Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

{}, Petitioner,

Hearing Officer: Michael Lazan

v. , Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving an eleven year old student who has been determined to be eligible for services as a Student with {}.

A Due Process Complaint (“Complaint”) was received by Central School District ( ” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on September 2, 2014 in regard to the Student. This Hearing Officer was appointed to preside over this case on September 4, 2014. .

A response was written by the District denying the contentions on September 12, 2014. The matter did not resolve during the resolution period.

On October 14, 2014, this Hearing Officer held a prehearing conference. , Esq., counsel for the parent, appeared. , Esq., counsel for the District, appeared.

On October 17, 2014, the parent moved to change venue. (IHO Exh. 1) On October 19, 2014, the parent moved for a “neutral” court reporter. (IHO Exh. 2) On November 4, 2014, the District opposed these applications. (IHO Exh. 3) On November 14, 2014, I denied both motions. (IHO Exh. 4)

On November 19, 2014, the District moved to dismiss a number of claims in the Due Process Complaint. (IHO Exh. 5) On November 24, 2014, the parent opposed this motion. (IHO Exh. 6) I reserved judgment on this motion till the findings of fact and decision. (Tr. @ 978-979)

At a hearing on November, 24, 2014, Petitioner sought pendency relief through the implementation of the last agreed upon IEP at the District. (Tr. @ 6) The District submitted opposition by Memorandum of Law dated December 11, 2014. (IHO Exh. 7) The Petitioner submitted a letter in support of her application on December 22, 2014. (IHO Exh. 8) Testimony was presented in support of this application on January 12, 2015. Testimony was presented in opposition to this application on December 22, 2014. The motion was denied by order dated February 23, 2015. (IHO Exh. 9)

Hearing dates took place on November 24, 2014; December 12, 2014; December 22, 2014; January 5, 2015; January 12, 2015; and January 14, 2015. Because of the extensiveness of the testimony and issues in this case, because of witness availability, to allow the parties to write briefs (IHO Exhs. 10, 11) and to allow this IHO to write this decision, numerous timelines extensions were granted here. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 12)

FINDINGS OF FACT

After considering all the evidence, as well as the arguments of both counsel, this Hearing Officer’s Findings of Fact are as follows:

The Student is an eleven year old who is eligible for services as a Student with {}. (Exh. 3)

Still, in terms of receptive speech, he will understand more than might be expected. (Exh. D)

Academically, he lacks {}

He has significant {}

techniques are appropriate for this Student so that he can {}. (Exh. 3)

For the 2012-2013 school year, pursuant to the IEP dated August 28, 2012, the Student attended general education classes with a 12:1:4 special education class for 90 minutes a day. (Exh. 25 (Exh. 33)) He had a 1:1 teaching assistant. (Exh. 25 (Exh. 33); Exh. 24 (496-497, 459)) He was given a visual schedule, pressure input, and a “total communication approach.” The Student was {}. (Exh. 24 (Tr. @ 468); Exh. 43) The District contracted with the {} for consultation every three weeks for 2-3 hours per session. (Exh. 24 (Tr. @ 482-482, 1297)). The methodology was used for the Student. (Exh. 24 (Tr. @ 516-517, 967-968) The school addressed behavioral issues through behavioral plans. (Exh. 24 (Tr. @ 937-938, 1108, 1109)

The Student did not make achieve any of his goals during this school year. (Exh. 25 (Exh. 43)) He progressed satisfactorily in regard to descending stairs, and made inconsistent progress in putting on clothes. Academic goals resulted in virtually no progress. He refused to participate in activities and preferred to {}.

In June, 2013, the parent requested to see the student in his current placement. The District resisted since it was the last day of school, and tried to get the parent to see the Student during a summer placement because the last day of school is atypical. (Tr. @ 364-365)

For the 2013-2014 school year, the CSE met and changed the Student’s program to a more restrictive program. (Exh. 24)(Tr. @ 1040-1041)) The IEP recommended a full-time special education placement in a 6:1:1 classroom, with related services, a 1:1 teaching assistant,

, and special transportation. (Exh. J-25 (Exh. 38). The IEP recommended a bus aide for transportation. The IEP specified that the Student should attend the {}. The IEP contained an error; it should have specified that the recommendation was for a 12:1:4 classroom. (Exh. 24 (Tr. @ 738))

The {} program employs the methodology which provides visual cues, instruction, and cubicles for 1:1 instruction. (Exh. 24 (Tr. @ 575-582) Teachers are specially trained for this setting. (Exh. 24 (Tr. @ 622)) Students who might need a behavior intervention plan in a different setting might not need one in the {} class. (Tr. @ 507) The classrooms have quiet areas and sensory areas, and sensory breaks are incorporated into the instruction. (Exh. 24 (Tr. @ 587-588)) There is a general behavioral plan for all students; then, if a student needs a particular plan, one is created for him/her. (Tr. @ 390)

The {} program includes a social worker, a full-time speech pathologist, an occupational therapist that will “push-in,”, and teacher assistants that are mostly certified teachers. (Exh. 24 (Tr. @ 573-578, 592)) The program involves the opportunity to participate with a general education peers in library, physical education, music and art. (Tr. @ 426)

The recommended classroom for the school year was at the {}, is thirty-nine miles away from the District. (Tr. @ 278)

As a result of the May 23, 2013 Due Process Complaint assigned to IHO Kehoe, the Student was placed in a 12:1:4 pendency classroom at Burton Street School in the District, with a 1:1 teacher assistant. Generally, the classroom did not have more than four or five students in it at the same time. (Tr. @ 665)

During his time in his pendency placement, there was an opportunity to participate in the general education setting every day. (Tr. @ 94) However, in that setting, he would {]. (Tr. @ 670) He was then removed back to the special education classroom. (Tr. @ 670)

Also during this time, he received an iPad for communication. (Tr. @ 679-680, 715) He had difficulty with this device. (Tr. @ 829-830, 840) He also received behavioral plans as developed at weekly team meetings. (Tr. @ 800-801)

The Student had difficult in this self-contained classroom because he was {} The Student did respond to discreet trials when there was a given a reward, and there was some success in using the PECS communication system, though the success was inconsistent. He made some progress in learning how to get beyond using a “sippy” cup.

Prior to the IEP meeting for the forthcoming school year, no Functional Behavior Assessment was conducted of the Student. The District felt that they knew the Student’s behaviors were resulting from {}, and that interventions that were offered were appropriate. (Tr. @ 105-106) The District felt that the {}. (Tr. @ 106-107)

The District did conduct observations, interviews, a record review, a “school functioning assessment” a Vineland Adaptive Behavior Scale, Second Edition, and a Social Responsiveness Scale, Second Edition. (Exh. 7)

The CSE reconvened on May 8, 2014. There was a discussion of the Student being more attentive and doing well with PECS. It was reported that {}. The Student’s special education teacher recommended a more intensive classroom. (Tr. @ 702) There was no discussion of communication devices at this meeting. (Tr. @ 934-935)

The recommendation was for the same {]. (Exh. 8) There was a recommendation for

, 5x30, individually, weekly; , 2x30, small

group, weekly; 2x30, individual, weekly; , 3x30, weekly, in a group of 8. A 1:1 bus aide was recommended for safety reasons.

The IEP discussed many of the Student’s learning characteristics. It stated that he is more on task in a small room without distractions, that he can follow familiar one step directions, that he can complete simple tasks with prompts, and that {}. (Exh. 8) The IEP recommends close adult supervision at all times, clear, consistent expectations, an alternate communication system, and a simple visual schedule. Additional recommendations relating to behavior include getting structured work tasks, a reward system using PECS, getting deep pressure, praise, smiles, and other reinforcements, and taking part in movement activities. A BIP is recommended for the Student. The IEP indicates that the Student does not need an assistive technology device. The IEP contains two speech and language goals, two motor skills goals, a goal relating to one step directions, a goal relating to choosing the right letter, and a goal relating to the PECS communications system. No reading or writing goals were placed on the IEP. The parent sought out such goals, but the District took the position that such goals were impractical because there the Student lacked pre-academic skills that were a prerequisite to attaining those skills. (Tr. @ 595-596)

The parent said she would “think about” the {} program. (Exh. H) Her objection to the program was based mainly on transportation issues.

During the summer, 2014, the Student attended the {} at North Syracuse Junior High School. (Exh. 12; Tr. @ 478) The Student seemed to enjoy his reading group. (Tr. @ 471) He was similar to the other students in the group. (Tr. @ 472) He did not receive an individual behavior intervention plan over the summer. He responded overall to management of the classroom. (Tr. @ 400, 510) He made progress in his ability to sit for a group activity, to make a choice, to follow verbal direction, and in using a visual schedule. (Tr. @ 445-446)

General education students “pushed in” to the {} classroom during their recess. Students in the class went to “general education” library, gym, music, and art. (Tr. @ 426)

To get to the program, the Student rode the bus only a few times, with his mother. The rest of the time he was driven by his mother. (Tr. @ 400)

On July 31, 2014, the parent sought an IEE for an FBA, BIP and Evaluation. (Exh. 15) She also sought permission to inspect, review and scan all records relating to her son. (Exh. 16)

A Functional Behavioral Assessment was conducted of the Student after the filing of the Due Process Complaint. (Exh. E) It determined that his {} appeared to be for sensory or self-regulatory reasons. {}.

An Augmentative and Alternative Communication Evaluation was conducted of the Student after the filing of the Due Process Complaint. (Exh. G) The evaluator recommended a “ProSlate” with speech generating software for the Student.

The parent has been given an opportunity to inspect the Student’s educational records. (Tr. @ 630, 631, 638) The parent has been told she can come in anytime to inspect the records if she provides the district with some notice. (Tr. @ 646)

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law of this Hearing Officer are as follows:

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The central purpose of the IDEA is to ensure that all children with disabilities have available to them special education and related services designed to meet their unique needs and provided in conformance with a written IEP (i.e., free and appropriate public education, or “FAPE”). 20 U.S.C. Sects. 1400(d)(1(A), 1401(9)(D), 1414(d); 34 C.F.R. Sects. 300.17(d), 300.320; Shaffer v. Weast, 546 U.S. 49, 51 (2005). Pursuant to the Supreme Court's decision in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, (1982), the standard in determining whether a child is receiving a FAPE, or the “basic floor of opportunity,” is whether the child has “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Rowley, 458 U.S. at 201. The IDEA, according to Rowley, imposes “no additional requirement that the services so provided be sufficient to maximize each child's potential commensurate with the opportunity provided other children.” Id. at 198.

In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies: (i) Impeded the child's right to a FAPE; (ii) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child; or (iii) Caused a deprivation of educational benefit. 34 CFR Sect. 300.513(a).

The IEP must be evaluated prospectively as of the time of its drafting and therefore hold that retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered. Further, parents who end up placing their children in public school cannot later use evidence that their child did not make progress under the IEP in order to show that it was deficient from the outset. R.E. v. New York City Dep't of Educ., 694 F.3d 167, 186-187 (2d Cir. 2012) cert. denied, 133 S. Ct. 2802, 186 L. Ed. 2d 861 (U.S. 2013)

1. FBA/BIP. 1

In New York State, where a student's behavior impedes his or her learning or that of others, the CSE may be required to consider having an Functional Behavior Assessment (“FBA”) conducted and a Behavior Intervention Plan (“BIP”) developed for a student in certain non-disciplinary situations. 8 NYCRR 200.4(d)(3)(I); 8 NYCRR Sect. 200.22(a), (b)). An FBA is defined in State regulations as "the process of determining why a student engages in behaviors that impedes learning and how the student's behavior relates to the environment" and "include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." 8 NYCRR Sect. 200.^[1](r)). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors. 8 NYCRR Sect. 200.22(a)(2). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement." 8 NYCRR Sect. 200.22(a)(3)).

Districts are required to consider behavioral supports such as BIPs when a Student “exhibits persistent behavior that inhibits learning.” 8 NYCRR Sect. 200.22(b)(1)(I). A BIP must include a baseline measure of the problem behavior, intervention strategies, and a schedule to measure the effectiveness of the interventions. 8 N.Y.C.R.R. Sect. 200.22(b)(4).

It is noted that the caselaw supports the proposition that an FBA is not always required where a student has behavioral issues. A.C. ex rel M.C. v. Bd. of Educ., 553 F. 3d 165 (2d Cir. 2009). However, in such a circumstance, the court or hearing officer must take “particular care” to make sure that the IEP adequately addresses the Student’s behaviors. R.E., 694 F.3d at 190.

The record shows that the District did not write an FBA for this Student, who has {}.

Moreover, the IEP recommends a specific school setting that the parent was aware was specifically geared toward students with {} program was in fact the subject of the prior litigation before IHO Kehoe. The parent was aware, or should have been aware, that the {} Accordingly, when asked about the issues that she had with the IEP at the hearing, the parent did not reference any problems with the recommended behavioral interventions for the Student.

Parenthetically, at the time of the decision whether the send the Student to the {} in September, 2014, the Student’s behavior had been successfully managed over the summer at the {}. Under the circumstances, I cannot agree that the lack of an FBA and BIP denied the Student a FAPE.

2. Goals and Objectives.

Each IEP developed for a child with a disability must include a statement of measurable annual goals, including academic and functional goals designed to meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum, and meet each of the child's other educational needs that result from the child's disability. 34 CFR Sect. 300.320(a)(2).

The Circuit has underscored the importance of having appropriate goals and objectives in a Student’s IEP. M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012)(where goals not measurable and too advanced for Student, FAPE denial resulted). However, courts in the Circuit have held that even where goals are imperfect, IEPs can be upheld as adequate. W.S. ex rel. C.S. v. Rye Central Sch. Dist., 454 F. Supp.2d 134, 146 (S.D.N.Y. 2006).

The IEP contains two speech and language goals, two motor skills goals, a goal relating to one step directions, a goal relating to choosing the right letter, and a goal relating to the PECS communications system. The parent argued that none of the Student’s goals and objectives relate to {}.

In regard to the contention pertaining to daily living, social skills and adaptive goals, I agree that the IEP would have been better written if it contained adaptive behavior and daily living goals. However, an IEP cannot possibly incorporate each and every element of instruction that a school district might offer, and the parent does not point to any cases where the absence of such goals rises to the level of FAPE denial. There is also nothing in the record to indicate that the lack of such goals would have any meaningful impact on the Student’s instruction in the classroom.

In regard to the lack of an appropriate speech goal, the parent mischaracterizes the testimony of special education teacher {]. On the contrary, {} said that the District needed to be patient with the goal because “(it) takes practice. It takes time.” (Tr. @ 717) The parent is also incorrect that there is only one speech and language goal in the IEP – in fact there are two. (Exh. 8)

In connection to reading goals, the District’s position is that the Student needed to learn how to speak before he could write, as articulated by {}. The parent’s argument relating to reading goals is supported by the testimony of {}, who is the Assistant Professor of Special Education at SUNY-Oswego. However, {} answered only one leading question relating to this issue. (Tr. @ 872-873) She also indicated that the IEP was appropriate. (Tr. @ 868)

The parent also points to testimony that Psychologist {}, who, she argues, testified that the Student did not need to {}. (Tr. @ 597) However, {}s testimony supports the District on this issue. She indicated that that “the difficulty is that, you know, I think what was trying to explain is there's a progression of skill and I don't know that {} has shown some preacademic skill readiness in order to be working on things like that.” (Tr. @ 596) Finally, the witness from {}, also stated that the Student would need to be able to speak before reading goals would be appropriate.

Under the circumstances, I cannot find that the IEP goals are inappropriate.

3. Supplemental Aids and Services/ LRE

In enacting the IDEA, "Congress was concerned about the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes." Sch. Comm. of Town of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 373 (1985). Accordingly, in formulating an appropriate IEP, the CSE must “be mindful of IDEA's strong preference for 'mainstreaming,' or educating children with disabilities '[t]o the maximum extent appropriate' alongside their non-disabled peers." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(5)); Lachman v. Ill. State Board of Educ.,, 852 F.2d at 295 ("[IDEA's] requirement that mainstreaming be provided to the maximum extent appropriate indicates a very strong congressional preference").

Still, the Second Circuit has been "mindful that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students." P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122 (2d. Cir. 2008). It thus has held that "where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate." Briggs v. Bd. of Educ. of Conn., 882 F.2d 688, 692 (2d Cir. 1989). The IDEA's preference for mainstreaming "rises to the level of a rebuttable presumption." Warton v. New Fairfield Bd. Of Educ., 217 F. Supp. 2d at 273 (quoting Sacramento City Unified Sch. Dist. v. Holland, 786 F. Supp. 874, 877 (E.D. Cal. 1992)); see also 8 NYCRR Sect. 200.1(cc)).

In Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993), the Third Circuit Court of Appeals set forth a construct for school districts in connection to their duties to provide an education to students with disabilities in the Least Restrictive Environment. The Second Circuit explicitly adopted the Oberti approach in 2008 in P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122(2d. Cir. 2008). In Oberti, the Third Circuit looked to: (1) whether the District has made reasonable efforts to accommodate the child in a regular education classroom; (2) whether there are educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) whether there are possible negative effects of the inclusion of the child on the education of the other students in the class. Id., at 1217-1218. The Second Circuit considers this the “first prong” of the Oberti test. Newington, 546 F.3d at 119-120. The Oberti court continued to explain that, if after considering these factors, the court determines that the District was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. This is considered the “second prong” of Oberti test. Newington, 546 F.3d at 119-120.

First Factor, First Prong.

With respect to first factor of the first prong of Oberti, a review of the caselaw makes clear that the District’s duties cannot be characterized as a “token.” Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261 (D. Conn. 2002)(most modifications came from a list provided by parent).

As a result, even where a student has severe behavioral issues or very low cognitive potential, a District must seriously consider the possibility of a general education setting. Oberti, a seminal case in this area, in fact involves a child severe behavioral issues. Even so, the Third Circuit found that the student should be placed in a mainstream class with supports. The Circuit pointed out that the child would benefit from a modified curriculum and from behavioral supports, crediting the federal district court judge who – reversing the hearing officer – noted that the District employed a perfunctory approach to providing such supports. The decision indicates that the District had never tried to place the child into the general education environment.

Newington, the major case in the Second Circuit, is also instructive. Newington involves a child who was functioning at the level of a two year old. As opposed to the facts in the instant case, in Newington, the District placed a child in general education for 74% of the child’s school day, which would ultimately increase to 80%. The District provided a variety of supports, including assistive computer programs and a consultant recommended by the parent. In upholding this plan, the Circuit cited to two cases where school districts had “creatively” come up with programs that included “some” special education. It cited to Poolaw v. Bishop, 67

F.3d 830 (9th Cir. 1995), where a student had been mainstreamed unsuccessfully by an Idaho school district which had offered “varying degrees of placement in the regular classroom.” It also cited to Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1076 (5th Cir. 1989) another seminal case in this area where -- again -- a Texas District tried to mainstream a student without success. The Second Circuit noted the “creative approach” of the Texas District, which employed a general education pre-kindergarten teacher who had devoted a substantial amount of time to the student.

Other cases involving children with severe disabilities are in the same mold. In Blount v. Lancaster-Lebanon Intermediate Unit, 40 IDELR 62 (E.D. Pa. 2003), the court found that the District should have initially mainstreamed the student. In McCullough v. Unified School Dist. No. 259. Topeka, Kansas, 43 IDELR 187 (10th Cir. 2005), the District had initially tried to mainstream the student with supplemental aids and supports. In L. v. North Haven Bd. of Educ., 624 F. Supp.2d 163 (D. Conn. 2009), a 12 year old student had attended a mixture of regular education classes and special education in the District for years.

The record here indicates that the District has mainstreamed this {} by providing the Student with supplemental aids and services. The efforts cannot be construed as anything but meaningful. For the 2012-2013 school year, pursuant to the IEP dated August 28, 2012, the Student attended general education classes -- with a 12:1:4 special education class for only 90 minutes a day. He had a {}.

There is no dispute from the record that this program did not result in meaningful academic progress. Still, the District continued on this course the following year, when placed in a general education classroom until his behavior was simply unmanageable. Again, there was no progress in the general education classroom.

In sum, the District clearly has tried to accommodate this Student in the regular education classroom.

Second Factor and Third Factors, First Prong.

With regard to the second and third factors in the first prong of Oberti, the record suggests that the Student had great difficulty in the general education classroom. He made very little progress there during the 2012-2013 school year, as indicated in the progress report on the goals. He engaged in {}.

In contrast, the reports from the {} during the summer, 2014 were mainly positive. The Student seemed to enjoy his reading group and responded overall to management of the classroom. He made progress in his ability to sit for a group activity, to make a choice, to follow verbal direction, and in using a visual schedule. Additionally, the record suggests that the modified instruction must have been understandable to the Student, certainly more so than the group lessons in a general education classroom. Second Prong.

If the District has correctly concluded that the student cannot be maintained in the mainstream classroom, the hearing officer must turn to the second inquiry: whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. Newington, 546 F.3d at 119-120.

Here, the recommended program does not require that the Student be in a special education classroom all day. The {} program pushes general education students into the classroom, and involves the opportunity to participate with a general education peers in library, physical education, music and art. It is housed within a general education elementary school,

Elementary School, in the in Camillus, N.Y. I find that the program offers sufficient interactions with nondisabled children to pass muster under Oberti and Newington.

Given all of the above, I find that the proposed program did not violate LRE requirements.

4. Failure to Assess in All Areas of Suspected Disability

The parent contends that the District failed to properly evaluate the Student by failing to assess him in reading, assistive technology, toileting, and sleep struggles.

The District has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect. 200.4(b)(6)(vii).

The record is clear that the Student {}. Accordingly, for this Student, a failure to assess his reading skills cannot be deemed a FAPE violation.

The parent’s contention that the district failed to assess the Student in {} is similarly without merit. The parent does not point out any particular testing that could be undertaken in connection to toileting and/or sleep difficulty. The parent points to no authority that a failure to assess the student in regard to toileting issues or sleep could amount to FAPE denial.

In regard to the parent’s contentions about assistive technology, she contends that the Student should have received an assistive technology evaluation. The parent points out that the assistive technology evaluation that was written for the Student after the May 8, 2014 IEP does recommend that the Student benefit from {}.

Testimony from Ms. {} indicated that the Student should have been considered for assistive technology prior to the start of the 2014-2015 school year in light of his inability to speak. (Tr. @ 423-424) However, {} indicated that she conducted an assistive technology evaluation herself. (Tr. @ 803) She indicated that the District considered assistive technology but felt that the {} worked better than assistive technology, especially given the troubles that the Student had with an {}. While I would agree that an assistive technology evaluation might have been helpful to the Student, I do not find that the failure to conduct a written assistive technology evaluation rises to the level of FAPE denial in this instance.

5. Present Levels of Performance.

Among the other elements of an IEP is a statement of a student's academic achievement and functional performance, and how the student's disability affects his or her progress in relation to the general education curriculum. 20 U.S.C. Sect. 1414(d)(1)(A)(i)(I); 34 CFR Sect. 300.320(a)(1);8 NYCRR Sect. 200.4(d)(2)(i).

The parent contends that the IEP lacked adequate information to develop academic and other critical goals to address the Student’s significant needs. However, the parent’s brief does not make clear as to which information was omitted and why that information should have been on the IEP. The record shows that the IEP provided a reasonably comprehensive description of the Student’s issues and needs, as indicated by the parent’s own expert witness. (Tr. @ 868-869)

6. IEP Services.

The parent contends that the IEP did not provide sufficient services to address his communication, failed to address the Student’s inability to read, write, or do math, failed to increase the Student’s supplemental aides and services, and failed to provide “supports” for school personnel. (Brief, at 30-31)

However, the parent’s brief does not make clear as to what additional services should have been provided for the Student in reading, writing and math, what supplemental aids and services should have been provided, and what supports should have been provided to school personnel. The record shows that the IEP provided the Student with a reasonably comprehensive program that will address the Student’s academic, communicative, and social needs. As noted, the parent’s own expert witness testified that the IEP was appropriate.

7. Transportation Services.

Transportation is a related service which is part of a Student’s educational program. The IEP team determines if transportation is required to assist a child with a disability to benefit from special education and related services, and how the transportation services should be implemented. 34 CFR Sect. 300.107; 34 CFR Sect. 300.117. Moreover, New York State law requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” NY Ed. L. Sect. 4402(4)(a).

The parent’s position is that the bus trip to {}. However, I find this to be speculative. During testimony on this point, the parent appears to have been referencing the trip to the North Syracuse location when describing the one hour and forty-five minute trip. The parent indicated that she took this trip with the student. However, the parent did not travel with the Student to the {} location. (Tr. @ 934)

Moreover, the {} teacher said that the Student did not appear to be bothered by the bus ride during the summer. (Tr. @ 408) The IEP team did recommend a bus paraprofessional for this bus trip. Finally, I have not found any cases where a bus trip issue has resulted in a finding of FAPE denial. On this record -- though I am concerned about the length of the bus trip for the Student -- I do not believe there is sufficient testimony and evidence in the record to find that the District denied the Student a FAPE.

8. Access to Records.

The parent contends that the District denied her access to records. The parent’s contention focuses on her July 31, 2015 letter, which request access to records. The parent contends that the failure of the District to provide such records has made it difficult for her to prosecute this proceeding.

Regarding the Petitioner's request for records, the IDEA regulations provide in pertinent part: "(t)he parent of a child with a disability must be afforded, in accordance with the procedures of Sects. 300.613 through 300.621, an opportunity to inspect and review all education records with respect to -- the identification, evaluation, and educational placement of the child and the provision of FAPE to the child." 34 C.F.R. Sect. 300.501(a). The term "education records" means the type of records covered under the definition of "education records" in 34 C.F.R. Part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. Sect. 1232g (FERPA)." 34 C.F.R. Sects. 300.611-300.625. Education records as defined under FERPA are "directly related to a student" and "maintained by an educational agency or institution or by a party acting for the agency or institution." The term does not include: "records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the "record". "Record" means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm and microfiche. 34 C.F.R. Sect 99.3.

The District has indicated to the parent that it would provide her to access to any and all records upon reasonable notice. There is nothing in the record to suggest that denial of access to records has denied the Student a right to a FAPE, not has the parent pointed to any authority in this jurisdiction for the proposition that FAPE denial can be premised on a records access claim. The parent also fails to make clear which records were withheld and why those records impacted her case. This claim is without any merit.

9. Independent Educational Evaluations.

The parent contends that the District refused to timely fund the assessments requested in its letter of July 31, 2014, which called for an independent FBA, BIP and Assistive Technology Assessment.

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an I.E.E. at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. Sect. 300.502(a), (b); 8 NYCRR Sect. 200.5(g)(1). If a parent requests an I.E.E. at public expense, the school district must, without unnecessary delay, ensure that either an I.E.E. 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. Sect. 300.502(b)(2)(i)-(ii); 8 NYCRR Sect. 200.5(g)(1)(iv). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense. 34 C.F.R. Sect. 300.502(b)(3); 8 NYCRR 200.5(g)(1)(v); DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 (D. Vt. Sept. 4, 2007). However, if the parent shows that the District evaluation is inappropriate, or if the District unnecessarily delays in seeking an impartial hearing to contest a parent's request for an I.E.E., the IHO may order that the District provide the requested I.E.E. at public expense. Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289 (N.D. Cal. Dec. 15, 2006) (delay in requesting an impartial hearing resulted in IHO order to fund I.E.E.).

The District’s position is that it has already provided the FBA and Assistive Technology Assessment, which is true as evidenced by Exhibits E and G. Further, a BIP is not an assessment and is not subject to an I.E.E. request. This claim is now moot, and is accordingly without merit.

10. Interference with Evaluator.

The parent contends that the District improperly failed to allow the Student’s evaluator to observe him in his then-current placement.

The OSEP document Letter to Mamas, 42 IDELR 10 (May 26, 2004) relates to parents’ and parents’ representatives’ rights to observe children in a classroom or to observe proposed placement options. This letter indicates that there is no general entitlement in IDEA or the corresponding regulations for parents or their representatives to observe their children in a current classroom or to observe a proposed educational placement. The letter then goes on to indicate that OSEP encourages districts and parents “to work together in ways that meet the needs of both the parents and the school, including providing opportunities for parents to observe the children’s classrooms and proposed placement options.”

A close reading of this letter reveals that OSEP does not refer to expert observations in the language that discusses “work(ing) together.” The letter therefore can be construed to suggest that expert witnesses retained for purposes of litigation may be denied access to proposed placement options unless the district grants consent. See also Letter to Blades, 213 IDER 169 (August 12, 1988)(OSERS letter indicating that local or State procedures control where a parent requests observation by professional under parent hire).

While OSEP letters do not constitute binding authority, the Second Circuit has held that deference to OSEP letters may be appropriate where statutory language is ambiguous. Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d. Cir. 2006)(relating to the availability of tuition reimbursement claims where student had not attended public school) Since there is no reference to such expert observations in the applicable federal or state law or regulations, it is appropriate to be mindful of OSEP’s position on this issue. I should point out that my research of existing caselaw reveals not a single case where a request for an expert observation of a proposed classroom has been ordered by a court, state review officer, or impartial hearing officer in this context.

Accordingly, the parents do not have a right under the IDEA to have their expert observe their children in a current classroom. This contention must be considered without merit.

11. Procedural safeguards.

Mainly in a footnote in her 40 page brief (note 12), the parent contends that she did not receive her procedural safeguards for five years until October, 2013. This is required to be provided to parents pursuant to 34 CFR Sect. 300.504.

To the extent that such claims are within the two year statute of limitations, (20 U.S.C. §1415(f)(3)( c); see also 20 U.S.C. § 1415(b)(6)(B); Educ. Law § 4404(1)(a)), the parent does not clearly explain how it was that the failure to provide these safeguards denied the Student a FAPE. The record does not establish that any lack of such safeguards had any substantive impact on the Student. This contention is without merit.

12. Parent Training.

The parent contends that the District failed to provide parent training and counseling in the Student’s IEPs.

New York State regulations require that parent training and counseling assist parents of students with in understanding the special needs of their child, provide information about child development, and help parents to acquire the necessary skills to support the implementation of the IEP. 8 NYCRR Sect. 200.13, 200.1(kk). The Circuit has held that Districts are “accountable” for the failure to provide parent training and counseling the IEP. R.E., 694 F.3d at 191.

The District testified that it has offered the parent training, which has sometimes been met with resistance. (Tr. @ 676) Moreover, in R.E., the failure to provide parent training and counseling is considered a procedural violation. 694 F.3d at 195. While the District should have placed parent training and counseling on this IEP, I do not find that this failure amounted to a FAPE violation.

13. 2013-2014 school year FAPE violations.

The parent contends that the District failed to provide the Student with his pendency placement during the 2013-2014 school year. In effect, the parent contends that the Student was being taught in a 6:1:1, whereas the pendency placement called for a different placement.

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement. A parent can invoke the stay-put provision of the IDEA when the school system proposes "a fundamental change in, or elimination of, a basic element of the educational program.” Lunceford v. District of Columbia, 745 F.2d 1577, 1582 (D.C . Cir. 1984).

In Letter to Fisher, the United States Department of Education Office of Special Education Programs (OSEP) called the issue of determining change of educational placement a Avery fact-specific inquiry.@ Letter to Fisher, 21 IDELR 992 (OSEP 1994). OSEP concluded that whether a change in educational placement has occurred turns on "whether the proposed change would substantially or materially alter the child's educational program." OSEP set forth the following factors to be considered in determining whether a change in educational placement has occurred: whether the educational program set out in the child's IEP has been revised; whether the child will be able to be educated with nondisabled children to the same extent; whether the child will have the same opportunities to participate in nonacademic and extracurricular services and whether the new placement option is the same option on the continuum of alternative placements.

The parent focuses on the teacher to student ratio here, but does not explain how this difference impacted the Student. The Student was being educated with non-disabled children to the same extent, had the same opportunities for extracurricular activities, and the new placement was the same option on the continuum. I find that there was no change of placement when the District implemented the pendency placement IEP through a program that had less than twelve students in it.

14. Predetermination

The parent contends that the District predetermined the Student’s recommended placement at the May 8, 2014 IEP meeting.

Courts require that Districts have an Aopen mind@ so that parents may actively and meaningfully participate in the IEP meetings. T.P. and S.P. v. Mamaroneck Union Free School Dist., 554 F.3d 247 (2d Cir. 2009). Citing the Sixth Circuit case of Deal v. Hamilton County Board of Educ., 392 F.3d 840 (6th Cir. 2004), the Circuit explained that a key to this inquiry is determining whether the Apowers that be@ have indicated that a particular program cannot be implemented in a particular District. See also J.G. v. Kiryas Joel Union Free School Dist., 777 F. Supp.2d 606 (S.D.N.Y. 2011). Policies of refusing to consider certain programs may be a deemed a violation of the IDEA. Kalliope R. v. New York State Department of Educ., 54 IDELR 253 (E.D.N.Y. 2010)(12:2:2 classes); Application of a Student with a Disability, Appeal

No.08-035; Compare E.G. and M.G. v. City School Dist. Of New Rochelle, 606 F. Supp.2d 384 (S.D.N.Y. 2009)(finding no Apredetermination@ because no Apolicy@ implemented).

The parent testified that she was never asked about the Student’s placement {}. The parent was given an opportunity to answer questions and did so throughout the meeting. The parent was a very active participant in this meeting, frequently engaging in colloquy with the rest of the members. The parent was asked what she thought about the {} program, and responded that she would think about it. The parent was clearly an active and meaningful participant in this meeting.

The parent’s predetermination claim is therefore without merit.

15. Discrimination and Retaliation

The parent broadly contends that the District discriminated and retaliated against her and the Student based on the Student’s disability and the parent exercising her federal rights. The parent contends that the District violated the Americans with Disability Act, Section 504 of the Rehabilitation Act, the No Child Left Behind Act of 2001, Section 1983 of the Civil Rights Act of 1964, the Technology-Related Assistance for Individuals with Disabilities Act, the Civil Rights Attorney’s Fee Award Act of 1976, and the Civil Rights Act of 1981.

The parent provides no authority for the proposition that an IDEA hearing officer can adjudicate such claims, nor am I aware of such authority with the exception of claims pursuant to Section 504 of the Rehabilitation Act. Section 504 of the Rehabilitation Act, 29 USC Sect. 794.

The Rehabilitation Act of 1973 provides:

No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . . 29 U.S.C. Section(s) 794(a).

To establish a violation of Section 504, the parents must demonstrate that (1) the Student is disabled as defined by the Act; (2) the Student is "otherwise qualified" to participate in school activities; (3) the school or the Board receives federal financial assistance; and (4) the Student was excluded from participation in, denied the benefits of, or subject to discrimination at, the school. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991)

The parent’s theories of discrimination and retaliation here are not convincing. The parent has not shown or argued that similarly situation students of a different class have been treated differently than the Student. The parent does not indicate if the alleged discrimination was disparate treatment discrimination or disparate impact discrimination. The parent has not shown that any of the actions of the District were in bad faith or were retaliatory because of the parent’s advocacy. The parent does not explain how the Student was excluded from programs at the school. Nor does the parent explain how this legal theory allows the parents to address any additional factual issues or to receive any additional relief. In fact, courts hold that remedies under Section 504 are largely analogous to those under IDEA. See, e.g., Christen G. v. Lower Merion School Dist., 919 F. Supp. 793, 799 (E.D. Pa 1996). The regulations implementing Section 504 largely adopt the IDEA's language, requiring that schools providing education with federal financial assistance "shall provide a free public education." 34 C.F.R. Sect. 104.33(a).

Accordingly, I will deny the parent’s all of the broad claims relating to discrimination and retaliation.

ORDER

As a result of the foregoing, this case is dismissed with prejudice.

Dated: Brooklyn, N.Y.

April 13, 2015

Michael Lazan

MICHAEL LAZAN IHO

APPEALS NOTICE

There is a right to appeal this decision to the New York State Review Officer in accordance with 8 N.Y.C.R.R. Sect. 200.5(k) of the Regulations of the Commissioner of Education.

Footnotes

[1] Issues, as reviewed here, are taken from the list of issues in the parent’s brief, at page 3. 9