor P-P which are entitled good working strategies from the OC District and neither reference a FBA or data collection. J7 the IEP from

OC district dated April12, 2013 or the 2013-2014 school year does not reference that the student needs a Behavioral Plan pg6 of16.

Part 200.22 (a) (3) states:

“The FBA shall provide a baseline of the student's problem behaviors with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day and include the information required in section 200.1(r) of this Part in sufficient detail to form the basis for a behavioral intervention plan for the student that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement“

The hair tie does not tend to modify long term behavior and may work in the short run but a full blown BIP based upon and FBA and then a follow-up FBA with the revision and revised BIP increases the likely hood of modifying the student’s severe behaviors.

The sign language portion of the previous district’s IEP was not carried into the district’s IEP. The student was not being provided instruction pursuant to a sign language curriculum; instead the student’s sign language was more likened to hand gestures. They were not clear or distinct as signs.

The toileting issue with the district did not do a scheduled visits to the bathroom they used pull-ups throughout the day not just during transport. The parent claims that this provision was deleted from the IEP as an indication that the district’s CSE did not allow for parental participation. Simply because the CSE did not accept the requests does not necessarily mean that the parent was not allowed to participate. The sign language was not implemented in the district’s IEP; the student’s deficits in speech/language were addressed by direct speech/language therapy group and individual. The toileting issues and concerns were addressed when the student was accidents and the special education teacher restored to pull-ups during the day; however KP indicated that they would implement tripping. Again I find that the parent participated in the CSE’s meeting on September 13th, 2013.

The parent argues that the district did not comply with Part 200.22(a) (2) which states

“The FBA shall, as appropriate, be based on multiple sources of data including, but not limited to, information obtained from direct observation of the student, information from the student, the student’s teacher(s) and/or related service provider(s), a review of available data and information from the student's record and other sources including any relevant information provided by the student’s parent. The FBA shall not be based solely on the student’s history of presenting problem behaviors.”

The parent contends since an FBA must be based in part on relevant information provided by the parent and failed to include regular progress monitoring in the frequency, duration, intensity of the behavior interventions. There is no factual dispute that the FBA was conducted without the input of the parent, Gramma Sue, Poppy or TR. TT testified that she spoke with Gramma Sue and was to follow-up the next day for an interview. The interview never took place. They never spoke notwithstanding nine attempted phone calls to the home. The parent argues that none of the testimony of the district’s witnesses should be taken as credible, however Gramma Sue did not show up at a school scheduled visit. Acknowledging that the fact pattern is somewhat murky, I fail to find a motive for TT and independent contractor with agency not to be honest. Whereas if Gramma Sue had intended in fulfilling her plan to the student placed by the district as SB would benefit from the student’s continuing outbursts in school.

TCI’s/ Small Child Restraint

The other interesting factual piece was the lack of information provided to the parents regarding the imposition of TCI's.

A review of the J12 the IEP from the District references the student needs strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the student’s learning or that of others but does not state that the student needs a BIP. However in the PLP’s for social development it states that the she grabs scratches when she is excited and the incidents have increased with a change in placement. However it is unclear what that is based on or from where. Regarding the management needs of the student it states that she requires 1:1 attention and can be aggressive if she does not get this. She has scratched grabbed glasses torn papers eaten her work and other objects and torn down bulletin boards. She will go after other students or pull on computer cords.

In SRO 02‐11 it was stated:

“Additionally, I note that although the program recommended by the District is listed as having an 8:1:1 ratio, at the present time, the class only has four students and three staff members. The student will fit in well with the class profile (Exhibit SD 27) even though his skills are slightly below the skills of the other student. This small student to staff ratio will allow the teacher to tailor the program to the individual student and can help him make up for lost time (Transcript p.139). The special education teacher who is assigned to teach the class is expected to exert a calming influence on the student. The program also has a crisis counselor who is always on-call. The crisis counselor is trained in

Therapeutic Crisis Intervention (TCI) and Life Space Crisis Intervention (LSCI), which are techniques in de-escalating explosive situations (Transcript pp. 97-99). The crisis counselor operates out of a behavioral support room that is a place for a child to go when he is having trouble settling down (Transcript pp 96-102, 130). The behavioral support room is located right next to the student's classroom. The teacher and the crisis counselor work together as a team to prevent things from getting out of hand (Transcript pp. 102- 104). “

Although TCI is often used to deescalate situations, the testimony from Prof A, the proper application of TCI occurs when the physical restraint is utilized with deescalating counseling and therapeutic like reassurance for the team implementing the TCI. There was some differences between how the TCI were implemented and how the TCI was applied. The three person technique would ensure the student and the staff were not injured during the application of the restraint. The testimony for the SET and the RN was that there were no injuries sustained from the application of the TCI. Gramma Sue did indicate that the student came home one day from school with bruised knees without explanation.

TT stated that if restraints are necessary and in a non emergency situation they should be provided for in the BIP.

Part 200.22 controls BIP's. A BIP is required when as stated in 200.22(B)

"200.22(b) Behavioral intervention plan. (1) The CSE or CPSE shall consider the development of a behavioral intervention plan, as such term is defined in section

200.1(mmm) of this Part, for a student with a disability when:(i) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student’s behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to section 201.3 of this Title." Part 200.1(mmm) states

”Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior.” Based upon the testimony the BIP was necessary because the student's behaviors places the student and other at risk of harm or injury and impedes the learning of others. The impact upon the learning of the student was minimal but required effort by the staff to control the student’s behaviors and I so find.

"200.22(b)(2) In accordance with the requirements in section 200.4 of this Part, in the case of a student whose behavior impedes his or her learning or that of others, the CSE or CPSE shall consider strategies, including positive behavioral interventions and supports and other strategies to address that behavior. If a particular device or service, including an intervention, accommodation or other program modification is needed to address the student’s behavior that impedes his or her learning or that of others, the IEP shall so indicate. A student’s need for a behavioral intervention plan shall be documented on the IEP and such plan shall be reviewed at least annually by the CSE or CPSE." Based upon the testimony the student’s need for the BIP is to address behaviors that impeded her learning and as a result it is required to be included in a BIP. It should be included in a BIP if the behaviors impact the learning of others. There is testimony that the student did on occasion attack or attempt to attack other students the frequently enough to impede the learning of others and I so find.

TT referenced that the TCI small child restraint may not be required to be on a BIP or an IEP if the use of a TCI type restraint is an emergency situation. Part 200(d) states

"Emergency Interventions. (1) For purposes of this subdivision, emergency means a situation in which immediate intervention involving the use of reasonable physical force pursuant to section 19.5(a)(3) of this Title is necessary.

The use of intervention is regulated herein and a step by step analysis is necessary.

(2) Use of emergency interventions. (i) Emergency interventions shall be used only in situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed. The staff attempted to use alternate methods such as nice hands I find that they attempted alternative methods and procedures.

Part 200 further states

"(ii) Emergency interventions shall not be used as a punishment or as a substitute for systematic behavioral interventions that are designed to change, replace, modify or eliminate a targeted behavior." The TCI restraint was not used by the staff as a behavioral modification plan but instead to ensure the safety of the student and others.

Part 200.22 Subsection 3 deals with staff training

"(3) Staff training. Staff who may be called upon to implement emergency interventions shall be provided with appropriate training in safe and effective restraint procedures in accordance with section 100.2(l)(1)(i)(g) of this Title and section 200.15(h)(1) of this Part as applicable." Professor AW the creator of the TCI approach testified that TCI was a multiple faceted approach with physical restraints used in conjunction with soothing the student and deescalating the situation. The student herein is both low cognitively functioning and has severe language deficits. The witness indicated the TCI approach can be used with non-verbal students because you can tell when the student is settled down. The witness did question whether a TCI can be safely implemented on a school bus and that the three person approach is optimal. However the student did not react well to the four person maneuvering at the respite home. The SET and JH all testified that they and staff were trained in the TCI approach and I find the district has met its burden that the staff was properly trained.

Part 200.22 (d)Subsection (4)deals with documentation; which states

" The school must maintain documentation on the use of emergency interventions for each student, which shall include the name and date of birth of the student; the setting and the location of the incident; the name of the staff or other persons involved; a description of the incident and the emergency intervention used, including duration; a statement as to whether the student has a current behavioral intervention plan; and details of any injuries sustained by the student or others, including staff, as a result of the incident."

There was extensive testimony regarding the restraints records and testimony from the RN and TT form the K Centre. The district complied with the above component of the regulation. The parents contend that the district documentation was not specific enough as to duration. A review of the restraints form reveals the following: The incidents on 10/31 and 11/7 describes the length of the restraint indicate for how long but 12/19, 1/16/14, 1/22/14 states until she finally calmed down but no time measurement, 2/3/14 states for a few minutes 2/25/14 states one minute, 3/26/14 describes the incident but does not indicate length of time, 3/31/ 14states about 5 minutes and 4-5 minutes, 4/1/14 states 11:16/11:21 apparently indicating two separate incidents, 4/2/14 does not, 4/4 indicates 2 separate holds one 5-6 minutes and the other does not. 4/4 states 2 minutes, 4/11 does not, 5/8 states 3-4 minutes and then 10 minutes, nor does 5/13.

Part 200.22 (a) (3) states:

“The FBA shall provide a baseline of the student's problem behaviors with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day and include the information required in section 200.1(r) of this Part in sufficient detail to form the basis for a behavioral intervention plan for the student that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement“

“Part 200.22 Program standards for behavioral interventions require that a FBA be conducted in accordance with part 200.4 “Procedures for referral, evaluation, individualized education program (IEP) development, placement and review.”.

The remaining component is notification to the parents "The parent of the student shall be notified and documentation of emergency interventions shall be reviewed by school supervisory personnel and, as necessary, the school nurse or other medical personnel."

It is troublesome that Gramma Sue was not aware of the TCI restraints being applied to the student nor the frequency. The SET would use the communication log to inform Gramma Sue that the student has having a bad day assuming that the custodial Gramma Sue knew exactly what this meant. There was a lack of involvement of the TT from the K Center in collecting home data. It is unclear if the district was avoiding documenting the severity of the student behaviors at home in an attempt to delay and or sidetrack the alleged attempt by the parent to have the district place the student in a residential program in particular SB.

The incident restraint form has an entry box to record when the parent or guardian was notified but there was no entry that there was any notification to the parent. But Gramma Sue did not sign nor was she aware of the TCI based upon her testimony. I find the references to having a bad day are insufficient to comply with this element of the regulation. The parent argues that the parent did not consent to the use of restrain and as a result the district should not have used restraints.

The US of Education publication sets forth the “ Fifteen Principles of Restraint and

Seclusion: Resource Document”

1. Every effort should be made to prevent the need for the use of restraint and for the use of Seclusion

2. Schools should never use mechanical restraints to restrict a child’s freedom of movement, and schools should never use a drug or medication to control behavior or restrict freedom of movement (except as authorized by a licensed physician or other qualified health professional

3. Physical restraint or seclusion should not be used except in situations where the child’s behavior poses imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger of serious physical harm to self or others has dissipated.

4. Policies restricting the use of restraint and seclusion should apply to all children, not just children with disabilities.

5. Any behavioral intervention must be consistent with the child’s rights to be treated with dignity and to be free from abuse.

6. Restraint or seclusion should never be used as punishment or discipline (e.g., placing in seclusion for out-of-seat behavior), as a means of coercion or retaliation, or as a convenience.

7. Restraint or seclusion should never be used in a manner that restricts a child’s breathing or harms the child.

8. The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, should trigger a review and, if appropriate, revision of strategies currently in place to address dangerous behavior;8 if positive behavioral strategies are not in place, staff should consider developing them.

9. Behavioral strategies to address dangerous behavior that results in the use of restraint or seclusion should address the underlying cause or purpose of the dangerous behavior.

10. Teachers and other personnel should be trained regularly on the appropriate use of effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports and, only for cases involving imminent danger of serious physical harm, on the safe use of physical restraint and seclusion. used should be carefully and continuously and visually monitored to ensure the appropriateness of its use and safety of the child, other children, teachers, and other personnel.

11. Every instance in which restraint or seclusion is used should be carefully and continuously and visually monitored to ensure the appropriateness of its use and safety of the child, other children, teachers, and other personnel.

12. Parents should be informed of the policies on restraint and seclusion at their child’s school or other educational setting, as well as applicable Federal, State, or local laws.

13. Parents should be notified as soon as possible following each instance in which restraint or seclusion is used with their child.

14. Policies regarding the use of restraint and seclusion should be reviewed regularly and updated as appropriate.

15. Policies regarding the use of restraint and seclusion should provide that each incident involving the use of restraint or seclusion should be documented in writing and provide for the collection of specific data that would enable teachers, staff, and other personnel to understand and implement ‘

Other than the notification component the district has complied with the 15 Guidelines of the US Dept. of Education. A review of New York State protocol reveals the following at Emergency Interventions 8 NYCRR §§200.15(f) and 200.22(d)

• Emergency means a situation in which immediate intervention involving the use of reasonable physical3 force is necessary to protect oneself from physical injury; to protect another pupil or teacher or any person from physical injury; to protect the property of the school, school district or others; or to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school or school district functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts.

• Emergency interventions must be used only in situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed.

• Emergency interventions must not be used as a punishment or as a substitute for systematic behavioral interventions that are designed to change, replace, modify or eliminate a targeted behavior.

• The school must maintain documentation on the use of emergency interventions for each student, which must include:

o the name and date of birth of the student;

o the setting and the location of the incident;

o the name of the staff or other persons involved;

o a description of the incident and the emergency intervention used, including duration; o a statement as to whether the student has a current behavioral intervention plan; and o details of any injuries sustained by the student or others, including staff, as a result of the incident.

• The parent of the student must be notified when an emergency intervention has been used with his/her child. The documentation of emergency interventions must be reviewed by school supervisory personnel and, as necessary, the school nurse or other medical personnel.

• Staff who may be called upon to implement emergency interventions must be provided with appropriate training in safe and effective restraint procedures, as applicable.

• Residential schools must provide, or ensure the provision of, child abuse prevention training to all administrators, employees and volunteers on a regular, but at least annual, basis. The purpose of such training must be to increase the participants' level of awareness, encourage positive attitudes and enhance knowledge and skill development in areas including techniques of group and child management, including crisis intervention and appropriate restraint training [8 NYCRR §200.15(f)(1)].

Again with the exception of notice to the parent the district has complied with the aforementioned New York State Regulation.

PROCDURAL VIOLATIONS

Regression progress/ residential LRE

The parent argues the student has regressed in the district with escalating aggressive behaviors.

The student requires a residential placement because the student’s educational needs cannot be appropriately addressed in a residential setting and they will provide a greater continuity and consistency of approach which would form a basis for providing instruction and support beyond a normal school day.

The general rule is behavioral problems at home do not afford a basis for concluding that the student requires a residential placement.

The exception to the above stated general rule is where ”...behavioral problems at home absent evidence that the student was otherwise regressing educationally in a day program as a result of those problems (see Walczak, 142 F.3d at 131-132 [residential placement not appropriate where student made meaningful social and academic progress in a day program]; compare Mrs. B., 103 F.3d at 1121 [residential placement necessary where behavioral problems at home resulted in the student failing all of her classes, and not advancing more than one grade level in any subject in three years while in a day special education program with a therapeutic component]; Application of a Child with a Disability, Appeal No. 04-021; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-093; Application of a Child with a Disability, Appeal No. 01-084).

It should be noted that the student is in an upgraded class.

A residential placement is the one of the most restrictive placements on the continuum The SRO stated in 08-103

“In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 C.F.R.§§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1];

P. v. Newington Bd. of Educ., 2008WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Oberti v.

Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir.1993]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]; Mavis v. Sobel, 839 F. Supp. 968 at 982 [N.D.N.Y. 1993]). The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home" (8

NYCRR200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 C.F.R. § 300.116). Consideration is also given to any potential harmful effect on students or on the quality of services that they need (34 C.F.R.§ 300.116[d]; 8 NYCRR 200.4[d][4][ii][c]). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 C.F.R. § 300.115; 8 NYCRR 200.6). The continuum of alternative placement includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 C.F.R. §

300.115[b]).” According to the continuum of services in the State regulations, where a CSE recommends a residential placement it must provide "documentation that residential services are necessary to meet the student's educational needs as identified in the student's IEP" (8 NYCRR 200.6[j][iii][d] [emphasis added]; see also Office of Vocational and Educational Services for Individuals with Disabilities [VESID], guidance on "Continuum of Special Education Services for School-Age Students with Disabilities" [April 28,

2008]). Regarding the need for a residential placement, district staff—including the assistant director of special programs (Tr. p. 141, 143), speech therapist (Tr. p. 237-39), school psychologist (Tr. p. 335-36), occupational therapist (April 24, 2008 Tr. p. 767)

and the special education teachers (Tr. pp. 445-46; April 24, 2008 Tr. p. 674)—testified that the district's program was able to meet the student's special education needs. Their testimony is supported by evidence, including testimony, derived from non-district sources. The student's DSO service coordinator testified that she had no reason to believe that the district could not provide the student with an appropriate education (April 24, 2008 Tr. p. 680). The DSO psychologist acknowledged that in conversations with the student's teachers they expressed that the student's behaviors were "manageable" at school and that the district was able to meet his sensory academic and social needs; and his need for structure and a consistent behavior management system (Tr. pp. 501-02). The

DSO psychologist opined that the student also needed a psychiatric/psychological component to his educational program, but this witness did not have much contact with the district and never observed the student at school (Tr. pp. 476, 500). Although the

DSO psychologist predicted that school staff would eventually begin to observe the highly negative behaviors the student displays at home, they have not in the four years that they have educated the student (Tr. pp. 45-46, 484-85). The student's SLPC social worker testified that if the student was placed in a supervised group home setting, it was possible that he could "go into the community to school" (April 24, 2008 Tr. pp. 689,

702). Importantly, the student's SLPC special education teacher, who has approximately 25 years of experience at SLPC and worked with the student daily for four months, testified that the student "educationally" could be” maintained" in a public school setting without a residential component (April 24, 2008 Tr. pp. 718-19, 722). The SLPC special education teacher further testified that "regardless where [the student] lives, the school component should be a public school setting, like a 12:1+1 or an 8:1+1. [The student]

would need a teaching assistant to work with him to keep him focused . . . It's mainly to keep him focused on academics" (April 24, 2008 Tr. pp. 726-27). The SLPC special education teacher stated that other components of the student's program should include

OT, the support of a special education teacher and "social skills building" (April 24, 2008

Tr. p. 727). All of these educational components were offered by the district in its

January 2008 IEP (Dist. Ex. 30 at pp. 1-2, 6”

See also SRO 12-232 in upholding the IHO determination that a residential placement was not appropriate due to behaviors at home.

Like the case at bar, the SET opined that the 12:1+3 with the high ratio of adults to student could manage the students behavior. It should be noted that the revised BIP was implemented in January 2014 and that the DPHR was filed on 2/10/14. The BIP was dated on 12/16/2014 and revised 1/2014 with data collection starting on 1/21/14. The BIP was implemented for approximately 14 school days before the DPHR was filed. P-QQ tracking the restraints are quantified in a chart is the parents brief. TT claimed that the student showed progress because of the clusters of incidents reveal periods were there no incidents but nonetheless 25 restraints during 19 incidents. The first three occurred on the bus in October and early November. One occurred in the classroom in December. Then one a week alter 2013. Four occurred during two day period in the classroom on January 16 and 17, 2014. A fifth was within a week. The seventh and eighth were three weeks apart and the only ones in February. In March three took place in one day March 31 and a fourth on March 26, 2014. In April six were clustered during one week and then a seventh a week later. In May there were two within week of each other.

TT acknowledged the student’s inconsistency labeling it confounding variables including hormones, medicine prescription changes, changes in residency schools and classroom teachers. KP acknowledged the difficulty in managing the student recalling in TT for a follow up and revision of the BIP. The psychiatric hospitalization during the school recess evidences the failure to control the student outside of school and extraneous factors.

It is also noted that the incident at the respite home can only be described as horrifying and the incidents behaviors at home had worsened. In addition with incidents in stores and cars while in the supervisor of TR who was ill prepared and ill trained to deal with the her niece. When compared to the student’s home behavior, the student’s behavior is managed. The student’s inconsistency in controlling her behavior was similar to that at the prior district were there was a reduction in incidents and then an increase at the district herein.

PROGRESS

The next step is to review the students’ academic progress to evaluate the appropriateness of the recommendations made by the District’s CSE meeting on September 13th, 2013 and the district’s IEP it is necessary to evaluate the progress of the student sustained while being provided services by the District’s IEP.

The student was receiving APE from TT who had previously provided APE instruction to the student several years ago at the prior district at OC. The witness indicated that the student was much more verbal in September of 2013 than previously. The witness indicated that the student had made great progress; she walks independently, asks for TT’s hands, can kick a ball and also catches a ball on command. She can ride a tricycle with assistance. The student’s communication skills were such that she needs to verbalize more, she occasionally does a shoulder tap and grabbing behaviors are much less frequent since September and are less intensive. The student enjoys walking and snowshoeing and she can sit without assistance. She provides services to the student 2x per week for 40 minutes; they work on independent walking skills on school property. There are some safety concerns. Regarding the IEP goals she had made some progress in throwing a ball, previously she would hold the ball and then drop it, now she pushes it toward a target 5 feet away which is with a big ball. With a smaller ball she goes through a throwing motion and had lack of progress especially since the 3rd marking period. Although there was reported that she made lack of anticipated progress with the throwing the ball, TT reported that she did manage to achieve the kicking goal. TT explained that the throwing is much more inconstant and the student is willing to kick the ball, she catches the ball on command, she rides a tricycle but is no longer strapped is and able to steer unlike at the prior district. The behaviors are much less frequent and intense than before. I find that the student made meaningful progress in the areas of the adaptive physical education during the 2013-2014 school year.

In speech/language domain, the student’s speech/language therapist testified, she was from the BOCES program with 15 years experience and is familiar with autism and has been trained to render services to autistic students. She provides group services 1x per week for 30 minutes, 2x per week for 30 minutes individual is provided by another speech/language therapist. The prior IEP from the prior district referenced sign language for safety and everyday living skills. The witness felt that the student’s signs were not always clear and/or consistent. The student has deficits in expressive language and receptive language skills and the student’s communication skills are severely impacted in terms of phonic development. The student would use single word utterances, had difficulty understanding language, exhibited play skills of a 1 ½ - 2 year old. The witness testified that the student did progress. The student would understand when asked to complete a task, they used pictures and scaffolding. Initially there was much hand over hand instruction, but less as the year progressed. Today she is functioning phonically at 3-3 ½ years, play skills are at 1 ½-2 years. There has been progress up to the 3rd marking period and additional progress since. There has been an increase in utterances that follow a picture board and less redirection. They attempted to use technology and augmentative devices to facilitate communication. It was thought the student may have some mild auditory deficits based upon the speech pattern but this was later refuted when the parent did obtain an auditory evaluation. There were delays when the program was started based upon the student’s admission into the district. Services started approximately the first week in October. The witness also uses informal learning opportunities. Regarding the student’s behaviors, she has grabbed the witness’s hair, arm and then let go. The student left no injuries; she never had to restrain the student. In review of J30 the speech/language daily notes it references that in September 2013 they worked on pictures to address and in October 3rd, 2013 they made pictures to address behavior and then they were discussed with the teacher. There was an activity regarding pizzas focusing on functional language. On October 11th there were visual schedules. In December 2013 they worked on group activities, following directions and on December 19th, 2013 they passed out papers. In January they initiated the augmentative evaluation process which is a device used to communicate basic functional phrases. Communications with the augmentative device providers were labeled as indirect activities. There were group activities in November and another augmentative evaluation trial in November. There were group and classroom and play activities. On October 10th there was another group activity. Later in October as Halloween approached there was activities including the 12 Days of Halloween and it was reported that the student followed directions. In March 2014 they worked on following directions. On March 27th there was a group sessions in which the student did great, there was an April 3rd that the student was able to write and use the bathroom. There was an informal session on April 7th; they worked on pictures for the staff. In May the augmentative device arrived, on May 6th they made pictures which documents the activities in session with antidotal notes as the student’s progress which the witness made note of the fact that the student never received any direct speech/language services previously. Although it appears that there was a great effort designed toward modifications and accommodations i.e. the picture board and the augmentative device in which would include an increase in functional language which would anticipatedly reduce frustration in communicating and thereby address attempts to minimize the student’s behavior. In review of J22 the progress report with goals and objective date of April 11th, 2014 and in particular the speech/language which reflects goal number 4, the student will increase her expressive communication skills with a criteria of 3 out of 5 trials over 2 weeks and as reported in November the student was progressing satisfactorily, the student was making satisfactory progress and it expected the student would achieve the goal. January the same progress was reported, progressing satisfactorily, the student is make satisfactory progress and is expected to achieve the goal. In April the student is making satisfactory progress and is expected to achieve the goal. The student uses words, signs, facial expressions and sounds to express herself. There was an increase in communication skills have been noticed in speech sessions in the last month. Regarding the bench marks for Goal 4, it was reported in November the student demonstrated her ability to repeat 3 syllables with 100% accuracy; she made verbal approximations for 2-3 syllable words. In the November quarter during the language group she attended and followed verbal 1 step directions with 70-100% accuracy and vocalized appropriately throughout. In January, the student is seen by a therapist 1x per week in a group setting she demonstrated her ability to follow 1 step direction. In addition the student sequenced pictures with 100% accuracy. Regarding comments the student uses comments the student words where approximations and jargon to express herself. She also uses hand signs mostly for “more” and responds with facial expressions. The student responses well with structured activities and increasing meaningful expression. Goal 5 the student will increase her respective communication skills with criteria of

Regarding the progress reports for motor skills the reports track and mirrors the testimony from the APE instructor TT and that goal 6 the student will improve her throwing skills, November, January and April she was reported to not achieve, not achieve and in April progressing inconstantly. In April the comment was the student is beginning to move the ball in the direction of the target rather than just dropping it. With goal 7 kicking the ball; in November not achieved, January, progressing inconstantly and in April the student was progressing gradually making less than anticipated progress but still may achieve the goal. In the bench mark she achieved kicking a ball the distance of 10 feet, 2 out of 10 trials. In bench mark 2, kicking the ball 3 out of 10 trials she achieved in April, bench mark 7.3, 4 of out 10 trials was not achieved. Regarding goal 8ich is the student throwing a playground ball with a 45 degree of mid-line 8 out of 10 over 2 weeks was not achieved. Regarding goal 9 sit-ups performing 3 out of 5, 7-5 percent success the student showed progress and in April she was progressing inconstantly but did not achieve. Regarding goal 10 stair using 1 foot per tread, there was a 75% success. The student ranged from progressing gradually to progressing inconstantly. In terms of descending stairs the goal was not achieved. The difference being that the bench mark did not have verbal ques. There was goal 11 participating in sensory board activities, the goal was not achieved, he student would participate for only two minutes. Goal 12 was to assist in fine motor strength and the student made progress but did not achieve.

In terms of evaluating the appropriateness of the district’s IEP on the recommendations made by the District’s CSE on September 13th, 2013 it is necessary to evaluate the progress of the student sustained while being provided services by the District’s IEP. The student was receiving APE from TT who had previously provided APE instruction to the student several years ago at the prior district at OC. The witness indicated that the student was much more verbal in September of 2013 than previously. The witness indicated that the student had made great progress; she walks independently, asks for TT’s hands, can kick a ball and also catches a ball on command. She can ride a tricycle with assistance. The student’s communication skills were such that she needs to verbalize more, she occasionally does a shoulder tap and grabbing behaviors are much less frequent since September and are less intensive. The student enjoys walking and snowshoeing and she can sit without assistance. She provides services to the student 2 xs per week for 40 minutes; they work on independent walking skills on school property. There are some safety concerns and regarding the IEP goals she had made some progress in throwing a ball, previously she would hold the ball and then drop it, now she pushes it toward a target 5 feet away which is with a big ball. With a smaller ball she goes through a throwing motion and had lack of progress especially since the 3rd marking period. Although there was reported that she made lack of anticipated progress with the throwing the ball. TT reported that she did manage to achieve the kicking goal. TT explained that the throwing is much more inconstant and the student is willing to kick the ball, she catches the ball on command, she rides a tricycle but is no longer strapped in and able to steer unlike at the prior district. Since behaviors are much less frequent and intense than before.

I find that the student made meaningful progress in the areas of the adaptive physical education during the 2013-2014 school year.

In speech/language domain, the student’s speech/language therapist testified, she was from the BOCES program with 15 years experience and is familiar with autism and has been trained to render services to autistic students. She provides group services 1x per week for 30 minutes, 2 xs per week for 30 is provided by another speech/language therapist. Although the prior IEP from the prior district referenced sign language for safety and everyday living skills, but the witness felt that the student’s signs were not always clear and or consistent. The student has deficits in expressive hands and receptive language skills and the student’s communication skills are severely impacted in terms of phonically development. The student would use single word utterances, had difficulty understanding language, exhibited play skills of a 1 ½ -2 year old. Although the witness claimed that the student did progress. One would understand when asked to complete a task they used pictures and scaffolding. Initially there was much hand over hand instruction, but less as the year progressed. Today she is functioning phonically at 3-3 ½ years, play skills are at 1 ½-2 years. There has been progress up to the 3rd marking period and additional progress since. There has been an increase in utterances that follow a picture board and less redirection. They attempted to use technology and augmentative devices to facilitate communication, although the student may have some mild auditory deficits based upon the speech pattern which was later refuted when the parents did obtain an auditory evaluation although there was delays when the program was started based upon the student’s admission into the district. It started approximately the first week in October. The witness also uses informal learning opportunities. Regarding the student’s behaviors, she has grabbed the witness’s hair, arm and then let go. The student left no injuries; she never had to restrain the student. In review of J30 the speech/language daily notes it references that in September 2013 they worked on pictures to address and in October 3rd, 2013 they made pictures to address behavior and then that were discussed with the teacher. There was an activity regarding pizzas focusing on functional language. On October 11th there were visual schedules. In December 2013 they worked on group activities, following directions and on December 19th, 2013 they passed out papers. In January they initiated the augmentative evaluation process which is a device used to communicate basic functional phrases. Communications with the augmentative device providers were labeled as indirect activities there was group activities in November and another augmentative evaluation trial in November. There were group and classroom and play activities. On October 10th there was another group activity. Later in October as it approached Halloween approached there was activities including the 12 Days of Halloween and it was reported that the student followed directions. In March 2014 they worked on following directions. They did this continuing interruption. On March 27th there was a group sessions in which the student did great, there was an April 3rd report that the student was able to write and use the bathroom. There was an informal session on April 7th; they worked on pictures for the staff. In May the augmentative device arrived, on May 6th they made pictures which documents the activities in session with antidotal notes as the student’s progress which the witness made note of the fact that the student never received any direct speech/language services previously. There was a great effort designed toward modifications and accommodations i.e. the picture board and the augmentative device in which would include an increase in functional language. This would anticipatedly reduce frustration in communicating and thereby attempt to minimize the student’s behavior. In review of J22 the progress report with goals and objective date of April 11th, 2014 and in particular the speech/language which reflects goal number 4, the student will increase her expressive communication skills with a criteria of 3 out of 5 trials over 2 weeks, It was reported in November the student was progressing satisfactorily, the student is make satisfactory progress and it expected to achieve the goal. January the same progress was reported, progressing satisfactorily, the student is make satisfactory progress and is expected to achieve the goal. In

April the student is making satisfactory progress and is expected to achieve the goal. The student uses words, signs, facial expression and sounds to express herself. There was an increase in communication skills which has been noticed in speech sessions in the last month. Regarding the bench marks for Goal 4, it was reported in November the student demonstrated her ability to repeat 3 syllables with 100% accuracy; she made verbal approximations for 2-3 syllable words. In the November quarter during the language group she attended and followed verbal 1 step directions with 70-100% accuracy and vocalized appropriately throughout. In January, the student is seen by a therapist 1x per week in a group setting she demonstrated her ability to follow 1 step direction. In addition the student sequenced pictures with 100% accuracy. Regarding comments the student uses comments the student’s words where approximations and jargon to express herself. She also uses hand signs mostly for “more” and responds with facial expressions. The student responds well with structured activities and increasing meaningful expression. Goal 5 the student will increase her respective communication skills with criteria of 3 out of 5 trials over 2 weeks with recorded observations. In November the student was reported as progressing gradually making less than anticipated progress. In January progressing satisfactory and in April progressing satisfactory. As reported in November for the bench mark the pictures were in place for the student to use for a daily picture schedule. The visual schedule made it easy for the student to hang coat and backpack without verbal reminders and pictures were printed to help facilitate decreasing the student’s behaviors of gabbing and scratching. In January the student approximated 2 syllable words with 100% accuracy. Another speech device was introduced and in April the student demonstrated that she understood the meaning of pictures i.e. nice hands. She also understands when those words are spoken. She uses her visual schedules and pictures to indicate rewards for positive behavior. Based upon that the student was making progress in the area of speech/language.

Regarding the progress reports for motor skills the reports track and mirror the testimony from the APE instructor TT and that goal 6 the student will improve her throwing skills, November, January and April she was reported to not achieve, not achieve and in April progressing inconstantly. In April the comment was the student is beginning to move the ball in the direction of the target rather than just dropping it. With goal 7 kicking the ball, in November not achieved, January, progressing inconstantly and in April the student was progressing gradually making less than anticipated progress but still may achieve the goal. In the bench mark she achieved in kicking a ball the distance of 10 feet, 2 out of 10 trials. In bench mark 2, kicking the ball 3 out of 10 trials she achieved in April, bench mark 7.3 4 of out 10 trials was not achieved. Regarding goal 8 the student throwing a playground ball with a 45 degree of mid-line 8 out of 10 over 2 weeks. Regarding goal 9 sit-ups performing 3 out of 5, 7-5 percent success the student showed progress and in April she was progressing inconstantly. Regarding goal 10 stair using 1 foot per tread, there was a 75% success. The student ranged from progressing gradually to progressing inconstantly. In terms of descending stairs the goal was not achieved. The difference being that the bench mark did not have verbal ques. There was a goal toward sensory board activities, the goal was not achieved. There was additional strength apply motor activities that she made progress but did not achieve.

Continuing on through J22 the progress reports, goal 1, reading the student will point to her own name given 3 choices and the student is progressing satisfactory and this goal was achieved November, January and April.

The second bench mark was pointing to her last name and was not introduced until April and it was unclear if the student to easily distracted or if the student does not know her last name. In Goal 2 is after hearing a story read aloud the student will accurately answer questions. The student is progressing but with less than anticipated progress but still may achieve the goal. As it was reported in November it is unclear if she lacks focus or is guessing. In January she was having problems focusing and would watch others, and would have conversations with herself. In April the student will listen to a story but has trouble focusing. Goal 3 is writing, the student will write the letters in her first name 9 out of 10 trials over a 5 week period the student is progressing gradually and based upon testimony it was hand over hand. Go9al 3bench mark objective 1, write the letter “M” independently and in November she still needed hand over hand assistance. The benchmark 3.1 was not introduced as of January because the student when left on her own would draw circles and in April the student would look at the task, drop the pencil and go in circles in April.

Miscellaneous Parental Arguments

Parent Counseling and Training

The parents argue that the district failed to offer parent/counseling training which is defined in Part 200.1(kk) which states: “Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program.” The parents argue that parent training is necessary to perform appropriate follow-up intervention activities at home 200.13(d) which is states (d) “ Provision shall be made for parent counseling and training as defined in section 200.1 (kk) of this Part for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.”

It is unclear if the parents are arguing that the district’s CSE of failed to offer the parent’s training and counseling. It is clear however that the parent attended the CSE with a group of individuals with expertise in the areas of special education. It is also clear that this issue was not discussed at the CSE meeting of 9/13/2013. The parents argue that parent training and counseling is necessary because she is a student with autism. 9/13/13 and because of the student’s behaviors at home and in the community are atrocious.

The student has been previously classified as a student with multiple disabilities. Which is defined in part 200.1(a) (8)

“Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, Intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness.” A review of J1 the DPHR reveals that the student’s classification is not being challenged. Autism is defined as

• Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3 that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

Emotional disturbance is defined as (4) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance:

(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors.

(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or

(v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.

Although the classification is not being challenged there was testimony from I.I. that he was uncertain if the student exhibited all the characteristics of a student with autism. The district was not provided the medical reports supporting said diagnosis. Of course I.I. did not provide any counseling to the student or evaluate her either. Based upon the record before this IHO, the student exhibited characteristics of each of the aforementioned classification. The student’s triennial evaluations are to be completed in the fall of 2014.

It is unclear what steps the parent would have taken had the district notified D.B of the frequency and intensity of the student’s behaviors in school. Nonetheless the W.L. testified that the student’s behaviors were the worse on his case load. The respite worker at the home testified that she had never seen anything like the student’s behavior before. TR recounting the attacks on strangers in public settings and upon her in the car and on D.B. at home. The record does not support the finding that the parent was not aware of the student’s behaviors, but was not aware of the method in which the district was controlling said behaviors. As a result find that the district is obligated to provide parent training and counseling in the form of compensatory education to assist in the implementation of the BIP

Home Based Therapy

The parent also argues that the district failed to offer a home based therapy in its IEP, JB said that the student needs 24 hour supervision. For the reasons as set out above I also find that the district is obligated to provide home based program upon the completion of a home based FBA and creation of a home based component to the BIP.

Speech Language Services

The district failed to offer daily speech/language services and that the student was entitled to such services as a student with autism pursuant to Part 200 13. (a)(4) and the IEP only recommended having two individual and one group session per week. The BOCES based speech/language therapist recommended three individual and one group due to the student’s severe deficits. Part 200.13(a)) 4) states (4) Instructional services shall be provided to meet the individual language needs of a student with autism. I find that the district’s CSE of 9/13/2014 complied with this element by recommending an appropriate level of speech and language services.

Annual Goals and Short Term Objectives

The parent argues that annual goals and the short term objectives are not appropriate because they do not reflect present levels of performance, academic, social, physical development and management needs. Also the annual and short term objectives do not met the student’s needs especially in toileting, social development, math and, sign language. The student regressed in behaviors, social skills and, toileting. The district at its 9/13/2013 CSE meeting reviewed the OC district’s IEP which was from a CSE annual review of April 2013. The comments contained in J12 the district’s IEP are consistent with the testimony of the witnesses throughout the hearing. I find that the district IEP annual goals short term objective and present levels of performance are appropriate.

Augmentative Devices

The parents argue the district failed to provide assisted technology and denying the student FAPE. The student struggles with communication. The Speech language therapist providing services testified about the steps the District pursued assistive technology and augmentative devices were considered and meetings were held with representatives of providers. I find the district pursued assistive technology for the student.

FINDINGS

I find the District failed to obtain the consent of the parent DB to perform, the FBA

I find that the hair tie removal is not an aversive technique because it is a similar to a token economy. I further find that it was a diversion or a distraction strategy created based upon trial and error and without the benefit of an FBA

Again I find that the parent participated in the CSE’s meeting on September 13th, 2013.

I fail to find a motive for TT and independent contractor with agency not to be honest. Whereas if Gramma Sue had intended in fulfilling her plan to the student placed by the district as SB would benefit from the student’s continuing outbursts in school.

I find based upon the testimony the BIP was necessary because the student's behaviors places the student and other at risk of harm or injury and impedes the learning of others. The impact upon the learning of the student was minimal but required effort by the staff to control the student’s behaviors.

I find there is testimony that the student did on occasion attack or attempt to attack other students the frequently enough to impede the learning of others.

I find the staff attempted to use alternate methods and procedures such as nice hands.

I find the SET KP and JH all testified that they and staff were trained in the TCI approach and I find the district has met its burden that the staff was properly trained.

I find the references to having a bad day are insufficient to comply with this element of the regulation. .

I find that the student made meaningful progress in the areas of the adaptive physical education during the 2013-2014 school year. and intense than before.

I find that the student made meaningful progress in the areas of the adaptive physical education during the 2013-2014 school year.

The record does not support the finding that the parent was not aware of the student’s behaviors, but was not aware of the method in which the district was controlling said behaviors. As a result find that the district is obligated to provide parent training and counseling in the form of compensatory education to assist in the implementation of the BIP.

I find the record does not support the finding that the parent was not aware of the student’s behaviors, but was not aware of the method in which the district was controlling said behaviors. As a result find that the district is obligated to provide parent training and counseling in the form of compensatory education to assist in the implementation of the BIP.

I find that the district’s CSE of 9/13/2014 complied with this element by recommending an appropriate level of speech and language services.

I find the district did not rely on the hair tie strategies. (rejected hair tie behavior plan in favor of physical restraints denying the student FAPE because) The hair tie strategies are not an aversive technique because the hair tie plan does not fall within the definition of the Commissioner’s Regulations. The district is not in violation of the regulation because the use of restraints of the student is appropriate because physical restraints are not designed to limit or modify targeted behavior.

I find that the district initially failed to properly and consistently document the duration of the restraints, but later improved and there was substantial compliance.

I find the parents were never notified of the restraints and the district used the restraints only warranted when physical injury is imminent and as a last resort.

I find the restraints were not be used as a punishment or a substitute for systemic behavior interventions. The hair tie plan was not a behavioral modification plan the student needs, but a distraction technique to deescalate a situation.

I find the district failed to offer parent/counseling training pursuant to 200.1 (kk) the parent/counseling training is necessary to perform appropriate follow-up intervention activities at home. The student’s behaviors at home and in the community are atrocious.

I find the district failed to offer a home based therapy in the form of a FBA and BIP.

. I find that the district’s CSE of 9/13/2014 complied with this element by recommending an appropriate level of speech and language services. The district offered daily speech/language services and that the student was entitled to such services as a student based Autistic 200 13.a 4 and the IEP recommended having two individual and one visual only group session per week. The BOCES based speech/language therapist recommended three individual and one group to the student’s severe deficits.

I find that the district IEP annual goals short term objective and present levels of performance are appropriate.

I find the annual goals and the short term objectives are appropriate because they do reflect present levels of performance, academic, social, physical development management needs also the annual and short term objectives met the student’s needs especially in toileting, social development, math, language. The notwithstanding the student deficits in behaviors, social skills and, toileting.

I find the district provided assisted technology and providing the student FAPE. Notwithstanding the student deficits with communication.

I find that the student has not regressed in the district with escalating aggressive behaviors and that the student has progresses inconsistently resulting in more than mere trivial progress.

I find the student is entitled to compensatory education to make up for services that should have been provided n he areas of parent counseling and training, FBA with a home bead focus and a BIP to provide consistency for those addressing the student’s behaviors.

I find the student does not requires a residential placement because the student’s educational needs can and have been appropriately addressed in a residential setting and that the student’s atrocious behaviors at home and the difficulties controlling the behaviors at home do not require a residential placement.

ORDERED: The district’s CSE shall meet within 15 days of this Order to determine the appropriate evaluations to determine: 1.

The student’s present level of performance; 2.

The student’s classification; 3.

Including assistive technology evaluations; 4.

FBA to determine antecedent behaviors at home and; 5.

Review and revise the BIP to be expended to address the student’s deficits at home and to implement interventions to be utilized at home and in the community

6. And a psychiatric evaluation to review the student’s medication and its effect upon and information on the effect of the student’s ability to receive educational benefits; and it is further ORDERED, that the CSE shall reconvene and review said evaluations and recommend an appropriate program including an appropriate bathroom tripping schedule.

PLEASE TAKE NOTICE:

Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 may be obtained by either the parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states:

“ 279. (2)(b).13 Notice of intention to seek review.

(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:

Notice:

(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of

(name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.

(b) The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.

( c ) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.”

Dated: August 11, 2014

Footnotes

[1] part-time student with KP being the classroom special education teacher. The witness 9

[2] xs per year for an hour T813 the respite workers either have high school degrees or GEDs 39

[3] out of 5 trials over 2 weeks with recorded observations. In November the student was reported as progressing gradually making less than anticipated progress. In January progressing satisfactory and in April progressing satisfactory. As reported in November for the bench mark the pictures were in place for the student to use for a daily picture schedule. The visual schedule made it easy for the student to hang coat and backpack without verbal reminders and pictures were printed to help facilitate decreasing the student’s behaviors of gabbing and scratching. In January the student approximated 2 syllable words with 100% accuracy. Another speech device was introduced and in April the student demonstrated that she understood the meaning of pictures i.e. nice hands. She also understands when those words are spoken. She uses her visual schedules and pictures to indicate rewards for positive behavior. Based upon that the student was making progress in the area of speech/language. 70