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New York State Education Department
In the Matter of the Impartial Hearing brought iii andl (the “Parents”) on behalf of ane “Student’)
Petitioners
-against-
FINDINGS OF FACT AND DECISION
Corrected*
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 2, 2013
For the Student:
es: Attorney
Legal Assistant
Mother
Father
For the Department of Education:
as:.. Attorney
ntendent for Pupil Personnel Services. District
School Counselor, ee i:
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 12, 2013
For the Student:
ee Attorney
Po Legal Assistant
| Mother
| Father
Esq. Attomey
Assistant Superintendent for Pupil Personnel Services. District
Be School Psychologist High School
Po Teacher in | | Program af bien School
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 18, 2013
For the Student:
Legal Assistant
Mother
Father
Psychiatrist (via telephone)
Psychologist (via telephone)
For the Department of Education:
as:::.. Attomey
fp Assistant Superintendent for Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 18, 2013
For the Student:
Attomey
Legal Assistant
Mother
Father
Associate Professor of Special Education (via telephone)
For the Department of Education:
Attomey
Po Assistant Superintendent for Pupil Personnel Services
Introduction:
This case was brought before me upon my designation by rE district ii) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought b |. andl, the Parents (*Parents”) on behalf of GBB the student (“Student”), through their attorney, EE, Esq., by filing a Due Process Complaint dated June 24, 2013. The District was represented by , Esq. an attorney from the Law Offices of |
The Parents are alleging that their son, iwas denied a free and appropriate public education (“FAPE”) for the 2011-12 and 2012-13 school years and are seeking tuition for his unilateral placement at the ; »| (‘RY’) for said years.
There were four (4) days of hearings in this matter. Hearings were conducted on October 2, 2013, November 12, 2012, November 18, 2013 and December 18, 2013.Extensions were granted in this case making the final compliance date May 5, 2014’. Briefs were prepared by the parties and were due on February 10, 2014. A list of Exhibits is attached as Exhibit A. The Parents, the District and the Impartial Hearing Officer all submitted exhibits.
* The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering those requests, | weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. Tr. 189; Tr. 722; Tr. 567; IHO — 1.
Background
This case involved a nineteen (19) year old student. From kindergarten through the beginning of April 2011, the Student attended schoolsi On April 5, 201] i was unilaterally placed at the Cc 4 ) by his Parents where he remained for the 2011-12 and 2012-13 school years. From September 2010 through the beginning of April 2011, he had been in attendance at{J High School.
The New York City Department of Education (“DOE”) developed an IESP forfiiifi on 28, 2011 and classified him with an EE. «D-8. On October 13, 2011, leveloped an JEP for the Student, and the Student was recommended to receive:
1. Consultant Teacher Services ragile/Regents), Indirect, one time daily, five hours and 15 minutes;
2. Resource Room Program, 5:1, one time daily, 40 minutes; and
3. | OY 1:], one time in a six day cycle, 30 minutes. D-23. On December 6, 2011, the Parents sent a Jetter to the District advising them that based on the failure of the placement and the JEP to address s needs, they would be rejecting the placement and seeking reimbursement fol tuition Eo: the 2011-12 school year. D-27. With respect to the 2011-12 school year, the Parents entered into an Enrollment Contract with J on May 22, 2011. P-A.
With respect to the 2012-13 school year, held two CSE meetings to develop an IEP for the 2012-13 school year. The first took place on May 14, 2012 and the second took place on June 11, 2012. D-36; D-39. On June 11, 2013, developed an JEP for the Student and the Student was recommended to receive:
1. Consultant Teacher Services QF ragile/Regents), Indirect, one time daily, five hours and 15 minutes;
2. Resource Room Program, 5:1, one time daily, 41 minutes;
3. BR, 1.1, two time ina six day cycle, 30 minutes; and
4. RR. smal! group (5:1), one time in a six day cycle, 30 minutes.
On September 21], 2012, the Parents sent a letter to the District advising them that based on the failure of the placement and the IEP to address | s needs, they would be rejecting the placement and seeking reimbursement fol; tuition . the 2012-13 school year. P-P. Withrespect to the 2012-13 school year, the Parents entered into an Enrollment Contract with ll on May 7, 2012. P-D.
The Parents filed a Due Process Complaint dated June 24, 2013, which was filed on June 25,2014 and I] was appointed on June 25, 2013. D-1.
Position of the Parties
District’s Case
(4) wit
The District called four and nesses) placed twenty-five (25) documents in evidence. P-A-—-P-U.
The first witness was She has a Master’s degree in special education, a certification in administration, and has her SAS and SDA. She has been employed > fo nine years and is presently the Assistant Superintendent for Pupil Personnel Services. Tr. 29. Previously, she served as assistant to the interim director of special education and also director of special education. Tr. 30.
Her present duties include overseeing al] of the programming for the special needs students, serving as chairperson part time for all of the out of district students, overseeing teachers, providing staff development, observing students and conducting annual reviews and program reviews. Tr. 30.
There are 2,800 students a with one high schoo] and one middle school. Tr. 31.
There are 870 students in the high school. They have special education services across the continuum.
She is familiar with aa and first came a to the CSE and before that through the school psychologist, Tr. 32. i ME, first discussed] with Bin March of 2011. Tr. 32. Miiiwas referred to the CSE by the father. Tr. 32. I testified thallilfleft the District in April 2011. She did not make a referral to the CSE fo i during the spring of 2011] nor at any point in time. Tr. 35. She had a discussion with Fc t;$CUDD late March and ne determined at that meeting that it would be appropriate to refer him to the CSE. Tr. 35. == a ii: not receive a referral for Hill. (om EEE cin the spring of 2011.
Tr. 35, RRR estified that she had a follow-up discussion with ERs to why the referral wasn’t made and was told that the Parents had placedilf/lllin a private school and that he was doing well and that it did not appear that “he needed to be referred to the [CSE]”. HE ceived a referral from the Parent on August 2, 2011. Tr. 37. Asa result of the referral, the CSE convened a meeting on October 13, 2011. Tr. 37. Prior to the meeting, she received information fronMiiifthe IESP from New York City, a social history (D-6) and a EE valuation. Tr. 38. These documents were received by the CSE around October 4" or 5". Tr. 40.
On August 16, 2011, the father signed a consent form to allow an evaluation to take place Tr. 39. i set up an evaluation. testified that she chaired the CSE meeting held for WE on October 13, 2011. Tr.41. Included in the documents reviewed at the meeting was the Social History prepared by the DOE fo E meeting held on July 25, 201 and the Evaluation prepared by from the DOE. Tr. 42; D-6; Tr. 44; D-7. ta that this evaluation was discussed iin conjunction with the District’s
Evaluation which was conducted a D-14. Po stated that the information from E_was consistent with much of the information the was presenting. Tr. 44. a that dministered the Wechsler Intelligence Scale for Children, Fourth Edition; the Bender Motor Gestalt Test; projective drawings; the Rorschach Ink Blot Test; and the Woodcock Johnson Il. Tr. 45.
He stified that she did not originally know that an IESP existed and, when she found out, she changed the October 13, 2011 CSE meeting to a program review since Jj was already a student who was classified with a disability. Tr. 47. that if she knew the IESP existed in August, she would have followed a different process when the Parent asked for a referral. She would have had the Parents share the testing and she could have taken the referral and had a CSE meeting ina shorter time and she would have determined if they needed additional documentation at that time. Tr. 47. She received the IESP and evaluations on October 5 and reviewed this documentation at the CSE meeting on October 13th. Tr. 48.
EE «.s:\s1e that the CSE learned from the evaluations thaflill was a student with superior intelligence. She stated that “He had met with academic success but his social and emotional challenges got in the way”. Tr. 48. She also stated that the IESP planned “for his social and emotional needs through a goal that they addressed which talked about his selfperception and reducing his anxiety, [and] improving his self-concept by expressing feelings of concern and upset”. BEE ¢stified that everything about the IESP addressed social and emotional issues and “it didn’t appear” to address any academic need. Tr. 48.
Prior to the CSE meeting, EE . iiviec that they also had school —_— reports from, D-4, Tr. 49. They also received a copy of a letter from | S private MJ. on the day of the CSE meeting. Tr. 49. She stated that she did not know if this made it into the packet. D-20; Tr. 50. In addition, from participated at the CSE meeting by phone. Tr. 51.
testified that the District did its own testing and an educational evaluation was conducted by |. D-12. She administered the Woodcock-Johnson 11] Achievement Test which assesses a student’s basic reading, math and written expression. She stated that the test indicated that he did not have signs of a learning disability. The other test that was administered was the Test of Written Language which assesses the student’s writing es context and the kind of a and vocabulary the student might use. BE cored in th iim ercentile on this test. attended the meeting and reviewed all the subtests. Tr. 53. ae that based on testing they did not identify any academic needs at that time. Tr. 53. en ter vicwcd Es mother for th ial and developmental history (D13) and also conducted the | Evaluation withID- 14; Tr. 55. testified that yasn’t initially aware that an evaluation had already been done on June 25, 201] by the DOE, however, the student recognized some subtests and, as aresul er to the Woodcock-Johnson. Tr. 57. The results of this SWitche test were reviewed ._ &# the CSE meeting. Tr. 57. RE Esti fied that a student’s the CSE would want to look at the results of this test to see information regarding long-term retrieval and memory, their short-term memory, auditory processing and reasoning ability to get an overall “— of the pricents intellectual capacity to see if there were any areas of concern. Tr. 58. (SQ administered the BASC which is a checklist done by the Student, Parent and teachers and looks at a clinical profile (i.e. school problems, areas of anxiety or iii, areas of tension, hyperactivity, relationships with peers and relationship with parents). Tr. 5) highlighted the areas that were at risk at the meeting and the areas that were clinically significant.
The CSE met on October 13 and the following people were present —_— school] psycholo i i general education teacher from Distnc , interim <hairperscr I yea education teacher from District; fro educational evaluator; s guidance EE: ee 2 ee: parent member. Tr. 60-61. was the chair at the meeting and stated that this meeting was a program review since the Student had an initial review in the city. Tr. 61] stated that there was a discussion about classification and as a result ofa review of the JESP and the most recent evaluations, the CSE classifie as emotionally disturbed. Tr. 62. She also testified that with respect to present levels of performance in academics they went through the evaluations and discussed the fact that he was in the very superior range in intellectual functioning and the shared information about his high level in math, reading and writing. Tr. 62. They also shared the information from with respect to his organizational needs and executive functioning needs. Tr. 63. The CSE also talked about his present levels with respect to his social development and that he had experienced considerable depression and anxiety. They also discussed the fact that he had to utilize coping strategies and that he was getting these strategies in his DBT Therapy. These coping strategies were necessary when he was in social situations and when he felt threatened, experienced feelings of WE and frustration, etc. He also needed to continue to identify ways his behavior affected others and translate the knowledge into a change in his behavior. The CSE was also made aware of his impulsive behaviors. Tr. 65-66. The Parents expressed their concerns that he was socially combative and could provoke others and he was actually avoidant of some positive settings and the CSE needed to address this. Tr. 66.The CSE determined that although he had physical needs, they did not need to be addressed through special education. With respect to management needs, his anxiety and depression needed to be addressed and whatever program was designed had to honor his high academic abilities. Tr. 66.
With respect to 20als nc stified that they discussed his post-secondary goals and transition planning for college and they also discussed annual goals which they decided would be study skill goals, and social, emotional] and behavioral goals. Tr. 68. The first study skills goal that was created by the CSE was that “the student will self-check all school work for completeness and accuracy and writing errors”. Beet cstified that this goal came from the staff at B The second goal dealt with independently seeking out appropriate assistance from teaching and supporting staff when his emotional difficulties were getting in the way of his performance. Tr. 69. The next goal stated that “the student will independently alert the teacher to arrange for special needs or accommodations for tests”. This goal was to encourag | to be more independent and advocate for himself. Tr. 69. Another goal dealt with using effective coping strategies such as “cognitive restructuring, opposite action, and de-stress times to deal with feelings of sadness and frustration”. Tr. 70. The CSE determined that there were times when lffwas exhibiting sadness, frustration and/or anxiety and these were coping strategies he was learning in his outside therapy and they wanted to carry them over to school. Tr. 70. The next goal stated that “the student will discuss feelings regarding his self-concept and identify three areas of strength” and the CSE felt that since his self-esteem was low they wanted to make sure that he celebrated his own strength and recognized what a good student he was. The sixth and seventh goals dealt with relationships with peers. The first dealt with discussing three ways that his behavior affects his development of positive relationships with peers. Due to the fact that he had difficult relationships with his friends and could say inappropriate things to put off a peer, they wanted staff members working with him on this. Tr. 71. The last goal dealt with identifying when he was displaying inappropriate behaviors with peers since the CSE felt that it would help the Student to recognize these issues since these behaviors cause issues in social groups. Tr. 7].
| stated that based on the goals, the CSE recommended the MEE igh Schodillif rogram. In addition, they recommended resource room so that he would get the supports that he needed to stay ahead of his work, have a special education teacher review his work, review long range assignments, etc. Tr. 72. They also recommended EM as well. Tr. 72. With respect to the program, ME. testified that the students were very similar tolf[n that they have at Jeast an 1Q of 100 or above but they have “a fragile nature or emotional component that is getting in the way of the academics”. The way the program works is that a student’s schedule would be based on their academic abilities and needs. Tr. 74. There is a therapeutic support teacher and teaching assistant assigned to the program and if the student is feeling uncomfortable or there is a crisis, they are allowed to leave their scheduled general education class and be with the teacher or teaching assistant in a separate classroom. The teacher and teaching assistant also work with the general education teachers to make sure that they are aware of any needs the students might have in their academic programs. _Tr. 74. In other words, the student goes to his regular classes and if he needs to, he goes to the Mili room. Tr. 75. There is also resource room in their schedule and the stud an spend their study halls and lunch hours in | room if they want to. Tr. yd cher, — is a highly qualified special education teacher. Tr. ; i a that the CSE determined that thd program would be appropriate foHlllat their October 2011 JEP meeting based on the fact that he needed emotional support should there be a fallback in his functioning. Tr. 77.
On December 6, 201 |, ER ceived a letter from the Parents indicating that on November 26, they received the recommendation for the placement at nd were rejecting it. D-27; Tr. 79.
The CSE also developed a program for fi. for the 2012-13 school year. Tr. 80. Two meetings were held to develop this IEP. The first CSE meeting took place on May 14,2012. D-
36. The following parties were present: , general education teacher; _ HEE schoo! psychologist; special education teacher; pe
- and the Parents. Tr. 80-81. A school report from Pe. reviewed at the meeting (D- 32) and a letter from D-33; Tr. 81. The May 14" meeting took an hour and 40 minutes but they were unable to finish formulating an IEP. At the second meeung dated June 11, 2012, the same staff was present except the general education teacher Tr. 84. With respect to his present levels of academic performance, they left the intellectual information from the previous year and updated the math, reading and writing based on the school reports. They left the information regarding his executive functioning and organizational needs from the previous year as well. Tr. 85. With respect to his social and emotional needs, the CSE said that he still needed monitoring for his EE affect and his low frustration tolerance and he still needed to utilize his positive coping skills for negative emotions. The CSE also indicated that he needed to be aware of his triggers for J and self-monitor his impulsivity and his J behaviors and how these behaviors influenced his relationships with others and caused him to have IM episodes. Tr. 86. With respect to his management needs, testified that they talked about managing his [RR his anxiety, his impulsivity and low frustration tolerance regarding school issues. Tr. 86. She stated that 1 discussed checking on his work throughout the day, redirection when he was displaying inappropriate behaviors, and encouragement to seek out positive relationships. Tr. 86. The goals that were prepared for the prior year were the same ones that were used on this JEP. Tr. 87. Th program with resource room and individual was again recommended but group J was also added. Tr. 88. GE testified that would have been appropriately grouped in thelfrogram and that the transition (oor his last year was ae Tr. 89. The Parents did not agree with the recommendation and Matiended Bor the 2012-13 school year.
ination, Es stated thal, tet the District in On cross examination April 2011 in his sophomore year. She stated that she became aware of a spoke to her about himin March 2011. PT stated that wanted to discuss his and some of what she saw goin on. Tr. 92. She stated that she never read] ersonal notes about D-42.‘PE «ti ficc that the notes point out that as early as October 7, 2010 iEWas aware of the fact thallllllffwas hospitalized and acted on ii. Tr. 94. a testified that this information was not brought to her attention between October and mid-March. Tr. 94. Po stated that although he was hospitalized multiple times, she didn’t become aware of it until] March 201] because he was being managed a Tr. 96. She stated that *...she would know when to come speak with me, and she did when she felt it was the ume. When it was the education impact thatis when she came to speak to me”. Tr. 96. | receiving ‘building level MM’ prior to this though he wasn’t classified. He also had otherissues and was suspended for bringing a knife to school and taking an inappropriate photograph. a testified that after reading the records, she found this out but didn’t know any of this propr to March. Tr. 97 IE occ that whename to see her in March there was sporadic attendance, failure to complete homework and schoolwork and a drop in grades. Tr. 98. stated that the hospitalizations were in October and December and the homework issues were more toward Spring but she thought things started to steadily decline. TT. 99. testified that the father wrote to her on August J requesting a referral to CSE and consent for release of records and an evaluation. The father then signed a formal] document on August 17. Tr. 99. She testified that tarted working with the Student on September 9, 2010. stated that she never dealt with the Parents before they removed their child from the District. Tr.100.
HEE testified that the Parents have been cooperative with the District with regard to responding to evaluations or requests for sign-offs or provision of information. Tr.
101. When she asked for reports, they provided them. She specifically stated “] didn’t see anything as uncooperative. It would have been very helpful had we known there was an IESP and prior testing, but I didn’t ask for it, so | can’t say he didn’t cooperate with me”. Tr. 101-102.
MR cr ified tha a, referred the family t HEE Hospital to have alJ evaluation of their son in October of 2010. P-J. a em stated that, although this referral took place, the case was not referred to her because the family was working closely with the psychologist and there was no impact on his education program unti] March. Tr. 103 a stated that she can only speak from March 2011 when she became aware o ms verified that was never referred to the CSE until the father made the referral on August 1, eee thal a discussed with the Parents an Bethe possibility of taking art classes at BOCES since they felt an was losing interest in some of his work. Tr. 107. The family even visited the program. stated that she wasn’t aware of this until she began preparing for the hearing. Tr. 107.
po testified that althoughllifififiwas on medication there was no indication of this on the IEPs prepared by the District. Tr. 108.
116.20 that there are approximately eight to ten studentsin the a program per year and they span grades 9 through 12. Tr. 102. Thereis one teacher whois the teacher for the overall program, a full time assistant andin the 2010-11 school year there was also a monitor assigned to the program. Tr. 11]. Although llwas assigned to the program for five hours and 15 minutes (which is the whole school day), he would not have taken his classes in the program; testified that he would have taken his classes with the general education students and had been in general education prior to this IEP. Tr. 111.
At the October 201] CSE meeting iE acknowledged that they received a letter fro, hich indicated thafshould not return to the District and it supported his placement iii. 112; D-20 RR stated that as a CSE, they looked at whether the student is a student with a disability, and what program they would need to recommend and whether the District has such a program. Tr. ]12. She said “given the fact that he was inl therapy, he was on his medications, we don’t believe it was [the District] that caused the emotional difficulties. We believe it is a part of (J) make-up, and with the nght intervention he could have been very successful [a Pe. Tr. 114.
Ms. Matthews testified that a schedule was not created forlfor the 201 1-12 school year since he did not atten EE ut if he had, the schedule would have given him the ability to have resource room one period a day. Tr. 117. fee tated that the student is also allowed to leave his general education classes at any time of the day and can access the | | room. Tr. 118. a. confirmed that the IEP itself, however, does not reflect direct service, it only says indirect. Tr. 118. She stated that “this is the fault ofa system such as this. If] were to put direct, for funding and everything else, that would say that our teacher was working with him, and | can’t do that”. Tr. 120.
BE stipes that in her opinion the e-mail from the Parent to in January did not constitute a referral. Tr. 122; D-44-page 50. She stated that the only time she gets involved is when a student is released from the hospital and the hospital says they don’t see the student returning to a regular high school setting. Tr. 123.
| see that the consultant teacher’s services on his JEP would be “emotional support for a fragile student who exhibited anxiety and IM and he would receive more or less support as needed with the intent being to keep him in the least restrictive environment and to keep him in the mainstream as best they could”. Tr. 133.
Between the 2011-12 IEP to the 2012-13 IEP they went from a half hour of iii every six days to an hour and a half every six days. Tr. 133. Although ili was in for several months before the first JEP, he was never observed there. Tr. 134. testified that when they place students in a program they observe them, but in preparation for a meeting, they have the staff from the school prepare the information for them and they don’t observe the student for the meeting. Tr. 35 TT if that an observation is performed for an initial referral and for a re-evaluation review but not for a program review or an annual review. Tr. 136.
’s twin sister was placed in the same program that MiiMwas recommended for. Tr.
138 ERM yasn’t sure if it was for the 2011-12 or 2012-13 school year but was aware that she was classified when placed in the program. Tr. 136. For the May une JEP meetings also wrote a letter to the CSE discussing the fact that Hiiihould not be placed atfor the 2012-13 school year. D-33. The school reports from were in evidence at this IEP meeting but the District did not do any new evaluations. Tr. 14]. = SEE Was present from the school and spent a lot oftime talking about 4 and all of the merits of the school. Tr. 4] EE sified that they listened at both meetings to s tesumony abo however, the CSE are looking for the Jeast restrictive environment and they felt tha as more restrictive and they did not see that it had the kind of therapy they had. Tr. 14]. a stated that the Parents felt strongly at the meetings thatlifffikhould not return to Bnd told them he was doing well at] Tr. 142. She stated that he had en while o .. had there been any I attempts. | stated that according to the reports, the | | therapy and the pharmacological supports were wha poke about in terms of why he was doing well. Tr. 143.
According iim! BOCES is a general education placement and has nothing to do with special education. Tr. 13. She said that she would not and did not discuss the BOCES program at the IEP meeting. Tr. 146. In an e-mail from b-46) she confirmed that she recommended the morning session at BOCES because it had smaller classes than the aftemoon. Tr. 154.
When discussing his four hospitalizations, stated that she did not see it as a long standing track record. Tr. 149. They believed his grades really plummeted in March of 2011 and that was the time to take action, however, she indicated that tr believed the reason his grades plummeted was because he wasn’t staying in Tr. 155. i stated that he left within days of her meeting wit _ Mand when they checked on him he was doing well in his placement so they did not refer him. Tr. 155.
On redirect, AE cstified that the fact that a child is hospitalized does not necessitate a referral to the CSE. Tr. 150. She said when a student is discharged, it’s up to the guidance counselor and school psychologist to speak with the hospital and find out the ongoing needs of the student. Tr. 150. i7EMMbestified that in discussions with the CSE, she did not get a sense from the representative from M@hat there was a therapeutic support program in the school, but they did talk about how a I checked with the student three times a day, during scheduled check-in kind of periods. Tr. 151.
The next witness - She is a schoo] at this is her tenth year. Tr. 158. She does a lot of academic planning, course planning, and career and college planning. Tr. 159.
She has known since ninth grade since she was his HE. Tr. 160. Before ninth grade, the mother called and advised her that had experienced some emotional difficulties in eighth grade. She testified that she told the mother about the J program but the mother did not feel it was necessary at that time. Tr. 16]. In ninth grade, members WM as a typical ninth grader taking standard classes with a passion for art. Tr. 161. In ninth grade, IEer was contacted by ll’s art teacher because he did a drawing that was disconcerting and she referred it to the school psychologist. Tr. 165.
In tenth grade, she became aware of social-emotional issues that Ml was having asa result ofa hospitalization. Tr. 165. She received faxes from the educational component of the hospital, so as his IE she served as the liaison for his teachers. Tr. 166. When a child is hospitalized, fF stated that they receive a notice from the hospital with the admit date and anticipated discharge date. They then complete a home instruction form which is sent to the business office with the notice of hospitalization. As al she sends an e-mail to the teachers to make them aware that the student is in the hospital and to have them send the assignments to the contact person at the hospital. Tr. 166.
GEE testified that afterfill was hospitalized and returned to school, it was her job to let the teachers know and to ask them to assist him with catching up. The primary contact for the academic side was her and A for the emotional side. Tr. 168. testified that she had a welcome back conversation with and told him if there was anything he needed to make his transition smoother to let her know, however there was no ongoing conversations. Tr. 169; Tr. 170. She does not recall if he caught up with his work. Tr. 169. He dropped Spanish on February 17, 2011. Tr. 171; D-43. Since it was after the drop date, she had to get approval from the principal. Tr. 170.
In terms of changing his program, testified that there was a discussion with the Parents regarding lil. attending [BOCES where the students spend half a day at the program doing art. There was also a discussion concerning the alternative high school program at BOCES which is a full day program. Both of these programs are for general education students. Tr. 172. The purpose of these programs is to allow students to do something that they enjoy more in depth. Tr. 173. In the case of the art program, they work on a portfolio which is important for students applying to college art programs. Tr. 173. Me stified this subject was broached with because he was not connecting at gjand not doing well. Tr. 173. With I, they talked about it because of the art piece and because it was a fresh start and they thought that BOCES could provide that. Tr. 172. The Parents discussed with WEE a high school program in New York City that they were considering andi. ultimately attended that school. Tr. 174. They visited the program in the city at the same time they visited the BOCES program and were evaluating both. Tr. 174.
GE testified that she attended the CSE meeting on October 13, 2011 as the schoo} ee. )-23. ER stated that the Mi program is for students who have average and above average cognitive ability whose emotional issues negatively impact their academics. Tr.
175. Depending on their cognitive ability, students in the fl program can be found in AP classes, regular classes, or special education classes. Tr. 175. The diploma type they will receive is dependent on the classwork. Tr. 176. EMM testified that given what she knew aboutlil, she thought he would be appropriately placed in the iiprogram because he would have been able to take whatever academic classes were appropriate for him, he would have continued to see M and he would have had a home base in the MM program. Tr. 177.
Based upon an e-mail between ES
27 cE it was determined by I at HJ should not attend a field trip on October 27, 2010 due to “the severity of [Bs] functioning. Tr. 180; Tr. 44 (page 6). Based upon an e-mail to all teachers on October 27, 2010, EEE notified the teachers thal would be spending time in the MM office during the day working on assignments. Tr. 181. She did not remember how often he was there after his initial hospitilization. Subsequently, in January, the Parents sent an e-mail to J asking what other program options were available for since he was performing badly in a number of his classes. D-44 (page 40): Tr. 182. Po stated that he was not referred to the CSE at this point because “fs transition was not consistently impacting his grades”. Tr. 183. Po stated that she never referred | | to the CSE. She did suggest the J program before J started high schoo] but never mentioned itagain. Tr. 185. also testified on cross examination that she was alsoliilil s sister’s guidance WE but not for all of her years of high school. Tr. 185. She knew they were twins and that MMs issues were impacting their relationship. Tr. 186. She had both siblings for ninth and tenth grades. Tr. 187.
The next witness was Ie. She is a school psychologist for the high school and it is her fifth year. She has her doctorate in school psychology and is certified by New York State. She does a Jot of counseling, testing, initial evaluations as well as reevaluations and consultations with staff, parents and outside providers. Tr. 221. There are approximately 840 students at J} High School. She sees both general and special education students. Tr.
222. With respect to general education students, it can be emotional counseling, academic counseling, or counseling to deal with social issues. Tr. 222. She receives students by selfreferral and through guidance counselors, parents, administrators or teacher referrals. Tr. 223. There is one other psychologist, EEE and they split up dutics. Js assigned to the liiflprogram and the Foundations program and tends to see more special education students. Tr. 223.
With respect to a referral to special education EEE stated that they adhere to a Response to Intervention (“RTI”) model. She works with the guidance counselors and puts interventions in place and if things aren't progressing, she refers to pupil personnel services which is a multi-disciplinary team that meets and comes up with a game plan. Tr. 224. At that point, if things are still not progressing and the student is not responding to the interventions, then at some point they refer to special education. Tr. 225.
EEE first became familiar with at the beginning of his tenth grade year in 2010. The first contact was made by the Parent on October 7, 2010. Tr. 225; Tr. 227. The Parent indicated that her son, — had a history of QM and she felt that it was possibly flaring up again. Tr. 225. then reached out to. and he appeared to be endorsing IJ thoughts and presenting with immediate concerns. Tr. 228. Following this, she reached out to the Parent about referring him for a |} evaluation and he was hospitalized. Tr. 229. [MMM had been made aware that he had also been hospitalized in middle school as well. Tr. 229. She stated that she thought she communicated with the Parents via e-mail when he was in the hospital. Tr. 229. Whenl was released from the hospital, it wa Si understanding that he was no longer a REor others and no Jonger expressing . Tr. 230. She stated that according to her recollection, he received therapy and medication management in the hospital and then iii with individual, family and group sessions. Tr. 232. GE focuses on distress intolerance and reduction of emotionality and it is commonly used in adolescents who have al history. Tr. 233. EN stated that sincdiilf fell in the category of HEEthat would have been the most appropriate treatment. Tr. 234.
Po testified that she keeps notes with regard to her contacts with students and she prepares notes contemporaneously the day she meets with the students. With respect to her log of notes ceardin i she testified that she did not take notes every time she saw him and there was no pattern as to when she kept notes. Tr. 227; D-42.
BEB returned to school after his initial hospitalization and TTnet with him. Tr. 234. She indicated that he seemed to be doing better and that he was concerned with transitioning back to school and getting his work done. Tr. 234. Therefore, they discussed adjusting timelines to try and ease the transition. Tr. 235. Since was in WM she felt comfortable seeing on an as needed basis even though she usually sets up a very structured schedule after hospitalization. Tr. 235. [MM stated that he never really went too long without checkingin, and if she requested to see him, he was always good about coming down. Tr. 236. From an academic standpoint, they made adjustments to help ease the transition including incompletes for the quarter and gave him some timelines for making up the work and she indicated that he was making some progress. Tr. 242.
spoke toMDs mother regularly andff’s father on a couple of occasions and learned more about his history and the family’s history. Tr. 238. She also came to understand social factors that would be “off putting to his peers” and would either trigger a HEE © pisode or set him on a down course. Tr. 238. During the time she was seeing him she was in contact with EEE and then RR. Tr. 239.
Behaviorally, during the fall of 2010, shortly after his discharge, on October 22, he had taken a picture ofall student’ sl and sent it to a male student. Tr. 241. a EEE stated that this presented as a possible trigger for his MEE since social issues tended to trigger him. Tr. 241. She worked with him and , the assistant principal since this was a violation of school protocol. Tr. 242. In this regard, she also tried to come up with a game plan for appropriate consequences for his actions and to aid Ii in understanding 4 and aid in Hk comfort. Tr. 242.
In December 2010, the Parent 1 an e-mail regarding a conversation they had_at ejibome home conceming his interest in iwhen EB turned 18 (D-44 (page 34)) and —_—_ met with him, called and recommended another hospitalization. Tr. 244. Although she believed that ggwould have wanted to take another route and not have him hospitalized at this time, he was seen and hospitalized at on December 15, 2010. Tr. 245; Tr. 246. He was hospitalized for approximately a week, they helped him through the crisis, adjustments were made to his medication and he was discharged back into the same treatment regimen as before with the I. Tr. 247. He returned to school on December 21, 2013. again met witHiiiifand talked about ways to help him adjust back to school and they continued to meet on an as needed basis with the understanding that it was at least once a week. Tr. 249.
At MRR EN had a difficult time socially and felt very disconnected although he had an understanding of how his actions interfered with him feeling connected with his peers. Tr.
249. With respect to his academic progress, after returning to school, there was a period of time where he needed help adjusting back to school and there was a motivational piece to it in that in some classes and at some times, he felt more motivated than others. Tr. 150.
On January 24, 2011, the Parents sent an e-mail to J regarding the fact that
a. was still performing badly in a number of his classes and to discuss options with her. D-44 (page 43). a stated that this was “sort ofa fallout from his second hospitalization”. Tr. 250-251. She stated that Spanish was an issue and he had struggled with language the year before. At first, the Parents were told that he couldn’t drop it because he had missed the deadline, however, the schoo] ultimately allowed him to drop it if he made use of the last period of the day by going and sitting in a class that his math or global teacher taught to ask questions or catch up on work. Tr. 251. At first, he was going to global history but then he wasn’t making the best use of the time. Tr. 252.
Emotionally, after his second hospitalization he had periods of time that were better than others. | stated that at a certain point in the year, around March |, things had started to take on more of a challenging course. Tr. 252. She testified that they were trying to adhere to an RTI model and came up with various interventions between and herself that were appropriate fo Tr. 253. She stated that there were a lot of social issues that were triggering his i and he was working with the therapists and with her. She stated that “she felt that [J needed a different setting”. Tr. 253. They contemplated sending him to BOCES for halfa day and then he could be at [for the other half. Tr. 253. She testified that this would give him a break from the social setting as well as an opportunity to feel really successful about himself and that maybe it would help him be more focused and out oftrouble socially when returning to in the afternoon. Tr. 253.
Po testified that she believed that once other options were put on the table in March, his motivational level dropped and he hit a wall, in terms: of getting done what he needed to. Tr. 254. She felt that it wasn’t necessarily his QE at that point that was driving his lack of motivation but more a sense of getting out off and starting over and that is when things became more challenging academically. Tr. 254.
stated that she believed the mother felt that the social issues were ’s episodes of [EE and triggering it and that she wanted him to have a dominating fresh start. Tr. 255. i ond GR believed that when you leave a setting you take your problems with you. Tr. 255. testified that she and the guidance
El some social distance in counselor were trying to come up with an alternative plan that gave what they felt was a more appropriate way. Tr. 256.
In March Se spoke wi HEE abou possibly referring to the CSE. QR testified that the Parents did give serious consideration to the BOCES alternative but ultimately decided on [| EE testified that she had contact with the Parent afte left and that the Parent sent an e-mail Tim on May 6 discussings progress at J They didn’t end up referring him and once they got the e-mail in May, they decided not to proceed. Tr. 259.
HE ther testified that the father made a referral on August 1, 2011. Tr. 260; D-9. She conducted aE £\ alvation in early September 2011. Tr. 260. When she began doing the evaluation, she realized that WM ad been evaluated by the DOE so she switched from the Wechsler Adult Intelligence Test to the Woodcock Johnson Test of Cognitive Abilities. Tr. 261. She testified that he is innately very bright and scored in the i” percentile which is the range in comprehension knowledge. Tr. 26]. He also performed in the range in visual spatial thinking @J%) and processing speed Gi). D-14. In processing speed, he scored in the lif” percentile in visual matching and the ME percentile in decision speed. Tr. 263. testified that it is not abnormal to have some discrepancies and they may not be significant. Tr. 263. In long term retrieval, he scored in the HR” percentile which is]. He also scored in the J in auditory processing and fluid reasoning and the IJ range in short-term memory. D-14; Tr. 263. She also did behavioral testing and gavd{iilifthe BASC and gave the Parents rating scores as well. Tr. 265-
268. Anything clinically significant would be above a 70. Tr. 265. EE indicated that he did not rate himself as being in the clinically significant range in anything except selfesteem and I. He was also at risk for social HI. For , he gave himself a HE which is. Tr. 266. On the Parent rating scale, the score on EEE ~was similarly at risk. Tr. 266. | problems was also at risk. With respect to EEE, she rated him at ll, which is just the J of the atl spectrum. Tr. 267. She also rated him as clinically I On EE. Tr. 267. stated that for internalizing disorders, they give more weight to how the adolescent rated themselves. Tr. 267. She stated that it appeared that ll was doing a lot better with his [EE and socially as well. Tr. 268. She stated that when she asked him to what he attributed this, he said that he finally got his medication right and he felt better. Tr. 268.
Po also administered the KSAD test. She did this because she was surprised that his GEE «Was better under the BASC. He didn’t come up as being any more significant under the KSAD. Tr. 269. Asa result of her testing, she stated that overall, cognitively he was very intelligent and emotionally he seemed to be doing better. Tr. 269-270.
fF stated that prior to the first CSE meeting, she reviewed the evaluation done by HMfor the DOE. D-7. She stated that although it is difficult to compare the WISC with the cognitive testing she did, the scores were consistent. Tr. 27]. so did the Rorschach and projective drawings to test his personality and emotional functioning and it indicated that] experiences considerable anxiety and | and that there were emotionality themes that came up in terms of perceiving events that occur in his environment as Ht). 273; D-7. ER also performed an educational evaluation. Tr. 274. did one as wel] but this was conducted by [E MM y testified that based on ae educational evaluation, he appeared to be advanced cognitively. Tr. 274.
For the social and developmental history document, the Parent and FY had an interview via the telephone. Tr. 275; D-13. This was done on October 3, 201]. Tr. 275; D-
13. fF testified that a letter from [was also introduced at the October 2011 CSE meeting. D-20. They discussed his significant is | and his IG attempts and how he was responding to his new school and the therapy. Tr. 277.
DE testified that the CSE met in October 2011 and that this was the initial referral. Tr. 278. Her understanding with respect to his classification was that he was already classified as ME by the DOE. Tr. 278. 1f though. wasn’t Po at the time of his review, however, they could have changed his classification or declassified him. Tr. 361. r agreed that the CSE felt that the classification was appropriate for [i GNM) was at the CSE meeting as the psychologist who conducted his cognitive evaluation as well as the who was working in an emotional capacity prior to this. Tr. 279. his SE also participated by phone and |D from I. Tr. 279. r testified that at the meeting, she reported that J had performed well on the cognitive assessments and that emotionally, while he has a significant history for a. presently, he was not endorsin significant levels of i. Tr. 280. She did not recall “ told the committee. Tr. 280.
ee: testified that with respect to his present levels of functioning, he was doing better academically, though still had some areas of struggle including homework. Tr. 281. With respect to behavioral or management i a stated that at the meeting, there was discussion that “there were still some social hiccups occurring at )” but that he was adjusting and making some connections with students. Tr. 281. The Parents indicated that he was doing a lot better there.
Based on the current levels of academic, emotional and social development, the CSE recommended goals for for the 2011-12 school year. They included three study skill goals including self-check all schoolwork for completeness, accuracy and writing errors, that he will independently seek out appropriate assistance from teachers and other support staff and he will independently alert the teacher for special needs or accommodations with tests. Tr. 287. Emotionally, they created goals for use of effective coping strategies to deal with feelings of sadness and frustration, discussing feelings regarding his self-concept and identifying his own strengths, discussing ways that his behavior affects his development of positive relationships with peers, and identifying when he is displaying inappropriate behaviors with peers. Tr. 283. They discussed coping skills because although his IEEE was better, it could flame up again and they wanted to prepare for crisis situations. Also, it was consistent with what his outside WEEE as doing. Tr. 284. To measure this, notes would be taken during session and analyzed to see if he is addressing his goals. They provided the goal regarding self-concept because it influenced his MM and they wanted him to develop stronger feelings of selfworth so that he would be more motivated to use coping skills during times of stress. Tr. 285. This involved a lower criteria because talking about his self-concept is challenging. Tr. 286. With respect to the goal regarding “discussing three ways his behavior affects his development of positive relationships with peers, the CSE felt that the decisions he makes socially very much influence his IEEE and again the criteria was low since it was challenging. The next goal dealt with identifying when he was displaying inappropriate behaviors. This was important because he needed to do it more in the moment. Tr. 287.
Based upon the goals identified, the CSE recommended the Bl program. described it as a program “for students who are classified as having an disability that significantly impairs their academic functioning and students are given on a regular basis, very structured, once, sometimes twice a week mandated,...as well as students are offered a home base that they can go to when they are feeling stressed out and they have a resource room teacher that understands] disabilities and works directly with the student..., as well as communicating with teachers so that they can understand what the student is going through and trying to offer support”. Tr. 288. Although is the school psychologist for theliffl program, ‘ continues to I certain students. Tr.
289. BB was recommended for individual one time in a six day cycle. Tr. 289. In resource room, there is a 5:1] ratio, sd. would interact with other students with disabilities; and it is slightly less traditional than other resource rooms so that students are talking about their needs or problems that are coming up during the day. Tr. 289. The teacher is also a certified special education teacher so that she is there to provide academic assistance. Tr. 290. The CSE also recommended a positive reinforcement plan where if adheres to positive pro-social behavior, he would receive rewards to make him feel good about himself. Tr. 291. a. felt that this program offered him “a nice balance of giving him academic as well as emotional support”. She stated that other students who are like demonstrate a lot of success in the program. Tr. 291.
Po testified that the CSE met to plan for the 2012-13*school yéar on May 14, 2012 (D-36) and June 11, 2012. =a stated that they attalked about goals at BR the meeting. The Parents and Melt that he was doing a lot better bur still was in need of special education services as 11 related to his BE functioning. Tr. 295. Ps testified that the Parents were legitimately concerned that based on his significant history that coming back AEE. oud then experience Ee. hr. 295. They kept the same goals on the IEP, just raised the criterion to be higher. Tr. 296. The reports from QE «indicated that he was stil] having social nd RE Gi fricu ties Tr. 298. She
Tr. 298. She said that could not recall whether his behaviors were impacting him academically. based on the fF school reports (D-32), all the teachers said that he was relating and working well with others and one rated him as showing improvement. Tr. 299. The CSE recommended the program and they increased both the individual and group a. Tr. 300.
Fro ’s perspective, she felt that academically he was able to handle a mainstream course load, however, the Parents felt that the ratio was too large and he needed a smaller setting. Tr. 300. She felt that the aspect that was hindering his academic performance was the depression, the social issues that triggered the PO and a motivational aspect. Tr.
301. She felt that thei pro ram provided a stronger level of support since theliifikeacher would be able to connect with is teachers. Tr. 302. In addition, with respect to social interactions the HE program would provide him with social feedback and ways to work through it. Tr. 303.
On the first day that the Parent called Po in October of 2010, his condition was serious enough that he needed to be referred to the i. Tr. 312. She said that whenever a student is endorsing I, the school’s course of recommendation is to recommend i Tr. 314. Once madi aware of Hs admission to the I, explained his past history of J and the conversation with the Parent when the Student entered ninth grade. Tr. 315. When a Parent makes the schoo] aware ofa child’s situation like this when the child starts ninth grade i r stated that the protocol] was for the guidance counselor to suggest that they have support in the building and she did so by suggesting thellfiflprogram. Tr. 316. EE 31. testified that in order to go into the program, he needed an JEP and he was not referred. Tr. 317.
On cross examination r testified that the Parents were cooperative with her throughout the process. Tr. 307. Whenever made a recommendation with respect tl HFs mother was cooperative and communicative. Tr. 320. FY testified that she was always communicating with her and was always responsive to setting up treatment and being available. Tr. 320.
ASM was adjusting from his she saw him on October 22, 25, 27, and
28. Tr. 321; D-44. On October 27, he didn’t want to be in school so {EE put him in the guidance counselor's office to do his work. This also occurred on October 28. Tr. 322. On November 1, he stayed back from a field trip and the next day he was experiencing difficulty. At this time, there was a discussion with the Parent about missing assignments and cutting classes. Tr. 327. stated that several timesliilfif went home without permission. Ji indicated that [Mas a closed campus and students are not supposed to leave school without signing out, but as a sophomore, he was allowed out for lunch. Tr. 328. On November 10, r spoke with the Parent again and the Parent requested that Js schedule be changed and MMtated that “it would be too reinforcing”. Tr. 330. ee. testify that s IEEE issues were the genesis of his cutting and leaving the school building.
Approximately two months after his fir TT Ps. suggested ee again. Tr. 332. | helped them chose another IEE so that it would not be reinforcing for Tr. 333. On February 3, Mispoke (0 EEabout the triggers for ii such as his relationship with his sister. Tr. 334. Po indicated that she spoke to | the Parent and made them aware of this and HEE attempted family sessions. Tr. 335.
HE «-stified thal ; f | is episodic and that “anxiety is comorbid with | but that doesn’t necessarily mean that the anxiety triggers the WEEE, just that they co-occur. Tr. 335. QE also stated that ls emotional state was inextricably linked to his academic performance and that his issues were the genesis for his cutting and walking out of the school building. Tr. 358.
She indicated that from the beginning of October through the beginning of February 201] } his ii status was fragile but not to the same extent the whole time; there were periods where the] was more severe than others. Tr. 335. testified that just because a student is GEE does not mean they need a referral. Tr. 336. Each time he was WEEE there was an impact on his school work whic ‘ indicated is because there is always an adjustment period coming back from thd. Tr. 337. During this period, she was communicating mostly with r, who was connecting with the teachers. Tr. 337.
Pt said that at some point afte lll left pT said he attributed his success to his medication management but she didn’t have any contact with the Parents or the professionals at this point in time, so didn’t ask them. Tr. 343. a: letter which was presented at the October 2011 CSE meeting stated that “Transferring to a new school offered a new beginning which induced hope and optimism. Smaller classes with new peers offered [EBB) an opportunity to lear again without carrying the [MM baggage he had at MM D-20; Tr. 344. a stated that no outside placements were discussed. Tr. 346. Only thelfl program was discussed, although the BOCES program may have been discussed for historical purposes. Tr. 347. The District has not conducted any observations at WN 11.347. The only difference between the 2011-12 IEP and the 2012-13 IEP was the change in MM. Tr. 347.
testified that she knew that i’ sister was also recommended for that program but that didn’t necessarily mean that they would be in the same classroom, though they could have been placed in the same room. Tr. 348. She stated that although they might have had resource room at different times, there is only ondiiffroom. Tr. 349.
The next witness was EE in. She has a Master’s degree in special education and holds permanent certification in special education for grades kindergarten through 12" grade and secondary English and social studies. She is a teacher in thd program at High School and has been there since September 2006. Prior to that, she was a teacher at the HE School. Tr. 380. The program is a special education program which js based in 4 resource room which serves as the home base for a group of students. [Mis both the teacher in the program and the students’ case manager. Tr. 380. The students have their own schedule throughout the day and travel to their classes and they are in her room for at least one period of resource room and study hall. Tr. 380. As a teacher she runs the resource room and as the case manager, she does more outreach to the teachers of the mainstream classes, the students attend. Tr. 381. She is also in contact with the school psychologist who works with the J program and she oversees the teacher assistant and/or monitors that may be working with the students. Tr. 38]. Thellillllprogram is from grade nine through twelve students. Tr. 38]. Her role with the mainstreaming teachers is to make them aware of each student’s IEP, any testing modifications they might have, and any program modifications. Tr. 383. As the year progresses, she is in contact to find out how they are doing in their classes with respect to any issues that may arise. Tr. 353. The students inl are all students in mainstream classes who are academically capable but their emotional disabilities are seriously impacting their performance not in school. Tr. 383. The program is meant for students who 1c EE fragt Ht isissues meant for kids who are acting out but more so students who may be withdrawn or have with Ior anxiety. Tr. 384. testified that she attended the October 2011CSE meeting forff. D-23. She didn’t have any personal information regardinglilfif. other than what was discussed at the instructional support team meeting held prior to the CSE meeting. Tr. 385. To her knowledge, he was never discussed before. Tr. a described the program at the CSE meeting after it was recommended fo fi stated that she would have been responsible for monitoring the goals on his IEP and making the mainstream teachers aware of them. For a description of the program it says, “Consultant teacher servicing therapeutic support, fragile, Regents, indirect, one time daily, five hours and 15 minutes integrated”. Tr. 385. testified that she is not in the mainstream classes with the students but is responsible for consulting with their teachers. Tr. 340. If a student needs to leave their mainstream class and go to the Hiroom, a teacher would speak to that student and figure out if the student should remain or go back to class and have the issue addressed later. Tr. 390. On the JEP, it also says “resource room program, five to one ratio, one time daily”. testified that that is the designated time when students need to be in the home base classroom. That is the time of day they make daily contact and if need be, they may go over assignments the student is working on. Tr. 39}. If a student is in crisis and is sent down to the ME oom then either her or her teaching assistant will speak to the student who is having an issue, or the teaching assistant might take the student to the psychologist. Tr. 391; Tr. 392. Team meetings take place quarterly. The parties who would be attending it would include her, the psychologist, the guidance counselor and the teacher agsistant or monitor and if there is an issue, the teacher of that class or assistant principal depending on the situation. Tr. 392 . Based upon the discussions at the October 13, 201] IEP meeting MM agreed with the recommendation of the committee. Tr. 393.
RE 2 2ain attended both meetings for the 2012-13 school year. Tr. 394. There was information from the Parents at the CSE meeting that indicated that{J needec [A supports in his academic programming for the 2012-13 school year. Tr. 394. There was no change to rs program for the 2012-13 school year except that group]J was added. Tr. 396. The students in thelll program usually have individual | since each Student is having, very individual issues. Tr. 396. On the IEP it states that “The Student needs weekly feedback from the case manager to review how he is doing in all classes to keep from becoming overwhelmed by workload, one time weekly”. This is not specific t but is done for all TSP students and that is what they do in resource room. Tr. 397. Most students in the program do not need specific help in a subject area, just oversight for managing their workload. Tr. 397. Po thought he would be appropriately grouped in the program for the 2012-13 school year. Tr. 399. f
On cross examination, EE testified that during the 2012-13 she went on leave around December 17, 2012 for the remainder of the year. There were eleven students in her program during the 2012-13 school year ands sister was one of them. Tr. 401. During the 2011-12 school year, there were nine students. Tr. 401. She stated that five students is the maximum per resource room period but she usually has one or two. Tr. 402. The only students she sees in resource room are the students in thelfroom. Tr. 402. The fact that there is a teaching assistant in the room is not descnbed in the program descriptions on the IEPs. Tr. 405.
Joes not remember other programs discussed by the CSE except the TSP program. Tr. 406.
tee ev Parents’ Case .
The Parents called six witnesses, EEE i ee. and and placed forty-four (44) documents in evidence. D-1--D-44.
The first witness for the Parent was IM. He is a general and a child and adolescent _ Tr. 449. He is familiar with]. and began seeing him in 2009. When he first started treating him he saw him weekly. The issues were anxiety and and as a result of that, he was having academic problems. Tr. 451. At that time, he was on RR but currently he is on [EE and. Tr. 452.
ME (<stificd thal} began doing much better as a result of the change in schools, began to academically flourish and needed to see him less frequently. Tr. 453. He attributed the change to a number of factors including environment and growing up._ Tr. 454. He is well liked at the new school and feels like he had a new beginning. Tr. 457. His was significant before changing schools so much so that he needed to - iii several times. Tr. 455.
WM. is presently away at school and EEE is maintaining a relationship and doing medication management With him. Tr. 456. Therefore, he stated that there was a considerable change in him from two and weekly therapeutic sessions to a point where he is monitored every few months. Tr. 457. EE icv cs that his emotional state impacted his academic performance in school in both the prior placement and new school. Tr. 457.
On cross examination, ME stated that I has always been a problem for the Student because he doesn’t feel liked there and it was a big issue in his Tr. 459. He felt that he could not get a fair shot at being himself. Once transferred to another school, he was thriving. Tr. 459. The indicated that ‘we believed [@miiim] was not a good setting fori. and he had made it clear also. Tr. 460. MM testified that his involvement with GE was minimal__He may have spoken with the GEE from the school once or twice, especially juin TT on he was on the phone at the CSE meeting for a brief minute for them to ask one or two questions. Tr. 461. When asked if medication had an impact orf he said that it did, but the fact of the matter is thai has been on the same medication since his firs TR and that being ina good environment where he feels safe is tmportant Tr. 462.
The next witness was [MMMM] Tr. 463. He is a licensed psychologist, a professor of clinica] psychology and behavioral sciences iii College of Medicine and also chief of child and adolescent psychology, and director of the adolescen i program at IM edical Center. Tr. 465.
He is familiar with and has served as his individual for several years as well as providing skills training to him and his parents. BE tated that he wrote a letter to the District ons behalf on October 11, 2011. D-20; Tr. 468. He assumed responsibility for Ms private [J when his predecessor MEME left the practice. Tr. 468. Prior to that, he was in a 20 week skills training group with Tr. 468. He also sat in on weekly consultation meetings for the year prior to taking on his individual care so he knew off and his family. Tr. 469.
Between 2008 through 201 OLE was receiving intensive IE, HE. 20d pharmacological a with limited progress. He doesn’t remember who the psychologist was at that time but was the person providing pharmacology therapy. Tr. 469. I stated in his letter that in his opinion [I responded well to Ii and after five months, he felt that the I] anc [J thoughts had diminished significantly, although social anxiety and J related to school persisted. Tr. 470.
GE indicated that there was a nexus between his a 2nd his school placement while he was at EEE He had been for several years and developed an identity as NC kid and what furthered and strengthened the identity was him feeling socially isolated and estranged and not feeling comfortable inj with his peer group. Tr. 470. Therefore, he became quite withdrawn and removed from school activities and felt like he was perceived as the [MJ and had trouble overcoming it. EEE testified that there was a lot of hopelessness that came from continuing aM and he began avoiding school. Tr. 471.
r also indicated in his letter dated October 1], 2011, that | transfer to was a new beginning and induced hope and optimism. Tr. 471; D-20. He stated that it was a much smaller environment with a daily breakout of smaller groups and involved faculty members where he felt more integrated into the system. There were other students like him who were bright and_had trouble fitting into their respective prior environments. Tr. 472. indicated that felt that the new school experience was transformative for him educationally, emotionally and socially. Tr. 472.
GE stated thal felt like a leper at RB ang felt outside the social milieu and it was eroding his self-esteem and causing him to feel inadequate and [J and that perpetrated the kinds of IMM feelings he had at the time. Tr. 473. It was problematic and although efforts were made to help him, it was not enough. Tr. 473. In ae: attempts were intrinsically linked to school and his social status. Tr. 473. HE then wrote another letter on May 9, 2012. D-33. In his letter, he talked about GE which is a skills based treatment teaching kids who have trouble regulating their emotions and their behaviors, how to more effectively do that by teaching emotional] regular skills, destress skills and interpersonal effectiveness skills. Tr. 474-475. It is multimodal
J that is intended to treat kids who hav ii. social difficulties, etc. There is telephone coaching between sessions and sessions with the Parents. In addition, there is a weekly therapist consultation meeting where those who are treating him meet to discuss him. Tr. 475. The letter from RE (D-33) reflects a significant improvement offs mental status and his functioning across the board. Tr. 475. JM testified that he attributes Js growth to a significant part to the new schoo] setting that gave him opportunities to connect more effectively with his teachers in a smaller classroom setting. It was more supportive, nurturing and therapeutic. Tr. 476. He also stated that it had a significant impact on his mood and self-esteem and he started developing real friendships and feeling more confident academically. Tr. 476.
po stated that he has been in touch with put does not recall conversations with 9d when was there. Tr. 477. did not feel that was a small and nurturing placement as applied tol but that[Jwas. Tr. 477.
— oe that i SYwas linked to his and that his was influenced by his social and academic challenges related to his school placement. Tr. 478. He stated that when he transferred to the new schoo! his I was alleviated to some degree. Tr. 479.
As was improving and his work with him was tapering down, EEEEBbegan working with fs twin sister. When [J first became involved with the family, the relationship between [if and his sister was contentious and challenging, however, it has improved substantially over time. Tr. 479. P| stated that lls needs were different than his sister’s and significantly greater than hers. She was not severely impacted by iii and was not I. Tr. 480.
GE testified that he had been seeing] while he was at iland after his transfer to IMand there was a significant relief in terms of his and his feelings of hopelessness. He felt much more confident, socially and academically and he was embracing life in a way that he hadn’t seen before. Tr. 483. HE stated that he feels that when a person experiences a significant amount of failure in an environment, like Ml had, the change gave him a new beginning. Tr. 482. In addition, at po WM felt this daily emotional support, nurturing, checking in, and having other kids who were in a similar situation helped significantly. Tr. 482.
On cross examination, BE stated that he got the information on ’s school avoidance from fi, his Parents and Mr. Tr. 485. He said that fi stated that he felt that the kids at IEEE were ignoring him, didn’t want to spend time with him, made references to him being in] and he felt quite ashamed. Tr. 490. [REM stated that he thought that the trigger for the first] was his feeling increasingly HEE during the beginning of the school year and having]. Tr. 491.
Between October 2011 and October 2012, he started out seeing him weekly, then biweekly, then monthly. Tr. 491. He thought the therapy that the group provided was helpful towards his outlook on life and school and he learned skills to cope more effectively with his emotional pain and distress. Tr. 492. He didn’t know how much the medication helped or not since he never saw him off the medication for a baseline. Tr. 492.
GEE stated that he knew of the Il program atl, He knows that there is week] y EG that can be increased and af room where students can go during the day to charge their batteries and regroup. Tr. 493.
‘stated that wher was emotionally well, the actual learning was easier. Tr.
493. He felt @. needed a smaller classroom setting that was somewhat less pressured and more therapeutic and supportive. Tr. 494. A larger classroom where he could get lostin the back of the room was not conducive to his Jearning. Tr. 497. GE cstified that his social and emotional needs affected his academics dramatically. He was having trouble going to school, focusing and he was very preoccupied with feelings of failure, social inadequacy and Mu. 1495.
GE indicated that the three major variables that led to the improvement fil when he moved from to A cre the therapy he was in, the medication and the change in school setting. Tr. 495. He said that since was being treated with medicine before and had been in therapy, the largest amount of variance can be attributed to the school transfer. Tr. 496. He stated that the change in placement to MM was a necessary change. Tr. 497.
The next witness was Pp She is a clinical psychologist and worked in various settings with kids with RT Sheis employed as clinical director at MMand has held the position for four years. Tr. 502. She described the school as a college preparatory school for kids who are bright but have struggled PY She stated that “The school really is a therapeutic milieu, which really focuses on trying help kids actualize ve experienced in different school settings in their potential and repair a lot of the situations they’ order to function better.” Tr. 503. There is an advisory system where students are assigned advisors, who are also teachers and provide a significant role in helping and guiding the students. Tr. 503. There are 70 students in the school and it is from grades nine through twelve, however, they have two seventh graders and four eighth graders. Tr. 504. Ninety-five percent oftheir seniors go to college. Tr. 504.
EE rs met in the spring of 2011. He went tof for two and a half years. Tr. 506. HEE stated that she met with the Parents and received a full history of his presentation. Tr. 508. She stated that she was familiar with Ri because he was one of her supervisors at Montefiore and she reached out to him when she began a i: order to refer kids who might benefit from his mode of treatment. Tr. 509. The school mandates that all kids at receive outside therapy. Tr. 509. After intake felt tha would be a good fit for and her discussion with [confirmed it. Tr. 510. her first came to thd{ifon he was stil] trying to find his way and use the resources around him to make sure that he was less [Jand didn’t engage ir. Therefore, when he started, he still reported struggles with thoughts and ee. Tr. 511. There was ongoing communication with jgto make sure that they were coordinating care properly and thafJ. was safe. Tr. 511. She stated that she would describe a; fragile. Tr. 511.
BE ¢-scribes TTT as therapeutic because of their advisory program which provides the students with a person that meets with the student up to three times a day. | | P| talks with the advisors about the student’s functioning every morning in morning rounds so they can tailor what the student needs that day EJ. The students also have access to EEE staff throughout the day to help manage feelings they may have. Tr. 512. } sought out help and would come to the MM center to talk about struggles he was having. Tr. 512. If it went beyond school related issues, they had access to B hrough his pager.
As clinical director, IJ supervises a psychology intern and[ii health counselor. The I health staff consists of the three of them and the teachers and advisors. Tr. 514. They hire teachers with a minimum of five years’ experience. They look for teachers with specific skills in terms of their teaching abilities but also psychologically minded teachers who see the value in individualizing academics and being sensitive and attuned to adolescent needs and the tumultuous states of some of the students at times. Tr. 515. Once the teachers are hired, they go through a significant amount of monitoring with the dean of the schoo] iii | | the director of studies. It takes a few years to provide solid mentoring to act as an advisor and MRR is actively involved in that. Tr. 516. She provides the teachers with a Jot of feedback about how to understand the particular students and their individual ii needs, and she offers strategies to integrate into the classroom. Tr. 516.
There are a total of 24 in staff and they receive consistent mentorship and training with WE and herself. Tr. 517. For the 2011-12 school year, Bs advisor was Tr.
518. She is going on her twelfth year teaching this year and has been an advisor for six years. Tr. 519. She would seell. a minimum of three times a day. Tr. 519. Morning advising is from 9:00 to 9:15. There is also mid-morning advising and usually on a given day he would see her for up to an hour broken up over three times or more than that if he requested to speak with her or they had a scheduled meeting. Tr. 520. GBas also his creative writing teacher. Tr. 52] , I also had direct contact with. and he would access her a couple oftimes a week initially to access some guidance during the day that went beyond the information that he would share with iii Tr. 522.
Wherfj was a senior, his advisor was MSs. 522. He had been an advisor for seven years and had significant experience with seniors. Tr. 523. Re: ie had a good connection and he was helpful in advising him with his struggles interpersonally and socially. Tr. 523. When he first came tolifJhe was withdrawn and had a difficult time making friends and he used sarcasm which put his peers off. Tr. 524. He struggled with friendships and relationships in a way that was typical of students who struggle with and anxiety so the staff's interventions focused on getting him to reflect on how he might be coming across and focusing on empathic reflection and perspective taking. Tr. 524. She stated that during his senior year, it solidified really well. Tr. 525. He also continued to seck Ei GEout during his senior year. Tr. 525.
EEE stated that there was a tremendous change in[from her intake on him in his sophomore year to when he graduated from PF She stated that he has grown tremendously and has developed his self-esteem, his self-confidence and has developed as a learner. Tr. 526. His academics have really skyrocketed and he has grown emotionally. He has used all of his energy and resources to balance things for himself and has used everyone around him to help. Tr. 526. He is a fantastic artist and has taken it as part of his course load at PF Art has been therapeutic in that the classes are geared towards exploration of self. By using art as a vehicle, he has taken on a role as a leader at ae: has played a significant role in other people’s lives.
The typical size of the classes at HE is six to eight students. Tr. 528. He was doing poorly in schoo] because of his preoccupation with WE sadness and feelings of incompetency. He didn’t see himself as a learner and didn’t see himself as able to master anything. Tr. 528. Asa result, he wasn’t able to concentrate on math or even reading a paragraph. Tr. 529. HEE stated that it was his preoccupation not being able to focus or shift that was interfering with his ability to progress in his learning. Tr. 529. Yet she described his level of analysis and synthesis as far beyond a student of his age. Tr. 530. She stated that academically, he got practically straight ‘A’s’ . Tr. 530. His attendance was excellent as well. Tr. 531. She said that once he settled in and felt comfortable, he became an eager learner and the small class size was what really helped with his self-confidence and being around other students that matched his cognitive abilities. Tr. 531.
He was placed in classes based on his ability level and what he needed for graduation. Tr. 532. P| testified that she attributed the difference inl from his intake to graduation to “The right academic fit, the right school, the right place where he could get EEE support and also that honors his intellect”. Tr. 532. She stated that there are some schools that might be appropriate po but would not cater to kids with a high intellect likeli. Tr. 532. JE “‘was able to have the behaviors, socially and emotionally tempered and also controlled and managed well so that his academics and social-emotional functioning could thrive.” Tr. 533.
WEEE ‘¢stified that in order to help him stabilize, needed the medication, the therapy by the change in school, and the right academic environment. Tr. 534.
testified that the class schedules for the 2011-12 school year and the 2012-13 school year only have the core classes but do not have time periods, study prep. lunch advisory, etc. Tr. 536; P-B; P-E.
GE estified that ni program mets needs. Tr. 544. The area of greatest progress for. was emotionally. She said he progressed leaps and bounds from the young man who was completely devastated by EE that impacted his overall functioning. Tr. 545. There was a collaborative effort between f to assis i. through and herself his issues. Tr. 546. testified that there were eight students in his advising group in the 2011-12 school year and ten students in the 2012-13 school year. Prior to coming i i. was not seeking out help when he was struggling). Tr. 552. She stated that if he was receiving therapy at HE it was not helpful since that is when he was in crisis. Tr. 553. She felt that based upon his behaviors and the fact that he was receiving treatment outside, HE wasn’t a helpful set-up for WM. academically or therapeutically. Tr. 553.
During his senior year J was much better related to his peers and his cohorts. They saw him as a help and a powerful, important participant and member of the community and he opened himself up a lot more socially. Tr. 559. When he first came, he was very isolated and alienated from his peers. Tr. 559. He did well interpersonally with adults but because of his very dry, sarcastic way of presenting himself, he did not do well with his peers. Tr. 560. He really worked on this issue and was able to regroup significantly using his advisor for support. Tr. 560. The issues really presented themselves in the social context, between classes and outside of the academic structure. Tr. 561.
The next witness was She is an associate professor of special education in the department of teaching and learning at EI Tr. 596. She stated that she is familiar with the term RTI] (Response to Intervention) and it is a system-wide multi-tiered public health approach to education. The idea is that you use increasingly intensive interventions with children who are not responding to generally effective instruction to remediate their needs before they need special education. Tr. 598. The interventions related to RT] are really specific and is basically about academic difficulties. When discussing behavioral issues, they use a PBS model (Positive Behavioral Support). Therefore, she indicated that we should be talking about PBS with fnot RTI. She testified that RTI is grounded in data and in evidence based interventions. If RTI is implemented, it requires that specific data be maintained. Tr. 60]. The best practice is that the school should Jet parents know that they are using an RT] system to see if the student is at risk and parents should be advised of the screening. Tr. 601. If the child is then at risk, and some kind of intervention is done, parents must be informed of what is being done. the specifics of the intervention, the special education process and that they have the right to make a referral at anytime. Tr. 602. She also stated that RT] cannot be used to delay referral nor is it a substitute for a referral. Tr. 602. Its data would be used to help a CSE or CBST make a decision regarding a child.
GE stated that when you start with an RT] approach you are talking about preventing difficulties. Ifa child is referred to an outside facility, that is a very serious situation that requires a direct referral. Tr. 604.
There are different tiers to an RTI system. Tier one is general education which is what all children receive. Tr. 604. Kids who don’t respond to that, receive slightly more intensive interventions. There can be a number oftiers between general education and special education. In tier two, the intervention should be evidence based and research based. Best practice is to tell the parent how it is being administered and for how long. It is very explicit and must indicate what has worked and what has not. Tr. 612. It needs to be observable and measurable so an outsider can observe and measure the behavior. Tr. 612. Po stated that she consults with the schools on RTI and is present in schools in New York.
BE stated that if a child is referred to an outside facility and comes back to the school, the child has had a significant event that has placed the child on high alert. She testified that the level of support the child received on the outside should be somewhat similar to the level of support that the child receives from the school district upon return to the school. Tr. 606. She stated that it would be appropriate for that incident to have triggered a referral to the CSE. Tr. 607.
On cross examination, Ji stated that the state leaves room for schools to decide what measures they want to use but they need to be valid and reliable measures. Tr. 614. RTI with academics is not mandated in high school. Tr. 615. She stated that we didn’t know much about RTI in high school but we do know about PBS in high school, though that is not mandated either. Tr. 615.
The next witness wad, the mother. She has lived inf since 1998 andl was born on July 31, 1995. [entire education between kindergarten and March of sophomore year was al | | Tr. 618. a. never had an IEP while at the schools and the first document issued in the form of an JEP was the JESP from New York City. In sixth and seventh grade he did fine academically and on his State tests, but his transition to middle schoo] was difficult. Tr. 620.
At the beginning of eighth grade, he started complaining of significant abdominal pain. They went to several doctors and he stopped going to school for a while. At the beginning of October, he told his Parents that he was suffering frorn and they started him in treatment. There was a significant family history for on both sides of the family. Tr. 620.
On October 12] tried to |. They put him in the iiiifand started a detox program to save his liver since acetaminophen in large doses can destroy livers. Tr. 621. He was in Pe and then he was admitted to ae :. 4 hospital. Tr. 622. She stated that between the two hospitals, he could have been out almost four weeks. A i :. there was a period of time after therapy where he was expected to do his homework, however, he was too distraught. Tr. 625. He ultimately returned to schoo] and there was no discussion about referring him to the CBST or CSE. Tr. 625. In seventh grade, GMEs father’s brother ee: was made aware of it. Tr. 626. While was still atls, the Parents had a meeting with the middle school about how to reintroducefii to school since he had been out for so Jong and was on Pe. They were trying to arrange and a «2: for him andi the school psychologist was very helpful in securing help. Tr. 628. They created an academic plan so that there would be forgiveness of some materials and an extended time line for other things. Tr.
628. Whenliiiiwent back to school, he accessed the guidance counselor and a Jot. Tr. 628. The Parent also spoke to the school psychologist and two or three times a week. [IEE would be absent a lot and would spend class periods in the bathroom to hide from class. Tr. 629. They were never advised about a process to refer him to the CSE or CBST until they were at P| Tr. 630.
During the eighth erade Ml. went back to school in the second week of November and a week and a half later indicated to [that he was at J again and was again at i fo: another week and then returned to schoo] after Thanksgiving. Tr. 632. When he went back, the Parent andl. had a scale indicating his level of Jon a one to ten basis. This was the same scale he used with J Tr. 633. He was also very distracted by thoughts of i and disturbing images and had difficulty sitting in class. Tr. 633. Instead of just going to see ae >: hiding in school, he began cutting class and leaving school and the campus. Tr. 634. The Parent monitored his phone so that she got an alert when he left campus. He couldn't get caught up on his work and his grades were abysmal. Tr. 634. The school was very much aware of what was going on since they were in constant communication with the Parent. Tr. 635. She received notification that his promotion to ninth grade was in jeopardy. Tr.
635. He was failing math and Latin even though he received an academic prize for Latin in seventh grade. Tr. 636.
In ninth grade, he was in the consistent care of his a 2: his
a. P| His attendance was better and so were his grades. He was still socially isolated. Tr. 638. In January 2010, something he did in the summer of eighth grade came to light regarding an inappropriate e-mail] and he was suspended for at least a week. They tried to explain the history of Js] PE and how missing schoo! might trigger school avoidance but despite all] of that, he was still suspended. Tr. 639. The grades in ninth grade were better than eighth grade but worse than seventh grade. Tr. 639. He was not in ninth grade and no one advised her ofa procedure towards an JEP for special education. Tr. 640. Before. started ninth grade, the Parents went to an open house and found the psychologist, ’s history and his struggles with staying in class, his QE 214 explained 1 iii and that they let her know that they wanted the schoo] to be aware of his issues. Tr. 641. Nothing was implemented as a result of their discussions with Po Tr. 642.
ME mother reported that sophomore year was a disaster. Tr. 643. Jj went to Hi po on October 7, 2010 and he told her things that made her worry for his safety and he was admitted to I, at [RR suggestion. Tr. 643. He was there fora week and a half. The referred the family to JF. and HB was put into intensive therapy under Is oversight. Tr. 644. ME stated that she wag trained and although it was not traditional |, it was the only proven, effective approach for reducing i in teenagers.
The Parent testified that she never heard of RTI until] HEE ¢stified with respect to it at this hearing. Tr. 646.
The Parent indicated that his tenth grade year was a repeat of eighth grade. Tr. 647. There was another disciplinary issue wher iil took an inappropriate picture of a young woman and he got in school suspension. Again, no reference was made to the family regarding referring him for special education. Tr. 647. They tried to have the discussion again about how he 1S already not doing his work and is doing badly in classes, but he was suspended anyway. Tr. 648.
The Parents had a discussion with their son after they received his grade report in December 2010 about what they could do to help him. At that time, he advised them that ever since his in eighth grade, he had been waiting until he could turn 18 and get a gu and himself. Tr.650. The mother stated that she e-mailed Re: BE 2nd BEang the mother agreed that he should be again for his safety. Tr. 651. They went to a facility in White Plains and he was there for almost a week. Tr.
651. a ic not want him] because he was in J therapy but i ee 2 the mother were too afraid that he was at Tr. 652.
He went back to schoo] but things did not improve and i and Po suggested a BOCES art program. Tr. 645. The Parents felt that going back to a full time experience at would be too much for him. Tr. 655. The BOCES program was not, however, a special education program; it was a vocational education program. Tr. 655. They went and met with the head of the program, however, they were concerned that there was no psychologist on staff and he was still fragile to be in a program without support. In addition, the head of the school advised them that he should keep the fact that he was i to himself or the other kids would treat him badly. The Parents found this disconcerting so started looking at other schools. Tr. 657.
The Parent did research on the internet and found and she reached out toll WE who did due diligence and determined that this would be appropriate fol. Tr. 658. WH. made clear that on a social level he felt completely ostracized at | Tr. 650. The class environment was difficult for him because he would think EE and fee! overwhelmed. Tr. 659. Everyone knew that. could not continue at which is why BOCES was recommended. Tr. 660. The school felt that BOCES would be getting into a new environment and out of an environment that was hurtful to him.
The Parent testified that when was evaluating I, | helpful in obtaining the transcripts that required. Tr. 660. No one at {EE suggested that they initiate a process leading to an evaluation and referral. Tr. 661. The Parent testified that she never knew that an J disability would qualify for special education. Tr. 661.
The Parent testified that she was never told about interventions the schoo] was attempting with, other than having the guidance office as a time out place if he needed to leave the classroom. Tr. 662. The Parent hired a tutor to help him catch up to ensure that he got class credit. Tr. 663. She was not aware of the District collecting any data for her son. Tr. 663. The Parents eventually unilaterally placed Il at MM after giving them three weeks’ notice. Tr. 664. In response to this, no one spoke to her about a referral to the CSE. Tr. 664.
The Parent testified thai started at i he first week in April of his sophomore year. Tr. 665. The first thing they noticed about after he transferred to as... that he was eager to go to school. Tr. 666. In addition, because of the level of supervision on task setting and execution and homework monitoring 7 he was on task and wasn’t falling behind. Tr. 666.
There was some difficulty adjusting initially in terms ofinterpersonal behaviors that were not appropriate andl faculty had to cal] him on these behaviors. Tr. 667. In terms of the classes, they were smal] andl was in an environment where he was with other smart WEE kids who talked about their issues. Tr. 667. He was fully engaged in his classwork, was participating and doing the work. Tr. 667. In addition, over time, he made friends and was considered by his peers and the school as an artistically gifted student and got involved in schoo] projects. Tr. 668. The Parent testified that she concurred with RE s opinion that since he was failing and was genuinely at risk. Tr. 669. needed a change from On cross examination, the Parent testified that prior td transitioning to the high school, the Parent does not recall] having a discussion with the school about the BE program. Yr. 672. She said she was shocked to hear about the program at the JEP meeting. Tr. 673. She said she didn’t know the program existed until il was at HB was not recommended for thelJprogram until October 2011. Tr. 676. The recommendation for GE, twin sister was made after this. Tr. 676. The Parent stated that she told the District fl was admitted to EEE before they had a start date and the District was on notice that they were seeking admission. Tr. 678.
The last witness was i. the father. The father testified that when. transferred to the i provided them with information on special education and FAPE and gave them a list of special education attorneys. Tr. 686. They chose one and wrote a letter to New York City to have their child evaluated. Tr. 686. First, they were evaluated by a social worker and then mm 0Uti‘ COéC‘* a psychologist. A CSE meeting was held in July and al} the materials submitted were discussed including transcripts, test results, evaluation, etc. The CSE classified fl with an RR but did not give him a placement. The CSE advised the Parents to go back tol since that is where they reside. Tr. 686. The attorney they were dealing with stated that he thought they livedinNew York City, not P| and he was apologetic. Tr. 687. The father stated that he was upset that he was misguided and then called Mr. ae : office. Tr. 688.
The Parent stated that they received an IESP from New York City which provided services toll but no placement. Tr. 688. Within a couple of days of receiving the IESP, the father sent a fax to at BE specifically requesting that they evaluate Tr. cxisted whilel). was at JT. 699. The next
689. He never knew EEE morning, he received a call fon When he told her that MM. was at QI she advised him that he needed to go to New York City for an IEP. Tr. 689. He asked her to send him the authority that she had with respect to this. Tr. 689. When he called the following day (August 3, 2011) she stated that she spoke to someone and this could be viewed as a situation where there is concurrent jurisdiction and she would send him a package. Tr. 690.
The IEP meeting in ook place on October 13, 2011. Prior to the meeting, they had an interview wih iii an educational evaluator for the District and [i pO who met with them three times. Therefore, GE conducted their own evaluations and they used the ones that were done by the DOE. Tr. 693. At the CSE meeting, BEE a representative from was also present. Tr. 693. In addition, they had a letter from the |. EE and the MJ was available by telephone. At the CSE meeting, RY spoke for several minutes abou and stated that he had been EE; EE since 2009 and that ff was doing well in his current environment and would be concerned forfl’s if it changed. Tr. 694. The letter from Mas received by the Parent the night before the meeting. D-20. When the mother tried to give it to Po at the CSE meeting, she indicated that it was too late and wouldn’t consider it. The father testified that his wife proceeded to read the letter to the committee and then Po accepted the letter at the meeting. Tr. 695. The father testified that the opinion from the P| P| professionals dealing with was that naa a very negative influence on ii” and that sR 1 dicated, he would be concerned for his] if he went back to GE 11. 696; Tr. 406. At the meeting IE mentioned the Ibut that _ was for kids who did not have high cognitive functioning. Other than that, the CSE did not discuss any placements for il. other than returning him tof Tr. 696. At the meeting, the Parents expressed to the committee thatlJ needed a placement with small classes and close advising because he needed an environment where he could feel safe and secure. Tr. 697. He stated that had the CSE offered anything other than a return mE they would have been open to investigate it. Tr. 698.
The father testified that he received the IEP approximately six weeks after the October 13, 2011 CSE meeting. Tr. 699. He then sent a letter on December 6, 201} i advising them that they were keeping their son | and seeking reimbursement. Tr. 699.
In March of 2012, they signed consent forms to have their daughter evaluated for special education. Tr. 700. In April, they received a notification that there would be a CSE meeting on May 15. They had agreed in advance that their daughter would be offered the GE program asa placement. Tr. 700. On June 4" they signed the consent for her to participate in the program.
Tr. 70]. This was done prior to placement fori ror his semior year. The first CSE meeting for for the 2012-13 school year took place on May 14" and then the second meeting where placement was discussed took place on June 11". Tr. 702. Pe 2: aware that the relationship between and his sister was not a good one and that it was an J rigger for him. Tr. 702. ~ » tot , With respect to the 2012-13 school year, the] professionals working with MM had the same concerns for iil with respect to his placement that they had in his junior year. Tr. 702. They knew that ]iiiwas not a GB place om | Al, iii! prepared another letter that was presented and the Parents expressed their disagreement with thd program. Tr. 703. The father stated that no one brought up the sibling issues; that went unexplained. Tr. 703. No other options were presented by the CSE except the GE program. Tr. 704. The Parents told the CSE at the meeting that theliffbrogram was inappropriate and sent a letter following the meeting advising the committee that it was not an appropriate recommendation forliifl and that they would be seeking reimbursement. Tr. 704; P-P.
The father testified that from his son’s initiation at | to the time he graduated «he made progress in that he was eager to go to school, he engaged in his classes, and was engaged in peer relationships. He developed some level of organization and continued to work at it. Tr. 706. In addition, his grades improved. Based on the contracts, it appears that the 2011-12 school year tuition was Sand the 2012-13 tuition was Sa.
‘ '
On cross examination, the father testified that during his initial conversat ion with a P| in August 2011, she never mentioned the terms “district of residence” and “district of location” nor did she mention that he had gone through the CSE process in New York City. Tr. 708 — 709. He did, however, provide the CSE with the materials from the New York City CSE meeting in early October. Tr. 709. The father testified that wh er told him he needed to get an JEP from the DOE, he thought that she was lying to him and not cooperat ing since he had already gone through the whole process and was advised that ii ceded to give him the placement. Tr. 716. He stated that he believed tha iiwas lying when they said it was not their responsibility to evaluate . 4G t
Findings
Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed 1o meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009], Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982)).
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme court in Schoo! Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent's claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005}). Issue 1 — Appropriateness of Distnct Program
The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the nights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07, Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009}; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381(2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision ofa FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. $1415[f][3][E] [ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4] [i]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010); E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff'd 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
A schoo] district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, schoo} 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; Walezak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and _..affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 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). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][S][A]; 34 CFR 300.114[a]f2][i], 300.116[a][2];8 NYCRR 200.1 [cc], 200.6{a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walezak, 142 F.3d at 132;_E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008}).
An appropriate education begins with an JEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320{a][1]; 8 NYCRR 200.4[d)[2][1]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annua] goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4{d][2][in]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application ofa Child with a Disability, Appeal No. 04-046; Application ofa Child with a Disability, Appeal No. 02-014; Application ofa Child with a Disability, Appeal No. 01-095, Application of a Child Suspected of Having a Disability, Appeal No.93-9).
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).
The first issue that must be considered is the Parents’ position that the CSE should have classified the student as a student with a disability and that the District violated its “child find obligations.” For the reasons set forth below, I find that the District did violate its “child find” obligations by not referring to the CSE.
The purpose of the “child find” provisions of the IDEA are to identify, locate, and evaluate those students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 436 F.3D 52m 65 [2d Cir. 2006] [holding that the purpose behind the “child find” provisions is to locate children with disabilities who are eligible for special education services who might otherwise go undetected]; see also 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111: 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C-F_R. § 300.11 1[a]{1][i]; 8 NYCRR 200.2[a][7]; New Palz Cent. Sch, Dist. v. St. Pierre, 307 F. Supp.2d 394, 400, n.13 [N.D.N.Y. 2004]) The “child find” requirement applies to “children who are suspected of being a child with a disability...and in need of special education, even though they are advancing from grade to grade” (34 C.F.R. § 300.1 1[c][1]; 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application ofa Student Suspected of Having a Disability, Appeal No. 09-132; Application ofa Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090)
The District violated its child find obligations by failing to refer the Student to a: CSE, and therefore denied the child a FAPE.’ The District’s child find duty was triggered during the 2010-11 school year, although there were reasons to suspect that this child had a disability prior to that ime was on notice that the Student had a history of J, was in the eighth grade on two separate occasions, was receiving failing grades at that time, was cutting classes and Jeaving campus, and even received a notification that his promotion was in jeopardy. Tr. 635. Before the Student even started ninth grade, they put the school on notice of his See cool Tr.316. Although a that at that time she suggested th program, she stated that she never told the Parents that it was a special education program and that the child needed to be referred to the CSE to access the program. In this regard, I credit the testimony of the Parents that nothing was implemented as a result of their discussion about his history and struggles and that, in fact, the mother specifically stated that she did not recal] having a discussion about the program and she was shocked to hear about the program at the October 2011 IEP meeting. Tr. 673. Even in ninth grade, the child had behavioral issues that required suspension for at least a week and they made the school aware offis of IEE and how missing school might trigger school avoidance and (J but he was removed from school anyway and no efforts were made to determine whether he needed additional support. Tr. 639.
Based on the hearing record, was clearly struggling in tenth grade (2010-11) and the District should have suspected that this child was a child with a disability and in need of special education. Even if he hadn’t been referred to the CSE before the 2010-11 school year, he should have been referred during that year. During the first half of the school year, the child was two times in October and December and was doing poorly in school, was failing some of his classes, and was cutting classes. He was spending time in the guidance office and was not interacting with his — lO his academic decline as “a fallout from his second |.” Tr. 250-251. The school allowed him to drop Spanish, which he was failing, after giving him a difficult time, and then having him sign an agreementas to what he would do with his free period. D-43. The Parents reached out to the guidance counselor on * It is understood that the Due Process complaint is referencing FAPE for the 2011-12 and 2012-13 school years only and is not addressing the 2010-11 school year, however, unlike child find issues where a child was not in the District was a. neon the 2010-11 school year immediately prior to the time he should have been classified for the 2011-12 school year and as well aware that he was in need of evaluation and suspected of being a child with a disability. January 24" by email to try and meet with her and discuss his poor performance and see what options were available to him. D-44 (page ) Ei testified that there was a discussion at that time about changing his program and they discussed having iil go to BOCES for halfa day for the art program or going to the alternative high school BOCES program which was a full a testified that this was considered for J} because he wasn’t connecting at Mand he was not doing well. Tr. 173 }even indicated in an emai] that she spoke to someone from BOCES and he suggested that Il. consider the morning class because it is smaller than the afternoon class . D-44 (page 46). The Parent also indicated that she planned a visit to the school and ‘was encouraged that he did not seem put off by i ia Po history...” D-44 (page 47). After visiting BOCES, the Parents indicated that they didn’t think it would meet | & needs because there is nM on staff and the one social worker services 500 plus students and the social worker advised [IM not to tell the other students about his MM challenges. The Parents felt that without additiona | support at BOCES, Ii would flounder academically. D-44 (page 50). This should have put a... notice that he needed a different program with special education supports. Even ‘testified that in addition to his academic challenges there were a lot of social issues that were triggering his and she felt that he needed _a different setting. Tr. 253. Accordingly, based on the testimony of and he would not be able to receive academic benefit without special education supports to deal with all of his issues at this time.
If he hadn’t been referred prior to this TE testified that she had a meeting with in late March and they determined that it would be appropriate to refer | | at this time because of the “educational impact”. Tr. 96. In this regard _ indicated to [MM that his grades were declining, there were behavioral issues (taking a WE(0 school and taking an inappropriate photograph), sporadic attendance, cutting of classes and leaving school without permission and a failure to complete school work and homework. Tr. 92-98. The fact that he left in the beginning of April didn’t abrogate their responsibility under child find. Therefore, even though the Parent indicated in an email in early May that. was doing better, EE s responsibility to refer a child suspected of having a disability under child find should not have terminated here. It is clear that givenllillls prior academic history, his EE. bis school avoidance and disciplinary actions, failing classes, the Parents had sufficient reason to suspect that this was a child with a disability.
Specifically, the purpose of the ‘child find” provisions of the IDEA are to identify, locate, and evaluate those students who are suspected of being a student with a disability. The District makes the argument tha fi s presentation during the 2010-11 school year did not obligate the school district to refer him. They refer to the definition of an [I and argue that did not meet the definition ofa child with an iS during the time period in questions. A student with an RRmust meet one or more of the following five characteristics: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances, 4} (D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(34 C-F.R. § 300.8[c][4]; see 8 NYCRR 200.1[zz][4]). Additionally, the student must exhibit one or more of the five characteristics over a long period of time and to a marked degree that adversely affects the student’s educational performance (see N.C. v. Bedford Cent. Sch. Dist., 2008 WL 4874535 [2d Cir. Nov. 12, 2008]; see also Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282 [S.D.N.Y. 2010]; A.J. v. Bd . of Educ., 679 F. Supp. 2d 299[E.D.N.Y. 2010)).
The District concedes that the child had difficulties but that he did not exhibit the characteristics set forth above in the academic setting to a marked degree or for a prolonged period of time such that it adversely affected his educational performance. IHO-I. Contrary to their argument, it is clear from the hearing record that the student was experiencing all five characteristics over a prolonged time and they clearly adversel affects educational performance. Specifically, testified tha ill’ state was inextricably linked to his academic performance. Tr. 358 In addition to all the testimony in the hearing record regarding his issues since the 2008-09 school year and their effect on his educational performance, at the CSE meeting in October 2011, the CSE in lassified him as EE 11 is also noteworthy that the DOE classified him as disturbed in July 201]. MM testified that if they thought [J was not emotionally WEE, they could have changed his classification or declassified him at the October 2011 CSE meeting, but they did not, thereby agreeing that this was occurring over a prolonged period of time and was affecting his educational performance.
With respect to the District’s assertion that they were using RT] during the 2010-11 scho ar and they weren’t going to make a referral until they attempted to use RT] and saw vow esponded to it, ] credit the testimony of the Parents that they were never made aware that RTI was being done and the only interventions they were made aware of was that he was allowed to sit in the guidance office when he felt like he wanted to Jeave school or when he needed to catch up on his work. There is no testimony from anyone in the school district as to what specific intervention were being used nor was there any data as to how Mi was responding. | credit the testimony a that the purpose of RT] is to identify students at risk for poor learning outcomes, monitor student progress, provide evidence based interventions, and adjust the intensity and nature of these interventions depending on a student’s responsiveness, and that this was not done with respect ofl She also stated that when you start with RT] you are talking about preventing difficulties and if a child lik is referred to an outside facility, this is a serious situation that requires direct referral. Tr. 604.
The school district’s obligation under child find did not end after fs Parents unilaterally placed him out of the district. The Parents placed their child out of the District because they weren’t provided with options in the District. At no point did the District refer the Student to the CSE or even to CBST. In fact, the Parent testified that ii was helpful in providing with the documentation they required for§’s admission. Tr. 660. During this process they stated that no one suggested that they initiate a process Jeading to an evaluation and a referral to the CSE even though they were applying | but they were advised by continue at i. their EM professionals that it would not be I for Hil to an 661; Tr. 696. The father testified that attorney and based on his advised them to get recommendation, the Parents referred the child for special education in New York City. When the DOE would not provide a placemen t, he went x Oe get a referral. His actions into the getting an IESP were based on his lack of knowled ge of the process. The father went back CSE inl because he wanted a placement and was open to explore programs . Tr. 697-698.
In an interpretive guidance memorandum published by New York State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities (“VESID”) which memorandum is entitled “Chapter 378 of the Laws of 2007-Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities in Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c” and which is dated September 2007 (“VESID Guidance Memorandum”, VESID informed school districts of their responsibilities to provide special education services to students with disabilities who are enrolled in nonpublic elementary or secondary schools by their parents. In the Question and Answer section of the VESID Guidance Memorandum under the heading “Provision of Services”, the following question and answer appears:
“12. Must the district of residence develop an JEP for a student who is parentally placed and conduct annual reviews of this IEP?
USED [United States Education Department] has provided guidance that states “If a determination is made through the child find process by the LEA (local education agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private elementary or secondary school located in another LEA, the LEA where the child resides needs not make FAPE available to the child.” Therefore, if the parent makes clear their intention to keep their child enrolled in the nonpublic elementary or secondary school, the district of residence need not develop or annually review an IEP for the student.”” VESID Guidance Memorandum at p. 12.
In the instant matter, the Parents sought a private placement since they did not know that there were any other options in the District. The record is clear that the Parents were forthcoming and cooperative in their communications with the District and would have considered other options besides a private placement. | credit the Parents testimony in this regard. The Parents were never informed of their right to ask for a referral to the CSE and didn’t know that they could. They did not even know that an disability would qualify for special education. Tr. 661. They also did not know the difference between an JEP and an JESP and they were acting under the mistaken advice of counsel who thought that the parties resided in New York City. Tr. 687. Once they realized that they were not going to get a placement from the DOE, they asked fora referral to the EP SE immediately. Therefore, based on the forepoing, A vas still obligated to develop an JEP fo
The next issue to consider is whether the District provided with FAPE for the 2011-
12 and the 2012-13 school years. Substantively, ] have reviewed all of the testimonial and documentary evidencein this matter and believe that EM did not meet its burden to show that the placement for the 201 1-12 and placement for the 2012-13 school year was appropnate nor that it would confer meaningful academic benefit t
With respect to the 2011-12 school year, the IEP dated October 13, 2011, provided the Student with the following special education program at ]. Consultant Teacher Services GEE 223 1e/Regenis), Indirect, one time daily, five hours and 15 minutes;
2. Resource Room Program, 5:1, one time daily, 40 minutes; and
3. ae. 1:1, one time in a six day cycle, 30 minutes. D-23.
The proposed program would place him in general education classes at a which he failed at during his previous year. Although it says “consultant teacher“ for five hours and 15 minutes, he would not be taking his classesin the program but would take his classes with the other general education students. Tr. 111. He could, however, leave his general education class and access thellllllff teacher or assistant if he had an issue or crisis and if_need be, he could access the psychologist. Tr. 120. He also would spend one period of dayin the I room for resource room. indicated that the program is for students who have average or above average cognitive ability. Tr. 175 EE indicated that she is not in the mainstream classes with the student but she is responsible for consulting with the teachers. Tr. 340. She also said that resource room is the designated time when the students are in their home base and can make contact and go over assignments the student is working on, etc. Tr. 391.
] credit the testimony of the Parent with respect to the discussion regarding placement at the CSE meeting. The Parent testified that at the meeting spoke for several minutes about and stated that he had been fi s psychiatrist since 2009 and that i. was doing wellin his current environment and would be concerned for Mis safety if itchanged. Tr. 694. A letter was introduced fror i, Es; long term psychologist and i therapist that stated that “Changing schools from MHS pee in the Spring of 2011] hada powerful effect on is) mood and behavior. [ j reported feeling alienated and perceived as the iT at Hs after fii. Transferring to a new school offered a ‘new beginning” which induced hope and optimism. Smaller classes with new peers afforded Gan opportunity to learn without carrying the [EE baggage he had at | yl D-
20. The father testified that the opinion from the professionals dealing with was tha had a very negative influence onl and that po was not equipped to appropriately manage his needs within Rg High Schoo} and the program. Specifically, at the hearing ME testified to his familiarity with theif program and indicated that it was not appropriate fo fii and would not provide him with the support he required. Tr. 477. At the meeting, I mentioned the PT but that was for kids who did not have high cognitive functioning. Other than that, the CSE did not discuss any placements for ME other than returning him tof Tr. 696. At the meeting, the Parents expressed to the committee that lll needed a placement with small classes and close advising because he needed an environment where he could feel safe and secure. Tr. 697. es. provided input at the meeting regarding his need for a small therapeutic environment, as did po It appears that the District failed to consider the input from the Parents, the Student’s treating ii, a O° | making their determination. In fact, based upon the hearing record, Re: ae that he needed a different setting other than [Mas far back as February 2011 and that the social issues at I were a significant trigger for his ee sr. 253. Po testified at the hearing that she believed,” as did the CSE”, that he would have been “very successful” HEM given the right interventions. Under the circumstance of her lack of knowledge of the child, which she has made clear throughout her testimony, it puts her competency as a witness in this circumstance at issue. Therefore, ] do not credit her testimony in this regard. All of the other participants at the CSE meeting indicated that the setting played a role in his EEE which causing him not to be able to access his learning. Therefore, their placement of || at [BB nder the circumstances, placing him in the same classes he was in when he was a student there, was contraindicated. }t is clear from the testimony of the witnesses that it is both the whole framework of the Program and the BE setting that are inappropriate foliiffland do not provide him with FAPE .
The present levels of performance on the IEP do not accurately reflect the Student’s behaviors and how his social/emotional issues and his negatively impact his ability to access learning. The social, emotional and behavioral goals on the IEP do not specifically address impulsivity RE anxiety or frustration and there are no specific JE goals listed. Nor are there management needs dealing with these issues. It should be noted that the insufficiency of the goals and strategies on the JEP did not afford WE a sufficient likelihood of progress to satisfy IDEA’s substantive requirements. In addition, there is no plan of action for crisis management, should the Student’s and low frustration level surface during the school day. There was no indication on the IEP that the Student was taking medication and this clearly should have been on the IEP. Pelham did not conduct a classroom observation on anytime while he was a Based on the foregoing, the October 13, 201] JEP does not provide the Student with FAPE and it is not designed to meet es individualized needs and provide him with sufficient support to benefit educationally from the instruction.
With respect to the 2012-13 school year, there were two CSE meetings, one on May 14, 2012 and the second on June 11, 2012. The recommendation on the June JEP was almost identical to the recommendation on the October 2011 JEP except that the Student was provided with an additional 30 minute session Oe —— a 30 minute group session per six day cycle. He was still recommended for the program where he would be in general education classes and have a period of resource room per day. This again was in opposition to the input of all a that were working witHat the time as well as the professionals again wrote a letter to the CSE dated May 9, 2012 which stated as follows: “Returning (MMMM] to a Jarge general education setting even if structured as “consultant teacher services indirect” as described on page 8 of GE s| JEP, at this point seems contraindicated. He has finally had a period of stability. He is gaining self confidence. He is developing friendships, he’s experiencing a sense of mastery on various academic subjects. All this could be jeopardized if we deprive him of an appropriate small and nurturing placement.” — specifically stated in his testimony that the ee ..: attempts were intrinsically linked to school and social status. Tr.
473. Ever, testified that the Parents were “legitimately” concerned that bringing WE back tol based on his significant history could trigger a Tr. 295. SS }is EE stated that has always been a problem for and it was a big issue in his Ir. 459. When asked whether the medication had an impact a i GE said that he was taking the same medication that he had since his firs iii before he transferred schools and that being in a good environment and feeling safe is what is important. Tr. 462. 1 credit the testimony of the father that no other placements were considered by the CSE despite the opinions of the IEEE professionals and the a sat.
It has been established that there are eight to ten students in the Gr ogram and that, in addition to their resource room period, the students can go to the J room during other periods (even if resource room is going on in that room). It has also been established that a.thesister two was in thd program for the 2012-13 school year and that the relationship between siblings had been contentious and was an emotional trigger for Tr. 702. Both ae WE ere-aware of the relationship between the siblings. In this unique circumstance, this issue should have been addressed at the CSE meeting.
In addition to the foregoing, the goals on 2012-13 IEP were exactly the same as the goals on the IEP for the year before and only the criteria were increased for several of the goals and no additional ones were added as a result of the addition of group and individual JE sessions. D-23; D-39. The goals do not respond to many offs specific deficits including organizational and executive functioning issues, and with respect to social/emotional/ behavioral issues. There are no goals and management needs that appropnately address his] frustration, anxiety, and impulsivity. D-1. It should also be noted that the insufficiency of the goals and strategies on the JEP did not afford | | a sufficient likelihood of progress to satisfy IDEA’a substantive requirements. Again, there is no plan of action for crisis management, should the Student’ Mj and low frustration level surface during the school day. There was no indication on the JEP that the Student was taking medication and this clearly should have been on the IEP this year as well. Based on the foregoing, the June 11, 2012 IEP does not provide the Student with FAPE and it is not designed to meet a; individualized needs and provide him with sufficient support to benefit educationally from the instruction.
Therefore, for all the foregoing reasons I find that the District did not satisfy its requirement to prove prong one and FAPE was not provided oil for the 2011-12 and 2012-13 school years.
Issue 2 — Appropriateness of Parent Placement
Under the second prong of Burlington, the Parents bearthe burden of proving the appropriateness of the Parents’ unilateral placement off. at | In order to meet that burden, the Parents must show that BE oer an educational program designed to meet WEs special education needs. Burlington, 471 U.S. at 370: M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement...” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, $22[6" Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”).
The Parents have met their burden in showing tha as an appropriate placement for WE for the 2011-12 and 2012-13 school years. In order to meet their burden, the Parents must show that iJ offered an educational program that enabled the child to receive educational benefit. was described as a college preparatory schoo] within a therapeutic milieu. the director of J stated that the school was for students who are generally bright but due tol reasons are having difficulty excelling. Tr. 503. She stated that the school “focuses on trying to help kids actualize their potential and repair a lot of the situations they’ve experienced in different school settings in order to function better. Tr.
503. There are approximately 70 students in grades seven through twelve, with only six being in the seventh and eight grade. Tr. 504. Ninety-five percent of the students go to college. There are a total of twenty-four in staff and they receive constant mentorship and training from the director of studies and herself. Tr. 517. uses an advisory system where all students are assigned an advisor who is a teacher, and play a significant role in helping and guiding the students. Tr. 504. Advisors meet with students a minimum of three times a day and assist in all aspects ofa child’s functioning. Tr. 511-514. According to [RR] Ip ires teachers with a minimum of five years experience and looks for teachers with specific skills in terms of their teaching abilities and also psychologically minded teachers who see the value in individualizing academics and being sensitive and attuned to adolescent needs and the tumultuous states of some of the students at times. Tr. 515. The typical class size at [J consists of six to eight students and one teacher. Tr. 528. The students also have access to i! HE professionals throughout the day to manage feelings they may have. Tr. 512. Specifically, with respect to they had pager access to case they needed him at any time during the day.
EE is familiar with MM and has been specifically involved in his academic and WE functioning in school. Tr. 516-518. She stated that when I first came to he was doing poorly in school because of his preoccupations with sadness and feelings of incompetency. He didn’t see himself as a learner and didn’t see himself as able to master anything and was not able to concentrate on his academics. Tr. 529. Therefore, it was his preoccupations, his social issues, his inability to focus and shift from his overwhelmin state, that was interfering with his ability to progress in alearning. Tr. 529. a felt i was therapeutic and caters to students with high intellect like GB and that, at “MB was able to have the behaviors, socially andjtempered and also controlled and managed, so that his academics and social-emotional functioning could thrive.” Tr. 533
GRsas stated that she has seen a tremendous change in GM from the Spring of 2011 until his graduation in June 2013. She stated that he has grown tremendously and has developed his self esteem, his self confidence, and has developed as a learner, and as a result his grades have increased. Tr. 526. She has further seen a change from the 2011-12 school year to the 2012-13 school year, especially in his social and interpersonal skills. Tr. 552. She indicated that for it was “The right academic fit, the right school, the nght place where he could get therapeutic support and also that honors his intellect.” Tr. 532.She stated that he still had struggles his senior year, but through the program and his advisor, things solidified such that he was in a better place socially, emotionally, with his anxiety and {RM and academically. Tr. 524-525. Es progress reports from the 2011-12 school years clearly establish his progress. PT; P-U; P-V;P-W; P-X; D-3;D-4;D-26;D-28;D-32. Dr. felt thats social and WEE oecds significantly affected his academics and that that he attributes the move from | PF and the smal] classroom setting and therapeutic and supportive environment as the most important criteria in his improvemént. Tr. 477; Tr. 496. He felt that the daily EE support, nurturing, checking in, and having other kids who were in a similar situation helped greatly as well. Tr. 13) EE os stated that he was thriving at was not a good setting fo iii Tr. 457-461. Both of his Parents EE 20d that MBE noted the tremendous progress he made in his eagerness to go to school, his engagement in his classes and in peer relationships and his success. Tr. 706: Tr. 667.
Based on the foregoing, it is clear that i was providing with educational instruction designed to meet his unique needs and he was benefitting from the instruction. Therefore, I find that the Parents have met their burden in proving the appropriateness of P| for for the 2011-12 and 2012-13 school years.
Issue 3 — Equitable Considerations
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted. cS
The IDEA provides that an award oftuition reimbursement may be reduced or denied if notwithstanding they’re being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C)Q)). testified that the Parents were cooperative with the District with regard to responding to evaluations and requests for sign-offs or provision of information. Tr. 101-102 . oth to their cooperation and their involve a: a also testifiee dcounsel ment or during a : entire time at with both the school psychologist and the guidanc
The hearing record demonstrates that the Parents acted reasonably and cooperated with the District in the development of the IEPs for the 2011-12 and 2012-13 school years. They attended all CSE meetings and provided the District with all information requested.
With respect to the 2011-12 school year, an JEP was developed on October 13, 2011, and according to the Parent, they did not receive a copy of the IEP until November 26, 2011. I credit the testimony of the Parents that they had indicated their rejection of the placement at the October 13" CSE meeting and their intention to keep] at IEEEfor the 2011-12 school year at that time. Tr. 697-698. In addition, on December 6, 2011, the Parents sent a letter to the District advising them that based on the failure of the placement and the JEP to addresss needs, they would be rejecting the placement and seeking reimbursement forlls tuition at WE© the 2011-12 school year. D-27.
With respect to the IEP developed for the 2012-13 school year, an IEP was developed as a result of two CSE meetings held on May 14, 2012 and June 11, 2012.1] credit the testimony of the Parents that they had indicated their rejection of the placement at the June |] 1" CSE meeting and their intention to keep at ae the 2012-13 school year. Tr. 704. In addition, on September 21, 2012, the Parents sent a Jetter to the District advising them that based on the failure of the placement and the IEP to address | needs, they would be rejecting the placement and seeking reimbursement for Es tuition yO for the 2012-13 school year. P-P
One issue which was raised at the hearing with respect to the Parent’s cooperation dealt with the fact that the Parents did not provide with the IESP and the testing from from the DOE until the beginning of October. was not aware of the testing done by the DOE until she began her testing in September of 201). testified that although it would have been helpful if she had had the prior testing trom before her testing, she never asked for it. Tr. 101-102. Based upon the father’s testimony, after all that they had been through with the NYC DOE and not receiving a placement, and never receiving a referral from, the father was understandably skeptical about sharing the IESP and underlying documents initially with a. It is clear however, that all of the evaluations and documents were turned over prior to the October 13" CSE meeting so that they could be reviewed at the meeting. Accordingly, based on equitable considerations, their failure to advise | the psychoeducational testing prior to the beginning ofii HE (esting would not cause me to rule against the Parents or reduce their award for tuition reimbursement.
As aresult of the foregoing, and based upon their actions in terms of equitable considerations, } find that the Parents cooperated with the District and analysis of equitable considerations offers not basis to rule against them.
Based upon the foregoing, I find that the District did not provide FAPE to for the 2011-12 school year and 2012-13 school year (Prong 1); the program at was appropriate for the 2011-12 school year and for the 2012 -13 school year (Prong 2); and equitable considerations support the Parents claims (Prong 3). Accordingly, the Parents are entitled to tuition reimbursement for the 2011-12 and 2012-13 school years at
ORDER
Based upon the foregoing, it is hereby
ORDERED, that the District shall, upon submission of the Parents of proof of payment of i ;a the 2011-12 and 2012-13 school years, and proof of Ss attendance at for said years, reimburse the Parents for the tuition a for the 2011-12 school year in a sum not to exceed dollars, and for the 2012-13 school year, in a sum not to exceed dollars.
Dated: May 5, 2014
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“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.” (8 NYCRR 279.2[b]). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
Appendix A Evidence
Parent Exhibits
No. Date Document Pages
Registration Contract 2011-12 ]
B undated Pe
2011-12 Class Schedule l
Attendance Record !
Registration Contract ]
2012-13 Class Schedule ]
Attendance Record ]
G. misc. dates Copies of Cancelled Checks & Bank Statements 10
H. 3/21/2011 CSE Referral Letter to NYC DoE ].* 2/16/2011 Letter from ne PsyD o i:
10/7/2012 ee Assessment 12
3/3/2011 E-mail Correspondence between and P|
3/29/2011 E-mail Correspondence between li and |
3/14/2071] E-mail Correspondence between and f
2/17/2011 E-mail Correspondence between Mill anc
11/28/2011 IEP w/Envelope Postmarked
P. 9/23/20} 2
Q. undated Signed Permission for Release of Records
R. undated Drawing
*Marked for Identification 6/12/2013 eS| 21 s<5p:
6/2012 po
Education Evaluation
Educational Evaluation
Educational Evaluation
Educational Evaluation
Educational Evaluation
FS undated | District Exhibits
No. Date Document Pages ]. 6/24/2013 Request for Due Process 12
2 1/7/2011 Immunization Record ]
3 2010-2011 BE| 52h Schoo! Progress Report and Report Card 2
Education Evaluations 6
5. 4/5/2011 Secondary Schoo] Record |
6. 6/4/2011 Social] History 4
7, 6/25/2011) BENE cucationa Evaluation 7
8. 9/8/201 | IESP — Implementation Date 8
9. 8/1/2011 Referral to CSE ]
10. 8/5/20] ) Prior Written Notice 2
V1. 8/6/20) | Consent for Initial Evaluation 2 No. Date Document Pages
12. 9/8/2011 Education Evaluation 5
}3. 10/3/2011 Social and Developmental History 5
14, 10/8/2011 BE |.21v2:i0n 10
1S. 9/22/2011) Meeting Notice, 2
16. 9/28/2011 Meeting Notice [2]
17. 10/5/2011 Fax Cover Sheet that Transmitted D-6, D-7 and D-8 ]
18. 10/7/20) ) Meeting Notice l
19. 10/11/2011 Fax Cover Sheet J
20. 10/11/2011 Letter from No. Date Document Pages
24. 10/13/2011 Prior Written Notice 2
25. 11/7/2011 Notice of Board of Education Review j
26. November 2011 Be Educational Evaluations 6
27. 12/6/2011 Letter from Parents ]
28. January 2012 Pe Educational Evaluations 6
29. 2/13/2012 E-mail with attached letter 2
30. 2/15/2012 E-mail from SR
3] 4/5/2012 Meeting Notice 2
Educational Evaluations 6 33 5/9/2012 Lever from
34. 5/14/2012 Committee Information and Attendance Sheet j No. Date Document Pages
35. May 2012 Meeting Notice 2
36. §/14/2012 JEP }]
37. 6/4/2012 Meeting Notice 2
38. 6/11/2012 Committee Information and Attendance Sheet J
39. 6/11/2012 TEP im
40. 6/11/2012 Pnor Written Notice 2
Al, 7/26/2012 Notice of Board of Education Review ]
42. 2010-2011 Student Clinical Chart 6
43, 2/17/2011 Student Agreement !
44, misc. dates E-mails 57 Impartial Hearing Officer's Exhibits No. Date Document Pages
I. misc. dates Compliance Decisions 8
If. 2/10/2014 Parents’ Closing Bnef 32
Vil. 2/10/2014 District's Closing Statement 3]
Footnotes
[2] 10/13/2011 Evaluation Checklist ] 22. 10/13/2011] Committee Information and Attendance Sheet ] 23 10/13/2011 IEP 1]