Ogdensburg Central School District, Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

{}, Petitioner,

Hearing Officer: Michael Lazan

v.

OGDENSBURG CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving a fifteen year old student who is not eligible for services.

A Due Process Complaint (“Complaint”) was received by Ogdensburg Central School District (“Ogdensburg” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on September 15, 2014 in regard to the Student. This Hearing Officer was appointed to preside over this case on September 16, 2014. .

The Complaint alleges violations relating to the District’s failure to determine the Student to be eligible for services during the 2013-2014 and 2014-2015 school years. The Complaint also alleges that the District failed to evaluate the Student properly and failed to allow the parent to participate in the Student’s education. As relief, Petitioner seeks a determination of eligibility, new evaluations including a Functional Behavioral Assessment and an

Evaluation, compensatory education, and parent counseling and training. Petitioner also seeks a program with consultant teacher services, resource room services, social skills training, teaching the Student to use a planner, reducing consecutive instructions to two at a time, employing anxiety-reduction techniques, and using “backwards chaining.”

On October 17, 2014, this Hearing Officer held a prehearing conference. , Esq., counsel for the District, appeared. , Esq., counsel for the Petitioner, appeared.

Hearing dates were scheduled for November 7, 2014, December 18, 2014, January 8, 2015, and January 9, 2015. All these dates were adjourned because of the unavailability of the District (November and December date) and inclement weather (January 8 and 9). The matter came to hearing on February 27, 2015 and April 27, 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. 3, 4) 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. 5)

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 a fifteen year old who has been deemed to be eligible for services through Section 504, but not the IDEA. (Exh. 22) {}

She has a full scale IQ that has been tested at and . (Exhs. 8, S)

Her achievement testing scores are in the range, with standard scores from (passage comprehension) to (math fluency). (Exh. 8)

Testing revealed no deficits in attention, impulsivity, spatial processing, sequencing, and verbal fluency. (Exh. S) Some memory issues were found with memory in the “immediate condition.” {}

She responds to individualized instruction, though in math she will get frustrated and stop. (324) {}

The Student received AIS services since the first grade in math, and since the second grade in reading. (Exh. T) She was retained in the fourth grade. (102) She had difficulty with academics generally in elementary school, with worse scores in math in testing. (Exh. T)

{}The Student then transferred to the District, which disagreed that the Student should be retained.

The Student instead went to eighth grade at the District. (248-249) {}

In particular, in English, and Math AIS, she often refused to complete assignments, was inattentive, and had poor motivation in class. (Exhs. 8, 23, T) She did better in Social Studies, where she responded to authority and maintained attention. Overall, there were issues in using time productively, working individually, completing assignments, being prepared, being distracted, speaking out at inappropriate times, and being distracted. (Exhs. 8, 23) Teachers felt that she was not motivated to do well. She was not being cooperative, and she was having some difficulty in her social interactions with her peers. (59) She was accusing others of bullying her, but was the instigator of the incidents. (66)

On November 7, 2013, the parent sought a referral to the CSE because the Student had issues with comprehending math. (Exh. 4) She indicated that the Student’s areas of suspected disability were , , and . (Exh. 4)

A psychological evaluation in December, 2013 recommended accommodations such as extended time, separate location for tests, relating to visual-motor and visual-perceptual issues. (Exhs. 8, T) This psychologist also recommended consultant teacher services for math, daily, for sixty minutes. A Functional Behavioral Assessment was recommended, and was recommended also. {}

On January 31, 2014, the CSE met to determine the Student’s eligibility under the IDEA. (Exh. L) {}

The discussion of the Student’s needs was focused on concern about the Student’s basic math skills. (45-46) This was deemed a function of jumping around between schools. (46) The Student’s behavioral issues were noted to have an impact on the Student’s ability to receive educational benefit. (64) was not ruled out at this time. The team felt that there was nothing in the Student’s history that indicated an since what she was doing was typical for her age. (30-31, 59) The team felt that there were others like her in the school system that were not classified and were not being considered for classification. (60) They believed that the Student’s problems stemmed from her mother’s negative comments about staff. (63) They were told that the Student’s diagnosis was “temporary” and situational. (73) The CSE felt that the Student’s behaviors were a product of her home environment. (194)

The Student was deemed ineligible as a , and the District then recommended a Section 504 plan for the Student. This plan provides direct consultant teacher in math for sixty minutes daily, testing accommodations of extended time (1.5x), a location of minimal distractions, and a behavior management plan across all settings. (Exh. D) According to the 504 plan, the Student is diagnosed with an that has an impact on the Student’s academic success, including on her ability to participate in the class, be attentive, motivated, and self-regulated. A goal was written in regard to participation in class. (293-294; Exh. G)

After the meetings, a “blue card” system came into effect. Basically, if the Student felt that she was experiencing , i.e. feeling stressed or anxious, she would give a blue card to a teacher and would be given a place to go somewhere and calm down. (108) This teacher was ordinarily with the resource room teacher or her assistant. (156) This card system was used “maybe” once a week. (158)

The Student also began to receive instruction in a classroom with a consultant teacher, who was {}. {} would circulate and fill in any gaps for the students. (159) She would assist the Student in doing homework, and help her with a particular assignment. (163) She also helped the Student deal with test anxiety. (166)

A behavior plan was put in place for her. (Exh. 11) Grades were failing in Math and English through April 11, 2014. The Student failed her Science midterm, but otherwise was passing in Science, Social Studies and Spanish. (Exh . V) She scores a on State math and English tests. (Exhs. MM, NN)

In Spring, 2014, the parents took the Student to a {}, Psy. D. (Exh. S) {} recommended cognitive behavioral therapy for the Student as well as parent training. (Exh. S) She also recommended a , therapy, training in the use of a planner, anxiety reduction techniques during consultant teacher services, and a technique called “backwards chaining” to facilitate learning of math. (Exh. S) This was presented to the District in January 2015. (82)

A Section 504 meeting was held on May 29, 2014. (Exh. C) Forty-three minutes of consultant teacher services per day are recommended, as is resource room for forty-three minutes per day. This instruction was provided by a certified special education teacher who was also in charge of the Student’s behavior plan. (112) The resource room has up to five students, who are helped by the teacher with respect to homework. The Students also receive additional support in whatever area they need it in. (113-114)

This plan was meant to allow the student to access a special education setting if she experienced difficulty. (149-150) The 504 plan describes the Student as having an and and that she has social/emotional issues that impact her ability to be successful in academic settings. It says that she struggles with motivation, attendance, sustained attention, and participation in class. It says that her condition is impacting on her academic progress, and that it may impede her ability to sustain the attention necessary to complete tasks and assignments. It provides testing accommodations, an assessment, and a Functional Behavioral Assessment. It also recommends extended time, a location with minimal distractions, and a behavior management support plan daily. Finally, there is a goal that looks for the Student to complete independent practice.

Another Section 504 meeting was held on September 9, 2014. (Exh. B) Four hundred fifteen daily minutes of accommodations were recommended in the general education and special education setting. (Exh. B) Forty-three minutes of consultant teacher services per day are recommended, as was resource room for forty-three minutes per day. This plan was meant to allow the student to access the special education setting if she experienced difficulty. (149-150) The 504 plan again describes the Student as {} says that her condition is impacting on her academic progress, and that it may impede her ability to sustain the attention necessary to complete tasks and assignments. It also recommends extended time, a location with minimal distractions, and a behavior management support plan daily. There is a goal that looks for the Student to complete independent practice.

The Student’s grades during the first marking period of 2014-2015 ranged from in academic subjects, with a significant amount of absences, in math. (Exh. U) Grades have been “better than normal” but she has been suspended three times this year. (274) {} She has benefitted from having a math class with two teachers. (275) {}

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.

"Emotional Disturbance" is defined as "a condition [1] exhibiting one or more of the following characteristics [2] over a long period of time and [3] to a marked degree that [4] adversely affects a child's educational performance: (A) an inability to learn that cannot be explained by intellectual, sensory, or health factors; B), an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (C) inappropriate types of behavior or feelings under normal circumstances; (D) a general pervasive mood of unhappiness or depression; (E) a tendency to develop physical symptoms or fears associated with personal or school problems." 34 CFR Sect. 300.8 (c) (4) (i).

On this record, the Student has shown inappropriate types of behavior and feelings under normal circumstances since the 2012-2013 school year, {}. This behavior became regular during the 2013-2014 school year. The Student was “written up” for misbehavior {}.

These issues are not a mere function of social maladjustment. The Student has been diagnosed with . The record shows that this disorder is the primary cause of the Student’s difficulties, as is conceded by the District in its Section 504 Plans. These plans explicitly state that the Student’s has an impact on the Student’s academic success, including on her ability to participate in the class, be attentive, motivated, and self-regulated.

The Section 504 Plans go on to provide the Student with specialized instruction, making clear that the Student’s disabling condition has had an adverse impact on her education. The plans provide consultant teacher services and resource room services, both of which are defined as special education services in the applicable regulations. 8 NYCRR Sect. 200.6(d), 8 NYCRR Sect. 200.1 (rr) This is not a case where students with disabilities are provided with solely “general education” interventions, though, even there, courts have held that the student should be determined eligible in certain circumstances. Here, the Student has a special education teacher assigned to him. Cf. Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1 (1st Cir. 2007)(student with typically good grades and communication issues deemed eligible); Marshall Joint Sch. Dist. No. 2 v. C.D., 592 F. Supp.2d 1059 (D. Wisc. 2009) (modifications deemed specially designed instruction); Bd. Of Educ. of Montgomery Cty. v. S.G., 45 IDELR 93 (D. Md. 2006)(general education student with passing grades and recent psychiatric events hospitalizations deemed eligible: court noted that specialized instruction does not have to relate to the content or direct delivery method of the instruction); Seattle Sch. Dist., No. 1. v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996) (citing legislative history from the Education of the Handicapped Act, the IDEA's predecessor, which recognized that although special education must address a child's unique educational needs, such needs must be "'broadly construed to include [the] handicapped child's academic, social, health, emotional, communicative, physical and vocational needs.'" (quoting H.R.Rep. No. 98-410, at 19 (1983)).

The District suggests the Student is getting enough services through its Section 504 Plan. However, a school district simply cannot select the statute that they want to provide services under. Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1376 (8th Cir. 1996)(“the school district is not free to choose what statute it prefers”).

The District argues that the Student’s actions were typical for her age, but I cannot agree. It is not typical for a Student to be the subject of twenty-three disciplinary reports after less than half of the school year, nor is it typical for a student to walk out of class, curse out teachers, or get into physical confrontations in school. The District also argues that, because the behaviors of the Student were not as severe as in Muller v. Committee on Special Education of the East Islip School District, 145 F.3d 95, 104 (2d Cir. 1998), she should not be determined to be a Student with . The District points to N.C. v. M.C. v. Bedford Cent. Sch.

Dist., 473 F. Supp.2d 532, 544, aff’d 300 Fed App’x 11 (2d Cir. 2008) as a similar case, wherein a student’s behaviors were “at times” inappropriate and the Student was not deemed eligible for services. However, in this case, the Student’s behaviors were considered to be a function of and the court deemed the student to be . This is not the case here, as the Section 504 plans make clear. More on point is Eschenasy v. New York City Dep't of Educ., 604 F. Supp. 2d 639, 648 (S.D.N.Y. 2009), where a student’s persistent hair-pulling and cutting caused a finding that she was exhibiting inappropriate types of behavior under normal circumstances.

In Muller, the Circuit explained that it is appropriate to view the Student’s behaviors “(i)n combination” to determine the extent to which the behaviors suggest emotional disturbance. Muller, 145 F.3d at 104. A review of Petitioner’s Exhibits SS, YY and ZZ makes it clear that, this Student has exhibited highly inappropriate behavior since at least the 2012-2013 school year. These behaviors became very intense in October, 2013 and continued through the 2013-2014 school year and then the 2014-2015 school year. The District argues that the behaviors did not manifest themselves for a long enough period of time, but I find that the cumulative disciplinary record of the student suggests that these issues have in fact been present for a long enough time that she should have been determined to be eligible for services from the January, 2014 review up to filing of the Due Process Complaint.

2. Evaluations/Meaningful Participation.

The Due Process Complaint alleges that the District failed to assess the Student in all areas of suspected disability, and that the parent was not provided with an opportunity to meaningfully participate in the process.

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).

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).

Petitioner’s brief does not mention these two claims. The record shows that the January, 2014 CSE had enough information before it to determine that the Student was eligible and to create a program for the Student. Petitioner does not argue otherwise. The parent clearly had an opportunity to participate in the meeting, which she did in a highly inappropriate manner. These claims are without merit.

REMEDY

Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:

The statute directs the court to “grant such relief as [it]

determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985).

Petitioner seeks compensatory education for the Student. Compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. While the Circuit has previously enunciated a “gross violation” standard in this connection, Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994), this standard is at odds with the standards in most jurisdictions. In P. v. Newington Bd. of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21. In so analyzing this issue, the court referenced referenced the seminal compensatory education case of Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student").

I find this is an inappropriate matter for an order of compensatory education. The Student did receive a significant amount of educational services through the Section 504 Plan. Moreover, the record establishes that the Student has improved this year. Compensatory education is only appropriate where the record shows that the Student was deprived educational benefit. Petitioner also alleges there should be an order requiring the District to increase the Student’s services and provide additional evaluations. However, the record is unclear on how well the Student did for the 2014-2015 year. Grades have been “ ” but she has been suspended three times this year. She has sworn at staff, and she has had to be taken out of class because of an altercation with a teacher. She has benefitted from having a math class with two teachers. She has had thirty or so disciplinary “write-ups” with about 17 days of suspension. Under the circumstances, I will remand this matter to the CSE to develop a program for the Student for the 2015-2016 school year.

ORDER

As a result of the foregoing:

1. The District shall, within 30 days, write an IEP for this Student determining her to be eligible as a Student with an and providing the Student with all necessary educational services for the forthcoming school year;

2. Petitioner’s other requests for relief are denied.

Dated: Brooklyn, N.Y.

June 30, 2015

Corrected: July 6, 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.