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IMPARTIAL FORMAL HEARING PURSUANT TO
EDUCATIONAL LAW SECTION 4404(1) AND
COMMISSIONER OF EDUCATION REGULATION
SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,
IMPARTIAL HEARING OFFICER
In the Matter of the Complaint of DECISION Of the Parent of a Student with a Disability Against the XXXXXXXXXXXX
CASE IDENTIFIER NO
PROCEDURAL POSTURE
This Impartial Hearing officer was appointed to preside over this proceeding on September 20, 2013 effective September 26, 2013. This Hearing Officer initiated the Hearing Process by issuing a scheduling order and follow-up Pre-Hearing Conference and that resulted in a scheduling of Hearing dates. In all 5 days Hearings took place. The extensions granted herein are marked as IHO Exhibit 1, during the course of the Hearing the following exhibits were admitted: District’s Evidence: 1-82, Parent’s Evidence: A-N. The following witnesses testified: . (the student) , , the mother, and the following rebuttal witnesses . In addition both parties submitted briefs and supplemental briefs.
SUMMARY OF TESTIMONY
The district’s first witness was the CSE Chairperson for the intermediary schools which houses the 5th and 6th grades, and BOCES. She has a BS Speech Pathology Audiology, MS in Special Education, Certified in Advanced Studies, Certified Teacher of Speech and Hearing Impaired and Special Education grades K-12. The witness has been with the district for approximately 12 years T10, has been CSE Chairperson for the past 5 years, she is familiar with the student, having chaired the CSE Meeting creating the March 2013 IEP’s, which are the challenged IEP’s. It recommended services for March 2013 through the end of the 2012-2013 school year and for the upcoming 2013-2014 school year, the parent agreed to the recommended IEPs at the end of the CSE Meeting, then the district received the Due Process Hearing request, alleging bullying. The district witness is the CSE Chairperson, her responsibilities includes supervising special education services K-12, and her experience includes PCSE, speech language, and sat on the LRE committee. She has been with the district for 12 years and has been a CSE Chair for the past 5, she chaired the student’s CSE meetings, provided educational services, and she reviewed his prior IEPs including pre-school through 4. The student was in the 3rd grade in a BF, was home schooled and was transferred to the district in April 2011. The transfer review re-evaluation and IEP developed in June 2011 at the end of the 3rd grade school year T12, the student was receiving based on the prior IEP 15:1 for ELA, Math, and OT, social and, emotional support. There was a requested review in 4th grade, there was an increase in academic services in content area, and student had been having difficulties in vocabulary, science and socially T13. There was an annual review in March of 2012, in 4th grade the district services were stopped, because consulting teacher services were providing content direct/indirect support, social, emotional, consultation in the intermediary 5-6 school. The student’s 5th grade CSE was in March 2013 to prepare for 6th grade; they revised the IEP to provide additional services to deal with the social/emotional management, and stopped the consult T13. The same CSE meeting also recommended services for the upcoming 6th grade increasing math support T14, social/emotional support providing 1:1 individual in addition to the group counseling. At the Annual Review CSE in March 2013 there was an increase due to the student’s inconsistent social/emotional growth T14, the mother and grandmother indicated that the student had tendencies and thoughts that occurred outside of the school T15, recommended support from the inside social worker working with the private social worker and the district provided individual counseling to deal with impulsivity, providing more structure. The student was classified OHI with an ADHD condition. The student was previously classified as OHI by the prior district T17 and this district continued that, with the medical disability diagnoses of and disorder T17. The witness’s impression of the letter read by the student’s the grandmother and the mother was an indication of the student’s low self-esteem T18, the mother indicated that there may be additional diagnoses of disorder, leading up to the March 2013 CSE meeting services rendered were the 15: 1 supplemental ELA for 90 minutes, Math for 45 minutes, direct and indirect CT 30 minutes per , but there were no comments about bullying T19, there was no verbalized disagreements with the recommended services. The March through June services for the 2013 included the additional individual counseling 30 minutes per week for 45 minutes, increasing the 15:1 self-contained for 30 minutes for social/emotional needs, and Math because there was a precursor to pre-algebra T21. The witness reviewed P-C the standardized scores, for the student in 3rd grade scored a high [1], PE the 2011-2012 standardized scores for the 4th grade there was improvement, P-D, 2010-2011 ELA for 3rd grade the student score was a high discontinued T26, however they were erroneously not removed from the IEP T27. There was a prior written notice, the parents were never notified that the student was being treated badly by other students, and the student discontinued going to school on May 3rd 2013, T28 tutoring services were commenced for 2 hours early June 2013 because of a medical excuse from Dr. TA T29. The district’s response was D2, which was summarized by the CSE Chair, and the witness disagreed with the allegation in the Hearing Request and the district’s response contained a denial as to the length of time the consultant teacher services were provided, no one at the CSE meetings requested additional evaluations T34. Standardized Tests cannot be provided too often T62. The progress reports were done every 2 weeks, percentiles below lead to frustration and above is instructional and above is average T37. The comments portions of the IEP states that the student needs small group in ELA and Math T40. The witness testified regarding sensory circuit, over the objection of parent counsel, based on the R.E. case however, after oral arguments it appeared that the sensory board activities were contained in the IEPs T44, T45, T46 T47 going back to the student’s 4th grade and was a result it was explanation/clarification of services contained in the IEP, and not an explanation of additional services provided which were unlisted on the IEP. There was additional progress between the 4th and 5th grades T51, the student was in a small class 15:1, based upon the probes of reading instruction which is based upon a scientific based research 90 minutes per day to address the student’s needs.
During cross-examination it was revealed that CSE Chair assigned to the Elementary Building chaired the transition CSE meeting of the student from his prior district, the AR annual review for the 3rd grade and the annual review for the 4th grade as the student heading into 5th offered instead T57. The indirect consult was provided to the special education teacher and classroom teacher and the student was provided direct in the 4th grade, but not in 5th based upon the probe of skills and the student’s progress. There are no goals for 5th grade because; goals are not needed to monitor indirect consult services T62. The witness did not believe the direct OT services were to address the student’s sensory needs. The witness also reviewed D31, the March, 2012 IEP which contained 3 motor goals dealing with hand writing T63. Additional support was provided in 2013 based upon changes that occurred and social/emotional, difficulties the student was having in less structured situations T66, for example halls and recess. The student indicated through a letter provided by the parent and grandmother the student had ideations T68. The witness stated the CSE did address that by the IEP providing additional emotional/social support and directions to pursue more intervention from the private social worker. The witness interpreted this as self-esteem issues. The witness does mail out the procedural due process safe guard notice at the end of the summer before the beginning of school year T71. The witness reviewed P-C, D, E and F, the standardized scores and she indicated that the student did not meet the minimum standards T72. There were no reports of other the students behaving badly toward the student, but there were student disagreements T73. The CSE did not reconvene after the student attended tutoring classes, nor there was a request to change placements T77. The witness reviewed D44, Page 1, with the consulting teacher services, generally for direct the special education pushes in for science and social studies; and for indirect works with the classroom teacher, and there is no allocation between direct/indirect T77, indirect may also include communication with the parent T78, there was a 15:1 for 30 minutes 1x day T78 special education class to provide additional support at home and the end of day lunch. The consulting teacher services were 30 minutes direct also included prep time T80, indirect includes meeting with teachers, there was direct in science, the SET would check in teachers T81 and support each other with a maximum students in the class would be T83. They also use the AIMS web system. The indirect consult was provided to the special education teacher and, classroom teacher. The student was provided direct in the 4th grade T63, but not in 5th grade based upon the probes of skills and the student’s progress. There are no goals for 5th grade because goals are not need to monitor indirect consults since services are provided to the staff and goals evaluates the student’s progress T105. The witness did not believe the services were directed to address the student’s sensory needs. The witness also reviewed D31 the March 12 IEP which contained 3 motor goals T63, dealing with handwriting. Additional support was provided in 2013 based upon changes that occurred the student was having difficulty in less structured situation for example halls and recess and that the student indicated through a letter provided by the parent and grandmother the student had ideations T110. The CSE did address this with the IEP providing the individual social and emotional support and directions to pursue more intervention from the private social worker T110. The witness interpreted these to be self-esteem issues T70, the witness does mail out the procedural due process safeguard notice at the end of the summer at the beginning of the school year T71. The witness reviewed , , , , the standardized scores and she indicated that the student did not met the minimum standards T72, there were no reports nor did she hear that the student was behaving badly, but there were student disagreements T73. The CSE did not reconvene after the student attended tutoring classes, nor was there a request to change placements T76. The witness reviewed D44, Page 1 the non-consultant teachers services that the special education teacher pushes in for allocated to direct/indirect, indirect may also so include communication with the parent T78. There was a 15:1 special education class to provide additional support at home and at the end of the day when the student needed more support, the student education areas included science, social, gym, art, music and, lunch T79. The consultant teachings services were 30 minutes direct also included prep time and indirect includes with teachers T80. There was direct in science, there were check in teachers that support each other with a maximum amount of students in the class would be , T83. They also used the AIIMS web system T85. Regarding D4, Page 44 the student’s reading was in the second grade at the % just above 2nd grade and 3rd grade it was just above the % in the 4th and below % in the 5th. D4 Page 40 T86 there was a special education teacher working with the classroom teacher and the science teacher, and did not believe the student would benefit from assisted technology. The reading problems continued, they do offer the books on tape at the middle school level T90. The IEP reference of focus, reinforcement was done by the classroom teacher, special education and TA T91. There was also a studies skills component which deals with impulsiveness and executive functions T92. The witness did not remember in her reports about the student being aggressive, there are no FBA or BIP Plans in place, she is not aware of any disciplinary referrals, however were not discussed at the CSE meeting. There are approximately 350 students T93, special education students that the witness supervises. The witness indicated that sensory circuit takes place between 8 and 8:25 during normal homeroom time, which can occur in a special education teacher’s classroom or in the cafeteria on stage T95 behind a curtain. Also the RSA reading program is a level approach and she was not sure how affected decoding or other reading functions. The witness reviewed D39 T97 and D41 T98, reports reviewed prior to the March 12 2013 CSE meeting, did not recall
The District’s next witness was the school psychologist, has a BS and MS in NYS school psychology and is NYS and National Certified T109 and on a national level who worked
14 years at the District and at a BOCES program before that T109, she never evaluated the student, but attended the March 2013 CSE meeting that generated 2 IEPs, one for the remainder of the 2012-2013 and one for the 2013-2014 school year T110. All agreed with the recommendations of the CSE T110. The mother did review a letter and read a letter reported to be from the student indicating ideations T110. The witness indicated that there was no other indication of those suicidal feelings T110. The district works to share information and there were no reports that other students were acting badly toward the student in the 5-6 intermediary building. The district stands for anti-bullying and discourages bullying harassment and other activities by utilizing 2 assemblies T115 and, there is a character education. Students are identified as standing up against bullying and the students are encouraged building wide. All adults including teachers intervene T115. There is a bullying free team which is organized so that there are 6th graders who are leaders, identified as wearing orange T113. They interact with 5th graders providing them guidance; there is also a 20 minute video T114. Parents and and be good citizens. They attempt to have a bully free district based upon awareness and support. Students are encouraged to report bullying to an adult or one of the bully free people T115. She defines bullying as an inappropriate name calling, humiliation, trying to take power away from another person that interferes with that student’s ability to learn. Documentation of the incidents included entering information into school tool or writing to the principle, the teacher reports are followed-up, the teacher monitors, records, and records are kept and they are in the school’s tools website T118. This program was started approximately 3 years ago and is kid based. The witness was not aware of referrals for bullying, T120 of any bullying activity directed toward the student and there was no report of bullying at the CSE meeting that the witness attended, nor is there any on individual responsible for reporting incidents of bullying directed toward another student within the IEP to the CSE T122.
District’s next and 3rd witness was the student’s 5th grade classroom teacher who has BS in child education and, special education 1-6 T125. She graduated Suma Cum Laude, she is NYS licensed and certified in child and special education 1-6 T126. She has been at the district 9 years. She had the student in her homeroom T126 and provided the student with science instruction and social studies instruction T126. The student had a pull-out special education teacher and a 15:1 math and ELA T127. There were approximately 25 to 26 students in the classroom T127. There was misbehaving toward the student, teasing, name calling, chasing on the playground which the witness described as typical of 6th grade behavior. There were never any complaints about bullying, the mother nor did the grandmother ever complain of bullying T128. She provided the student instruction from September 2012 thru May of 2013 then the student was tutored. There are reports against the student of similar teasing, pushing, hitting, inappropriate language T128. The witness would attempt conflict resolution T129, attempt to solve the problem by warning him if it happened again there were consequences T130. It happened again with the same participants she would warn them, if there was a 3rd time they would go to the principle and then they would. There was an incident during recess when another boy and the student were on the playground the other student indicated that the student’s “man ” were larger than a particular female student in their class T130. The student was offended and hurt by the accusation, the other student approached the teacher indicating that he had done a bad thing that it hurt the student’s feelings the teacher asked both students what had happened, it appeared that there was name calling back and forth T131, the other student apologized and the two shook hands T131. The witness did report it to the assistant principle who pulled them out and then the teacher did follow-up at the end of the school day to ascertain how the student was doing and considered the matter closed T133. The witness was familiar with the student’s IEP classification OHI with a disability of , disorder and a history of lead poisoning and wore glasses T134. Homeroom starts and runs from 8:00AM to 8:25AM which is the normal routine T134. Early drop-off is between 7:45AM and 8:00AM T135. There was a CSE meeting in March regarding the student’s management needs and the student was changed to a Ms. homeroom T136. The witness always greeted the students at the door and observes what is going on inside and outside of the classroom T137. She says bullying often occurs with conduct over a period of time with imbalance of power T138, and never saw that nor intent to harm or threats T138. She did observe the student’s physical aggressions, slapping one student, name calling, calling T139 another student “fat”, having an ugly hair-do, or criticizing clothes T140. The witness believed that the science book was based upon a 5th grade reading level T140 and that special education teacher is in every science class, which is on a 4 day 6 day cycle between 40-50 minutes per period. The special education teacher, Ms. . is there with students with IEPs and not just the student herein T141. The witness was quizzed regarding the post-traumatic stress disorder and how certain things would trigger, certain topics would trigger including a JTown situation T142, the witness was not aware of any other triggers T143, the student would act out, the witness would ask why the student was unable to identify why’s. During the 5th grade there were approximately 50 students on the team and there are 4 adults or 2-3 T145 at a time during the recess lunch period that is the second to last. The witness was quizzed why the student was socially awkward. She did indicate that the student really wanted to fit in T146. They would work on ways to help him make friend and he did make friends. He had a good sense of humor and danced a lot. They also worked on the student’s social needs and boundaries T150. The witness reviewed D43 and the comment portion of the IEP which was that the student was to be re-directed to stay on task, which was accomplished by re-direction, reviewing prompting T150. The student’s impulsivity occurred and he would become excited and exceed boundaries, close to face, be loud at times and have to be reminded at times T151. Academically the student had test mods at a separate location if the test was over 20 minutes T151. All the science quizzes were less than that and it was administered in a 3-5 groupings T151. The witness would have constant communication with the student and, special education teacher on a daily basis T155. The student’s behavior were in spurts T155 and science class was normally at 12:15 T156. There was another incident where he threaten to stab a student in the face who indicated that she would stab his Pokémon cards and the girl was very upset T1577, sobbing and it ended that it was okay. She aware that the student did have social emotional needs; the witness admitted that the playground was less structured than a classroom setting. The witness reviewed D63, page 4 the October incident which occurred in social studies, which is a general education class there are no prior threats of harm. There are reports that the student was angry and there were reports that the student used inappropriate language on September 14 and October 23 T864. The witness reviewed D63, Page 5 where the student threaten to push 2 girls on November 25, and T682. The December 13, 2012 incident took place in the classroom the December 17, 2012 incident took place on the playground. But none in the 15:1 class T685. There was a January 18th physical altercation where the student was punched in the face; it occurred in the art class, which is a general education specials class. The student reported to the classroom teacher, the special education teacher the incident occurred with . It is a re-occurring theme of negative verbal contacts within the class. The March 12th pencil in the back occurred with a general education student, the witness spoke with s parents. The witness was quizzed regarding her definition of bullying there is an imbalance of power and social, physical use to power to intend to turn into a harm emotional or physically. It could be done with threats or terror or dominance over the target. There was another May incident involving the gun incident that the principle dealt with. There was another incident regarding name calling “man boobs” and that the witness was not aware of a machete incident nor have there been reports of the student being suicidal. The witness acknowledged that joking can escalate, taken to a different level. It can intimidate people, feelings being hurt, she is not aware of the student being called “fagot”, “gay” and that he had “no wiener”. Hand jesters could be mean. The witness was quizzed regarding the October 22nd incident, which occurred on the playground with a general education student. The classroom teacher and special education teacher where not concerned even though he threatens to kill, notwithstanding the fact that this is a serious threat, threatening to push girls and beat peoples butts. She reviewed the 12/13, 12/17 slapping incidents.
The next witness was , the school nurse who has been an RN since 1983, she has been employed by the district since 2002 T108, is assigned to the 5-6 intermediary building for 12 years T167. She is familiar with the pencil stabbing incident, as the student was brought by the assistant principle who had the student report to the health office T168. There was redness noted she placed a Band-Aid on it there was a small abrasion with no bleeding T168. The student attempted to reach the parents T169. The student said he was ok. There was no complaint of bullying or harassment T170. The witness reviewed PA the district notes from the T172, health office from school tool which is inclusive of all of the notes throughout the school year. There was an incident where the student was punched in the chin leaving art class on January 18, 2012 T172, but there were no reports of bullying. The witness reviewed the incident report from February 26, 2013 T175 when the student was punched in the right shoulder requiring ice and showed bruising , there was an incident on March 12th, 2013, where he was stabbed or jabbed by a pencil T176, there was an incident on March 15th, 2013 when he was slapped T177 by another student requiring a cold pack T175, there was an incident on March 19th, 2013 which was reported by the substitute nurse T178, that the mother stated that the student had disorder as a result of being abused as a child prior to being adopted the parents herein T178, The student had an IEP, but she did not know the contents therein. There was another report on March 20th, 2013 to another substitute nurse. But there is no data base for bullying incidents T174. There was also a series of questions regarding the student’s disabilities and disorder T203.
The district’s next witness was the assistant school principal at the district’s intermediate 5-6 building responsible for disciplined of 5th graders and 504 plans T204. She has a BS and MS in education, is NYS certified, as building administrator and teacher K to 6th T205. She has been employed by the district since 1990, has been assistant principle for the past
9 years T206. She knows the student and is personally familiar with pencil incident T206. The student was sent to her office, the student reported that he was not sure if it was an accident or intentional T207. The witness stated the other student claimed he tripped resulting in the stabbing T207. They both indicated that there were no prior conflicts that day, however when notified the mother of the other student, she insisted on coming to the school to meet with the assistant principle, and indicated that she had the belief that the student was bullying her son, picking on him so that the witness could keep a close eye on the situation T208. The witness told the nurse to contact the parent of the student, but there were no complaints of bullying or harassment T208. There was another incident where the student was punched in the chin, which was a referral from the art teacher B T210. The incident and a discipline report indicating that there were issues between the student and the other. The other students indicated the student pushed the other student, attempted to hold his hands behind his back resulting in the other student pushing the student herein T211, this is confirmed that the student herein pushed the other student, again there were no reports of bullying when told the mother of the incident T213. There was an incident in September on the playground when he was inappropriately teasing and used inappropriate language and the student received a one day lunch dentition T214. The student indicated that he was going to kill somebody. The witness advised the student that he could not make such threats, the classmates revealed that the student became angry threatening to” beat people’s butts” when his crushes were revealed. The special education teacher L made a referral. The student admitted the incident. The witness attempted to impress upon the student you should not release personal information; quite often it is revealed T215, and it is important not to make threats. There was another incident in December 2013 where the student hit another student in the face resulting in half day in school suspension due to the raising escalation of physical contacts T217. A few days later there was a slapping incident where the student slapped another student to stay away from my woman T218, the student got 2 days lunch detention for the stabbing threat over Pokémon cards. The student admitted the behavior and he was informed that he cannot threaten other students T219. The classroom teacher and the special education teacher were to inform the mother T220. There was another incident in February. The student was hit in the shoulder by another student in which the student had his hands on the other student also; there were no complaints of bullying T221. There was a March incident of the student being slapped in the face T221. The student was fooling around and there was another student fooling around, the student ended up with lunch detention T221. They are all different students T222. There was name calling including “man boobs” and horse play T223.
On cross examination it was revealed that the witness was familiar with the student in the 15:1 program T227. There was some discrepancy about how data was collected on the bullying program. There was DASA study where the district is obligated to keep data. The program started in 2005 with expectation assemblies T231, prior to 2013 school tool was used. There had been no filed reports of bullying during 2008-2013 school years. The student knows the witness as she is the assistant principle. He also has sought intervention from the social worker who he has regular meetings with, all the students in the 15:1 have special needs. She did indicate that some students did have social emotional needs. The witness admitted that the playground was less structured then a classroom setting T238. The witness reviewed D63, Page 4 the October incident which occurred in social studies which is a general education class when a classified and general education student were talking T241, but there are no prior threats of harm. There are reports that the student was angry and using inappropriate language. There are reports that the student used inappropriate language on the September 14th and October 22rd. The witnesses stated the student became angry and threaten to kill students T242. The witness reviewed D63, Page 5, where the student threatens to push 2 girls on October 22nd; the December 13, 2012 incident took place in the classroom. The December 17th, 2012 took place on the playground T245. There was a January 18th physical altercation when the student was punched in the face that occurred in the art class that is a general education specials class. The student reported to the classroom teacher and special education teacher the incident which occurred with and 2 other students as witnesses. There was a reoccurring theme of negative verbal contacts within the class T246. The March 12th pencil in the back occurred with a general education student T252. The witness spoke with D’s parents. There were no incident reports of disciplinary referrals occurring in the student’s 15:1 classroom T253. The witness was quizzed regarding her definition of bullying and it appears there is an imbalance of power, and a social or physical use of power to intend or to harm, emotional or physically. It would be done with threats, terror, or dominance over the target T261. There was another May incident with the gun that the principal dealt with T262. There was another incident regarding name calling “man boobs” T264 and the witness was not aware of machete incident nor have there been reports of the student being suicidal T265. The witness acknowledged that joking can escalate, taken to a different level, feelings being hurt T267, she is not aware of the student being called “ ” and “ ” and that he had” ” T268. And that hand jesters could also be mean. The witness was quizzed about the September 22nd incident, which occurred on the playground with the general education student. The classroom teacher and the special education teacher were not concerned, even though he threatens and notwithstanding the fact that this is a serious threat, threatening to push girls and beat peoples butts T273. The witness reviewed the December 13, December 17 slapping incidents.
The District’s next witness was , the principal at the Intermediate School encompassing the 5th and 6th grades, has a BS in elementary education, an MS in child education has a certificate in advanced studies, building and school district leadership T278 school administration, he is visible and regularly walks the hallways and greets students and make an informed observation of what is going on in the hallways. Otherwise he is familiar with the student and is familiar with the student using foul language in the Fall from an incident that occurred while he was on the playground T280 area even though the witness’s primary responsibility is discipline for the 6th graders and the Asst. Principal is responsible for administration and discipline for the 5th gradersT280. This occurred in the Fall where it was reported that the student was using foul language T280. There was also another incident in the Spring when the student was throwing snowballs T281; the student was worried that snowballing is frowned upon since he hit another student with the snowball. It was a one day lunch detention, and the witness phone called the mother himself T282. In May there was incident in the cafeteria where he was called over by one of the girls at the student’s lunch table, who indicated that the student stated that he wanted to get a gun. The witness questioned the student about the gun, he indicated that he was frustrated with not getting along with others T283, although he did not elaborate, there did not appear to be any prior conflicts that day to trigger this response T284. The student would use a gun on the students and then on himself T282. The witness de-escalated situation by pulling him out of the cafeteria and talking to him one on one in the empty gymnasium. The witness indicated to the student that there were certain positives; he had made friends, made progress T285. The witness informed both the classroom teacher and the special education teacher as to the incident advising them to keep an eye on the situation, reported the incident to the social worker, who called a crisis hotline T286, which antagonized the mother, when it was reported to her. The witness also has 10 years of experience teaching at the 6th grade level T287. He is committed to the anti-bullying program, the procedures and protocol. They have an expectation assembly which outlines the rights and goals; all should be involved the team as an anti-bullying team sets standards, get involved and work on character traits T287. There was an anti-bullying squad a pledge between students and parents to respect, report awareness and anti-bullying scenarios T288. There is 100% participation. The student and the mother signed the anti-bullying pledge T290. The witness works on problem solving on social issues, and he is the building coordinator T292. The dignity coordinator, human resources person is district wide, also on the Web page; he deals with these issues there is a handbook provided for their information T293. The student did not return to the school after the alleged gun incident, which occurred on May 2nd, 2013. The mother did make a request for homework upon following-up with the mother the student did not return T295, eventually the parent provided a script from the doctor indicating that the student had post-traumatic stress and because of anxiety T297 and the student should be excused from classes for the remainder of the school year T298. At that time the student was provided 2 hours a day instructional tutorial services. Pursuant to follow-up and faxes to the doctor and clarifications, tutoring was started on May 30th, 2013 T299. There were concerns regarding the social worker providing support services T299, but the parent declined T300. Regarding the student’s 6th grade school year the student did not start school. They were seeking tutoring based on a medical letter T301. They did not received it even after the follow-up phone calls were made to the mother, who indicated that she was working on it with the doctor. A CPS report for absenteeism was filed; eventually the student’s doctor provided a letter on September 25, 2013 indicating a continuation of tutoring T303. The witness was quizzed regarding D64 the code of conduct T308, D65 the dignity act coordinator, T309 D66 the newsletter T310, and D67 the parent’s signature on the pledge T311.
The witness was quizzed during the cross examination about the 2012-2013 school year, which was the witnesses first year as principle. He defined bullying as taking power with the intent to cause harm; T314 it is distinguished from a conflict of the moment T314. Indicating there is a premeditation causing physical or emotional harm T315 and you have to take into perspective the victims and the targets T315, there were no founded incidents of bullying in the intermediate school the 5-6 grades school building in 2012-2013 T317. There could be a situation where the victim could perceive that they were bullied, but could be unfounded T318. He defined verbal bullying as taunting, name calling, teasing, threatening T318, inappropriate sexual comments T319. Social bullying can include segregating or leaving out causing emotional harm, including rumors T319. There is such thing as physical and micro aggressions could sometimes brief and happening every day T320, when these incidents occur they investigate, look at all misconducts the data is collected that but the exact format was unclear T321. In the fall there were issues concerning the student’s social skills, dealt with the social worker, student wanted to be accepted. There is a VADIR mandated reporting for serious intended threats T326, there was no disciplinary report, no VADIR report filed for the incident because they were trying to help the student not punish him T327. It is indicated that the witness told the student that there was positives, that he could rebuild his reputation and it was deescalated and by trying to offer strategies T328.
The student has had a problem in the past with peer conflicts throughout the year T329; the witness reported the incident to the social worker and the classroom teacher and special education teacher. There are approximately 12 students at the table from both the 15:1 and general education students, but did not talk to the remaining students at the table T330.The witness reviewed the report D55 T340, June 10, 2013 submitted by the student’s doctor which did indicate the student’s difficulty which was post-traumatic stress disorder. In September there is a report from the doctor continuing tutoring, eventually it was provided. But there was no investigation into the claim the student was bullied T345. SET Ms. was concerned that the student was not in control 100% and there was increased aggression T353.
The next witness was the OT, who was employed by BOCES since 1990 and is NYS Certified T374, she attended the March 2013 CSE meeting T374 and provided indirect consult to the classroom teacher, from September 2012-March 2013, it was stopped in March 2013 because it was felt that is was no longer needed after that point T377, it was a conclusion based on conversations with the special education teacher T377, classroom. The OT’s primary focus was handwriting skills and this determination was based upon reviewing writing samples T377. She has seen the student’s IEP. The witness was quizzed regarding sensory based needs, she was aware that the student has an accommodation and got the fidgets board and the sensory motor circuit in the morning T380. She was not aware that the student had additional issues, which was not brought to her attention T382, as a result sensory was not a primary issue th at she dealt with. But a sensory profile checklist is the appropriate evaluation T383.
The last witness that testified was , the special educational teacher providing tutorial services to the student since May of 2013, at the tutoring center T392. The number of students that she provides tutoring to varies from 1 including the student to 6 or 8; there is a teacher and a TA T394. Also providing services this student is a general education teacher who provides services during his first hour of his two hour per day sessions she is usually there 9 to 10 T397. She provides the educational instructions in the area of social studies, science, math and writing T395. She knows the student has an IEP. She is unsure of what grade the student is reading at; the student has an IEP which provides direct instruction in the area of phonics and reading. She is not sure what level he is on for math T397 but believes 4th grade T398. They work on math skills’, he knows his math facts up to 20 T390, they are working on multiplication and the student can do single digits T399. She is aware that the student has sensory issues listed on IEP T401, when in a 1:1 setting the student does not need re-direction and refocusing T406. The witness focuses on the tutorial packet provided by the classroom teacher, upon completion of the packet she returns it to the classroom and special education teacher for grading. She does the probes and gives them to the teacher, but some were done before March 2013 T409. The student is reading on the 3rd or 4th grade level, if the goal is not completed it is continued on to the next IEP, he does 2-3 on a verbal test and 2-3 on the written test.
The next witness that testified on behalf of the parent was JF, the student’s private physiotherapist, who provides services through F.S. of . T422 was providing services to for approximately 4 years, the agencies records where marked and admitted as P-H T421. She has previous experience and a variety of different agency settings, and also a 6:1:1 special education class T422. She has approximately 70-80 patients on her current caseload T423; she is a Licensed Clinical Social Worker with a BS in Physiology and a Masters in Social Work T425. She started providing therapy to the student in June of 2010 T426, approximately 3 ½ years ago for post-traumatic stress disorder, which was caused by living through a traumatic event T426. The symptoms follow the patients throughout their lives and they never completely go away 100%. People with do have flashbacks, hyper-vigilance and hyper-arousal, depression; behavior problems T427. The person is always on their guard. The student was victim of severe including torture, physical, emotional, and T431. The student also has a diagnosis of presenting with issues of distractibility T427, focus, boundaries, directions and the student has no filter T428. The student also suffers from lead poisoning, early on raising questions of his behavior, limiting intellectual functioning, a hyper-arousal T428. She started treating the student in both individual and some family counseling, treating school anxiety T430. There was an intake and releases executed; student was adopted from a county placement. The student has difficulties forming relationships boundaries, reading social cues. It took a while to build a rapport and trust T432. The student has difficulty in school following directions, making friends and the therapy includes talk and play, working on social skills to make friends, to back-off T433, cool-off before respond, stop and think, because the student had difficulty reading people and social cues T433. The witness did not believe the student had any friends at school, but that he was being teased and singled out and claimed he was “bullied” from September 2012 through June of 2013 T436. The student was a 5th grader at the district’s intermediary school. The therapy focused primarily on the student getting along and being picked on by the kids, most of it occurred on the playground and the cafeteria, which is where the May 2nd, 2013 an incident occurred regarding a threat by the student T436 to use a gun to solve his problems, which resulted in an emergency office visit, triggered by a phone call from a crisis hotline T441, mother brought the student in. There was trouble in the lunch room, the student did not want to sit with the boys who were making fun of his breast size T446, the girls also teased the student and the girls were very nasty to the student and under his breath the student claims that he stated that he would get a pistol and take care of it T447. The witness felt that the student was victimized and suffering from anxiety and no place to go T447. She was glad that the student would withdraw instead of acting out. It took the witness months to develop a rapport T450; meeting with him every other week for approximately 30-45 minutes T451, because of the student’s and sexual abuse the student would tend to withdraw to a safe place T453. The student suffered from a severe , so what may be teasing to another, he perceived it as being bullied, which increased the student’s anxiety and the student’s during his formative years T454, and so the teasing triggered memories of T454. The witness recommended based upon the incident, and felt the mainstream general education class would create more opportunity to be teased, a smaller class; self-contained class would decrease the anxiety, decrease the number of students and decrease the risks, perceived this by the student T456. The witness reviewed progress notes, from September 24th, 2012 which was reported that the student was having trouble with other students in school as he was counseled to stop/think before responding, to take a deep breath and decide to walk away and respond which was difficult for the student due to his lead poisoning, trauma and torture T458. The student would tend to withdraw and be small and safe T459. The witness was questioned regarding the student’s impulsivity, which negatively would impact his ability to make friends, and the witness recalled an incident that occurred in the waiting room where the student was so excited about another patient in the waiting room their interest in similar action figures, however the student scared the other student due to his level of excitement T461. The action figures are more age appropriate for 9-10 year olds T463, the witness felt that the student was delayed socially, emotionally, cognitively, having difficulty with social cues T465, differentiating between joking and seriousness and was counseled to stop and rethink T466. There was an incident on January 17th, 2013 in which they were concerned about the upcoming school year for fear that the student would or had hit the ceiling in turn of cognitive functioning due to his lead poisoning T467. There was a report on May 7th, 2013 following the gun in the cafeteria incident where the student felt safer not going to school T469, where he was less anxious and did not need the action figures around openings, doors and windows in order to feel safe T469. The student does present with symptoms of hyper-vigilance, aggression, becoming very agitated, quick to respond, where there is a perceived a threat and could act aggressively T472. The witness was quizzed and questioned regarding school systems, strategies to be used by school to treat as an accommodation for the student’s indicating that a smaller classroom would be better, where he could develop trust more easily with a smaller group then the larger school population, there would be less a risk of perceived threats, minimizing the risk to fight back and act out T472. The witness was not implying that the student was at risk for an act of aggression, although he is not a small child anymore, he is a tall young man T473, and there should be a safety plan in place so there are less kid and more adults that can monitor his conduct with assistance of a TA and social workers. There is peer conflict in the school and social settings, home and community, because he does not read cues and does not respond correctly T475. The student tried to fit in but had difficulty, the witness questioned whether it had to do with the lead poisoning and limited cognitive functioning T477. The student had the highest lead count in his county, these are events based on pre-school and DSS report from , the witness is basically familiar with the student’s IEP.
The witness was questioned by the school district attorney as cross examination and that she did receive communication from the social worker at the district at the intermediary school acknowledging T481 additional abuse that was disclosed it was unknown before that point in time, she is not familiar with exactly the modifications and accommodations of the IEP and is unfamiliar with the phrase LRE T482, though she believed that the 15:1 was appropriate. She is allowed to give psycho-therapy which takes a form of talk, play, CBT cognitive behavioral therapy and a combination thereof T484. In the view of the witness, the bully student has been or has been picked on by others T485. Harassing in a dangerous manner based upon length of time, a parent could be guilty of neglect if allowed to happen T506, and there is only one report of bullying in the May 2nd, 2013 incident report. The witness was quizzed regarding reports by the student and the parent of reports of bullying which would be significant noteworthy item especially for a mandated reporter T509, she met with the mom one time alone toward the end of the school year, there was no complaints by the mother about bullying T491. The witness reviewed the January 29th, 2013 progress notes T490. There was no reference of bullying T491, though there was a letter to the parent for the attorney referencing bullying as being picked on T494. The witness reviewed the report from September 24th, 2012 indicating there were reports with the students, but the witness was unsure if it was the same or different students. There were no reports in 2011 of being bullied, the September 26, 2011 it was reported that the student bullying others like other male adults, he has been exposed to T499. November 9th, 2011 there was a family report of bullying by the student on others T500, it was reported that bullying is not tolerated in the family house, and the witness was unfamiliar with any incident relating to a machete T502. There was an additional review of a February 1st, 2012 report from a progress note about being bullied and being bully, this information was provided by the family T504, it is acknowledged that the witness is a mandated reporter and had an obligation to report if there was an immediate risk T508, the witness believed the school had a policy and was handling the situation T510, it was reported December 5th, 2011 of some being bullied and bullying others T512, there was a May 7th, 2013 contact voicemail with a district social worker . T516. There was a February 9th, 2012 report from the neighboring district T518, and there was a February 29th, 2012 incident report, where Dr. ., the psychologist felt the 15:1+1 program was appropriate T519. There was no mention of suicide, no ideations in the notes. She was not aware of any such a report, which she noted going back to 2010 T520. These would be brought to attention and recorded, due to the seriousness T520. However in 2007 reported in a evaluation that the student had thoughts and student reported to be better off T520, and lead poisoning happened early on in the student’s life T522 and has threaten the mother and grandmother T523, there had been missed appointments by the parent and the student. There was a March 26th, 2012 report, a June 11th, 2012 service plan indicating the student had not adjusted well to public school and there were emotional outbursts at home T524, Page 62 entry of September 24, 2012 there was an entry on page 35 to stop and think before acting and sayings so not to lose friends T525. There was a service plan of December 10th, 2013. The student had made friends and was doing better academically T526. It was reported on page
77 student was previously home-schooled by the mother and that it was a reported on April 25th, 2013, the student did not like school but did like being home schooled T528, a week later May 2nd, 2013 the gun incident occurred the witness said there could be a connection T528, the witness reviewed pages 78 and 79, information about the gun incident was provided by the mother and the student, there was no independent verification by the witness T530. She acknowledged parents and students exaggerate T531. The bullying incident had a sexual connotation because of the student’s breast size. It was reported May 7th, Page 8, that he no longer used the action figures because he felt safer T534. There is a report of June 3rd, 2013 service plan, the student was out of school and the witness felt that the student was school suspended and was surprised to find out that he was not T542. In June 10, 2013 progress notes, there was inappropriate social behavior at a local carnival T544, student was learning appropriate conduct and what is intended and expected. The student’s behaviors continued from May 2013 through September 2013 T545, it was acknowledged that the witness did not have visits with the student during July and August, due to vacations and family health problems T540, but that the student (page 96) October 10th, 2013 showed frustration about being bullied, there were also additional progress notes from May 7th, the student was not mainstreamed in a self contained class, the whole day would be viewed by the witness as beneficial T548. The witness indicated that picked on, harassed, trouble, problems are all words used for bullying T553.
., testified the student’s 5th grade art teacher during the 2012-2013 school year T560 which was a mainstream class including students with an IEPs totaling 24-25 students T561. The configuration of the classroom included a sink, five tables, and approximately 5 students per table sitting pursuant to a seating chart T562. The witness was familiar with the student’s IEP. The issues with the student started with the student making comments and events leading up to the January 18th, 2013 punching incident in the art class, according to the incident report, it occurred for quite some time T506, the witness clarified that by meaning, approximately 2 classes beforehand T567. Apparently in January 2013 that the student had his seat moved on several occasions and there were inappropriate comments, although the witness did not believe that was the original instigator of the original exchange, it should be noted that the witness taught previously and would come to his class and work, he pulled students out to determine a causes, it appeared that the student and had had prior exchange of words T569 with and who were all in the art class T570. To address the comments the witness told all students to treat the each other with respect to minimize conflicts T571. The incident on January 18th, 2013 occurred at the end of the classroom when the student’s were out of their seats T572 which can be chaotic T573; he pulled the student into the hallway T574, because the other students were talking about the incident. Safe is foremost with his students T576 and he went to speak with the principle T577. A referral report went to the office because of the physicality of the situation. The other time referenced in the referral report dealt with comments, he spoke with the entire class about comments, but does not recall specifics T579. The prior time he spoke to the students, but no parents, no administrators were informed T597. He would move students around if they were goofing around with 5th grade things or making comments, picking on, he did not recall any mean comments but more goofing around. The witness did not recall what the “it” was about T597. It should be noted that the witness felt was not the instigator of the January 18, 2013 incident with punching another student. The witness does not recall details that lead to the punching incident which this leads IHO to find that the witness recollection and credibility are questionable. The student was moved prior to the January incident. To get the best mix, he moved the student more than other students T601, but he did not observe any bullying based on the definition of constant of terror, or power of another person which could include a single incident. Mr. . concluded that there was no mention of being bullied or harassed by the student T604, T605-620.
The next witness testified was the Ms. ., the student’s special education teacher that has been with the district for 10 years T630 with prior experience in a 15:1 T630 class. The student’s IEP, she provides a 15:1 pull out service for math and ELA, T631 the 15:1 special class is for 30 minutes, per day, ELA 90 minutes per day Math 45 minutes in the morning to help organize and 15 minutes at the end of the day to help organize and prepare for the upcoming day and review and to ensure that he had the appropriate books T634. The direct/indirect component, allows this witness to the push into science class T635. There were approximately 24-25 students in the classroom T636 and there is a team meeting T646 that sets up the class scheduling. The witness provides indirect services supervising TA push in social studies T638. The student is unsupported in specials, however, special education teacher L or her TA are available throughout the day on as needed T644. The witness was quizzed regarding goals regarding reading goals in D44 T645, goals 1 and 2 were carried over and the phonics goals are included in the fluency and the comprehension is contained in the MAZE probe T647. The student had been making progress in his reading, fluency and decoding T656. The goal of 139 words per minute is a lofty goal; the witness would modify and accommodate the student’s needs but was making inconsistent progress from 59 to 62 T648. The witness felt that the student’s placement in the reading program was appropriate, that he was reading 2nd grade level T657, he is currently a 3rd grade instructional level 2 or 3 below grade T657, the disability presents itself in impulsive, distractive, and organization. The witness has introduced a one binder system T654, to ensure that the student has all his materials in each particular class. The student academic content was modified to remove JTown from certain literature to avoid flashbacks T657. The witness was quizzed regarding D44, page 4, certain scores being below or around % and at % is well below average T661 the witness indicated to have the students at 50% which would be average, he is on a 25 book goal, and part of his homework he is required to read 20 minutes per day at his instructional level T662. His requires a lot of reinforcement, and re-direction to stay on task T664 and there is no direct since those services could be provided in the classroom by the special education teacher T65. The witness reviewed D31, there was no OT evaluation based upon the March 15th, 2012 CSE meeting there was no indirect services because accommodations or modifications were provided in the classroom verses by means of pencil grip T665. There are no other kids receiving in the student’s classroom T668. The witness was quizzed regarding sensory circuit, which takes place between 8-8:30 T695, normally behind a curtain, however there is no OT supervisor moderating same. The witness was quizzed regarding the evaluation, parts of this service and they relied upon the summary note T671. The witness was quizzed regarding the fact that the witness felt that the student was her buddy T672, they were close and he would often respond inappropriately to situations, his acts sometimes would not be intended to be mean but were perceived as mean by other students, the student picked on and got picked on, those normal back to back kid things T677. The TA would push into science. Often the student’s inappropriate acts occurred when he was trying to be funny T677, and did not come across as funny and was always taken the wrong way. Outside of the classroom the witness would observe the student in recess, when the student would use inappropriate language it was addressed T678.The student would tease and be teased T679. The witness was quizzed regarding the D63 the discipline referral reports of September 14 T769, October 22 T681, and November 27 T687. The September 14th incident the student was warned 2 days in a row about inappropriate language and was referred on the 3rd day. When there was an incident report to the witness by the student she would address it with the other students, separate and move seats so the student could be successful but none happened in 15:1 class T684. The witness did not recall what names the student was being called or calling others, she dealt with it as the situation arose, she would walk him through these situations, try to provide him with skills to be successful T689. Regarding the May 2nd pistol situation she was not there the principal was, that is her superior and he was handling the situation, although it was a pretty serious incident T692. At times the student would want someone to listen to him. Under the situation she would try to address it, talk to the kids, report to the assistant principle. Although the student appeared to be bothered when he would relay the underlying incident, if it had actual occurred she would not use the term bullied T698. In the witness’s opinion, based upon the workshop she attended, this was not a bullied or bullying situation nor was the student a victim T700.
The student himself who attended elementary school building in the district for 4th grade, he attended the district’s intermediate schools as a 5th grader, acknowledging that the first few days were okay and then they started picking on him and calling him names T706. The first incident occurred in September when they started picking on a female student that he was friends with named Gr, they attacked her during recess calling her names, the student tried to intervene, and the student was told to go away T707. The students that were involved were , , , . T707, although the name calling directed to the student commenced, calling him a “ ”, “ ” T707 he would report these things to his special education teacher. There was another incident with the female student GR, she took his eraser T708 and they were fooling around the student attempted to get it back, he was called “smelly”, T708, grabbed the student and punched him in the chin, the student threaten to , because he would not leave him alone. Other times he indicated that he would do bad things to others to get them to stop T709. There was another incident after lunch where some of the other boy students were swearing and he told them to stop. Another incident occurred when he commented that he had crushes on certain girls T709. And he felt violated when the personal information was revealed and said that he was going to hit them T710. There was another incident involving , the student slapped him because was being obnoxious calling him names, “ ”, “ “, “ ”, the student called him an idiot and slapped him T711. The student talked to his teacher and told her about the situation. There was another incident involving wood chips, and kicking wood chips. The witness explained the Pokémon cards situation, where a female student named , indicated that she stab the student’s Pokémon cards T714, he indicated that he would stab her in the face to get her to stop cause when she starts she does not stop T714. The witness testified regarding an incident that occurred in Art class where , kept saying things about people, would grab his arms to get him to stop, , punched him in the face T716. They would call the student weak because he could not do push-ups or pull-ups T717; the witness claimed that Mr. ., the art teacher saw the entire incident in art class T718. The other incident occurred when the boys were saying things about his friends, he asked them to stop, and he told the student to stay out of their business. The student got punched again T719. There was a punching incident involving and , they received lunch detention. They would tease the student about his self-portrait in art class T720. The witness described the snowball incident, and the challenge was that the student could not throw a football properly, so he threw a snowball instead T721. The witness claimed the pencil incident was no accident, that the student stabbed another student as well T721. The witness indicated that this happened inside the room, apologized in school and later and his mother came to the student’s house and apologized again T722. The student would report these incidents to his classroom teacher and special education teacher and they would say they would look into it; the student felt very bad at the time and did not want to live T725. He said this more than one time to this mother, father and grandmother and to the special education teacher the social worker, , the principle , T725 and make hand jesters T725 . They would pick on this student’s friends who were girls in his class. Regarding the May 2nd, 2013 incident in the lunch room, where he went to the boys table and left to sit with the girls table, they called him names like “ ” and he would feel awful T727, and he said that he would bring a to make them stop T728. One of the students told the lunch monitor, who called in the principal, to discuss it with the student in the cafeteria, then the principal brought the student back to his class T729. The witness was quizzed regarding where he felt safe, indicating that he felt safe in Ms. ’s special education 15:1 class. He felt safe when Ms. ., pushed into Ms. ’s science class, but not as much in self-contained T730. The student indicated that he wanted to return back to school so he could be with other kids, tutoring center is ok, he wants to be with other students, but he wants to be safe from other kids bullying him T731. He has only seen , once at Wendy’s T732. Where the student indicated during cross examination that every time when he was picked on he could talk to Ms. , the special education teacher, she indicated that she would take care of things and talk to the other students T733. The student use to be home schooled by the mother T753, but he wants to go to school, which was before he went to . There was one assembly that talked about bullying and reporting bullying T739, and then there was the incident with the gun, the principle intervened, when his crushes were reveled, Ms. T., said she would look into it. When he slapped , punched in chin, they said they would talk to the students, during the Pokémon card situation, the district staff responded, the pencil incident were the same. He would be teased about “man boobs” T748. On the student’s last day it was the day of the pistol incident in the cafeteria, it was interesting to note that he had told his private social workers and he used the word “bullying” and he was being bullied T740. It was also interest to note that the said student threaten to attack him with a and he told the social worker this T755, it should be noted that the social worker was not told these nor were they in her notes. It is also interesting to note the student came across timid, soft spoken and fairly well spoken, and he did not appear to be using inappropriate verbal skills. It should also be noted that the student was fairly articulate about where he wanted to attend school and under what kind of placement. It should also be noted that the student brought his action figures to the hearing and took them out and excitedly showed this IHO during a break in his testimony.
Gramma who lives with the student and his parents, currently and during the 2012-2013 school year T756, she had communication with the district, special education teacher and attended the March 12th, 2013 CSE Meeting and stated that the student’s 5th grade school was very difficult for the student who had difficulties with the other students, they hit him, were mean to him, stabbed him and he would come home with bruises T757. Calling him names, such as “ ”, “ ”, “ ” and this had been going on for awhile T759. The witness would help the student with his homework, the student struggled with handwriting and reading, including comprehension and homework would take a very long time to complete T759, the witness reviewed P-B, the student’s authored letter, the witness found in his room T761 which was read to the CSE during the March 12, 2013 meeting, which the witness described as the student’s cry for help, to the extent that the student was suicidal. Regarding the CSE Meeting the witness claimed that they begged the CSE for help, the student hated himself. The school psychologist with shocked that this had been going on T766, she had no idea they were taunting the student. She felt the CSE had to be warned since this matter would come to a climax. The witness would take the student to counseling with and Dr. . The witness admitted that she was not sure if was told that the student was , but that the student did indicate that he wanted to .
The mother testified as the parent’s last witness regarding the student’s background leading up to the adoption by the parents herein T808, which commenced when the student was assigned to the parents as a foster child at age of 6, and had been 1 month T808 with a prior foster parents and those parents had difficulty managing the student due to the horrendous neglect T809 and horrifying abusive upbringing that the child withstood. T811 The mother explained that the student’s severe lead poisoning was a result of the student being locked in a closet for extended periods of time with nothing to eat or drink and would eat paint chips as nourishment T822. CPS became involved when the mother and her abusive boyfriend failed to provide adequate medical care treatment for the student’s lead poisoning T811. The student and younger brother were confined for long periods of time in separate rooms in the upstairs portion of the house and the student was observed in the window naked, the student eventually ran away and escaped T813. The younger brother was subsequently adopted by the parent herein T813. It appears that the student’s abusive past started at approximately 2 years of age when the student’s biological father left and the mother’s boyfriend resided with them, the boyfriend was described as sadistic and abusive, would separate the boys in different rooms and would frequently for long periods of time staple them and their clothing to walls and the floor as a punishment to prevent their escape and movement. The separate bedrooms would serve as bedroom, living room, dining room and bathroom T815. The student and his brother were subjected to sexual abuse with foreign objects, compelled to have sex with each other and their biological mother T815, at times the abusive boyfriend would subject the student to drugs, and take pictures of the student, the brother and the mother without clothes on, often the boyfriend would force the student to kill animals, T816 and even a pet kitten that the student had taken a liking too T817. The student has sustained a blunt force trauma to his face as a result of a stomping incident in the bathroom T820; all these factors were relayed by the mother in an emotional fashion providing the underlying facts T820 to the student’s diagnoses of post-traumatic stress disorder. The mother explained that her husband moved the student and brother out of the JTown area to give them a fresh start initially moving to EH a neighboring town T824. They moved to BF and then eventually HH, while the student was at EH the student was homeschooled and offered the parent and opportunity to develop a bond with the student and vice versa T826, they moved to the district in the 3rd grade once moved into that district herein T828, enrolled the student in the district herein with a carry over IEP from the transferring district and the mother explained that initial CSE transfer meeting lasted for hours T829 where the mother described the horrendous details of the student’s upbringing. The witness also reviewed D9 the IEP from the April 21st, 2011 T830 D9 CSE meeting as the student transferred and began into the 3rd grade commencing in a special classroom of 15:1 for 2 hours per day with of social emotional support, T830 at BF elementary T830 and then to 4th grade in . The student transferred to the district intermediary school and he complained about picking on. This was an everyday kind of thing T832. They initially tried to talk to the student to try and deal with it, it eventually got worse T833. The student begged not to go to school, or did not want to go to school T834. The student told the mother that T834 and a posse of boys that are not special education students and they would pick on the student primarily in gym, playground, science and lunch and some history T835. The mother testified that she called the school repeatedly, talked the assistant principle, principle and a special education teacher commencing in the fall of that year for a total of approximately 30 times T837. The mother was told that the student was doing a good job at containing himself and not fighting back T838, the mother recounted the pencil stabbing incident, where she first heard it from the mother of the other student _ came to the witness’s house forcing the student to apologize T839. No one from the school had called regarding this incident T845. The mother claimed this class would line up because of the picking on of the student were arranged boy, girl, boy, girl. The boy students would nudge and try to trip the student who had balance problems T847. The student had a hard time in larger groups of people and did not know how to act T844. He would bump into people. His odd behavior; pick on hands T848, relying upon action figures to protect him T849. He was a hoarder because he never had any possessions T850. He would hang onto those that he had and had become a hoarder. He has a Captain America poster that he feels protects him because the other action figures are not real, but Captain America is real because he does not have any super powers T851. The student had a solo in chorus and wanted flowers and was so excited to show the other boys that he was given flowers at school T851. The student has difficulty with peer groups; he does not know how to act, he tries to be funny to get their attention, and keeps repeating things over and over again becoming annoying he does not know his boundaries T852. He does not have any friends, and they visit once but never again T853. The student does not have any social skills, from being locked-up T853, she enrolled the student in Boy Scouts but there is no group counseling nearby T853. The student wants to get back to school and feels that he is missing out T854; the “man boob” incident was very upsetting to the student, and reminded him of playing with his mother’s breasts T855. He did not want to shake the perpetrator students hand T857, the student would have triggers which would bring him back to his own problems, visuals, smells other things being picked on, he has difficulty viewing bra or underwear commercials, cigarette smoke, marijuana smell as it reminds him of his upbringing T861. Sometimes he has difficulty with the father because is biological mother’s boyfriend had red hair T862, and the mother did recount the student said another student had a T862. The mother indicated that at the CSE meeting she asked for an FBA T864, because the student’s behaviors in school, the student does not know how to act around his peers, he would touch them, the students would get angry and the student did not know how to deal with it. She asked for an assessment in layman’s terms, an evaluation with sensory integration needs, because the student needs constant use of a fidget board, fidget items, he trips and his hand writing was not legible T865. The student had speech and language needs to help develop pragmatic skills and the mother asked for a evaluation in order to address the student’s needs for a small class T866 and a 1:1 aide T808 to protect and assist with homework T869. On the cross examination the mother acknowledged that the student needs a lot of attention, seeks a lot of attention, lies on occasion, lies to mom and dad, fantasies, makes up stories T875. She does not recall the student using the “bully” word to JF the private counselor T880, while there were 6-7 incident reports, the student sought protection by using action figures T882. The witness did acknowledge that she did not ask specifically for a evaluation or sensory evaluation FBA T882 but, she asked for a smaller classroom because the student needed 1:1 aide T885 15-1 self-contained full day program. She told the CSE, wrote a letter and said that she needed help, the mother had to read it, the student had fears of coming to school, T889 she was afraid that the student would run away from school because he was being bullied and picked-on. The student picked on others and would yell and hit at times also T891. The mother was looking at the CSE for any help they could give because the student needed it.
The parent had rested and the district had called the student’s 5th grade social studies teacher who has a BS and MS in education and has been employed by the district since 1988 T898 and is in his 28th year at the district. The witness indicated that there were no reports of bullying by the student to him from September 2012- to April/May 2013 T898. The witness has approximately 25 students in his class T899, including , , and observed with , and also a , approximately 6-7 classified students assigned to his class who receive services from Ms. T901. He recounted having a normal greeting with student T901 observed on the playground, discussing assignments which were modified with the support of Ms. . and the TA, there were no behaviors or name calling other than disputes over seating T902. The student never complained about being picked on or bullied. T906
The district’s next rebuttal witness was ; there were no reports from the student on being picked on. He was in communication 2 times with the mother regarding 2 incidents T907 that had occurred, one was the crush incident and when the student slapped another, who testified regarding contact with the mother about the snowball incident the last incident in March was the sole communication with the mother T910.
The last district rebuttal witness was the CSE director communicated there is a comparison chart to accompany D82 the letter from the SED explaining difficulties in comparing previous State assessments given in prior years then those given in 2013 T913. There is still growth even when they stay at the same percentile T913. The witness did not recall the mother at the CSE meeting in March of 2013, complaining of the student being bullied, she did not describe the mother’s conduct as begging for support or help, the school physiologist recommend the parent seek assistance from the private counselor for additional support, plus individual counseling was added T913. There was no discussions regarding further or additional assessments T914 and there was no discussion regarding the kids misbehaving badly toward the student T915, or request for a 15:1, different class or an all-day self-contained classroom, no reference to the student being picked on T916. The witness handles approximately 1000 CSE meeting per year for the 350 T918 assigned to her and that in the Spring that maybe several hundred a month, 40-60 a week T922, but the witness recalls there being no discussion in assessment, or bullying, or begging for help from the mother. Nor does she remember what the mother wore.
ISSUES
The parent alleges in their Hearing Request that the district failed to 1. Conduct evaluations in all areas of suspected disabilities, 2. The March 12, 2013 IEP’s are not appropriate and do not provide FAPE, 3. Goals do not address the student’s individual needs, 4. Does not provide FAPE failing to provide individualized reading instruction 5. Fails to address bulling behaviors 6. Created a climate where it allowed other students to harass, bully and abuse the student. 7. Permitted students to engage in bullying, 8. Failed to stop bulling and suffered emotional harm, 9. District failed to protect the student from being discriminated against, 10. Failed to provide parent training, 11. Failed to implement the IEP.
The district argues that the Hearing Request raises issues of the appropriateness of the IEP and the bullying issue.
I. FAPE
Did the district fail to conduct evaluations in all areas of the student’s suspected disability in order to assist in the development of an appropriate IEP for the student?
The district contends and all of its witnesses have testified that the student was evaluated in all areas of suspected disabilities. The district also contends that the parents, mother and grandmother did not request any specific evaluations to be administrated to the student. There is not a factual dispute; the mother admits that they did not request any specific evaluative tools to be administrated to their son. However, the mother does contend that at the initial CSE meeting, upon entering the district the CSE was informed of the traumatizing events of the student’s earlier years. The IEP contains a diagnosis of Disorder. In addition, the mother and grandmother at the CSE meeting which gave rise to the challenged IEP read a hand written note reported to be from the student acknowledging the student’s fragile emotional make-up. The student’s special education teacher relayed in emotional fashion the difficulties the student was encountering in interacting with his typically developing peers and other students.
It should be noted that upon review of D45 the IEP from the March 12th, 2013 CSE meeting was based upon the following test results:
1. The Beery VMI dated May 25th, 2011;
2. The Bruninks Oseretsky Test of Motor Proficiencies, May 25th, 2011;
3. Motor-Free Visual Perception Test, May 25th, 2011;
4. Kaufmann Test of Educational Achievement, May 25th, 2011;
5. The WISC 4, May 18th, 2011,
6. There are no state or district wide assessments.
The IEP of March 12, 2013 was also based upon teacher progress summary and verbal reports on March 13th, 2013, [sic] The Parent Report and Observations, March 12th, 2013, Special Education Teacher Progress Summary Verbal March12th, 2013, Report March 11th, 2013, Progress Reports March1st, 2013, Curriculum Based Measurement February 28th, 2013, Classroom Observation February 25th, 2013, Educational Evaluation May 20th, 2011, Evaluation May 20th, 2011.
It was reported in the IEP in the social portion of the PLPS, “The student is adjusting to the intermediate school’s expectations plus environment. He knows the school and classroom rules, but does not always follow them. Student can be aggressive with his peers, when he is seeking attention or trying to “fit in”. He can be loud and often demanding. In a small group with adult supervision he is able to work cooperatively with his peers. The student is a caring child who wants to please other. He has a desire to interact with his peers does not yet have the social skills to do this effectively. The student struggles with sharing his feelings and concerns often stating “I do not know” when he has difficulty problem solving in social situations as reported by , the social worker. The suggestion was that the student continues with outside therapeutic support.
Regarding comprehensive evaluations, the parents allege in their Hearing Request that the student is need of a evaluation, evaluation with a sensory integration profile, comprehensive reading evaluation, therapy evaluation, assisted technology evaluation. The parents claim that the district’s own evaluation identifies severe deficits in word identification reading comprehension and spelling. The need for therapy evaluations based on the mother’s report that the student is tripping, has poor handwriting and fine motor deficits. Assisted technology evaluation is necessary to see if the student needs speech recognition software and the student’s handwriting is far below age appropriate levels. The district contends that the student has been fully and properly evaluated and there is no need for further evaluations. It should be noted that regarding the OT there was an updated report and reviewed at the March 2013 CSE meeting. Addressing the OT deficits was assigned to the special education teacher, and indirect OT support. The special education teacher indicated that there did not appear to be any difficulties in providing those services. It should be noted that the student is approaching his triennial evaluation and said triennial evaluation is even more critical in view of the fact that the student has been receiving tutoring services. It was expected that the CSE would reconvene to determine all necessary appropriate evaluations performed as part of the triennial to be consistent with the decision herein; including but not limited to the following: BASC, Sensory Evaluation. In addition the CSE should reconvene to determine appropriate evaluation to facilitate the transition of the student back into the school district classroom setting and to determine appropriate levels of performance.
It should be noted however, there was no FBA recommended or BASC a behavioral assessment system for children. Notwithstanding the report from a social worker seems consistent with how the student was described throughout the course of the Hearing.
The parents contend that the CSE should have recommended an FBA be performed or the creation of the BIP under the commission’s regulations. The CSE shall consider the development of a BIP when the students exhibits persistent behaviors that impede his learning, demonstrates his behaviors, places student and others at risk of harm or injury considering more restrictive program or placement. The district contends in the course of the Hearing that the student was the cause of some of his or many of his own problems, that the student’s behaviors were inappropriate as he attempted to obtain the attention and friendship of his peers, inappropriate and aggressive at times retaliated or instigated at times. The student has difficulty distinguishing between fantasy and reality and lies to his parents and teachers. Furthermore the student was involved in a variety of different disciplinary incidents with a variety of different students and investigated by the classroom teacher, special education, assistant principle, principle, school nurse and art teacher. The district points to the outside social worker’s notes which indicate the student’s behaviors while at the district were of long standing duration. Furthermore during the March 2013 CSE meeting which resulted in the disputed IEPs, the mother and grandmother appeared with a note alleged from the student which highlighted the student’s fragile emotional state. As a result I find that the district CSE should have ordered a FBA in its March 2013 CSE meeting.
GOALS and SERVICES
Are the March 12th, 2013 IEP’s with services from March 21st, 2013 to June 21st, 2013 and September 4th, 2013 through June 27th, 2013 appropriate and do they provide FAPE, the educational placement goals are identical to previous years and the accommodations failed to address the student’s unique individual needs?
It should be noted that D9 is the IEP dated April 21st, 2011 from the district BF, based upon a review of a transfer of student. D20 is the IEP from the June 2nd, 2011 IEP based upon an annual review recommending program and placement for the student’s 3rd grade for the 2011-2012 school year. D26 is an IEP from the district herein at the elementary school based upon requested review on January 26th, 2012. D31 is the annual review from March 15th, 2012 which recommended special class 15:1, 1X daily for 2hrs and 30 minutes, the social emotional support services small group 5:1, 1X, 6 day cycle for 30 minutes and the district contends that the challenged IEP, D44 based upon a CSE meeting of March 12th, 2013 throughout the remainder of the student’s 5th grade school year, and D45 the IEP for the 6th grade, 2013-2014 school year which recommended the same services. However, there was an increase in special class math from 45 minutes daily to 1 hour 30 minutes daily. However both D44 and D45 recommended an increase in services from the previous D26 IEP from March 15, 2012 which only provided a special class 15: 1 daily, 2 hours and 30 minutes and social emotional support, small group 5:1 on 1X for 6 days cycle for 30 minutes, 5:1 2x per 6 day cycle for 30 min. So regarding the social emotional support individual was added 1X for per 6 day cycle of 30 minutes, which included a suggestion that the student receive an additional support from the private counselor, notwithstanding the report that the student requires constant adult intervention for social issues. However, it was interesting enough there was a minimal reference at the CSE to any difficulties that the student was encountering at home since the parents moved into the district, as compared to the difficulties the student was encountering at school. A review of D16 the psychological report with dates of evaluation of May 2011 indicates that based upon the WISC IV testing the student presented with a full scale IQ of which is the percentile which is below average with average being between . It should also be noted that the student scored fairly low in working memory index and processing speed index with percentile ranking of and respectively. In the KTEA evaluation the student scored in the percentile for reading comprehension and spelling scoring in math concepts and applications and 4 in written expression.
Regarding the appropriateness of the social emotional goals in the March 12th, 2013 IEPs Goal 5 addresses the student’s own impulsiveness but does not address at all the acts of others. Goal 6 deal with identifying and discussing socially acceptable behavior but does not deal with strategies for eliminating socially unacceptable behaviors which is a major component of the students areas of weakness. I find the social emotional goal do not adequately address this unique individually needs and are not designed to address to assist the student making progress in the general education curriculum setting or in unstructured areas. Again the IEP for the March 2012-2013 are D44, Mach 12th, 2013 CSE meeting which was for the remainder of the school year and D45 which was for the September 2012, June 2014. It should be noted that measurable annual goals for the 2 IEPs from the March 12th, 2013 CSE meeting are the same however, review of D26 the IEP from the January 26th, 2012 CSE meeting and IEP are different. Also the students identified areas of weakness identified in cognitive testing deal with 2 reading goals, one writing and one math goals. The one reading goal is very “lofty” which would indicate that the student skills and or deficits are not accurately reflected on the IEP making it difficult to assess progress.
Did the district fail to provide FAPE because the student and failed to make appropriate progress in this area?
D44 is the IEP recommends services for the remainder of the school year from March 2013 through June 2013. Since it is more likely that denial of FAPE will occur however, a longer period of time as a result of lack of individualized reading program this analysis will focus in on D45, and the IEP for services from September 4th, 2013 through the annual review date of Mach 12th, 2014; and D46 the corrected IEP. In review of D45 the summary of services indicates consultant teacher services direct and indirect 1x daily for 30 minutes, language arts special class 15:1 for 1 hour 30 minutes, math special class 15:1 1 hour 30 minutes daily, and special class 15:1 daily for 30 minutes. A review of the student’s PLEPs under the reading component indicates based on an educational evaluation of May 2011 the student’s performance on test measuring basic reading and reading comprehension skills were in the lower extreme range, when compared to the same age peers. However, on testing measuring phonological awareness and nonsense word decoding the student performed within the average to low average range. The student had difficulties with sight and word recognition, fluency and accuracy reading, decoding words within short passages. In general the student became quickly and easily overwhelmed and avoidant when presented with too much visual information that required tasks with sustained mental energy. In the area of reading fluency the student is at the 3rd grade level. When given a 2nd grade probe the student reads 80 words per minute, placing him below the percentile. In the 3rd grade probe the student reads 75 words correctly placing him in the percentile and the 4th grade probe the student was below the percentile. In area of comprehension the student scored 13 on a maze probe for 2nd grade, placing him just above the percentile, he got 6 correct answers on the 3rd grade probe placing him just above the percentile. On the grade 4 probe he got 12 correct answers and the 5th grade probe he got 10 correct answers both answers are below the percentile for grade levels. As reported that the student does well when focused, he has difficulty focusing working independently, needs reinforcement reminders to stay on tasks, tends to avoid anything that he sees as challenging. It should also be noted that in the WISC IV evaluative tool, the student scored well below average in processing speed. The student was provided with the following accommodations and modifications: use of visual supports, visual cues and prompts, reduced writing assignments, broken down into smaller steps for focus and redirection, frequent prompts and refocusing. The student requires consistent boundaries, clear and concise boundaries, use of a graphic organizer, modified curriculum, requiring and providing a modified reading, writing and math curriculum at his instructional level, modified homework assignments, the student requires reading, writing and math homework assignments on an instructional level.
However a review of D41 the progress reports dated January 29th, 2013 and in particular the page 2 of 5 the reading goal indicates when given oral fluency passages at the 3rd grade level the student will correctly read 98 words per minute. The criteria for success is how to present for 3 consecutive probes, in November the student was progressing inconsistently making inconsistent progress, may not achieve the goal , is reading about 45 words per minute. At the 3rd grade level the student was inconsistent with his probes. In January the same progress report, progressively inconsistently the student is making inconsistent progress and may not achieve the goal, reading about 51 words per minute at the 3rd grade level, increase of about 6 words from November to January. The 2nd goal when given reading comprehension fluency passages at the 3rd grade level, this enclosed maze procedures the student will correctly identify 11 words within 3 minutes, with a criteria of success for 3 consecutive probes %. The student is progressing satisfactorily in November, making satisfactory progress and was suspected to achieve the goal. The student is doing well with comprehension. In January the goal was achieved. The student identified 14 correct words on the maze probe. Moving backward reviewing D40 the progress report from November 6th, 2012 for reading, oral fluency indicates oral reading fluency at a 3rd grade level , correctly reading 98 words. It shows progressing inconsistently and that the reading fluency comprehension passage indicates progression satisfactorily as indicated and consistent with the progress reports 3 months later in January. However, review of D39 the progress reports from June 21, 2012 at the end of the school year; the student in terms of oral reading fluency, reading 70 words correctly every minute, the student was progressing gradually in November and in January during the 2011-2012 school year. Regarding reading comprehension fluency the student was reading passages at the 2nd grade level which is an increase to the following years which was at the 3rd grade level, but the reading comprehension at the 2nd grade level, identifying 14 words within 3 minutes with no more than 3 errors. In November the student was progressing gradually as was in January. So as a result based upon the goals and making progress toward the goals the student did show progress at the level if the goal was appropriate. Furthermore, it was reported that the student can become easily overwhelmed when presented with too much information.
Did the CSE fail to provide parent training to the parent?
It appears that the parents provided to pursue an outside counselor and structured environments for the interaction with typically developing peers, did find there is no need for the student’s IEP to contain parent training.
II. Bullying
Upon review of the hearing request and the testimony of the district and parent witnesses, one thing is apparent there are various definitions used for the term ‘bullying’ differently. The District defines it as an attempt to exercise dominion and control over another, although it could be a single event and could include being ostracized. The Parents use the term to include physical contact such hitting, slapping pencil stabbing, teasing, harassing, name calling and ostracizing. The parents allege in their Hearing Request that “By all accounts, this has been a troubling year for D due to the horrible teasing and bullying he had to endure at the hands of others. He has been bullied and ostracized relentlessly by several students.” The hearing request then goes on to identify several incidents. Those incidents were the pencil stabbing incident, being called the , , , hand gestures incidents, being punched in face, and the threat. As the SRO stated in 07-051:
“Lastly, I will address respondent's cross-appeal. Respondent contends that the Impartial hearing officer erred by entertaining evidence with respect to issues not raised In petitioner's due process complaint notice. I concur. Under the new amendments to the Individuals with Disabilities Education Act (IDEA), the party requesting an impartial hearing may not raise issues at the due process hearing that were not raised in its original due process request unless the original request is amended prior to the impartial hearing (20 U.S.C. § 1415[c][2][E]), or the other party otherwise agrees (20 U.S.C. § 1415[f][3][B]). The Senate Report pertaining to this new amendment to the IDEA noted that "the purpose of the sufficiency requirement is to ensure that the other party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint" (S. Rep. 108-185, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint," [November 3, 2003]).
The Senate Committee reiterated that they assumed with the earlier 1997 amendments' notice requirement that it "would give school districts adequate notice to be able to defend their actions at due process hearings, or even to resolve the dispute without having to go to due process" (id.). In the instant case, a review of petitioner's due process complaint notice reveals that she specifically alleged ten substantive and procedural violations surrounding the child's June 2006 individualized education plan (IEP) (Dist. Ex. 36 at p. 5). Her due process complaint notice does not include any allegations pertaining to the appropriateness of the goals enumerated in the June 2006 IEP (id.). During the impartial hearing, counsel for petitioner questioned the propriety of the goals listed in the June 2006 IEP, at which time respondent's counsel objected, noting that the issue was not properly before the impartial hearing officer (Tr. pp. 721, 728). The impartial hearing officer allowed counsel for petitioner to question her witness on the appropriateness of the goals in the June 2006 IEP, and further determined that he had subject matter jurisdiction with respect to this issue, although it was not raised in petitioner's due process complaint notice. A review of the record also indicates that at no point during the impartial hearing did petitioner's counsel amend the due process complaint notice, nor did she make any request to do so. Under the circumstances, I agree with respondent that the impartial hearing officer should have confined his determination to issues raised in petitioner's due process complaint notice (see 8 NYCRR 200.5 [j][1][ii]; see Application of a Child with a Disability, Appeal No. 07-047; Application of a Child with a Disability, Appeal No. 06-139; Application of a Child with a Disability, Appeal No. 06-065; Application of a Child with a Disability, Appeal No. 04-019; Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).”
The Hearing Request references incidents and alleges the student “has been bullied and ostracized relentlessly by several students.” In the factual allegations in the Hearing Request the word bullying is used 13 times and as a result the term ostracized is somewhat lost in comparison.
defines bullying as an inappropriate name calling, humiliation, trying to take power away from another person that interferes with that student’s ability to learn. Mrs. says bullying often occurs with “conduct over a period of time with imbalance of power T138, and never saw that nor intent to harm or threats T138. She did observe the student’s physical aggressions, slapping one student, name calling, calling T139 another student “fat”, having an ugly hair-do, or criticizing clothes T140. The witness was quizzed regarding her definition of bullying and it appears there is an imbalance of power, and a social or physical use of power to intend or to harm, emotional or physically. It would be done with threats, terror, or dominance over the target T261. defined bullying as taking power with the intent to cause harm; T314 it is distinguished from a conflict of the moment T314. Indicating there is a premeditation causing physical or emotional harm T315 and you have to take into perspective the victims and the targets T315. He defined verbal bullying as taunting, name calling, teasing, threatening T318, inappropriate sexual comments T319. Social bullying can include segregating or leaving out causing emotional harm, including rumors T319. There is such thing as physical and micro aggressions which could sometimes be brief and happening every day T320. The bullying incident had a sexual connotation because of the student’s breast size. The witness indicated that picked on, harassed, trouble, problems are all words used for bullying T552. did not observe any bullying based on the definition of constant of terror, or power of another person which could include a single incident. T601, but did not observe any bullying based on the definition of constant of terror, or power of another person which could include a single incident.
In addition ostracize is defined
“os·tra·cize/ˈästrəˌsīz/verb past tense: ostracized; past participle: ostracized exclude (someone) from a society or group."a group of people who have been ridiculed, ostracized, and persecuted for centuries" synonyms: exclude, shun, spurn, cold-shoulder, reject, shut out, avoid, ignore, snub, cut dead, keep at arm's length, leave out in the cold; More blackball, blacklist; informal freeze out "they were ostracized by their fellow workers" antonyms: welcome (in ancient Greece) banish (an unpopular or too powerful citizen) from a from a city for five or ten years by popular vote.”
Tease is defined as “tease/tēz/verb gerund or present participle: teasing make fun of or attempt to provoke (a person or animal) in a playful way. "Brenda teased her father about the powerboat that he bought but seldom used" synonyms: make fun of, poke fun at, laugh at, guy, make a monkey (out) of;”. Teasing is also defined as ‘tease (tz) . teased, teas·ing, teas·es v.tr. 1. To annoy or pester; vex. 2. To make fun of; mock playfully. 3. To arouse hope, desire, or curiosity in without affording satisfaction. 4. a. To urge persistently; coax: teasing their mother for more candy. b. To gain by persistent coaxing: "the New York editor who could tease great books from the unpromising woolly jumble of an author's first draft" (Ian Jack). c. To deal with or have an effect on as if by teasing.”
The district disputes the factual allegations raised by the parents that the student was bullied. They also indicate that many of the problems the student encountered were his own doing, that he bullied other students. In addition, the district opposes “ the parent’s request that the district place the student in a full day special education program to protect him from bullying, there is no credible evidence that the student was being bullied or harassed or picked on, or to the point that having his education was affected, the district raises the legal argument, that protecting a disabled student from the alleged misbehavior of his peers is not a basis for expanding an educational program designed to met a disabled student’s needs” said position is diametrically opposed to those arguments raised by the parent’s factual claims and the testimony during the Hearing and also disputed in the legal arguments submitted in its brief. The parents argue that the school is responsible for addressing harassing incidents about which it knows or reasonably should have known, that a school may become aware of misconduct triggering an investigation that could lead to the discovery of additional incidents that taken together may constitute a hostile environment citing US Department of Education Office of Civil Rights, Dear Colleague Letter Bullying and Harassment at ( October 26, 2010) quoted in TK vs. New York City Department of Education (77 F.Supp.2nd 289, 316 EDNY 211). The parent also submits that TK stands for the proposition that a parent alleging the violation of the IDEA due to bullying needs only show that the bullying affected the opportunity of the student for an appropriate education. And where bullying reaches a level where a student is substantially restricted in learning opportunities that student has been deprived of FAPE. The parents also go on in cite the Dignity for All Students Act which defines harassment and bullying as creating a “hostile environment”.
The parents contend that the NYS Education Law Section 11 Sub 7 of the act requires only that the effect of bullying is unreasonably and substantially interferes with a student’s educational performance opportunities or benefits, or mental, emotional or physical well being. In the alternative bullying reasonably causes or would responsibly be expected to cause fear for her/his physical safety or physical injury or emotional harm to a student. The words intent and intentional do not appear in the definition, and that the harm be reasonably expected or an actual effect of the conduct. However a review of NYS Department of Education’s Dignity for All guidance for Implementation, updated July 2013 acknowledging that this is post incident, but its bullying description of behavior tends to more closely resemble the definitions described by staff, “bullying” that has been described as an unwanted aggressive behavior that involves a real or perceived power imbalance. Where behavior, is repeated, or has potential to be repeated, over time. It recites several bullet points including an imbalance of power with intent to cause harm and repetition, example include, verbal, social, physical and micro-aggressions. www.p12.NYSED/dignityact/docuemts/DSAguidancelocalimplementation.pdf Said guidance paper also states also that in the reporting and investigation stage paragraph “all district, BOCES, and Charter School Staff, when aware of harassment, bullying and or discrimination, are required to orally report the incidents within 1 school date to the principle, superintendent or his/her designee and report it within writing in 2 school days after making an oral report”. It goes on to state that “complaints shall always be documented, tracked, investigated and remediated in accordance with the regulations and procedures accompanying this policy and the district’s code of conduct”. The result of such investigation shall be reported to both the targeted student and the alleged offender as well as the respective persons in parental relationship in accordance with the policy code of conduct of the district. Said publication further states that if the result of the investigation revealed that a material incident of harassment, bullying and or discrimination has occurred information shall be tracked, recorded and reported in the manner described by the Commissioner.
Based upon the aforementioned it is clear that the district’s position is misplaced that they had no obligation when harassing/bullying incidents occur. The difficulty the district faces is separating typical 5th grader conflict of the moment situations from those situations that would create a hostile environment. Therefore the need to track and assimilate said information over a broader period of time facilitates the determination whether this is an isolated incident or one of many incidents that would lead to creating a hostile environment. It should also be noted that many of these obligations are contained within the Commissioners’ Part 100 Regulations as opposed to Part 200 Special Education Regulations.
The district highlights its testimony that there were no reported incidents of “bullying” at the building wile the student was attending said building in the district. It also makes note that reports of “bullying” were not made by the student, the mother or the grandmother to district staff, employees, administrators or to the CSE. Furthermore the student did not use the term “bullying” when he was involved in counseling with , notwithstanding the fact that he testified that he used the phrase “bullying”. Furthermore the district highlights the fact that the student was the cause of his own problems. The parents contend that the student was treated poorly by many of the general education students in general education settings in areas that were not structured and that the student was socially awkward, having difficulty relating to his peers and would often react poorly; overzealously as when playing with his action figures, having students come over and the student had difficulty establishing and maintaining friendships due to the fact that he was “odd”, his behavior was “odd”, he had sensory issues picking and things of that nature. The mother related a discussion she had with the student whereas she indicated that he was cosmopolitan man and that he was not rough or hard man, and needless to say the student’s demeanor was different than the other students. The encounters he had while growing up were different than those typical peers in a general education class, and that the student’s responses to those encounters may not have been always appropriate responses to the situation. The student’s background and history were conveyed to the CSE during the initial CSE meeting upon the student transferring to the district and that the student’s unique childhood experiences separated him from the majority of students and the general education classes. The student is described as socially immature, a year or two behind typical peers. The district questions the student’s creditability, veracity, and motive, however the reported incidents cannot be disputed nor the escalation of the student’s responses when the student sought to obtain some relief from the other students conduct or control over his own life. Regardless it cannot be disputed that the student had difficulties in relating with generally typically developing peers and responding appropriately in an unstructured situations such as hallway, end of class, lunch and recess.
The parent’s hearing request alleges that the district failed to investigate or take action to stop, creating a climate where bullying was allowed, focusing in on the investigation component of that allegation. A precondition issue of whether the district appropriately investigated the bullying allegation deals with notice. The parent testified that she contacted various school personnel approximately 30 or 40 times indicating and using various terms that the student was being picked on, teased and was having difficulties with his peers, the mother and grandmother addressed the CSE in March of 2013 reading a letter from the student highlighting the difficulties the student had during the school year. The district’s intermediate school building did not have a cumulative data base tracking disciplinary behaviors until the 2013-2014 school year. The disciplinary behavior reports were logged into E school program. The student had disciplinary incidents which were known to the assistant principle in charge of disciplining the 5th grade. The principle on 2 separate occasions the snowball incident and the incident; the incident occurred after the formulation of the IEP from the March 2013. The student’s classroom teacher had knowledge of incidents regarding disciplinary problems as well as the student’s special education teacher and the school nurse. The district denied that the parent contacted the district staff that many times, however it is interesting to note that CB the art teacher had previous connections with one of the student’s alleged tormentors, in a prior school year and initially and was of the opinion that was not the instigator of the art class incident. The mother relayed a story discussing the matters with her son and that he was not hard or tuff but, more of a cosmopolitan type man. These comments are consistent with this Hearing Officers observation of the student when he testified during the course of this hearing. It cannot be denied that the record indicates that there had been an ongoing pattern of incidents with the student and other students interacting poorly or badly with each other. Based upon the record, the district did investigate each single incident, however what they failed to do was assimilate that said information in a format where there was the benefit of consolidating all these separate incidents and separate contacts from the various school staff, to be in a better position to identify events that occurred surrounding the student in said school year. It should also be noted that the principle is proud and staff were proud of the fact that there was no founded incidents of bullying at the intermediary school.
The parent’s Due Process Hearing Request indicates that the district fails to address the bullying behaviors and it would appear that each separate incident was addressed in a reasonable manner to address each separate incident. The second component of allegation in paragraph 6 is that the district created a climate where it allowed the student to be bullied and it is difficult to say whether the district created a climate or the district reflected a climate based on the social norms in the surrounding community acknowledging that the district is located in a somewhat of a rural setting. The parent’s allege the district permitted students to engage in bullying against the student and the district failed to take appropriate actions to stop the student from being bullied causing emotional harm. Again the main thrust is that there are numerous single incidents which were not linked together, combined or referenced, or logged how it impacted this particular student.
However the district’s CSE is in the position to recommended services and placement, focus in on the individual student which would seem to indicate that the CSE is focusing in on this particular student and then linking the data about how these multiple incidents affect this particular student. These inquires would be within their own confines and scope of the district’s CSE. Furthermore it is alleged that the district failed to protect the student from being discriminated against. This would seem to indicate that the student had no role whatsoever in this inappropriate social interaction with his peers, that is contrary to the testimony, it appears that the student did have a role in that resulted in his inability to appropriately interact with his peers.
As a result the ultimate issue is whether the district CSE recommended an IEP as a result of the CSE meeting on March 12th, 2013 recommending services for March 21st, 2013 to June 21st, 2013 and again from September 4th, 2013 to June 27th, 2014, and whether said IEPs where appropriate and whether it did or did not provide FAPE to the student.
The CSE was aware of the student’s difficulties indirect and appropriate with his peers as evidenced in the increase in services and a recommendation to engage in private . During the initial CSE, the parents informed the CSE of the student’s early years, however. The record does not contain indications or reports that the CSE in March 2013 was informed that the student was engaging in non-typical or inappropriate social interactions a home, in fact the proof is to the contrary, the student was enrolled in community groups, Boy Scouts and Church related activities. There are no reports that the student was having difficulties in said venues. It should be noted that the contents of the letter read to the CSE from the student is not unique in today’s society but they are not common place either. The “red flag” contents of such a letter were not heeded by the CSE, notwithstanding the familiarity of the student by the special education teacher and also by the student’s district social worker. The district’s attempts to minimize the situation by questioning the credibility of the student, questioning the parents failure to ask for specific diagnostic evaluations or testing and the student’s role in placing himself in situations that contributed to negative interactions by other students. The district also focuses in on a very narrow definition of “bullying” the parents rely upon a larger broader based definition of “bullying” to include things as ostracization, isolation, teasing, and harassment.
Based upon the student’s background and history growing up, I find that the student’s failure to use the phrase “bullying” when speaking with his outside counselor, and credibility issues does not supersede the testimony indicating that the student was having difficulty fitting in that he was isolated and ostracized by other students that the lack of a reading program contributed to the student’s academic abilities impacting his self-esteem and respond to the other students negative interactions. The history of the student’s negative interactions and the location of same cannot be disputed that it took place in a structured non-academic times unstructured special area classes and in general population classes, the failure of the district’s CSE to recommend an IEP with placement in a program to address the student’s deficits is a denial of FAPE that the CSE recommendation in not providing more 15:1 self contained classes was a denial of FAPE that should have reconvened the CSE to render an IEP recommending services consistent with the findings herein.
The parents argue under the case that the parent alleging a violation of IDEA due to bullying need not show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity to the student for an appropriate education. The parent’s hearing request paragraphs 5, 6, 7 and 8 all deal with the bullying issue, It is alleged that the district failed to investigate or take action to stop, creating a climate where bullying was allowed, focusing in on the investigation component of that allegation. A precondition issue of whether the district appropriately investigated the bullying allegation deals with notice. The parent testified that she contacted various school personnel approximately 30 or 40 times indicating and using various terms that the student was being picked on, teased and was having difficulties with his peers, the mother and grandmother addressed the CSE in March of 2013 reading a letter from the student highlighting the difficulties the student had during the school year. The district and or intermediate school building did not have a cumulative data base tracking disciplinary behaviors until the 2013-2014 school year. The disciplinary behavior reports were logged into the school program the student had disciplinary incidents with knowledge to the assistant principle in charge of disciplining the 5th grade. The principle on 2 separate occasions the snowball incident and the gun incident; of course the gun incident occurred after the formulation of the IEP from the March 2013. The student’s classroom teacher had knowledge of incidents regarding disciplinary problems as well as the student’s special education teacher and the nurse.
The district argues that the District Court that rendered the decision is from the District of New York and as a result is not controlling and if it did control there is not sufficient proof to support a finding of “bullying”. I find that the case is not controlling, but it’s analyses creates a frame work for analyzing the effects of “bullying” impacting a student’s education.
Did the CSE in making its recommendations address the student’s social emotional needs in the March 2013IEP’s
The student’s disabilities, deficits in interacting with his peers, the cultural norms of the geographic area of the district, the manner is which the student was treated by other students, contributed to the student’s action of threatening to use a , and the district’s CSE recommended IEP’s were not reasonably calculated to recommend a program designed to provide progress leading to the student’s removal from the academic setting in the intermediary school and to a tutoring program impacted a student’s educational program by creating a school environment impeding the student’s access to the services, modification and accommodations recommended in the student’s IEP. I find the IEP allowed for test accommodations and access to the sensory circuit thought out the day; however it failed to provide to the student access to time outs, breaks and counseling when the student was encountering difficulties relating to his peers in the school setting. I find this contributed to the incident in the cafeteria where the student relied on threats of violence to get a reprieve from a social situation that the student could not control or appropriately respond. The student did demonstrate difficulty reading and lack of focus and attentiveness. I find that the CSE failed to properly determine the impact of the social emotional difficulties of this student and failed to take into account the student’s social and emotional levels failed and the student’s fragile emotional state in creating an IEP and as a result denied this student FAPE. The loss of the access to the student’s recommended IEP services occurs when he was unable to attend school, however it is unclear how much of the student’s education was impacted while the student was attending the district intermediary school because it is difficult to ascertain how much of the student’s difficulty on focusing, distractibility was related to the student’s concerns and perceptions. However regarding the lost academic classes during the period of time when the student was not in attendance at the district’s intermediary school. I find the student is entitled to compensatory education and direct the CSE calculate the amount of academic classes and determine a method of providing said services to the student.
FINDINGS
1. During the March 2013 CSE meeting which resulted in the disputed IEPs, the mother and grandmother appeared with a note alleged from the student which highlighted the student’s fragile emotional state. As a result I find that the district CSE should have ordered a FBA in its March 2013 CSE meeting.
2. I find the social emotional goal do not adequately address this unique individually needs and are not designed to address to assist the student making progress in the general education curriculum setting or in unstructured areas.
3. That the parents provided to pursue an outside counselor and structured environments for the interaction with typically developing peers, did find there is no need for the student’s IEP to contain parent training.
4. Based upon the student’s background and history growing up, I find that the student’s failure to use the phrase “bullying” when speaking with his outside counselor, and credibility issues does not supersede the testimony indicating that the student was having difficulty fitting in that he was isolated and ostracized by other students that the lack of a reading program contributed to the student’s academic abilities impacting his self-esteem and respond to the other students negative interactions.
5. I find that the case is not controlling, but it’s analyses creates a frame work for analyzing the effects of “bullying” impacting a student’s education.
6. I find the IEP allowed for test accommodations and access to the sensory circuit thought out the day; however it failed to provide to the student access to time outs, breaks and counseling when the student was encountering difficulties relating to his peers in the school setting. I find this contributed to the incident in the cafeteria where the student relied on threats of violence to get a reprieve from a social situation that the student could
7. I find that the CSE failed to properly determine the impact of the social emotional difficulties of this student and failed to take into account the student’s social and emotional levels in creating an IEP and as a result denied this student’s FAPE.
8. I find that based upon the students cognitive levels, need for refocusing and redirection and intervention in area of social emotional development lack of lack of access to a full day of academic content that a 15:1+1 special class in area content areas, the accommodation to remove himself from situation and seek counseling when the student is overwhelmed, an unobtrusive method of monitoring and guiding the student’s social interaction with peers in unstructured areas with out would be appropriate.
ORDER
The CSE is directed to reconvene to recommend appropriate evaluations, and formulate IEP recommending services, consistent with the findings herein. In addition, the CSE is directed to calculate missed academic content area classes since the May 2, 2013 with an hour for hour credit for classes he received while being tutored. PLEASE TAKE NOTICE: Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 may be obtained by either the parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states:
“279. (2) (b).13 Notice of intention to seek review.
(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:
Notice:
(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.
(b) The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ( c ) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.”
Dated: February 25, 2014
PAUL T. BUMBALO, ESQ.
IMPARTIAL HEARING OFFICER
Footnotes
[1] with a and a 2 would be math and PF, the student’s score showing in the 4th grade improvement to low a 1. The witness reviewed D44, 45 and 46 the IEPs the March 2013 CSE meeting, D44 being the IEP for the remaining existing school year, D45 being the IEP for the upcoming 6th grade school year D46 being a corrected copy reflecting that services were grade. The March 12th, 2013 T55 CSE meeting was the first CSE meeting by the witness, who reviewed the prior IEPs. The direct services were stopped, and indirect consults services when the student needed more support in areas including science, social, gym, art, music and science and social studies for indirect and the SET works with the classroom teacher and is not the specific progress reports being discussed, but only through the teachers updates. The 51 students sign a pledge T114 to discourage cyber-bullying T114, encouraging them to be kind program is for 5th grade, there is a 12:1:1 in BOCES, there was a 8:1:1 BOCES ED, 8:1:1 BOCES ED with intellectual disabilities 6:1:1, EPC is on another campus and a 15:1:1 location at the middle school level T103. She is unsure of the student’s profiles in the 12:1:1 in the program last year. The witness discussed the computer glitch. And that those goals and services should have been removed.