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X In the Matter of the Application of the Parent and Guardian of X, and
Central School District. X
FINDINGS OF FACT AND DECISION
Impartial Hearing Officer
Esq.
April 30, 2014
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FINDINGS OF FACT AND DECISION
NYS Case Identifier No.: Student’s Name: . District: Central School District Hearing Requested By: Parent Dates Of Hearing: February 19, 2014, February 20,
2014 and February 21, 2014. Hearing Officer: Esq.
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_________________________________________________________________
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 19, 2014
Esq.: Attorney for School District Esq.: Attorney for Parent: Former Director of Pupil Personnel Services: School Psychologist
Parent-Mother: Director of Special Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 20, 2014
Esq.: Attorney for School District Esq.: Attorney for Parent: Special Education Teacher Board President: School Psychologist: High School Principal
Parent-Mother: Director of Special Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 21, 2014
Esq.: Attorney for School District Esq.: Attorney for Parent Special Education Teacher
Social Worker
Parent-Mother Substitute Teaching Assistant: Director of Special Education
Procedural History:
The parent filed the Due Process Complaint (“DPC”) on September 4, 2013. After a series of recusals, I was appointed to this matter on December 18, 2013.
On December 20, 2013, the parent, with the consent of the District, filed an amended DPC. Counsel for the parent and counsel for the District advised that this was not an expedited discipline matter.
On February 21, 2014, both parties requested an extension of the compliance date in order to complete the hearing and receive the transcripts and submit post-hearing briefs. This was the first request since the amended DPC. The extension was granted based on the representation by the parent and the District that there was no impact on the student’s educational interest because the student was currently receiving special education services and that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted. The compliance date was extended to April 2, 2014 (IHO Exhibit 1).
On April 4, 2014, the District requested a 30-day extension of the compliance in Order to allow time for the IHO to review their post-hearing briefs, which were received on April 2, 2013 and to render a final decision in this matter. The parent had not objection. Although there was a prior requests for an extension, the extension was granted based on the representation by the District that there was no impact on the student’s educational interest because the student was currently receiving special education services and that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted. The compliance date was extended to May 4, 2014 (IHO Exhibit 2).
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On the above listed dates, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), regarding a parent’s request for independent evaluations and compensatory education services, inter alia.
The parents DPC, dated September 4, 2013, states, among other things, that the District’s individualized education plan (“IEP”) developed on June 3, 2013, wherein the CSE recommended a special class in 8:1:1 ratio one hour a day and a second 8:1:1 class for English one hour a day, was inappropriate for the 2013-2014 school year. The parent also asserts that the District failed to appropriately evaluate the student for a learning disability and failed to appropriately evaluate the student in reading and math and failed to conduct a Functional Behavioral Assessment (FBA). Additionally, the parent contends that the District failed to perform a sensory processing evaluation.
The parent also maintains that the District failed to develop an appropriate program for the 2013 2014 school year for the same reasons referenced above. Further, the parent contends that the student should be classified with either a specific or general instead of
Finally, the parent asserted several 504 violations with respect to the student’s participation in field trips, participation in football-recess, and failure to allow the student to come to school before the opening bell (Exhibit A).
The District asserts that a free and appropriate public education (FAPE) was provided to the student during his entire tenure within the District. The District claims that the student has been properly evaluated and that the District’s programming enabled the student to receive an educational benefit. The District also asserts that the parent’s request for independent evaluations was not proper and that once the District received the parent’s request for the evaluations, the parent failed to cooperate with the District. The District also contends that the student is properly classified
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as “ ” (“ ”), and that the District conducted an FBA when the student was in elementary school, which has been amended throughout the school years to reflect his current behavioral needs. Accordingly, the District requests the parents DPC be dismissed, with prejudice (Exhibit 82). Findings of Fact:
The student is an year-old boy classified as “ .” The classification is based on a diagnosis of (“ ”). The Student is currently in grade and attends the District’s Middle School.
As background, the student’s report card from grade, which was 2008-2009 school year, indicated that he was approaching or meeting standards across the board (Exhibit Z).
The student’s report card from the grade, which was a 20092010 school year, indicated that he earned twos and threes, which showed that he was either approaching standards or meeting the standards (Exhibit Y).
The student’s report card for grade, which was the 2010-2011 school year, indicated that he was approaching standards in reading, writing and math and noted that personal development and the student’s behavior was not an issue (Exhibit X). The 2011-2012 School Year ( Grade):
In September 2011, the Student was referred to the CSE for an initial evaluation (Exhibit 5). On September 23, 2011, the parent provided consent for the CSE to evaluate the student (Exhibit 6).
During this school year, the District administered a reading assessment using the Wilson Assessment of Decoding and Encoding (“WADE” Tr. 76). The results of this assessment indicated the student was functioning at the grade level in reading, which meant he was approximately years behind his chronological peers. (Exhibit 16). Additionally, the District
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utilized the Star Math assessment which showed that the student began with a scale score of in September 2011 and obtained a scaled score by of March 2012, which showed that he was making progress (Exhibit 17, Tr. 77).
In October 2011, the the District’s school psychologist, conducted a evaluation (Exhibit 8, Tr. 33). The report indicates that the student was years old at the time and attending the grade. The narrative portion states that the student had experienced “peaks and valleys” when it came to his academic progress in recent years and that the parent reported that the student’s and had recently passed away, which impacted his performance and behavior at school (Exhibit 8).
The Wechsler intelligence scale for children-fourth edition (WISC-IV) was administered October 28, 2011. The results indicated that cognitively, the student performed in the range. However, it was noted that his processing speed was in the range. The Full scale IQ was . The Woodcock Johnson III test of achievement, which was administered on October 18, 2011, indicated that the student was performing at the level in reading and the grade level in math. His reading fluency was in the percentile and his math fluency was in the percentile (Exhibit 8, page 5). Additionally, the student was at a grade level in writing and at a grade level in spelling.
The District also conducted the Behavior Assessment System for Children-Second edition (BASC II), which is a socio-emotional assessment. The results of the BASC II indicated that the student was in the clinically significant range for a and conduct problems. He was also in the “ ” range for attention issues (Exhibit 8, Tr. 36).
Further, the District administered the Conner’s Rating Scale to assess the student’s (“ ”) (TR. 37). The scores were elevated for and and average for for He also had high average score for problems and
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Additionally, it was noted that his scores were “clinically significant” for . As a result of this testing, the District referred the student for Section 504 services to address his . The District noted, however, that if the student did not make significant progress by the spring of that school year, he should be referred to CSE to consider classifying the student for special education services (Exhibit 8).
Subsequently, the District recommended that the student receive Academic Instruction Support (“AIS”) in reading, which also included homework assistance, checking for understanding and having directions and explanations of instructions read to him. The District also recommended a behavior support plan, that included , (Exhibit 8). Additionally, Mr. testified that the District installed a writing program on the student’s laptop (Tr. 42, 43).
In this school year, the District initiated that Response to Intervention process (“RTI”) from September 2011 to November 2011 (Exhibit 7).
On December 16, 2011, the District developed a written behavior support plan for the student (Exhibit 9). The plan identified the problem behaviors and the settings in which the behaviors occurred, as well as trigger events and consequences for his problematic behavior. The plan also indicated the desired behavior and the appropriate staff responses to the behaviors. Subsequently, the plan was revised on January 25, 2012 to address the student’s ongoing behavior needs (Exhibits 10, 11, 12). Further, Mr. testified that when the student was in danger of hurting himself or others, the staff would physically remove him from a situation. However, only staff that was trained through the Crisis Prevention Institute's Nonviolence Crisis Intervention program could remove him (Tr. 62).
By letter dated January 30, 2012, the parent advised the District that she was rejecting in-school for the student and that she would not permit the District to speak with the student’s doctor and/or outside
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because it would be the invasion of the student’s “privacy rights” (Exhibit D).
During this school year there were several incidents where the student engaged in verbal and significant physical assaults toward staff and other students (Exhibits 30, 40, 41, 42, 43, 45, 47, 48, 52, 53, 54 and 59). The student also , and tried to a (Exhibits 45). The incidents reports indicate that many of the student’s behaviors occurred during recess and football (Exhibits 43, 44, 45, 46, 47 48, 49, 50, 51, 52- 57 and 58). However, the student’s behavior also occurred in the classroom and occurred because of his inability to succeed academically (Tr. 400, Exhibit 59). Additionally, Mr. testified that the student gets frustrated from schoolwork and he agreed that frustration from schoolwork could affect a student’s behavior (Tr. 124).
On February 6, 2012, the CSE determined that the student was eligible for special education services and developed an IEP for the student. As indicated above, the student was classified as “ ” (Exhibit 24). The District recommended services, indirect, four times a week for 30 minutes (from March 8, 2012 through June 22, 2012). The IEP included a reading goal and a writing goal, which was based on Fountas & Pinnell running record scores as well as the DIBELS scores (Tr. 55). There was no goal for math (Exhibit 25). The program also provided for use of a computer for writing assignments, refocusing and redirection, the behavior intervention plan, special seating arrangements, as well as checking for understanding throughout the school day. Additionally, the student was provided with extended time for testing in a separate location with directions read and explained to him (Exhibit 25). Mr. testified that the committee determined that the student struggles in school were more manifestations of his issues, as well as his and , than they were a disability (Tr. 51). Additionally, the committee determined that was needed for him to work through some of the social and
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emotional concerns at the time, which included the losses in his family (Tr. 52).
In March 2012, the District developed a “behavior scatterplot” to track the student’s behavior, which was used for the remainder of the school year (Exhibit 20).
On March 12, 2012, the student’s special-education teacher, , requested that the CSE add an additional 45 minute period in an 8:1:1 class on a daily basis to the IEP. The request indicates that she had a conference with the parent who agreed to the additional service on the IEP (Exhibit 26).
On March 21, 2012, wrote to Mr. the student’s outside counselor, and asked for some assistance with respect to student’s behavior in school (Exhibit 36). However, the parent refused the District’s request to speak with Mr. .
On March 21, 2012, the District issued prior written notice with respect to the change in the IEP and added a special 8:1:1 class, five times a week for 45 minutes (Exhibit 26, Tr. 127).
The student’s behavior support plan was modified in March, April and May 2012 to address the student’s needs (Tr. 64, 65, 66, 67, Exhibits 10, 11, 12).
On April 26, 2012, the parent provided consent for the District to conduct a Functional Behavioral Assessment (“FBA”) (Exhibit 18).
On April 30, 2012, the CSE held a program review meeting with the consent of the parent. At this meeting, the CSE added individual once during a six-day cycle for 30 minutes (Exhibit 27). Additionally, the CSE added social emotional goals to the IEP to address his issues with frustration, tantrum behavior and outbursts. The CSE also added a crisis intervention plan to address his physical outbursts and his disruption of the learning environment. Finally, the CSE increased the student’s time in the special 8:1:1 class from 45 minutes a day to one hour and 30 minutes a day (Exhibit 27).
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The District administered the STAR reading and math assessments in February 2012 and again in June 2012. In February the student scored at the percentile in math at the percentile in reading. However, in June he scored at the percentile math and at the percentile in reading (Tr. 135).
The student’s report card for this school year indicated that he needed support in reading, writing and math (Exhibit W). The 2012-2013 School Year ( Grade):
On June 12, 2012 the CSE develop an IEP for the 2012-2013 school year (Exhibit 28). This IEP provided for an 8:1:1 class for one hour per day.
In September and October 2012, the District revised the student’s behavior plan to address his continuous outbursts and aggressive behaviors (Exhibits 13, 14, (Tr. 67, 68). Additionally, the District developed a new “Level System” to address the student’s behaviors (Exhibits, 24, 33). The level system is a behavior management system that the teacher maintained and monitored for the student (Tr. 81). During this school year, the District also developed a communication log with the parent and the student’s teacher (Exhibit 34).
On October 16, 2012, and at the request of Ms. the CSE reconvened to review the student’s Behavior Intervention Plan and his Level System as a result of a serious by the student (Exhibit 29). The CSE also developed a new IEP and increased the student’s time in the 8:1:1 class from 1 hour per day to 5 hours per day (Exhibit 29, Tr. 136, 137).
A memo, dated November 6, 2012, indicated that the student and a because he didn't want to go to (Exhibit R).
On November 20, 2012, , an , conducted an evaluation, which included a sensory processing measure. Ms. concluded that there was no definite dysfunction with respect to sensory processing and that the student did not need (Exhibit 32).
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By letter, dated December 7, 2012, which was addressed to the the school board President, the parent alleged that she made several requests for records from the District that she did not receive. However this letter is not stamp received by the District and Ms. testified that she did not receive it (Tr. 354-355, Exhibit B).
On December 10, 2012, the parent requested that the CSE remove from the student’s IEP (Exhibit 30, Tr. 86).
On December 11, 2012, the CSE reconvened and removed the services at the request of the parent. The CSE also reviewed the evaluation that was conducted by on November 20, 2012 (Exhibit 32).
During this school year, the Student scored a “ ” on ELA test, which placed him in the percentile. He also scored a “ ” for math, which placed him in the percentile (Exhibit T). Nevertheless, Mr. testified that the student’s reading and math levels improved greatly and that he was beginning to write because the reduction of the student’s behaviors allowed him to be available to learn (Tr. 90). Additionally, testified that the student’s reading skills progressed to a mid -grade level based on Fountas and Pinnell. She also testified that he's a pretty good reader with good comprehension (Tr. 227). And that he was performing “grade level” math, “when he wanted to work” (Tr. 227, 228). Accordingly, she did not agree with the scores that Mr. obtained during his testing in October 2011 (Tr. 344), even though she agreed that his scores were consistent with the student’s Star math scores, which placed him in the percentile in math (Tr. 344). However, Ms. explained the sometimes the student did not like to take the Star math assessment, which was taken on a computer, so he would just click any key to finish quickly and this reflected his poor results. She also testified that the student received instruction in math in a one to one setting during the 5th grade (Tr. 345). However, she conceded that there were other times the student would take the Star math and perform and that
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the Start math scores, as reported, were consistently in the percentile (Tr. 343-344).
The Star math results reported at the end of 5th grade indicate that the student was in the percentile for math and in the percentile for reading, which showed that he regressed further in math, as compared to his peers, but made slight gains in reading from the previous school year (Exhibit 31).
With respect to field trips, Ms. testified that at the end of fourth grade the student went on a field trip where he ran into the woods and his teacher couldn't find him. After that happened, they talked with his mother about future field trips, about what they could do and if she was available to go on field trips with him (Tr. 230). In fifth grade, Ms. said he went on every field trip (Tr. 231). Additionally, Ms. testified that the District never took recess away, but changed it for the student’s safety and that in fifth grade he played football almost every day (Tr. 234, 235).
Further, Ms. testified that the student reversed his “b’s” and “d’s,” but that this was common for a student his age (Tr. 247).
Lastly, she testified that from approximately December 2012 to March of 2013, the student’s behavior improved and that there were no discipline referrals (Tr. 25). She believed this occurred because of the Level System and because the student was in the right placement (Tr. 250). However, Ms. conceded that the student’s academic goals in the fifth grade were the same as in fourth grade and that he did not meet them in either grade (Tr. 310, 314).
The 2013-2014 School year ( Grade):
On June 3, 2013, the CSE developed an IEP for the 2013-2014 school year. This IEP provided for 8:1:1 for one hour per day and 8:1:1 class for English, also for one hour per day (Exhibit 31). The IEP added three additional social emotional goals and provided for a modified curriculum and
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modified grading and as wells as breaking down the academic tasks into more manageable chunks (Exhibit 31 page 9). The IEP indicates that the parent again refused and wanted the student to attend specials for health, art and “tech” in lieu of an extra 8:1:1 class. The IEP also indicates that the parent would not give the CSE consent to consult with the student’s outside therapist. Further, the IEP indicates that the student was doing well with the level system, but that he struggles with attention in his general education classes (Exhibit 31).
By letter, dated July 19, 2013, which was received by the District on July 31, 2013 (Tr. 14), the parent requested an independent evaluation, an evaluation with a sensory component, a reading evaluation and a evaluation (Exhibit 1).
On July 31, 2013, the former director of Pupil Personnel Services (Tr. 13), left a voice mail message for parent to discuss her request. On August 2, 2013, Mr. left three additional messages for the parent regarding her request the independent evaluations.
Thereafter, Mr. called the parent on August 3rd, 4th, 6th and 7th 2013. On August 7th, the parent called and asked Mr. to call her after 5pm. Mr. called the parent at 6pm and the parent and Mr. agreed to meet on August 12th to discuss her request for the evaluations (Exhibit 2, Tr. 16).
By letter, dated August 7, 2013, Mr. confirmed their meeting for August 12, 2013 (Exhibit 3).
On August 12, 2013, the parent left a message for Mr. at approximately 7:30 am and canceled the meeting (Tr. 17). Mr. then left three additional messages for the parent on August 12, 2013 and called her again on August 16th, 19th, and 27th. The parent failed to respond (Exhibit 2, Tr.18).
On September 4, 2013, the parent filed the within Due Process Complaint alleging, inter alia, the that District failed to grant the parent’s
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request for the independent evaluations and/or failed to initiate a hearing to defend the District’s evaluations (Exhibit A).
In this school year, the student moved to the Upon entering , Mr. developed another Level System to address the student’s behaviors (Exhibit 64). Like the previous school year, the Level System was amended throughout the school year to meet the student’s ongoing behavioral needs (Exhibit 65, 66).
On September 18, 2013, the District and the parent met for a resolution meeting. The District advised the parent that it was willing to fund the requested independent evaluations and to reconvene the CSE to consider the independent evaluations in developing a new IEP 2013-2014 school year (Exhibit 4). The District also advised that the would set a maximum rate for the evaluations and that in exchange the parent would withdraw her DPC, with prejudice (Exhibit 4). The parent rejected the
On September 23, 2013, the parent provided consent to reevaluate the student for a Functional Behavioral Assessment (Exhibit 67). Mr. kept a detailed log of observations of the student’s behavior (Exhibit 71), and he communicated with the parent via email regarding the student’s performance at school (Exhibit 73).
On October 23, 2013, the District developed an FBA (Exhibit 68, 69).
On October 28, 2013, the CSE developed an IEP, which continued the 8:1:1 class for hour a day as well as the 8:1:1 class for English one hour day, but added a special 15:1 class for math one hour per day (Exhibit 62).
On November 3, 2013, the CSE held a meeting to discuss a “manifestation determination” (Exhibit 63). The IEP indicated an out of school suspension in September and October 2013, which occurred after the student was placed on a “level one” because the student slammed a door into Mr. . The student also received an out of school suspension on October 28, 2013 for yelling at staff and for slamming doors (Exhibit 63).
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A personal injury report was generated by the District regarding the incident that occurred on October 2, 2013 when the student ran into a door, which slammed into the right shoulder of causing an injury to his shoulder (Exhibit 75). Subsequently, Mr. filed a police report against the student regarding this incident (Tr. 464).
The student’s report card ending November 26, 2013, indicated that the student earned a in English, a in health, a in math, and a in physical education. He also earned a in a second physical education class and a in social studies (Exhibit YY). However, at the hearing, Mr. the student’s special education teacher in the 8:1:1 class, testified that the student refuses to go to math and social studies (Tr. 446).
On December 17, 2013, the student was suspended for causing damage to school property, use of profanity and for injuring a faculty member (Exhibit UU).
On December 20, 2013, the parent filed an Amended Due Process Complaint, which included claims regarding the 2013-2014 school year (Exhibit SS).
During this school year, there were several classroom evacuations as a result of the student’s behavior as well as physical modifications to the classrooms, which included changing the light switches, removing door locks and removing a TV stand (Exhibit 76).
Mr. testified that the student’s behaviors continue, but there has bee some progress. However, as indicated above, he also testified that the student refuses to attend math or social studies (Tr. 446). There was no testimony as to whether the student made progress in reading or math (Tr. 460).
, a substitute general education teacher, was assigned to the Student for 5 hours per day, every day (Tr. 556). Ms. accompanied the student to all of his general education classes and to the 8:1:1 class with Mr. . Ms. helped modified the student’s behavior throughout the day and “retaught” as necessary. She also brought the student breakfast each day
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because the student refused to get it for himself and she fed him snacks throughout the day in order to reduce his behaviors (Tr. 527, 545).
, a licensed social work and the student’s private counselor, testified that the student’s behaviors occurred during his sessions with the student and that after 30-40 session he has not been successful in getting the student to control his behaviors (Tr. 516). Mr. diagnosed the student with and , but stated that he was not qualified to diagnose a (Tr. 520).
The parent testified that on one occasion that the District asked her to accompany the student on the class trip that included a two-hour bus rides each way. The District advised the parent that a 2-hour bus ride would be difficult for the student. However, the parent conceded that the District advised her that if she could not go, they would provide an escort for the student (636-637).
The parent agreed that the student received all the services listed on his IEPs (Tr. 667). Conclusions of Law:
Congress enacted the IDEA to promote the education of children with disabilities, "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs [and] . . . to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1); see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 367 (1985). A free appropriate public education "must include 'special education and related services' tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted).
The key element of the IDEA is the development of an IEP for each
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handicapped child, which includes "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Burlington, 471 U.S. at 368. The IEP is collaboratively developed by the parents of the child, educators, and other specialists. 20 U.S.C. § 1414(d)(1)(B); Honig v. Doe, 484 U.S. 305, 311 (1988). New York has set forth regulations to implement the goals of the IDEA, which "appear to track the IDEA closely." Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 454 (S.D.N.Y. 2005); see N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1 et seq. "'In developing a particular child's IEP, a [Committee on Special Education] is required to consider four factors:(1) academic achievement and learning characteristics,
(2) social development, (3) physical development, and (4) managerial or behavioral needs." Walczak, 142 F.3d at 123 (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(kk)(2)(i) (1997)).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). FAPE for the 2012-2013 School year:
As indicted above, the student is in the “ range” cognitively, although it was noted that his processing speed was in the range (See, WISC IV results-Exhibit 8). Nevertheless, when the student was in 4th grade, the District’s academic testing indicated that the student was performing at the grade level in reading and the grade level in math. Significantly, the testing results showed that his reading fluency was in the percentile and his math fluency was in the percentile. The results also showed that he was performing at a grade level in writing and at a grade level in spelling (Exhibit 8, page 5)..
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On June 12, 2012 the District’s CSE developed an IEP for the 20122013 school year (Exhibit 28). This IEP provided for an 8:1:1 class for one hour per day. The District continued the student’s behavior plan, which was revised throughout the school year to address his continuous outbursts and aggressive behaviors (Exhibits 13, 14, (Tr. 67, 68) and developed the “Level System” referenced above (Exhibits, 24, 33). However, shortly after the school year began, the CSE reconvened to review the student’s Behavior Intervention Plan and his Level System as a result of a serious assault by the student (Exhibit 29). Subsequently, the CSE developed a new IEP and increased the student’s time in the 8:1:1 class from 1 hour per day to 5 hours per day (Exhibit 29, Tr. 136, 137).
Here, the evidence shows that towards the end of this school year the Student scored a “ ” on ELA test, which placed him in the percentile. He also scored a “ ” in math, which placed him in the percentile (Exhibit T). Nevertheless, the District contends that the student’s reading and math levels improved greatly and that he was beginning to write because the reduction of the student’s behaviors had allowed him to be available to learn (Tr. 90). Additionally, District asserted that the student’s reading skills progressed to a mid grade level based on Fountas and Pinnell, which was a guided reading method that was utilized by Ms. (Tr. 227), and that the student was performing at a grade level in math, although he only did so “when he wanted to work” (Tr. 227, 228). Although it is understood that the student was receiving his academics in a small class setting and that the instruction was modified and delivered at a slower place, the objective evidence in the record does not support the District’s assertion that the student was performing at grade level. Significantly, the Student’s Star math and reading results at the end of the grade placed him in percentile for reading and in the percentile for math (Exhibit 28, page 3). At the end of e grade, the student’s Star results placed him in the percentile for reading and in the percentile for math (Exhibit 31 page 3). The results
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show that the student regressed in math and made only marginal gains in reading (Exhibit 31)1. Although Ms. testified that the student did not like to take the Star math assessment and that sometimes he would click any key to finish quickly, thus suggesting that his results were not a true measure of his ability, she conceded that there were other times when he would take the Star math and perform and that the Star math scores, as reported, were consistently in the percentile (Tr. 343-344). Further, Ms. conceded the evidence shows that the student’s did not meet any of his academic goals in the grade, which were the same goals he had in grade, (Tr. 310, 314).
Thus, based on this evidence, I find that the program recommendation for this school year failed to offer the student an educational benefit and resulted in a denial of FAPE. Specifically, I find that although CSE developed an IEP that addressed the student’s “managerial and behavioral needs,” the evidence shows that the CSE failed to develop an IEP that appropriately addressed the student’s “academic achievement and learning characteristics” which would enable the student to make academic progress. Walczak, 142 F.3d at 123 (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(kk)(2)(i) (1997)).
Further, although I agree with the District that the parent’s request to remove services from the student’s IEP was inappropriate, the evidence shows that the District’s academic program, which did not include any specific researched based methodology or specially designed instruction, was not tailored to meet the unique needs of the student and it failed to address the student significant deficits in reading and math Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). FAPE for the 2013-2014 School Year:
1 The District noted that the percentile in reading was a grade level (Exhibit 31, page 3).
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On June 3, 2013, the CSE developed an IEP for the 2013-2014 school year. This IEP provided for 8:1:1 class for one hour per day and 8:1:1 class for English one hour per day (Exhibit 31). The CSE also added three additional social emotional goals and provided for a modified curriculum and modified grading (Exhibit 31 page 9). The IEP indicates that the parent again refused and wanted the student to attend specials for health, art and “tech,” in lieu of an extra 8:1:1 class. Additionally the IEP indicates that the student was doing well with the level system, but that he struggled with in his general education classes (Exhibit 31).
On October 28, 2013, which was after the parent filed her initial DPC, the CSE amended the IEP and added a special 15:1 class for math, one hour per day (Exhibit 62).
As indicated above, in this school year the student moved to ’s class at the . Mr. developed another Level System to address the student’s behaviors (Exhibit 64). Like the previous school year, the Level System was amended throughout the school year to meet the student’s ongoing behavioral needs (Exhibit 65, 66). However, the evidence shows that the student’s behaviors escalated significantly during this school year, which resulted in multiple suspensions. Significantly, the record shows that on one occasion the student into Mr. s , which caused him to seek medical treatment. On another occasion, the student Ms. s during an outburst in the hallway (Exhibit 63, 75). Additionally, the evidence shows there were several classroom evacuations as a result of the student’s behavior as well as physical modifications to the classrooms to prevent the student from causing damage to school property (Exhibit 76).
With respect to academics, Mr. testified that the student was writing more in his journal. However, he also testified that the student refused to attend math or social studies, and there was no testimony as to whether the student made any progress in reading or spelling (Tr. 446, 460). Although the student’s report card in November 2013 indicated that earned a in English
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and a in math (Exhibit YY), there was no objective testing results offered by the District’s to support its assertion that the student actually obtained an educational benefit, or that program was tailored to meet his individual academic needs. Additionally, although the District asserted that the program reflected the parent’s wishes for less time in the 8:1:1 class, the parent is but one member on the CSE team and it is the District’s responsibility to offer the student a FAPE, which must include “specially designed instruction” and related services' that are tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). Accordingly, like the previous school year, I find that the program recommendation for this school year failed to offer the student an educational benefit and resulted in a denial of FAPE. Significantly, there is no evidence in the record to support the District’s decision to reduce the amount of special education services that the student received during this school year from the previous school year, when the District’s own testing indicated that he had made minimal gains, if any. Additionally, there is no evidence that the District developed a specific academic program for this school year that was based on a researched based methodology that included specially designed instruction that would address the student’s significant academic needs.
Further, although accompanied the student to his general education classes and to his 8:1:1 class, the evidence shows that she is not a special education teacher and there is no evidence that she was qualified to deliver instruction to address the student’s significant academic deficits.
Finally, although the student’s outside testified that the student would benefit from a program similar to the “North Star” program, which was a program that the worked at 20 year ago, I find that the is not qualified to offer an opinion as to the appropriate special
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education program for this student and I will not credit his testimony on this issue (Tr. 520).
Therefore, for the reasons set forth above, I find that the District failed to offer the student a FAPE for the 2013-2014 school year. LRE CLAIMS:
The parent contends that Ms. s and Mr. s level systems deprived the student of opportunities for mainstreaming. However, the evidence shows that even with the one to one assistance of Ms. in the general education class, the student’s behaviors persisted. As such, I do not find that the 8:1:1 class and/or the District’s Level System were too restrictive for the student. To the contrary, the evidence suggests that the student may require a more restrictive setting to address his severe behavioral issues and his significant academic deficits (Oberti v. Bd. of Educ. of the Borough of Clementon Sch. Dist., 995 F.2d 1204 (3d Cir. 1993).
FBA:
On October 23, 2013, which was after the parent filed her initial DPC, the District developed an FBA (Exhibit 68). The parent contends that in light of the student’s behavioral regression during the 2013/14 school year, the District “clearly has not gotten to the bottom of his negative, interfering behaviors.” As such, “the IHO should find that the FBA and BIP are inappropriate, and order that the district contract with a third party to perform and appropriate FBA and develop a BIP that is reasonably calculated to be effective.” I disagree. I find the FBA and the BIP developed by the District are appropriate and that they comply the Regulations (8 N.Y.C.R.R. § 200.1). I also note that it is undisputed that the student presents with a unique behavioral profile. Additionally, as the record demonstrates, the student’s private advised that even after 30-40 sessions, he has not been successful in controlling the student’s behavior. Accordingly, the parent’s request for an independent FBA and BIP
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are denied.
IEE:
By letter dated July 19, 2013, which was received by the District on July 31, 2014, the parent requested several independent educational evaluations.
Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363
F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i][ii];[5] 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183
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parent canceled the scheduled meeting with the District, at the 11th hour, and then refused to respond to the District’s attempts to reschedule the meeting during the last two weeks of August 2013. Thereafter, on September 4, 2013, the parent filed her Due Process Complaint. Thus, denying the District an opportunity to initiate its own impartial hearing to show that its evaluation was appropriate. I note that although the regulations do not require the parent to meet with the District to discuss her request for an IEE, or even give a reason as to why she believes the District’s evaluations were inappropriate, I find that parent’s actions in this case were disingenuous and designed to frustrate the District’s efforts to address this issue. Additionally, I find that the evaluation conducted by the District’ in October 2012 was appropriate because it adequately assessed the student’s cognitive and academic functioning and because it included an assessment of the student’s social/emotional functioning (Exhibit 8). Further, there is nothing in the record that suggests that Mr. s testing was flawed. To the contrary, the parent’s arguments with respect to alleged denial of FAPE relies on the results of this evaluation. Accordingly, the parent’s request for IEEs under this provision is denied. 504 Claims:
A claim under Section 504 requires a finding that: (1) the student is disabled; (2) the student is qualified to participate in school activities; (3) the school receives federal financial assistance and (4) the student was excluded from participation in and/or denied benefits or subjection to discrimination based on his disability. Here, the parent claims that the Student was denied the ability to participate in field trips and to play football at recess. However, the evidence shows that District had legitimate concerns about the student’s behavior on field trips and at recess, which they discussed with the parent. Nevertheless, the evidence shows that the student went on every field trip in grade, and although the District changed the student’s recess schedule, in grade, the student still played football almost every day (Tr. 234,
26
235). Accordingly, the parent’s 504 claims are dismissed. Compensatory Education Services:
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
Here, the evidence shows that the student was denied a FAPE for the 2012-2013 sand 2013-2014 school years because the District’ failed to provide an appropriate placement for the student. However, although I agree that the student did not receive the appropriate amount of specialized instruction during these two school years, there is no evidence in the record in which to calculate an award of compensatory education services. Accordingly, the parent’s request is denied2. Relief:
Although I found that the parent was not entitled to the IEEs under Part 200 of the Regulations, I find that an independent evaluation is the appropriate remedy for this case. As indicated throughout this decision, the facts clearly show that the root of student’s academic and behavioral issues has yet to be determined. Accordingly, the District is directed to select a licensed, independent to conduct an evaluation and fund the evaluation. Once the evaluation is completed, the CSE shall reconvene and develop an appropriate program for the student for the remainder of 2013-2014 school year and for the 20142015 school year. Additionally, the District shall continue the student’s 1:1 aide to address the student’s behaviors.
Lastly, the parent’s request to have the student immediately removed from Mr. s class is denied. Although the evidence shows that Mr. filed a police report against the student regarding the injury he sustained to his
2 Note: the parent testified that the student does not need compensatory education services (Tr. 585).
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, there is no evidence in the record that suggests that student would be harmed by attending Mr. s class.
Finally, although the a parent testified that the student was taunted base on his , the DPC does not contain a “ ” claim respect to an alleged denial of FAPE (Exhibit A). As such, this issue is not before me.
ORDERED
The District is directed to select a licensed, independent to conduct a evaluation and to fund the evaluation. The District may set a maximum rate for the evaluation, but the rate must be reasonable. Once the evaluation is completed, the CSE shall reconvene and develop an appropriate program for the student for the remainder of 2013-2014 school year and the 20142015 school year. Additionally, the District shall continue the student’s 1:1 aide to address the student’s behaviors. Dated: New York, New York
April 30, 2014
r, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
The notice of intention to see review shall be served upon the school district not less than 10 days before service of a copy of the petitioner for review upon such school district, and within 25 days from the date 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 dated of the decision sought to be review. If the
28
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.
(8NYCRR279.2[b]). Failure to file the notice of intention to seek review is a waiver of the rights to appeal this decision.
Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO RECORD BY THE PARENT
A. Impartial hearing request, 9/4/13 – 9 pgs
B. Letter to from parent, 12/7/12 – 1pg
C. Letter to My from parent 3/7/12 – 1pg
D. Letter to My from parent 1/30/12 – 2pgs
E. Letter to My from parent 1/3/12 – 5pgs
F. Letter to My from parent 7/31/11 – 1pg
G. Letter to My from parent 2/25/11 – 1pg
H. Letter to parent from , 12/3/13 – pgs
I. Letter to parent from w/referral 10/28/ 13 – 3pgs
J. Note from Ms. , 10/8/13 – 1pg
K. Letter to parent from Ms. 10/2/13 – 1pg
L. Letter to parent from 10/2/13 – 1pg
M. Letter to parent from w/ referral, 9/20/13 – 3pgs
N. Letter parent from w/referral 9/16/13 – 3pgs
O. Email to parent from 9/15/13 – 1pg
P. Letter to parent from , 9/10/13 – 2pgs
Q. Letter to parent from , 11/16/12 – 1 pg
R. Student referrals, 2012-2013 - 6 pgs
S. Student referrals, 2011-2012 – 25 pgs
T. 2012-2013 math and ELA parent reports , 11/2013 – 5pgs
U. K-5 math progress NYS testing results sheet – 1 pg
V. Progress report for goals and objectives, 11/26/13 – 3pgs
W. 4th grade report card, 2011-2012 – 4pgs
X. 3rd grade report card 2010-2011, 4 pgs
Y. 2nd grade report card 2009-2010 – 4 pgs
Z. 1st grade report card 2008-2009 – 5 pgs
AA. Meeting minutes, 12/21/11 – 2pgs
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BB. Meeting minutes, 5/25/11 – 2pgs
CC. RTIm Direct – student detail sheet, 12/16/11 – 1pg
DD. Response to intervention record, 11/30/11 – 1pg
EE. Response to intervention record 11/28/11 – 1pg
FF. RTIm Direct student detail sheet 8/30/11 – 11:17 am – 1pg
GG. RTIm Direct student detail sheet 8/30/11 – 10:53 am – 1pg
HH. Response to intervention record 6/24/11 – 1pg
II. RTIm Direct student detail sheet 9/22/10 – 1pg
JJ. STAR reading instructional planning report, 1/17/12 – 2pgs
KK. STAR reading instructional planning report, 12/20/11 – 4pgs
LL. Teacher questionnaires, 1/12/11 – 6pgs
MM. DIBELS student progress monitoring graph 2011-2012 – 11pgs
NN. DIBELS student progress monitoring graph 2010-2011 – 2pgs
OO. DIBELS student progress monitoring graph 2009-2010 – 3pgs
PP. DIBELS student progress monitoring graph 2008-2009 – 2pgs
QQ. Appearance Ticket, undated – 1pg
RR. CSD- program review, 11/19/13 – 18pgs
SS. Amended impartial hearing request, 12/20/13 – 10 pgs
TT. Student referral, 1/28/14 – 3pgs
UU. Letter to parent from , 12/19/13 – 1pg
VV. Letter to parent from , 12/17/13 – 1pg
WW. Letter to parent from , 12/17/13 – 1 pgs
XX. IEP, 12/9/13 – 12 pgs
YY. Report Card, 12/6/13 – 1pg
DOCUMENTATION ENTERED INTO RECORD BY THE DISTRICT
1. Letter to Committee on special education from dated 7/19/13 – 1 pg
2. List of phone contacts prepared by dated 9/11/13 – 1 pg
3. Letter to from dated 8/7/13 – 1pg
4. Letter from Cuddy Law Firm from dated 9/20/13 – 2 pgs
5. Prior written notice proposed referral for evaluation and request for consent dated 9/13/11- 3 pgs
6. Consent for initial evaluation dated 9/23/11 -12 pgs
7. RTI interventions dated 12/9/11 – 1pg
8. evaluation of prepared by school
psychologist – 11pgs
9. Behavior support plan revised through 1/25/12 – 1pg
10. Behavior support plan revised through 3/19/12 – 2pgs
11. Behavior support plan revised through 4/23/12 – 3 pgs
12. Behavior support plan revised through 5/17/12 – 4pgs
13. Behavior support plan revised through 9/18/12 – 4 pgs
14. Behavior support plan revised through 9/26/12 – 4 pgs
15. Behavior support plan revised through 10/16/12 – 1 pg
16. WADE Student Information form – 38 pgs
17. Student progress monitoring report printed 4/25/12 – 2 pgs
18. CSE request for an evaluation dated 4/26/12 for FBA
19. Consent form for reevaluation signed by on 4/24/12 – 1 pg
20. 4th Grade data for FBA – 36 pgs
21. Procedure for Determining – 6 pgs
22. Recess Schedule – 1 pg
23. Recess Schedule – 1 pg
24. 2012-13 grade daily behavior data – 199 pgs
25. CSE meeting record dated 2/6/12 with attached IEP, meeting notices dated 1/24/12; 1/5/12; 12/22/11, email correspondence between and dated 1/10/12, prior written notice CSE/CPSE meeting work sheet, committee sign in sheet, handwritten notes and notice of board of education review for special education dated 3/8/12 – 24 pgs
26. 3/21/12 CSE subcommittee meeting with IEP and related documents –
13 pgs
27. 4/30/12 CSE subcommittee meeting with IEP and related documents –
23 pgs
28. 6/12/12 CSE subcommittee meeting with IEP and related documents –
28 pgs
29. 10/16/12 CSE subcommittee meeting with IEP and related documents
– 19 pgs
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46. Student referral dated 3/21/12 – 1pg
47. Student referral dated 4/16/12 – 1pg
48. Student referral dated 5/31/12 – 1pg
49. Student referral dated 9/14/12 – 1 pg
50. Student referral dated 10/4/12 – 1 pg
51. Student referral dated 10/9/12 – 1pg
52. Discipline referral dated 3/14/12 – 1pg
53. Incident notes dated 3/14/12 – 1pg
54. Incident notes dated 3/14/12 – 1 pg
55. Letter to parents dated 3/15/12 – 1 pg
56. Letter to parents dated 3/15/12 signed by . – 1 pg
57. Discipline referral dated 3/20/12 – 2pgs
58. Discipline referral dated 3/20/12 – 1pg
59. Discipline referral dated 3/20/12 -2pgs
60. Copy of letter to from dated 11/16/12 – 1pg
61. Recess with Ms. – 1pg
62. 10/28/12 amended IEP with request for change, psychologist’s recommendation, mother’s consent and BOE approval – 16 pgs
63. 11/4/13 manifestation determination record – 33pgs
64. Level system middle school – 7 pgs
65. 9/6/13 behavior contract – 1pg
66. 9/19/13 revised behavior consent – 1 pg
67. Consent for FBA signed 9/28/13
68. Original FBA and BIP at middle school – 4 pgs
69. 11/19/13 revised FBA and BIP work copy with mother’s signature – 5
pgs
70. 11/19/13 revised FBA BIP – 5pgs
71. Middle school behavior log kept by – 38 pgs
72. Daily level sheets for middle school – 94 pgs
73. Email correspondence between special education teacher and parent – 66 pgs
74. Personal notes of regarding contact with parent – 15 pgs
75. Personnel injury report 10/2/13 – 1pg
76. School adaptation list prepared by – 1pg
77. 10/21/13 log of morning activity prepared by -2 pgs
78. 10/22/13 log of morning activities prepared by – 1 pg
79. 10/28/13 log of morning activities prepared by – 2 pgs
80. /Parent email correspondence – 23 pgs
81. Response to amended due process complaint – 10 pgs
82. 6th Grade level 1 sheets – 42 pgs
IHO EXHIBITS
1- Extension Order 2-26-14
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2- Extension Order 4-4-14
Footnotes
[5] , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v]. Here, the evidence shows that the parent asked for the IEEs and then agreed to meet with the District to discuss her request. Subsequently, the
[30] 12/11/12 CSE subcommittee meeting with IEP and related documents – 20 pgs 31. 6/3/12 CSE subcommittee meeting with IEP and related documents – 22 pgs 32. initial evaluation by dated 11/20/12 – 4 pgs 33. Level system for room 103 2012-13 1-pg 34. Copy of note book journal kept by s mother and s – 9 pgs 35. s schedule revised on 4/23/12 – 1 pg 36. Letter to Mr. from Ms. dated 3/21/12 – 1 pg 37. Request for change in IEP dated 12/20/12 signed by . – 1 pg 38. 5th Grade report card -1 pg 39. Student referral dated 9/28/11 – 1 pg 40. Student referral dated 11/28/11 – 1 pg 41. Student referral dated 12/2/11 – 1 pg 42. Student referral dated 12/16/11 – 1pg 43. Student referral dated 1/23/12 – 1pg 44. Student referral dated 3/14/12 – 2 pgs 45. Student referral dated 3/20/12 – 1pg