Impartial Hearing Decision

STATE OF NEW YORK : COUNTY OF Ce

IN THE MATTER OF THE IMPARTIAL HEARING BY ,

REPRESENTED BY /

PETITIONER, RESPONDENT,

BEFORE

GEORGE KANDILAKIS

IMPARTIAL HEARING OFFICER

SEPTEMBER 30, 2014

Preface

A Due Process Complaint brought by the Parents of a child with a disability for the 2012-2013 was received by thelEE—ES chool! District on October 1, 2013. The resolution session was held and ended with no agreement. The student remained in the District’s special education placement during the time of the hearing. The impartial hearing was held on January 15, 2014, January 16, 2014, January 17, 2014, February 26, 2014, February 27, 2014, March 7, 2014, May 21, 2014, May 23, 2014 & June 18, 2014. Extensions were requested by the parties and granted due to a court appearance, availability of witnesses and request for additional documents.

Telephone conferences were held on November 15, 2013 and February 20, 2014

There were 2,093 pages of transcript testimony. The District offered

37 documents and the Petitioner offered 22 documents. The parties offered briefs and were received by the hearing officer on or about September 15, 2014.

Due Process Complaint

The Parents on behalf of their minor child [student] request a Due Process Hearing for the 2012-2013 school year because, [1] the classification of | Og more in line with the student’s disability and that Es an incorrect classification. [2] suspension, other removal from the classroom was a denial of FAPE [3] the behavior intervention plan [BIP] including the daily chart was vague and does not elaborate of the behavior that had occurred. Furthermore, the Parent did not participate in the BIP’s development. [4] Parents are requesting the CSE add the student’s companion service dog to his IEP as an accommodation. [5] the teacher aide is not qualified to work with GE students [6] The use of a time out room is in violation of the student’s FAPE.

The District response to the Due Process Complaint was, [1] the classification of i was appropriate because the student’s primary disability is se [2] the Parent failed to cooperate in the development of the BIP [3] the Parent sabotaged the work of teacher aide with her son.

[4] the use of the time out room had never occurred or used.

[5] the addition of an accommodation to the IEP is unnecessary for the student to receive educational benefit. Footnote-a skilled companion dog is the name given to the dog when the child is under 18 years of age and requires a facilitator present. [T p 1112]

BACKGROUND

The Parents of a child with a disability [student] are challenging the school District special education programming for the 2012-2013 and the and are seeking a change in their child’s classification ol and the inclusion in the IEP of the student's The student at the time of the Complaint was attending the [School District in the fourth grade. [T p 1653]

Early history indicated that the student attended the a preschool program and EE eschoo Program while residing in the HE School District around the age of 2 1/2 to three years. He was identified as a student with a disability by the Committee on Preschool Education and received Special Education Itinerant Services [SEIT]. The student attended the kindergarten, first and second grade programs in the Connetquot School District. The student received special education while in those programs. Mother testified that her son’s behavior centered around social issues as well as not being able to participate in activities of daily living [ie. running in circles, not transitioning smoothly from activity to activity and not making eye contact]. His desire to build peer friendships ended with his inability to keep and maintain friendships. Behaviors at home and in school led the family to seek alternative solutions. [D-9, D-10, P-L, T pp 1654-1655, 1716]

When their son was around four or five years old, one of the solutions to resolving their son’s inappropriate behaviors was the trial use of medications such a | | The side effects of the use of these medications were raging withdrawals, suicidal thoughts, disorientation, night terror screams and vocal tics in his throat. Despite the side effects of the medication, the Parents continued their use on and off sporadically. They didn’t understand why the medications were not effective since he had been diagnosed with During the 2012-2013 school year they tried edication. The Parents concluded that all the trials on medication were not the solution to address their son’s disability. Parents were looking for something other than medication for their son so that he could begin to self regulate, be more like a typical peer and function appropriately in and out of his home, school and community. [T pp 1292.

The student reentered ~~ , 1656, 1657, 1658-1659) mon District in September, 2011 as a third grader after having been previously enrolled for a short time in an inclusion program in followed by his enrollment in the MEE school District. [T p 1716]

The student's first grade testing, the Test of Early Writing language [TEWL-2] was conducted on April 21, 2010. The results of the testing were as follows: Story Comprehension BS; Reading it

Reading Comprehension EEE, Spelling HE Matn

Reasoning iE Calculation His Reading composite quotient Was aifnd his Math composite quotient was ii

SS. At the time of this evaluation, the student had a medical diagnosis of | His behavior and his progress in the general education curriculum were a concern. He was impulsive, unable to stay seated in his chair, would call out and required continued reminders not to interrupt. He would be touching objects and used inappropriate language. He was easily distracted. A BIP was put into place on March 4, 2010, using a reward system. [D-9, T pp 108-109]

On July 7, 2010, a WISC-IV was conducted with the student achieving a Verbal Comprehension score in the | | and Sim range]; Perceptual Reasoning Hi and SS ange]; Working Memory Ile and SSI Processing Speed I SS @; Full Scale Tl and SS HM range]. During the testing it was observed that the student had fine motor weaknesses and sensory concerns. He was impulsive and displayed inappropriate behaviors during the testing. The evaluator found that the student’s visual motor, visual spatial, visual perceptual skills were underdeveloped.

[IHO-1, T p 107]

On December 5, 2010, ), Ei noted that — the student in the previous six months, had demonstrated |i symptoms of low frustration tolerance, hyperactivity, impulsiveness, attention/ concentration issues, explosive behaviors, defiance and daily tantrums. His diagnostic impressions was [EE (i

ME and recommended possible i EM intervention and daily periods of vigorous physical activity. [D-30, T pp 1239, 1286] _

On October 13, 2011, a J evaluation was administered. The student’s placement was in a self contained 3rd grade special education class [15:1]. On the Verbal Comprehension, he was in the yal % with a SS a Perceptual Reasoning ma, with aSs

SS wOOr Full Scale SSE ANGe). The student did show cognitive potential within the average range. When the student was focused on a task, his skills were in the average range. His ability to gather information by reading was better than it was by listening. His high activity level was ongoing in his learning environment. The Connor’s Scale was also collected andindicated a = elevated level for An educational evaluation was conducted on October 18, 2011. On the WIAT Ill, the student achievedin Listening Comprehension a SSR in Oral Language Composite a SS JJ Basic Reading a SS MM: Reading Comprehension/Fluency SSI Total Reading Composite a SSH Written Composite a SS Miilnd a Math Composite SS Ml [D-29]

The classroom observation was conducted on November 11, 2011 and indicated that the student needed redirection and refocusing, he would call out, had difficulty staying in his seat and was impulsive. [D 14]

The new entrant report dated November 13, 2011 indicated that the student’s strength was in oral expression and listening comprehension. His weaknesses were in the development of early reading skills, reading comprehension, math problem solving, numerical operations, written fluency, spelling and sentence composition. [D-13, T p vith

In November, 2011, the student was diagnosed with ls The Parents concluded that they were treating the wrong disorder [JM They believed that the social deficits were more attributed to his Po [T pp 1658-1659}

As a new entrant, the student brought with him an IEP and a BIP from the TS chool! District, where he had been a special education student. The Parents agreed to continues 1EP and BIP as their son transitioned tof School District. [T pp 347-348, 1716-1717]

The District’s start date for the new IEP was November 16, 2011. In attendance at the CSE meeting were the Chairperson, Psychologist, Social Worker, Special Education Teacher and Parent. No general Education Teacher was present. The Parent agreed to continue ihe A classification, placement in a special class program [15:1] and [5:1]. The FBA and BIP would be updated. The new BIP was developed in March of 2012, but the Parents stated that “nobody asked my consent for the FBA” .

Academic Achievement Need Areas

Study Skills-uses school agenda, independent work was interrupted by verbal comments

Reading-reads, but not with understanding

Writing-spelling, punctuation, grammar, expansion of ideas were need areas

Math-word problem strategies

Social Development Need areas

Self control and self management, inconsistent social judgment

Can be easily over-stimulated, not accepting of limits or responding appropriately to school discipline

Difficulty working cooperatively with peers

Needs- to learn alternative ways to seek attention and demonstrate the ability to cope with frustration

Physical Development

Diagnosed inattention, impulsivity and distractibility

Management Needs

Required a small teacher to student ratio with minimum distractions

Small group instruction

Assistive Technology-none

Goals-Study skills record assignments in school planner follow oral/written directions attend to tasks given

-Reading improve word attack skills answer receptive comprehension questions answer main idea questions

-Writing use correct punctuation and capitalization write five complete and correct sentence write a sequential paragraph

-Mathematics read three digits numbers recite times tables improve word problem skills

-Social Emotional identify emotions/feeling improve peer relations comply with teacher directives, school rules identify three instances of anxiety

Identify choices in a given situation

The student would take State tests with no accommodations. The Parents would receive progress reports three times per year. [D-2]

A Child Systems Inventory was prepared by his teacher on November 13, 2011. The teacher described the student as being Mi years [iMbrade level in reading and arithmetic and Mbr more years MS rade level in writing and spelling. She indicated that the student very often failed to pay attention to details and tasks; follow through with instruction; organize tasks and activities; easily distracted; fidgety with hands, feet; squirmed in his seat; runs about, climbed on things; talked excessively; interrupted people, argued with adults, annoyed others deliberately; blamed others; avoided responsibility; had difficulty controlling worries, was extremely tense and had difficulty with transitions. [D 15, T p 358]

A Child RE ndividual Assessment was conducted by Dr. S| Gon December 23, 2011. During the examination, it was noted that the student had a genetic predisposition to develop anxiety, depression and He displayed repetitive behaviors, inability to maintain eye contact, difficulty with social relationships, inability to pick up social cues. He had good lan skills and a fair vocabulary. He met the criteria for nd there was no evidence of psychosis or mood disorder. He was not in imminent danger to himself or others. His diagnosis was

[D-12, P-J]

The functional behavioral assessment [FBA] and the behavior intervention plan [BIP] were completed on February 12, 2012, with an addendum on March 19, 2012. The challenging behaviors were calling out, getting out of his seat and wandering about. The baseline period was February 2, 2012 to February 6, 2012. The strategy to be employed included verbal redirection, reengagement, the setting of clear rules with a reward and positive reinforcement system. The revised BIP listed targeted behaviors as follows: raising his hand, calling out, staying seated, listening. The document was unsigned. [D-18]

On May 20, 2012, a revised BIP was put into place because his progress report showeda little or any of progress with his challenging behaviors. The changes included a removal from class for a walk to prevent further escalation of challenging behaviors, an adult will sit with him for mathematics and ELA lessons so as to keep him on task and to complete his work. The revised plan was discussed with the parent over the telephone and she agreed to the plan. A copy of the plan was sent home for her review. [D-19]

A QE status report was developed on May 31, 2012. The student had received in school since September 2011. The GR sec the cognitive awareness method for his social skills training. The goal was to foster positive peer relations, by modifying his impulsivity, understand the relationship between action and consequences, which would develop into positive peer relations. [D-16]

The 3rd grade progress report for the year 2011-2012, indicated that the student was working towards and meeting some standards in reading phonics, fluency, vocabulary, comprehension, writing, mechanic and speaking.

The students math achievement grades were A, A & B [representing three quarters]. His low achievement level were in calculating accurately, using strategies to solve problems, answering in oral or written forms. Spelling grades were A, A + & A+. Low achievement was noted in applying words learned. Social studies grades were rated as B+, B+ & A. Science grades were rated as S, S & S. Low achievement was noted in following safety rules. Physical education grades were rated B+, B+, B+. Low achievement was noted in using a safe and responsible behaviors. Art grades were rated B, B & B. Low achievement was noted in interest and participation. Music grades were B+, A & B. Noted was that the student needs improvement in effort.

The progress report further noted that in the social skills area, the student needed improvement in peer relations, self control, following class routines/rules or applying problem solving skills. In the work habits area, the student needed to better attend to tasks and participation in class discussion/activities.

In the first period, the report indicated that the student needed constant teacher support and redirection, rushed through assignments and could be argumentative with his peers and could misunderstand their actions. He showed a good fund of information. In the second period, it was noted that he was reading on level |; reading more independently; a more active participant in science and social studies. He could be helpful to other students in assisting them completing their work.

In the third period, the student’s need areas were in multiplication, division mathematical facts and inferencing information. [D-7]

Discussion 2012-2013

On May 31, 2012, the Committee on Special Education [CSE] reconvened to conduct its annual review. In attendance was the Chairperson of the CSE, the psychologist, the social worker, the student’s special education teacher, the Behavioral Intervention Specialist and the Parent. No general education teacher was present.

The student’s Academic Achievement, Functional Performance and Learning Characteristics were listed as follows:

[1] Study Skills-Need areas were for grade level appropriate skills in the reduction of attention seeking behaviors; the lack of focus; for the reduction of verbal interruptions

It was noted that the student could record his homework assignments in his planner and that the student’s behaviors would be addressed in the BIP

[2] Reading-decoding skills had progressed, but were in need of further development; reading comprehension especially in the expression of details

It was noted that the student was not tested in oral expression due his distractibility

[3] Writing- writing as a tool was problematic; weakness in paying attention to detail; careless errors; knows spelling rules and correct grammar usage and had creative ideas [4] Mathematics- Need areas: were in computation and word problem strategies; impulsivity results in his rushing through assignments and tests; unable to give math fluency subtest due to lack of focus

Social Development- Need areas: behavior towards peers and adults; following school rules; coping with frustration; coping with transitions

Physical Development- medical diagnosis impact learning [inattentiveness, impulsivity, distractibility]; lacks self control for independent work [staying in his seat, in constant motion]; strengths were in the gross motor area, competitive outdoor activities. Need areas were in his short attention span, distractibility and improving his understanding of game rules

Management Needs- required a structural environment, teacher directed support [large amount of time expended by the teacher]; required small group instruction; use of the BIP to determine progress in the behavioral areas.

GoalsStudy Skills follow classroom routines independently copy written notes attend to task for 5 minutes for seat work attend to task for 5 minutes for classroom lessons

Reading identify word attack rules [vowel digraphs read vowel digraphs identify the main idea of a story and pertinent details

Writing spell 20 sight words write a 6 sentence assignment organize 10 facts in a written outline

Mathematics write and match the equivalent names of different numerals solve addition and subtraction problems using money notations

Ssocial/Emotional/Behavioral accepts the responsibility and consequences for inappropriate behaviors will utilize alternative solutions without acting impulsively will identify and apply responsible decision making process.

It was noted on the IEP that reporting of progress on the student’s goals would be_sen arent three times per year.

A written atus report was developed on May 31, 2012. The student had received in school ince September 2011. The counselor used the cognitive awareness method for his social skills training. The goal was to foster positive peer relations, by modifying his impulsivity, understand the relationship between action and consequences, which would develop into positive peer relations. All goals would continue for the following year. [D-16]

A second CSE review was requested by the Parents and was scheduled for October 2, 2012. In attendance was the Chairperson, the School Psychologist, Social Worker, Behavioral Specialist, School District Attorney, Parents and Parent’s Attorney and another unidentified attendee. No General Education Teacher was present. The Parents’ concerns were regarding the 1:1 teacher aide and the development of the BIP. The CSE approved a psychiatric evaluation and an updated Functional Behavioral Assessment [FBA]/Behavioral Intervention Plan [BIP]. The student’s classification and special education program/services would continue.[D-4]

The FBA and BIP were completed on October 5, 2012. The student’s challenging behaviors were identified as calling out; getting out of his seat; disrespectful comments to teachers and peers; physical aggression towards peers and adults and the destruction of property.

Anecdotal data collection for the antecedent, behavior and consequences [ABC] would occur in the location where the inappropriate behaviors occur such as during lessons, independent work, lunch, recess and specials. The student’s poor impulse control, attentional issues and motivation could be causal. The frequency, duration and intensity were collected from October 3 - October 10, 2012 and showed incidents of physical aggression towards peers, destroying property and being uncooperative. Strategies to be employed would be verbal redirection, redirected walk and behavioral plan charting. Reinforces included legos, computer, extra recess, bubbles, homework pass. Targeted behaviors included physical aggression towards peers, eloping from the teacher aide, refusing to follow adults direction, calling out and leaving his seat. Goals were established to address the inappropriate behaviors. Proactive strategies included the use of verbal/visual cures; proximity of the aide to the student; squeeze putty and social stories. Monitoring and reviewing progress would occur by reviewing ABC data; daily log; review of frequency data; consultation with the Behavioral Specialist and support staff. Progress would be monitored by the Behavioral Specialist. No other signatures other than the signature of the Behavioral Specialist appeared on the document. [D-20]

In preparation for the mination, a Teacher Information Form was completed on October 9, 2012. The teacher noted that the student was EEgrade level in reading, writing, social studies, science and classroom behavior. He was on or about grade level in math and homework completion. His class participation was above average. Behaviorally, he often argued with adults; defied or refused to do what he was told; was deliberately annoying and provocative; blamed others for his own misbehavior; easily annoyed by others; took anger out on others and his behavior interfered with his social and academic functioning. He sometimes threw objects; destroyed things; made threatening gestures; cursed and was provocative; damaged other student property; hit, pushed or tripped other students and engaged in physical fights. Behaviors sometimes interfered with his social and academic function. Possible problems were identified as high energy, excessive talking, staying on task or distractible. The report further stated that it is often true that the student makes noises; was defiant; was restless and hyperactive; engaged in fights; daydreamed; demanded attention; was impulsive, acted without thinking; talked out of turn and had a short attention/concentration span. It was sometimes true that the student argued, was mean or cruel to others; destroyed property; disobedient, lied and cheated and didn’t complete his work or follow directions. [P-R]

The BIP progress report was completed on December 13, 2012 with a recommendation for counseling in a small group once a week. New target behaviors included crawling on the floor, destroying school property and physical aggression towards peers and adults. From October 26, 2012 to November 26, 2012 the student’s overall success rate was 93 % using the targeted number of points achieved. For the ten days following that period, overall success rate was 30 %. [D- 21]

A CSE was reconvened on December 17, 2012. In attendance was the Chairperson, the School Psychologist, the Social Worker, the Special Education Teacher, the Behavioral Specialist, the Building Principal, Ass't Superintendent, District’s Attorney, the Parent and the Parent’s Attorney. No General Education Teacher was present at the CSE.

The updated and revised FBA and the BIP were reviewed with the recommendation to continue the current program and services.

Parent

Districts expense was approved. a: continue. training 1 x per month for 1 hr was added. / xamination at Counseling goals included: to communicate and interact in a socially acceptable manner; to accept responsibility and consequences for inappropriate behaviors; would discuss and assess a problem situation and review alternative solution without impulsivity; would discuss and identify 3 benefits of applying a responsible decision making process to the situation No goals were developed for the parent training. [D-5]

A BIP progress report was developed on January 11, 2013. Recommended changes were for the student receive reinforcement after each activity and provided with novel reinforcement that was highly motivating or receive 1-1 attention outside the classroom. His challenging behaviors continued to be: talking back to the teacher; refusing to complete work; calling out; wandering around the classroom; crawling on the floor; touching other student’s belongings; throwing objects, eloping, hitting a peer or an adult. In January, when the student exhibited more intense behaviors, his Parents removed a highly preferred electronic devise as a consequence. Shortly after that, the intense behaviors decreased. By the end of January, the student’s behavior met a 75 % rate of success. [D-27]

On February 19, 2013, hE uation was completed. The evaluator reviewed multiple school reports, the student’s early history and made his own observation. While interviewing the student, he noted that the student spoke constantly, walked around his office, his speech was dysfluent, his language was tangential, motor tics of his eye lids and was ‘into everything’ in his office. The evaluator believed the student possessed symptoms of an Autistic Spectrum Disorder. This was based on the student’s perseverative content of his speech, poor pragmatic communication skill, a tendency to dominate conversation and his fixations. He noted that the student meets the criteria for an ee 112 also recommend that the student be classified as oy, ee recommended a behavioral specialist in the area o Treatment should focus on social skills, communication skill, behavioral self control and processing of information. Medications are not an option due to his poor tolerance for them. His oppositional behavior was better understood as a consequence of his rigidity as seen in children. i causes impulsivity, which creates his disruptive behaviors. His BIP should be implemented access all settings. [P U]

8, 2013, a psychiatric examination was conducted b

His diagnosis was ——— ——= — SS ee ee

The BIP progress report was developed on May 8, 2013 with antecedent data being collected between March 17, 2013 to May 8, 2013. The period where most challenging behaviors that were observed was between November 22, 2012 to January 22, 2013. It was noted that the student’s challenging behaviors appeared to occur more frequently around the subjects of math, language arts, art, music, library and physical education. The challenging behaviors were identified as calling out, making noises, talking aloud, physical aggression to peers and adults, not conforming, running in the hallway and non compliant. Areas of greatest frequency of inappropriate behaviors were calling out, non compliance and running in the hall. Areas of lesser frequency of inappropriate behaviors were being disruptive and physical aggression towards peers and adults. It was also noted that he was more easily redirected. [D-27]

On May 21, 2013 a CSE meeting was heid to conduct its annual review. In attendance was the Chairperson, School Psychologist, Social Worker, Behavioral Consultant, Principal of Gatelot Elementary School, District’s Attorney, the Parents, The Respite Provider, Parent’s Attorney. The recommendation was to continue classification adil Special Education Class [15:1 at the Gatelot Elementary School [grade 5]. Services included group 1 [30 min.] weekly, individual ee 2 [30 min.] sessions monthly. Parent training 1 [60 min.] session monthly.

Comments noted on the IEP indicated that both psychiatric reports were reviewed, there were “conversations” regarding the use of the “dog” as an accommodation. Additional “conversations” included the issue of a change of classification. Options regarding classifications were There were “conversations” regarding the student’s program and services. There was an offer to provide compensatory parent training for sessions missed. There was a recommendation to explore out of district placement and to return to the CSE to discuss placements for 2013-2014.

The IEP noted the Academic Achievements as follows:

Study Skills-Behavior [impulsive, verbal interruptions, rushes through his work, complying with teacher requests]. He is able to take notes form the board and can use the computer. Reading-reading comprehension is in the low average range skill are at the early reading level decoding skills are below grade level misses important content ELA testing-quickly completes test questions chapter books-shows comprehension of vocabulary able to infer, predict, understand the plot of a book with fluency, can self correct Writing-no levels were identified Mathematics-deficient in numerical operations low average problem solving skills problems completing his work rushes through tests and assignments stressed when presented with a number of questions word problem solving strategies need work calls out answers Strengths-responds positively to incentives benefits from hands on science experiments Need areas-improve decoding comprehension skills improve computation and application math skills improve written expression improve study skills Social Development difficulty with impulse and self control! inconsistent social judgment difficulty relating appropriately to peers/adults difficulty with transitions difficulty accepting limits difficulty responding appropriately to school discipline uses attention seeking behaviors Strengths-participates in small structured groups in class eager to make friends responds to positive reinforcement some improvement with using alternative means to correct his attention seeking behaviors Need Areas-relating appropriately to peers and adults requires adult supervision in social situations difficulty with transitions difficulty coping with frustrations complying with school/classroom rules accepting assistance when in difficult situations Physical Development fall impact his learning exhibits symptoms of inattention, cognitive impulsivity and distractibility Strenghts-competitive Need Areas-attending to tasks, decreasing his distractibility Management Needs BIP is used to reinforce good choices use of adult supervision to refocus and attend to tasks benefits from established routines benefits from high interest material good ability to participate in classroom discussions benefits from small group instruction General Education delay in decoding, comprehension math calculation, math concepts, written expression, social skills, attentional deficits adversely affects educational performance. No general education classes were assigned.

Goals: Study Skills [1] will follow morning routine independently [2] will copy notes from the chalk board, use the computer to complete assignments [3] will use test taking strategies [4] will increase attention to seat tasks by 10 minutes [5] will increase class notes activities by 10 minutes

Reading [1] will identify the rules for 20 words[ [r] controlled words] [2] will identify 5 facts in a story read to him [3] will recall 5 relevant details of a story [setting, characters and events] [4] will identify and define different types of reading materials

Writing [1] will spell 20 words [2] will write an assignment that includes 10 complete sentences [3] will write a paragraph using “wh” statement and a headline emphasizing the main idea

Mathematics [1] will identify facts of 10 given numbers [2] will solve 3 digit addition problems with regrouping [3] will solve^[3] digit subtraction problems with regrouping [4] will use inverse relationship between multiplication and division [5] will solve two step math problems

Social Emotional

[1] will identify impulse behavior and provide the strategies in dealing with them [2] will use eye contact to display awareness of others

Parent Training no goals listed

Supplemental Aides and Services one to one teacher aide access to a computer implementation of the BIP to address the student’s impulsivity and distractibility

Student will participate in all State and District assessments [D-6, P-A]

The student’s grade 4 report card for the period March 11, 2013 to June 20, 2013 was as follows: The student had 5 absences in that period.

Teacher comments for the final quarter were improvements in math facts, reading level and vocabulary. Met grade level expectations in reading foundations skills using literature and textbook. In writing skill development, the student was working towards grade level expectations in conventions and usage, however, was not meeting grade level expectations in the use of content.

Additional comments were that the student continued to require an intense behavior plan. Even with support, had difficulty consistently meeting goals. He has “great potential”. The Library Reading program was recommended to build his reading comprehension skills.

Grades were as follows: mathematics B+; social studies A; science A; research A; physical education A; art B+ and music B+.

The student was to be promoted to 5th grade. [D-8]

Though the 2013-2014 school year is not an issue in this hearing, I received into evidence, the student’s 5th grade screening completed on September 12, 2013. His oral reading was at an 4% accuracy rate. On the fluency score, he reads primarily in three-four word phrase groups, some smooth, expressive interpretation and pausing guided by author’ meaning and punctuation; mostly appropriate stress and rate with some slowdowns. His comprehension conversation was noted to be satisfactory with a score of 8 out of ten correct responses. [D-28]

Finding of Facts and Decision

One of the issues in the the Due Process Complaint was that of the student's classification. The CSE on numerous occasions continued to classify the student as || which was a continuation from the one the chool! District CSE had recommended in the last JEP in 2011. The Parents believe that their child’s classification should be [mm The CR Part 200.1 [zz] [1] defines HIas a developmental disability Significantly affecting verbal and nonverbal communication and social interaction, generally evident before the age of 3, that adversely affects a student’s educational performance. Other characteristics often associated with are engagement in repetitive activities and stereotyped movements, resistance to environment change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph [4] of ..... subdivision. A student who manifests the characteristics of ; after age 3 could be diagnosed as having ii if the criteria in this paragraph are otherwise satisfied.

The CR Part 200.1 [10] defines s having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student’s educational performance.

Ms. EEthe Districts Behavioral Specialist, developed a power point presentation for the District staff on the | Spectrum, but it was unclear if it was used with all the staff directly involved with the student’s education. In the presentation, the characteristics of BE were identified. Student's in the EEEnad a delay in social language and cognitive skills; immature patterns of speech, lack of speech and echolalia; limited understanding of ideas; use of words without the attachment of their unusual meaning; abnormal way of relating to people, objects and events. Specific characteristics were noted to be having difficulty with social interactions with others; often resists changes to routines; lack of eye contact; perseverative speech; restricted, repetitive and stereotyped patterns of behavior, interest and activities and movement differences. Speech and Language Delays included difficulties and delays with the domains of communication and language, phonological and syntactic development; do not use word meanings in an unconventional way [overly literal or pedantic]; comprehension of complex language and formulating complex output is significantly impaired. Attention included abnormal inattention and response to sensory stimulation; tend to be selective in their attention; difficulty shifting attention; lack of attention may be a way of preventing over arousal. ae GE OsiV- |v) is defined as having an impairment of social interaction; an impairment of social communication; an impairment of social imagination, flexible thinking and imaginative play. Absences of significant delay in cognitive development and the absences of general delay in language development. Signs and symptoms _— ; re difficulty mixing with other children, may resist learning, giggle or laugh inappropriately, use of gestures more than verbalization to indicate their needs, avoid eye contact, manifest inappropriate attachment to objects and may be obsessed with spinning various objects. Communication features include nonverbal communication that occurs ication. Social Interaction for student’s —“ with voice inflection during speech; interpreting body lang understanding how their behavior can affect how others think or feel. [D-24, T p 124]

The more current DSM-5 cited in the Diagnostic and Statistical Manual of Mental Disorders, a revised diagnosis represents a “new and more accurate, and medically and scientifically useful way of diagnosing individuals with [related disorders”. People with | EE tend to have “communications deficits, such as responding inappropriately in conversations, misreading nonverbal interactions, or having difficulty building friendships appropriate to their age. In addition, people with GS nay be overly dependent on routines, highly sensitive to changes in their environment , or intensely focused on inappropriate items”.

The symptoms as described in the DSM-5 fall on a continuum ranging from mild to severe. Symptoms must be noted from early childhood even if the symptoms may not have been fully recognized until the social demands exceed their capacity to respond appropriately to the stimuli.

The CSE members representing the District all supported the classification of MI Ms. EE schoo psychologist testified that the classification Offf—iivas appropriate because it was based on the student’s medical diagnosis of MEE as well as inc | She further testified that it would be inappropriate to classify the student as GE because “we’ are not seeing only behaviors in the classroom, but behaviors that are more indicative of a child with i He does have difficulty making eye contact, but that was not a behavior that was really impacting his ability to function within the classroom. Ms. Marie Newcombe, the student’s special education teacher in 3rd and 4th grade, testified that she agreed to the ilassification. She testified that the student did make statements that were out of context, such as getting her fired, take her to court and that he doesn’t have to listen to her. Ms. Es testified that she had observed spinning and flapping his hands during calendar time. His impulsivity, she testified was such that “he couldn't sit there [circle time] anymore’. Vs the 1-1 teacher aide, testified that the student had made an out of context statement when he threatened to throw the dog down the stairs. She further testified that he had a problem inappropriately touching things and people. Ms. he 1-1 teacher aide, testified that the student made out of context statements such as you were drunk, you are a loser, don’t come back, and that “he got the last aide fired”. She had also observed him running around the classroom, crawling on the floor, grabbing objects and touching people inappropriately. The students use of inappropriate language occurred at least once a week. Ms. the District’s Behavioral Specialist testified that she had agreed to the Classification of | to the student’s multiple diagnoses. She did not see a language deficits or social communication issues with adults. His basic wants and needs were intact. [T pp 102-103, 115-117, 119, 353-355, 360, 403, 406, 451, 467, 532-534, 546-547, 582, 262-263]

The Parent’s presented witnesses a ee belief that their son should be classified a ==. DD; ii Clinical and School Psychologist, testifies that his expertise was with children with He testified that he had supervised approximately 300 evaluations of children on the We The student was a patient of his since 2010 and has seen him for about 30 sessions. He described the student as one who cannot sit still, uses inappropriate language, can have tantrums, touches objects, can become dysregulated and will escape from the demands of a classroom. He believes that his primary disability is based on the presence of deviance and delay in three major areas of functioning [social, communication, behavioral]. He further testified that the qualitative impairment in each area is specific in the DSM-5. The diagnosis must have “two characteristics of problems with socialization and then at least a total of six in all areas to make the diagnosis technically”. He further testified that “children on the ow impulsivity, hyperactivity and inattentiveness which is also the triad for P| ‘Itis under the ii disorder that Te __ ete and is a second diagnosis”. His diagnosis was based on his observations, parent reports, rating scales and other professional evaluations and reports. The diagnosis was based on the student’s developmental trajectory. Early development showed deviance and delays in social development and communication skills. The student has sensory issues and socialization issues. Evaluations by himself and other professionals over the years have confirmed that the student shows the characteristics in the [I

Ms. pe Respite provider and Special Education Teacher, testified that her observations of children with P| indicate that some are more verbal than others and some exhibit odd behaviors, spin, flap their hands in a repetitive motion, which are considered stimulative behaviors. Her observations of the student in his home from April to December, 2013, showed that he had difficulty focusing; he could become fidgety; show stimulative behaviors; flap his hands; spin around in circles and use repetitive speech. She further testified that the student was verbal and could communicate his needs and wants.

ee Director testified that the student was unpredictable; sought negative attention from peer or adults; try to leave the room and would cali out during group discussions.

The Parent testified that during the 2012-2013 school year, the daily log had notations that her son was throwing objects, eloping, running down the hallway, calling out, making inappropriate statements to peers and adults. [T pp 1236-1238, 1245-1246, 1248-1249, 1379-1380, 1475, 1497, 1123, 1130, 1682]

Independen inati re also made part of the record.

2/23/11] reported that the student displayed repetitive behaviors, inability to maintain eye contact, difficulty with social relationships, inability to pick up social cues. He meets the criteria for a diagnosis also includes pe Type. [D-12]

Dr. grssociated Professor of Pediatrics and Psychiatry [2/19/13] reported that during his examination, the student roamed around the room endlessly and was “into” everything. Motor tics of his eyelids were observed. Due to his considerable knowledge and strong vocabulary, “it is understandable that people might not recognize his symptoms of an r, such as perseverative content of his speech, poor pragmatic communication skills, his tendency to dominate conversation and his fixations”. Diagnostically the student meets the criteria for an _ and a transient mm recommended that the student be classified as HB. The medical and social worker staff at the indicated a difficult pregnancy with the mother experiencing “nausea and vomiting, high blood pressure, anemia and borderline gestational diabetes” The student was delivered 16 days after his due date via Caesarian Section. Particularly noteworthy were signs of oxygen deprivation at birth and her son required “oxygen for several minutes’. Subsequent delays and dysfunction in his gross motor, cognitive, memory, visual perceptual and social interactive development are strongly suggestive of underlying EEE NVOlvement and deficits. [P-U]

Dr. /28/13] reported that the student had a history of developmental delays and deficits that were generally involved in children with a developmental disorder and in the HE is @ Neurological and lifelong disability with a variety of conditions that manifest themselves and ncludecil Behavioral and Disruptive Disturbances, mood stability and other limitations. The student’s inability to learn is partially related to his [P-L, T pp 172, 175]

I am not convinced that there was a careful and thorough review by the CSE of the characteristics of Both from the District’s documents, the independent reports and evaluations. Also introduced into evidence was the CD of the student participating ina school concert graphically supports such a classification. Furthermore, the students early developmental history and consistent reports presented to the CSE over ve la. well as the treating all indicated that the student met the criteria of — EE This stucent’s developmental disability significantly affects verbal and nonverbal communication and social interaction. On the record, it was noted that the student engaged in repetitive activities and was resistant to change of daily routines. The District’s argument rested entirely on the student’s multiple disabilities as the reason for Ill classification On the other hand, it was repeatedly noted on the record that children with A often possess a multitude of other disabilities that affect their ability to learn. [D-37, T pp 938, 948, 957, 1379-1380]

Given the preponderance of the evidence, my ruling is that the matter be returned to the CSE and student be classified with the iiiiiesignation. [ Mrs. B. v. Milford Bd. of Educ., 103 F.3d, 1114, 1120 [2d Cir. 1997]]

2012-2013 School Year

Another issue in the Due Process Complaint was the Parents’ desire to incorporate into the Individual Education Program [IEP] the skilled EEfor school, after school activities and school events. The student and the Parent participated in a two week training program to be certified for the placement of the skilled ith them. The training was conducted by the Pe a... trained in commands that help with activities of daily living and act as a social bridge among children and adults. There was no cost to the family in providing them with the skilled (! NOr the training to the adult handlers who would accompany the in school or community activities. Due to the student’s age, an adult must always accompany the student with his skilled i [P-D] Statutory Background and the Procedural requirement of IDEA

A FAPE is offered to a student when [a] the board of education complies with the procedural requirement set forth in the IDEA, and [b] the IEP developed by the CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F. 3rd 186,192 [2nd Cir. 2005] ] While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [A.C. v. Bd. of Education., 553 F. 3rd. 165, 172 [2nd Cir. 2009; Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381[2nd Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb 9, 2007] ] Under IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive FAPE only if the procedural inadequacies [a] impeded the student’s right to a FAPE; [b] significantly impede the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student: or [c] caused a deprivation of educational benefits [20 U.S.C. 1415 [f] [3] [E] [iii]; 34 C.F.R. 300.513 [a] [2]; 8 NYCRR 200.5 [j] [4] [ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]

FINDING OF FACTS

The Parents attended four CSE meetings in the course of the 2012-2013 school year, with the first one on May 31, 2012 to develop and refine the IEP for the 2012-2013 school year, the year in question. In attendance at the CSE meeting was the Chairperson, School Psychologist, Social Worker, Behavioral Specialist and the Parent. No general education teacher was present at this meeting. The student was classified as [i continued in the special education class [15:1] with group IED [5:1] weekly 1[30] min. session, individual 2 [30 min] monthly. In addition to the student’s special education program, a teacher aide was added to the IEP.

Comments noted on the IEP indicated that the student's focus and distractibility remained an obstacle to learning. Frustration tolerance could escalate to an aggressive outburst and the teacher aide would provide the needed health and safety assistance in the school environment. The IEP also noted that “the student will not participate in [the] general education program and requires special instruction in an environment with a smaller student to teacher ratio and minimal distractions in order to progress in achieving learning standards” in “all academic areas”. It appears from the comments noted on the IEP that the Parent agreed with the CSE’s recommendations going forward to the 2012-2013 school year. [D-3]

The second CSE meeting met on October 2, 2012 at the request of the Parent. The CSE member participants included the Chairperson, the Psychologist, the Social Worker, his Special Education Teacher, the Behavioral Specialist and the Parents. In addition, the School Principal, the District’s Attorney, the Parent’s Attorney as well as another attendee were present at the meeting. No general education teacher was present. The Parents’ request was to address their concerns with the 1:1 teacher aide and the Behavioral Intervention Plan. The one to one teacher aide was replaced on January 1, 2013. The CSE “approved” a psychiatric evaluation at District’s expense and that the FBA and BIP would be redone. The student's special education program and services would remain the same. An additional social, emotional behavioral goal was added to the IEP [will communicate and interact in a socially acceptable manner with peers]. The student would not be participating in the general education environment. Although federal rules do not disallow the presence of an attorney or attorneys at IEP meeting and their participation, the presence of one or more attorneys could create a potentially adversarial atmosphere and should be strongly discouraged. [ Letter to Honorable Hillary Rodman Clinton, July 23, 2001] [D-4, T p 129, CR Part 200.3 [a] [Ii] ]

On December 17, 2012, the CSE reconvened at the request of the Parent to review her concerns with the current FBA and BIP, along with that request, to consider an independent evaluation at a lieu of the District’s proposed i valuation. The participants at the December 17, 2012 meeting included the Social Worker, the Chairperson, the Special Education Teacher, the Behavioral Specialist, the Elementary School’s Principal, Assistant Superintendent and the Parent. Also in attendance were the Parents’ two Attorneys and the School District’s Attorney. No General Education Teacher was in attendance, nor the School Psychologist.

The CSE continued, however, to recommend a x evaluation at District’s expense. The Parents also requested an independent behavioral consultant. No change was made to the student’s program or services. The students goals were same as the October 2, 2012 IEP. Parent Training [ind] 60 min. per month was recommended and approved, but not implemented until May 31, 2013. No goals for the Parent Training were included in the IEP. It was the Parent’s testimony that Ms. GE social Worker stated at the May 21, 2013 CSE meeting, that the reason the Parent Training was not implemented because she was not going to work with the Parent. That statement was supported by Vs Psychologist and Ms. Principal. Ms. | | respite provider, also attended the CSE meeting and testified that she too had heard a staff member exclaim that the “Mom was impossible to work with”. The BIP was revised based on new information and the parent’s concerns [D-5, T pp 130-131, 1401, 1724]

Procedural Adequacies

Before reaching a decision on the appropriateness of the recommendations taken at the May 21, 2012 CSE, I must first address the procedural inadequacies [a] impeded the student’s right to a FAPE. [b] significantly impede the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or [c] Caused a deprivation of educational benefits [20 U.S.C. 1415 [f] [3] [E] {iii}: 34 C.F.R. 300.513 [a] [2]; 8 NYCRR 200.5 [j] [4] [ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D. N.Y. Aug. 21, 2008; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]

On May 21, 2013, the CSE met to conduct its annual review. Participants at the CSE meeting were the Psychologist, the Social Worker, the Chairperson, the Special Education Teacher, the Behavioral Specialist, the School Principal, the Parents. Other attendees were the student’s Respite Provider, Medicaid Service Coordinator, the Parents’ Attorney and the School District's Attorney. A general education teacher was not present at this CSE meeting. In the comment section of the IEP, it was noted that discussions and recommendations for the following took place: co ry Parent Training was offered; the psychiatric evaluations by >, the enter were reviewed by the CSE; “conversations” were had regarding the use of the student’s skilled ES an accommodation; “conversations” were had regarding a change in classification to Illas well as = “conversation” were had regarding a change in the behavioral consultant; “conversations” were had regarding the student’s program and services; and finally to explore out of district placements and to return to the CSE to discuss placement for the 2013-2014 school year. No additional details were given as to the substance of those “conversations”.

According to the IEP developed at the May 21, 2013 CSE meeting the recommendation was to continue the identical placement, services for fifth grade. Some changes to the goals for the 2013-2014 school were made, however there were no goals set for the Parent Training component of the IEP. There was no discussion of the student’s participation in the general education program. [D-3, P-A]

At the May 21, 2013 CSE meeting, questions were raised about the treatment of the Parent as an equal participant as a member of the CSE. Ete Medicaid Service Coordinator testified that “not much talking [at the CSE] on our part, it was more the School District and then us trying to get a word in and them just talking over and side comments were made”. The Parents’ request for the student's ij to be allowed on school property was rejected by a District member of the CSE, but no reason was given for the rejection. P| the Respite Provider testified that the CSE members were “not very cooperative with her request”. Kept “shutting her [Parent] down every time she spoke. Lots of arguing back and forth”. She further testified that “they [CSE] could diagnose him based on the [undisclosed] medical book they had in front of them’. In addition, she testified that Dr. Chairperson, “said that the school had talked about it, because they had about an hour adjournment, and that they had discussed it and they came to their decision on his classification and that it was already eithe or they were keeping Th They [CSE] “weren’t into changing anything [based] on [the Parent’s] documentation”. Dr. purpose for the adjournment was for some of the CSE members to review the evaluations presented by the Parent at the meeting. Mr. District's Attorney left with them. When the discussion resumed and the matter of the companion Pas brought up, the District’s Attorney “shut it down” according to Ms Gt was not what the “annual meeting was about”. “It was about the student’s classification and not about the service She testified that he was very argumentative when he made that statement. According to Ms.

District’s Attorney and Ms, Parent’s Attorney did most of the talking at the meeting. She concluded that the Parent, though represented by counsel, did not fully participate in the CSE meeting that day, because the two attorneys controlled the discussion at the CSE meeting. The Parent testified that at the CSE meeting, she was not getting any of her information [documents] across. She testified that her son’s behaviors were occurring so frequently, that she felt “he wasn’t getting an education”. She presented the option of a companion service dog, but it was never considered. She testified that at the CSE meeting that “the finger was pointed at her as a bad parent and nobody wanted to work with her”. She testified that Dr. Jiptated that if es not accepted by the Parent, she would classify hir The Parent believed that they had nothing to substantiate such a classification. Any recommendation to place her son in a BOCES program was interpreted as if the Parents didn’t agree “that they could do this or even much worse”.

Ms. BE Schoo! Psychologist, testified that wnen the Parents’ requested that a Bie brought to school, the CSE determined that the one to one teacher aide was more appropriate, because the one to one teacher aide could respond to the BIP and the ff could not respond in an appropriate manner. She further testified that when the student felt stressed, the teacher aide would be able to make an adjustment in his routine and she could confer with him, reason with him, refocus him and redirect him. [T pp 125-126, 127, 960-961, 965, 975-976, 1403, 1406, 1459, 1462-1463, 1464, 1466, 1466-1467, 1481, 1674, 1675-1677]

A review of the record indicated that the Parent had taken a number of actions that would not endear her to some of the Districts’ staff. On two occasions she called the police when she was not permitted to enter the school building with thei The first one was when the Principal asked her to pick up her son from school. The second time was when she tried to enter the school building with the skilled Mvhen her son was participating in a concert. She also complained to the State Education Department [SED] about the development of a BIP, which led to Dr. GE contacting the Parent about her call. The Parent’s dissatisfaction with the first teacher aide led to her being replaced. Even with the replacement, there were issues that the Parent complained about. She also accused the District of using a time out room for her son and suspending him for an incident that was a push not hit to a staff member. She kept entering into the Log Book that she was not part of the preparation of BIP and did not consent to its development. Much of what transpired in the 2012-2013 school year led to a deterioration of the level of trust between the school staff and the Parent. The Parent Training component which was added to the IEP on December 17, 2012, but was never implemented until May 31, 2013 and could have served as an important bridge between the school staff and the Parent. Especially, in view of the fact that the student would come home and report to his Parent on his critical perception of the days occurrence. Parent training by definition assists “parents in understanding the special needs of their child; providing parents with information about child development and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program”. . [ CR Part 200.1 [kk] ] The statements at the CSE that the no one wanted to work with the Parent only supports my contention that the District failed to adequately address the Parents’ concerns as they developed and resulted in a level of distrust over time. I find that the witnesses that appeared before me to be credible and accurate in their testimony of the events at the various CSE meetings. I further find the presence of the District’s Attorney and the Parent’s Attorney to have changed the function of the CSE in the substantive consideration of the reports, evaluations and examinations as the Regulations intended. To my knowledge there was no Board of Education policy barring companion ion school grounds. The District’s Attorney was not a member of the CSE and should have been there in purely an advisory role, not chairing or actively participating at the meeting. Despite the rather heated discussion at the meeting, I find that the Parents never challenged the four criteria of the IEP, nor the goals, nor the services. The evaluations were considered by the CSE during their adjournment, so other than the matter of the additional accommodation, the Parent, being represented was not impeded in her opportunity to participate in the decision making process regarding the provision of FAPE to the student. The absence of a general education teacher in some the meetings in the formulation of the IEP, does not render the IEP defective. [ K.L.A. v. Windham Southeast Supervisory Union, Dummerston Sch. Dist., WL 1193082 [2d Cir.] ]

The issue of the Parents request for a skilled s an accommodation to the IEP will be addressed in the adequacy phase of the IEP as will the absence of a general education teacher at the CSE meeting and the proposed change in classification, placement and program.

The IDEA directs that, in general, an impartial hearing officer's decision must be made not only on procedural grounds, but also on substantive grounds based on a determination of whether the student received a FAPE or caused a deprivation of educational benefits. In order to do that, I must turn to the second part of the statutory adequacy of the IEP. (20 U.S. C. 1415 [f] [3] [E] [i]. . [ CR Part 200.3 [a] [1] [i-x]]

Statutory Background and the Substantive Adequacy of the IEP

Under Rowley, a school district complies with IDEA’s substantive requirements if a students IEP is “reasonably calculated to enable the child to receive educational benefit[s]. “* 195 Rowley, 458 U.S. at 201, 102 S. Ct. 3034. The school district is not, however, required to furnish “every special service necessary to maximize each handicapped child’s potential.” Id at 199, 102 S.CT. 3034; see Carlisle Area Ach. v. School P.., 62 F.3d 520, 534 [3d Cir. 1995] [school districts “need not provide the optimal level of services, or even a level that would confer additional benefits, since the IEP required by IDEA represent only a “base floor of opportunity’] [quoting Rowley, 458 U.S. at 201, 102 S.Ct. 3034, citing Walczak, 142F. 3d at 132. Rather, a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression’, and if the IEP affords the student with an opportunity greater than mere “trivial advancement’. Walczak, 142 F.3d at 130 [quotations omitted]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [Rowley, 458 U.S. at 203]. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through the IEP” [Walczak v. Florida Union Free Sch. Dist. 142 F. 3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189]. The statue ensures and “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” [Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore, 873 F.2d 563,567 (2d Cir. 1989]; see Grim 346 F.3d at 379. Additionally, school districts are not required to maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199:Grim, 346 F.3d at 379; Walczak, 142 F.3d. at 132]. Nonetheless, a school district must provide “an IEP that is “likely to produce progress, not regression”, and....affords the student with an opportunity greater than mere trivial advancement” [Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see P. v. Newington Bad. of Education, 546 F.3d 111,118-119 [2d Cir. 2008]; Perricelli, 2007 WL 465211,at * 15]. The IEP must “reasonably calculated to provide some “meaningful benefit” [Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192]. The student’s recommended program must also be provided in the least restrictive environment [LRE] [20 U.S.C. 1412 [a] [5] [A]; 34 C.F.R. 300.114 [a] [2] [i], 300.116 [a] [2]; 8 NYCRR 200.1 [cc], 200.6 [a] [1]; see Newington, 546 F. 3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d

422, 428 [W.D.N.Y. 2008]

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs [34 C.F.R. 300.220 [a] [1]; 8 NYCRR 200.4 [d] [2] [i], establishes annual goals related to those needs [34 C.F.R. 300.320 [a] [2]; 8 NYCRR 200.4 [d] [2] [iii], and provides for the use of appropriate special education services [34 C.F.R. 300.320 [a] [4]: 8 NYCRR 200.4 [d] [2] [v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented. [8 NYCRR 200.4 [e] [7]

An essential part of determining the student’s progress in his special education program for the 2012-2013 school year is to establish a baseline in the areas of Academic Achievement Area, Social Development, Physical Development and Management needs.

The first administration of an educational evaluation occurred on April 21, 2010. On the Diagnostic Achievement Battery-3, the student achieved on Story Comprehension a percentile score [%] of on Reading a % il on Reading Comprehension a % ff on Spelling a % [fon Math Reasoning a % fifknd Calculations a % HI All below average. The [J Schoo! District’s Educational Evaluation was first administered on October 18, 2011. On the WIAT lill, the student achieved standard scores in Oral Language Comprehension i, Reading Comprehension/Fluency [ll; Basic Reading tt Total Reading Composite [i Written Expression Composite hand Mathematics Composite Hi

TWO SEEEEEe valuations were conducted. One on July 7, 2010 and the second on October 13, 2011. Both used the WISC-IV. The results of the evaluation conducted on July 7, 2010 were Verbal Comprehension If SS and Mth %; Perceptual Reasoning #@SS and Mh %; Working Memory &HSS and ie Processing Speed Ml SS and Sh % and Full Scalellgl—iSS and wee. The evaluation completed by the District on October 13, 2011 showed Verbal Comprehension *o==TM Ss anil %; Perceptual Reasoning fill SS ancilllt %: Working Memory ISS andj %, Processing Speediifj! SS [kd % and a full scale IEIBS and the @gm %. His ability was average in Verbal Comprehension and Working Memory, but had low average ability to deficient in Perceptual Reason and Processing Speed. Both testing results indicate his cognitive levels were stable. This profile would suggest the student would have difficulty in the mechanics of reading, spelling and processing of information. [D-11, IHO-1]

The IEP to address this student’s individual educational needs was through the development of the IEP for the 2012-2013 school year. His profile was described as follows:

Academic Achievement: Decoding skills were noted to have progressed, but comprehension skills [details] continued to need development. Oral expression could not be assessed due to the student’s distractibility. Written expression was described as the student knowing spelling rules, could use correct grammar and creative ideas. Paying attention to details in his writing and avoiding careless errors were deemed to be problematic. Mathematic skill areas that were deficient were in computation and application. The Mathematics Fluency subtest could not be administered due to the student’s lack of focus. [D-4]

social Development

_ The student’s behaviors towards peers and adults were problematic. He had difficulty following school rules, coping with frustrations and coping with transitions.

Physical Development

Inattentiveness, impulsivity and distractibility impact learning. He lacks self control for independent work and appears to be in constant motion. He does possess age appropriate gross motor skills and can be competitive in outdoor games.

Management Needs

The student requires a structured environment, direct teacher support and requires small group instruction.

The student’s reading needs were addressed in his goals. They were written to address decoding deficiencies [ vowel digraphs | and comprehension [main idea and pertinent details]. His writing goals addressed recognizing 20 sight words, writing a 6 sentence assignment or organize 10 facts in a written outline. There were no goals to focus on his need to pay attention to details in his writing and avoid careless errors. The student’s mathematic goals addressed different numerals, solving addition, subtraction and multiplication problems. There was no goal specifically address the computation skill deficiencies which are essential in problem solving. His social, emotional and behavioral goals were identified as his accepting responsibility and consequences for inappropriate behaviors; utilizing alternative solutions using a responsible decision making process. No goals were developed for coping with transitions or improving his relationship with peers and adults.

The Parent requested a CSE review of her son’s special education program on October 2, 2012 and centered around her concern about the one to one teacher aide and the Behavioral Intervention Plan. The issue with the Teacher Aide alleged use of a “calming bracelet”. According to the Parent, the “calming bracelet” upset her son. His perception was that this “calming bracelet” would calm him and he would have good behavior. He was “upset and afraid” that he wasn’t going to be able to be calm and it troubled him. The Parent objected to the use of the “calming bracelet” since it was not part of the BIP. The teacher aide denied that the bracelet was a “calming bracelet” and the student requested to wear it. When there was an objection, the bracelet was returned to the teacher aide. The issue was resolved. In any event the matter did not rise to the level of a denial of FAPE. [T pp 445, 448, 1662-1663, 1691, 1693, D-4]

On the second issue, the CSE recommended a evaluation and an updated FBA/BIP. A revised BIP was completed on October 5, 2012. The Parent participated in its development along with the Behavioral Specialist, the Classroom Teacher, the Social Worker and the Psychologist. The challenging behaviors to be addressed were calling out, getting out of his seat, disrespectful comments to teacher and peers, physical aggression towards peers and adults and the destruction of property. The targeted behaviors were physical aggression towards peers and adults, eloping from the teacher aide, refusing to follow adult direction, getting out of his seat and calling out. An ABC chart would be used to record data and the daily log would be used to communicate with the home. The monitoring would be done by the Behavioral Specialist. The recording of the observations would mainly be done by the teacher aide. The system used was one of rewarding appropriate behaviors. The only signature that appeared on the BIP was that of the Behavioral Specialist. [D-20]

A subsequent CSE meeting was held on December 17, 2012 to address the Parents ongoing concerns with the current FBA/BIP. They also requested that an evaluation be conducted at the Cody Center. No change was made to the student’s current program and services. Parent training 1 {60 min.] session per month was added to the student’s IEP and it was to begin December 20, 2012 and conclude June 21, 2013. [D-5]

The CSE met again on May 21, 2013 to conduct its annual review and to develop the student’s special education program and related services for the 2013-2014 school year. The participants at the meeting were the Psychologist, the Social Worker, the Chairperson, the Special Education teacher, the Behavioral Specialist, the Principal of the school, the Parents, Ms. Metzger, Ms. Frost and the Parent’s Attorney and the School District’s Attorney. During the meeting a number of issues were raised and related to the Complaint.

The two major areas for consideration are the academic achievement benefits the student derived from his special education program and the behavioral progress the student made during the implementation of the BIP and the ABC Charts during the 2012-2013.

The WIAT Ill was conducted on October 18, 2011 and again on January 27, 2014. Not all subtests were completed for a complete comparison , so I will only include those subtests where there was a comparison. [D-29]

In reading compre ion/fluency initial standard score [SS] was . and followup was a SS a composite initial score was a S€ and the followup score was a SSHiifhath problem solving score was a Sf nc the followup score was a SS numerical operations initial score was a SS 45 and the followup score was a SS [J sentence composite score was a SS | late the followup score was a SS i spelling score was a SS Hand the followup score was a SS 83 listening comprehension initial score was a SS Mifend the followup standard score was a SWiiiBentence composite score was a SS 60 and the followup core was a SSI

The percentile ranks show that he was within the normal range in the reading composite/fluency score and the listening comprehension score, all others were below the normal range, though progress was noted. [D-29]

The report card performance levels guidelines are identified as follows: — [1] not meeting grade level expectations [2] working towards grade level expectations [3] meeting grade level expectations [4] exceeding grade level expectations

At the end fourth grade and the 3rd marking period, the student scored a [8] for reading foundation skills; literature; informational and math skill fluency. The student scored a [2] on writing conventions and usage, spelling, listening and vocabulary and a [1] in content writing. [D-8]

In the first marking period for fifth grade, the student scored a [1] in reading foundational skills, literature, reading informational, writing conventions and usage and content writing, speaking and listening and word study vocabulary, He scored a [2] in math skill fluency. There is an unexplained disparity between the two reports and indicate a decline in the results [D-32]

On October 9, 2012, the classroom teacher prepared an information form for the upcoming psychiatric evaluation. His teacher described him as 1 to 2 years below grade level in reading, writing, social studies and at or about grade level in math. [P-R]

Other notations were that the student could not be assessed in oral comprehension and math fluency. [D-4]

We do know, the student had been evaluated and found to be within h_ i lance of cognitive ability, but given his Ee NVoOlvement, the subtests on these cognitive evaluations revealed considerable disparity across the various functions measured by the tests. These disparities are reflected in his academic achievement as well. [D-6, T pp 353-355]

There was a notation on the student’s 2013-2014 IEP that an educational update dated May 21, 2013 had been completed, but this document was never either marked for identification nor received into evidence. The student’s NYS ELA scores were not made part of the record.

His special education teacher testified that the student had made academic progress at the end of third and fourth grade. This conclusion was based on “daily testing [not produced], teacher observation, the work that [they] did together, guided reading groups, his math groups” These all describe instructional activities not objective mastery of the basic skill areas. I am unable from the information presented at this hearing to support the testimony that the student had made definitive academic progress that is more than “mere trivial advancement”. | can only conclude from the record, that the student’s academic achievement had been inconsistent, perhaps due to various disabilities. It is clear from the record that his progress did not mirror more closely his cognitive ability. [ T pp 119, 352-356, [Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d, at 130] ]

The second major challenge for the student was the inappropriate behaviors he displayed in school. At the end of third grade, the CSE met on May 31, 2012 and determined that a one to one teacher aide was needed “to meet [the student’s] health and safety needs in the school environment’. A BIP was developed to address his impulsivity and distractibility. A Behavioral Specialist would be part of his program. In addition, psychological BNI icc: in a small group and individual basis would be provided in the counselor’s office. The CSE met again on October 2, 2012 with a recommendation to redo the FBA and the BIP. On December 17, 2012, the CSE met again and determined that the BIP would be “revised based on new information and parent concerns”. As previously stated “Parent training was offered and ....was approved”. It is noteworthy that the CSE responded at each CSE meeting to each of the Parent’s requests, except for the added accommodation.

[D-3, D-4, D-5]

According to the testimony 5 the Behavioral Specialist testimony, the FBA assesses the function or purpose of why a student is engaging in a challenging behavior in the context, the environment and function of that behavior and to the development of strategies to address the function. The BIP provides “the proactive and reactive strategies to help in the increase or decrease a behavior’.

During the 2012-2013 school year, _ role was to support the staff through discussing and modeling strategies. The challenging behaviors included; calling out while the teacher is teaching a lesson; getting out of his seat and wandering the classroom: disrespectful comments to teachers and peers; physical aggression towards peers and adults and the destruction of property. The data collection method uses anecdotal and ABC information. The then current strategies included: verbal redirection, a sticker behavior chart and walking with the teacher aide. A list of activities and tangible items were to be the rewards. [D-20, T pp 347-348]

The May 21, 2013 IEP social/emotional goals had the student focused on identifying his impulsive behavior and provide strategies for dealing with them; maintaining eye contact when speaking, greeting or responding to directions; communicate and interact in a socially acceptable manner with peers, teachers and other adults. The recommended counseling services were outside of the environment that the student’s behaviors occurred and judging from the one and only counseling status report [May 31, 2012] received into evidence, the students IEP goals would continue using a cognitive awareness method for the following school year. No mention was made of the implementation of the social skills training recommended by Dr. Pomeroy, which | agree is consistent with his social/emotional goals. The CSE is ordered to reexamine the TT service in lieu of its ineffectiveness in addressing this student’s inappropriate behaviors in the environment outside the counseling office and reconcile the service to the environment in which the student’s inappropriate behaviors occur. [D-5, D-16, P-A]

A baseline of the student’s behaviors was obtained from a sample in the log book notations from September 15, 2011 to June 19, 2012. It should be noted that the ABC point system stated on January 25, 2013. Prior to that time frame, the student had inappropriate behaviors noted about eight times then followed the introduction of the ABC system. Sixteen was given as the baseline for earning a reward. The number of baseline points recorded above sixteen were forty and the number of points recorded fifteen and below were fifty three. His challenging behaviors centered around his calling out in class, not being able to remain in his seat, aggressive behaviors towards others and having generally a difficult day. From this subjective data noted in the log book, I conclude that the student was not benefiting from the BIP and the ABC system put in place to address his inappropriate behaviors. The student’s inappropriate behaviors did not respond to the reward system in a long standing manner, therefore the IEP was not substantive adequate to address his behavioral needs. [D-25]

The discussion of a proposed change to an out of district placement for the 2013-2-2014 school year, was in conflict with IDEA, which requires that a parent be notified by a school district when it proposes to initiate or change “the identification, evaluation or educational placement of the child or the provisions of a free appropriate public education to a child” Furthermore, the “requisite notice would provide the parent with an explanation of why the district proposes to act and a description of any options which the agency considered and the reasons why those options were rejected”. [34 CFR 300.505 [a][2], CR Part 200.5 [3][i-v] No such prior written notice was provided at the hearing. Furthermore, federal regulations implementing Section 504 of the Rehabilitation Act of 1973 [20 USC 794] require that a child be evaluated before any significant change in the child’s placement. The CSE Chairperson was incorrect to have discussed an out of district placement at that meeting.

The inclusion of a general education teacher at a CSE meeting is noted in CR Part 200.3[1] [ii] as whenever the student is or may be participating in the regular education environment. The student attended a grade level concert in June and a number of rehearsals that preceded that concert. The music teacher at least should have attended any of the CSE preceding the concert not only for the information concerning the expectations for the concert, but the information regarding the student special education needs. It is Ordered that a general education teacher be included in any consideration by the CSE of the student’s placement in the regular education environment. of his report had recommended vigorous physical education, though the recommendation was for the Parent to implement, the District‘s CSE should also have considered vigorous physical activity as part of the student’s special education program. The use of vigorous physical activity is not to be viewed as conferring additional benefit [citing Rowley], the activity is to reduce the student impulsive and distractible behavior. As for non pharmacological means of dealing with attentionalcontrol problems in children, exercise could be quite beneficial. Adaptive physical education is also available to the CSE where student’s limitations may not safely engage in unrestricted participation in the activities of the regular physical education program. [CR part 200.1[b], D-30, Journal of Pediatrics, Research, University of Illinois] It is ordered that the CSE include a program of vigorous physical activity in the student’s daily physical education program.

On the matter of the qualifications of the teacher aide, it is the function of the board of education to determine the qualifications of its personnel and not the parent. [Educ. Law 1709 [15] [16]; 1711 [2] [e]]

The issue of the student’s suspension and his placement in a “time out” room is found to be without merit. The limited number of days removed from his classroom were few and did not deny him FAPE

Regarding the jurisdictional role of an impartial hearing officer plays in conducting hearings under ADA and Sec 504 of the Rehabilitation Act of, it is my determination that the procedures offered in IDEA for a student currently eligible in the referral, evaluation, individualized education program development, placement and review offer far greater protections for FAPE. The student has access to a special education program. Is provided with support services and is in the least restrictive environment. He has not been discriminated against nor has he been denied access to general education activities. I do not intend to pursue a Sec. 504 Complaint in this decision. I find no evidence that the District did not adhere to the Medicaid requirements. So any claim that he is treated differently than other Medicaid recipients in the District is unfounded. Furthermore, I believe the Office of Civil Rights and the State and federal courts hold preferential jurisdiction.

However, the CSE failed to adequately consider the Parents’ request for an additional acco ion for the use in the school setting of —_— | The District’s argument that the use of the HM in school was not necessary for the student to receive educational benefit. Given the student’s lack of progress in his behavior, consideration of the accommodation was reasonable. The process that the CSE can make an unbiased recommendation is through a full and thorough assessment of the relationship, benefits and feasibility of such a a. the school environment. It is appropriate to consider the use of FO “helping persons —__— disabilities by preventing or interrupting impulsive or destructive behaviors”. The student clearly has an underlying _ involvement and whose behaviors display impulsivity and distractibility.

[75 FR 56236-01, Rules and Regulations, Department of Justice, 28 CFR Part 36, Sept. 15, 2010]

The CSE is ordered to assess the accommodation of the skilled es an IEP accommodations. Without such an assessment, the CSE members cannot determine the effectiveness of such an accommodation. Without the assessment the CSE recommendation is arbitrary and capricious. The CSE is ordered to observe the student with his [in his home, in his Church, in Dr MM office and in the community. More than one observation in each setting would verify the accuracy of the observation. Upon the completion of such an assessment, a CSE shall be reconvened to receive the report on the observations and then at such times to make the appropriate recommendation. A forty five day time frame from the date of the receipt of this decision should be sufficient to complete the assessment. [ CR Part 200.4 [b] [6] [ii] [ix] ]

Any party aggrieved by the findings of fact and the decision of the impartial hearing officer rendered in accordance with subdivision [i] of

CR Part 200.5 may appeal to a State Review Officer of the State Department of Education no later than 30 days after receipt of a final

decision.

Dated: September 30, 2014

George Kandilakis, Impartial Hearing Officer

INDEX

Exhibits | Pages l District Answer dated 10/30/13 1-6

2 L.E.P. Document dated 11/03/11 7-15 3 [.E.P. Document dated 5/31/12 16-25 4 ].E.P. Document dated 10/02/12 26-35 5 .E.P. Document dated 12/17/12 a 36-45 6 LE.P. Document dated 5/21/13 al —— 46-56 7 Report Card (3 Grade) | oo a 57-62 g Report Card (4 Grade) enn 63-69 9 EE ¢:001 District Assessment Test [Diagnostic Achievement Battery (DAB-3) and Test of Early Written Language ~ 2TM Edition (TEWL-2)] 70-72 10 BE 001 District Re-Evaluation Social History dated 9/26/11 : 73-75 11 GE School District Psychological Report Dated 10/12/11 and 10/13/11 76-88 12 Bi sospital Report 89-99 13 BR chool! District New Entrant Report dated 11/03/11 100 14 BB 001 District Classroom Observation date dated 11/02/13 101 15 ME School District Teacher Checklist

Child Symptom Inventory dated 11/18/11 ~ 102-105 16 BE chool! District Counseling Status Report dated 5/31/12 106

INDEX

Exhibits: Pages:

B. Suspension Letter to parent from Msdated 12/5/2012

C. Information on “use of time out room”

D. Letter in support, from CCI

EB embership card copy

G. Police Report, dated 6/12/12

H. Police Report, dated 12/12/12

I. Email from Ms. a dated 5/23/13

J. Letter from Dr. , dated 1/3/12

KR iD, dated 6/18/12

L. Evaluation: DiID, dated 3/28/13

M. Letter in support, > im dated 3/16/13

0. EEEopy, from CCI

P. Email from Referencing “wiping of shoes” dated 3/18/13

Petitioner’s Exhibits

Exhibits

P-N. Correspondence from Ms. Ij 8/30/12 1 pg.

P-Q. Due Process Complaint 10/1/13 4 pgs.

P-R. Teacher Information Form 10/9/12 7 pgs

P-S. . Due Process Complaint 10/1/13 22 pgs.

P-T. Correspondence from Ms. 41/9/14 1 pg. P-U ee 9/13 7 pgs.

P-V. Police Field Report 6/12/12 2 pgs.

P-W. Police Field Report 12/4/12 3 pgs. P-X NYS Dept. Health-Medicaid 5/29/13 2 pgs. p-Y EOC Visitations 3/22/13 1 pg.

IMPARTIAL HEARING OFFICER EXHIBITS

17. IHO-1 EE chool! District Testing 4/21/10 5 pgs. chool District Vineland II Report dated 6/15/12 107-109 DOE

18. BB <h001 District FBA/BIP Document dated 2/02/12, 3/19/12 110-118 DOE

19. School District BIP Document dated 5/20/12 119-120 DOE

20. ae: District FBA/BIP Document dated 10/05/12 121-130 DOE

21. BE School District BIP Document dated 12/13/12 131-133 22 Student Work Product spells FUCK 134-137 23 Student Work Product spells FUCK 138 pages DOE

25. 24 Training Materials 139-156 Log Book School Year 2011-2012 157-310 DOE

26. Log Book School Year 2012-2013 311-840 DOE

27. chool District Progress Report/Behavior Intervention Plan 1/11/2013, 5/18/2013 841-844 DOE

28. GEE -hool District Recording Form 9/12/2013 845-848 DOE

29. BE chool! District Educational Evaluation Admin Date: Updated Admin

Date: 1/27/14 849-850 10/18/11 DOE

30. po Ph.D. Parents Report 851-852 DOE

31. Intervention Data 9/2013-12/2013 853 pages DOE

32. Report Card 9/3/2013 — 12/6/2013 854-859 33 Log Book 9/2013 — 12/2013 860-1062 DOE

34. Correspondence and Email Communications 9/2013 — 12/2013 SACHEM SCHOOL DISTRICT 1063-1070 DOE

Exhibits

35. E-mail Communications regarding Subpoenas for Recordings of Staff Members made by parents 1071-1074 DOE

36. Correspondence and E-mail Communications regarding records subpoenaed from Parents professionals 1075-1079 37 CD of student’s participation at a grade level Disney Concert DOE

Footnotes

[3] will use socially acceptable behaviors with peers and adults ie have an interest in interacting with peers, but their approach is inappropriate. Social difficulties appear as missed social cues and may feel embarrassed or inept; exhibit a lack of empathy due to their difficulty understanding the emotional perspective of others; difficulty The Petitioner’s appeal is affirmed in part.