NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACTS & DECISION
NYS Case Number: 87280
Student's Name:
Date of Birth: January 04, 2002
District: Mt. Vernon City School District
Hearing Requested By: Parent
Dates(s) of Hearing: 10-22-14, 12-03-14, 12-09-14,
12-30-14, 01-12-15, 01-13-15 &
02-18-15
Actual Record Close Date: April 13, 2015
Hearing Officer: Edgar De Leon NYS
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date Attorney PARENT 12-03-14 Attorney DISTRICT 12-03-14 Direct of Special DISTRICT 12-03-14 Education
Principal DISTRICT 12-03-14 Attorney PARENT 12-09-14 Attorney DISTRICT 12-09-14 Direct of Special DISTRICT 12-09-14 Education School Psychologist DISTRICT 12-09-14 Attorney PARENT 12-30-14 Attorney DISTRICT 12-30-14 Direct of Special DISTRICT 12-30-14 Education Attorney PARENT 01-12-15 Attorney DISTRICT 01-12-15 Direct of Special DISTRICT 01-12-15 Education Supervisor of Education DISTRICT 01-12-15
DISTRICT 01-12-15
I
Attorney PARENT 01-13-15
Supervisor & Coordinator PARENT 01-13-15
Of Vocational &
Transition Programming
Parent PARENT 01-13-15
Attorney DISTRICT 01-13-15
Direct of Special DISTRICT 01-13-15
Education
Attorney PARENT 02-18-15
(T) Pediatric Neurologist PARENT 02-18-15
Attorney DISTRICT 02-18-15
Direct of Special DISTRICT 02-18-15
Education NYS
DOCUMENTATI ON ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
R1 03/2013 DISTRICT 03
Triennial & Progress Report
R2 Summary 02/11/13 DISTRICT 02
R3 Consent for Reevaluation 01/17/13 DISTRICT 01
R4 Consent for FBA 02/15/13 DISTRICT 01
R5 Meeting Notice 4th Attempt 05/30/13 DISTRICT 02
R6 Meeting Notice 07/02/13 DISTRICT 02
R7 Five Day Waiver 07/03/13 DISTRICT 01
RB 3rd Quarter Report Card/ 01/19/12 DISTRICT 05
Assessment of Basic Language
And Learning
R9 Consent to IEP Changes 07/03/13 DISTRICT 01
R10 Transportation Request Form Undated DISTRICT 01
R11 CSE Attendance 06/07/13 DISTRICT 01
R12 CSE Attendance 07/03/13 DISTRICT 01
R13 Meeting Notice 06/14/13 DISTRICT 02
R14 Meeting Notice 03/25/13 DISTRICT 02
R15 Meeting Notice 2nd Attempt 03/24/13 DISTRICT 02
R16 Meeting Notice 3rd Attempt 05/07/13 DISTRICT 02
R17 Prior Written Notice 02/15/13 DISTRICT 02
R18 SW BOCES 03/30/13 DISTRICT 02
Triennial Evaluation
R19 Meeting Notice 06/14/13 DISTRICT 02
R20 Meeting Notice 03/25/13 DISTRICT 02
R21 Meeting Notice 2"d Attempt 04/24/14 DISTRICT 02
R22 Meeting Notice 3rd Attempt 05/07/13 DISTRICT 02
R23 Prior Written Notice 02/15/13 DISTRICT 02
R24 Triennial 03/13/13 DISTRICT 04
R25 Student/Classroom Observation 04/29/14 DISTRICT 01
Notes
R26 Record of Home/ School 06/30/13- DISTRICT 71
Based Visits 12/18/13
R27 Correspondence from Parent 07/19/11 DISTRICT 01
To
R28 Meeting Notice 07/29/14 DISTRICT 02
R29 Meeting Notice 05/05/14 DISTRICT 02
R30 BOCES Social Skills Summary 05/20/14 DISTRICT 03
R31 BOCES Behavioral Summary 05/27/14 DISTRICT 02
R32 Behavorial Summary 01/27/14 DISTRICT 02
R33 Behavorial Intervention Plan 01/2014 DISTRICT 04
R34 Progress 02/2014 DISTRICT 01
Report
R35 Student Classroom Observation 04/29/14 DISTRICT 01
Notes
R36 02/2014 DISTRICT 02
Report
R37 Service Log 03/04/14 DISTRICT 02 R38 Assessment 05/20/14 DISTRICT 06
R39 Intervention Record 01/07/14- DISTRICT 27
Of Home Based Visits 03/31/14
R40 2"d Quarter Report Card Undated DISTRICT 01
R41 CSE Attendance 08/08/14 DISTRICT 01
R42 Summary of Related Services 09/03/14- DISTRICT 05
Session Notes 10/08/14
R43 Correspondence from Parent 09/09/14 DISTRICT 01
To BOCES
R44 Student Log 09/11/14- DISTRICT 52
10/07/14
R45 The Assessment of Basic 09/2010 DISTRICT 126
Language and Learning Skills-
Revised
R46 E-Mail ID 02/12/14 DISTRICT 02
R47 E-Mail from Attorney 01/11/15 DISTRICT 02
R48 Affidavit of 01/12/15 DISTRICT 07
R49 Affidavit of 01/12/15 DISTRICT 05
R50A Certification of Records by 01/15/15 DISTRICT 01
R50B Subpoena 12/31/14 DISTRICT 02
Served on
R50 Response to Subpoena Various DISTRICT 267
R51 E-Mail Correspondence Parent 05/16/12 DISTRICT 01
To (District)
R52 Student Report Card 2012-2013 DISTRICT 03
R53 Student Report for 4 2011-2012 DISTRICT 01 R54 E-Mail from Parent to 08/16/12 DISTRICT 01
(District)
R55 E-Mail from Parent to 04/08/13 DISTRICT 01
(District)
R56 District Letter Brief Regarding 01/05/15 DISTRICT 02
IHO Authority to Order Prospective
Funding in Absence of Parental
Legal Obligations to Private Program
R57 Closing Statement 03/27/15 DISTRICT 19
P17 FBA Conducted by 03111113 DISTRICT 02
(*Pursuant to IHO's Request for Complete Document*)
P1 Due Process Complaint 09/24/14 PARENT 14
P2 Letter from to 11/06/14 PARENT 01
, Re:
Pendency Hours
P3 Prior Written Notice 08/08/14 PARENT 02
P4 IEP 08/08/14 PARENT 16
P5 E-Mail from 06/03/14 PARENT 01
To Re:
P6 2013-2014 Mount Vernon 06/2014 PARENT 08
Progress Report
P7 E-Mail from to 05/29/14 PARENT 01
Re:
PS E-Mail from 05/21/14 PARENT 01
To Re:
pg E-Mail from to 05/21/14 PARENT 01
Re:
P10 05/20/14 PARENT 12
Report
P11 Letter from to 02/27/14 PARENT 01
P12 E-Mail from 10/21/13 PARENT 01
To Re:
70 Minute Tantrum at School
P13 IEP 07/03/13 PARENT 17
P14 Progress Report for Goals and 06/07/13 PARENT 11
Objectives 2012-2013
P15 Letter from to 05/08/13 PARENT 02
P16 04/30/13 PARENT 06
Annual Report
P17 Functional Behavior Assessment 03/11/13 PARENT 01
P18 Behavior Intervention Plan 03/2013 PARENT 02
P19 Triennial 03/2013 PARENT 04
And Progress Report with
Addendum,
P20 Letter from 01/10/13 PARENT 02
P21 IEP 05/22/12 PARENT 15
P22 03/29/12 PARENT 11
Report
P23 IEP 09/28/11 PARENT 21
P24 Progress Report for IEP Goals 06/2011 PARENT 09
210-2011
P25 IEP 06/22/11 PARENT 19
P26 The Report 06/08/11 PARENT 11 P27 Kidabilities- 06/07/11 PARENT 02
Intake
P28 Note from 06/03/11 PARENT 01
P29 06/03/11 PARENT 10
, Inc. Annual Report
P30 Letter from to 05/2011 PARENT 02
P31 12/17/10 PARENT 04
, Inc. Target Behaviors
P32 2009-2010 Progress Notes, 11/13/09 PARENT 02
P33 12/07/09 PARENT 04
P34 IEP 09/17/09 PARENT 12
P35 Report 05/21/12 PARENT 04
P36 Letter to IHO Re: Issue of 12/22/14 PARENT 03
Standing/Direct Prospective
Payment
P37 Direct Testimony by Affidavit 1/12/15 PARENT 10
Of
P38 Direct Testimony by Affidavit 1/13/15 PARENT 23
Of
P39 Letter from 09/20/11 PARENT 02
P40 Affidavit of 02/17/15 PARENT 11
P41 Closing Statement 03/27/15 PARENT 33 NYS
On October 6, 2014, I was appointed as the Impartial Hearing Officer ("IHO") to conduct a hearing pursuant to the Individual with Disabilities in Education Act ("IDEA"), 20 United States Code, Section 1415(f)(1), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (13) year old student attending a New York State approved "BOCES" school and the Mt. Vernon City School District, concerning the student's special education program.
On October 22, 2014, the parties participated in a telephone pre-hearing conference that was memorialized in an Order issued on November 4, 2014. After adjournments were granted at the request of and with the consent of the parties or for cause, the impartial hearing was held December 3, 2014, December 9, 2014, December 30, 2014, January 12, 2015, January 13, 2015 and February 18, 2015. The parties opted to submit written closing statements which were originally due on March 20, 2015.
(T-777-9) The parties jointly requested an extension of the date to submit their written closing statements, which were ultimately received on March 27, 2015. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
In this case, the Parent alleges that the student was denied a "free and appropriate public education" ("FAPE") for the 2012-2013, 2013-2014 and 2014-2015 school years. (See Due Process Complaint - "DPC") The student is currently enrolled in a "Board of Cooperative Educational Services" ("BOCES") program. (Id.) After the student's services were eventually raised to (15) hours per week on September 28, 2011, the Parent disagreed arguing that the BOCES' program's "imbedded" program was not sufficiently rigorous. (Id.) Subsequently, at a Committee on Special Education ("CSE") meeting held on May 22, 2012, the student was provided with (15)
hours of home-based therapy. (Id.) Those hours were then reduced in July of 2013 to (10) hours per week, and again in August of 2014 to (6) hours per week. (Id.)
The Parent alleges that for the 2012-2013 and 2013-2014 school years and continuing for the 2014-2015 school year, the District failed to provide the student with a FAPE by "failing to address his problem behaviors and failing to integrate an effective behavior plan into his academic programming."
At the impartial hearing, the Parent requests the following relief as a result of the alleged denial of FAPE:
(a) annulment of the current "Individualized Education Program" ("IEP"); and
(b) provision of an appropriate IEP, inclusive of an appropriate program, related services, accommodations and supports, developed with the equal participation of the Parent, to address the student's specific academic and behavioral needs; and
(c) that the student's IEP include appropriate, measurable, and meaningful goals and objectives to address the needs indicated; and
(d) provision of an "Independent Educational Evaluation" ("IEE") at public expense to determine the student's needs with respect to sensory processing; and
(e) provision of an IEE at public expense to determine the student's needs with respect to speech and language; and
(f) provision of an evaluation to determine the student's needs with respect to assistive technology; and
(g) placement at and direct payment to an appropriate out of District school that is capable of addressing the student's unique academic and behavioral needs in the "least restrictive environment" ("LRE"); and
(h) provision of at least (15) hours of home-based therapy pursuant to the recommendations of the student's private doctors and out-of-district providers;
(i) immediate reinstatement of the student's pre-hearing levels .e. [1O] hours per week) of at-home services for the duration of these proceedings; and
0) compensatory education in the form of sufficient hours, " sessions and sessions to remediate the District's past deficiencies in services provided; and
(k) payment of the Parent's attorney's fees and expenses associated with representation in this matter; and
(I) provision of any further relief, including further compensatory education, which the Hearing Officer deems just and proper pursuant to the IDEA, ADA and §504.
On December 30, 2014, the following "Order on Pendency" was issued on consent of the parties:
Given the foregoing and the agreement of the parties, I hereby direct that pendency remain at (10) hours of home-based services per week with , and that the (40) hours of home services that Student is entitled to as compensatory pendency hours be banked without an expiration date and used at the Parent's discretion by direct arrangement with .
THE SCHOOL DISTRICT'S CASE
The school district argues that the student is currently in his 3rd year of the BOCES program and that it is surprising that the Parent would challenge all three of those years when BOCES has always had a good collaboration with her. (T-64) The student has made progress at BOCES. (Id.) What's more, the student did not demonstrate the behavior problems that the Parent alleges in her complaint. (T-65)
Everyone agrees that the student is on the . (Id.) It is significant that the student has achieved his academic goals at BOCES. (T-66) The student and Parent receive home services to address the student's behaviors and to "generalize.,,
(T-67) As the student's behaviors have diminished in school and in light of the fact that the student is in an intensive program during the school day, the home services have been accordingly reduced. (Id.) The student is in an intensive program throughout the school day, then goes to an after-school program every day, after which he receives two hours of home services three times a week. (T-67-8) It is not surprising that teachers have heard the student say he does not want after school services. (T-68)
The District called (5) witnesses to testify on its behalf and submitted (57)
documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the District's case is incorporated in the decision below.
THE PARENT'S CASE
The Parent reserved making an opening statement until the close of the District's case-in-chief. (T-68) The Parent then argued that the student has been diagnosed with and that his academic scores are across the board. (T-675) The student's behaviors can be aggressive and even violent at times. (Id.) His language is and he uses one, sometimes two-word utterances. (T-676) However, with the right frequency and intensity of delivered by a qualified professional who implements and works with a real "behavior intervention plan" ("BIP"), the student can gain skills. (T-677) intervention is a science that must be followed methodically and meticulously, but that is not what the student has been getting. (T-678) The BOCES program is an program with no BIP. (T-678-9) The student needs an intensive 1:1 true program and home based hours. (T-679)
The Parent called (3) witnesses to testify on her behalf and submitted (41)
documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent's case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.
§§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley,
458 U.S. 176, 206-07 [1982))
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d 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. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.
Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 46521 1, at *10 [S.D.N.Y. Feb. 9, 2007])
Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)
impeded the student's right to a FAPE, (b) significantly impeded 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5U][4][i i]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch.
Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug.
19, 2008])
The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]
[citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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."' (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192)
The student's recommended program must also be provided in the least restrictive environment ("LRE"). (See 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]; 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]
and 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. § 300.320[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][ii i]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.
07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and
SRO No. 08-087)
The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.
(See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm.
of
Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir.
2007] and
Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])
"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][1O][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.
(See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)
A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000])
"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement. ..."' (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006]
[quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits."
(See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina
City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child."' (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide "notice" of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. §
1412[a][1O][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.
(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267
[1st
Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-
133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][i ii];
Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch.
Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v.
V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir.
Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
To begin with, it is important to note that New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in Section 504 hearings and a State Review Officer does not review Section 504 claims. (SRO Nos.:
05-108, 05-033, 03-094, 00-051, 00-010, 99-10 & 06-003) While a school district may elect to satisfy the impartial hearing requirements of Section 504 by providing a hearing that conforms to the more stringent impartial hearing provisions under the IDEA, neither the IDEA nor Article 89 of the Education Law contain a provision mandating school districts to provide Parents with consolidated IDEA/section 504 impartial hearings." Generally, hearing officers do not have jurisdiction to hear and determine Section 504 claims under the IDEA. Here, the school district did not consent to having the Parent's Section 504 claims heard in this proceeding. (T-9) Accordingly, said claim is not addressed in this decision.
I first turn to the question of whether the school district offered the student a FAPE for the 2012-2013, 2013-2014 and 2014-2015 schools years. However, I will begin the inquiry with a review of the student's 2011-2012 school year's IEP. The student is designated a "12-month student." (T- 10 & P-31) Accordingly, the student's school year begins on or about the first day of July.
At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in [its] jurisdiction." (See 20 U.S.C. §
1414[d][2][A]; 34 C.F.R. § 300.323[a] and Cerra, 427 F.3d at 194 (". . . the District fulfilled its legal obligations by providing the IEP before the first day of school.").
Federal regulations specifically direct that a school district must have an IEP in place at the beginning of the school year. (See 34 C.F.R. § 300.323[a]) Accordingly, the student's June 22, 2011 IEP is the relevant IEP for the 2011-2012 school year.
As noted above, a FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Rowley and Cerra, Supra)
Pursuant to 8 NYCRR § 200.3(a)(1 ), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student;
(2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provi der, or the school psychologist; (6) an individual who can i nterpret the i nstructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.
The record is inconclusive as to what the membership of the student's CSE team on June 22, 2011. (P-31) Under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-
62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No.
08-016)
Here, the Parent has not unilaterally placed the child and she is not seeking tuition reimbursement. Accordingly, the burden of proof in this case rest squarely on the school district, including but not limited to, showing that the student's CSE team was duly composed under law. The District's "Supervisor of Special Education" gave general testimony that the CSE meetings conducted at the school district include Special Education Teachers, Teaching Assistants, Psychologists, Social Workers, and Speech Therapists; thus assuring the District's special education programs are in compliance with Part 200 of the Commissioner's Regulations. (R-48 @ 2) However, she did not specifically testify as to the make up of June 22, 2011 CSE team.
The Regional Clinical Lead Manager of New York Branch of the (" ") testified on behalf of the school district and stated that she participated in the student's September 28, 2011 Program Review meeting, as well as his May 22, 2012 Annual Review meeting, his June 7, 2013 Reevaluation/Annual Review meeting, his reconvened meeting on July 3, 2013 and his August 8, 2014 Annual Review meeting. (R-49 @ 13) She also did not specifically testify as to the make up of June 22, 2011 CSE team. Neither did the other witnesses. Because the record does conclusively prove that the CSE team on June 22, 2011 was duly composed under law, I must find that procedurally, the resulting IEP is flawed under law.
The law is well settled that an invalidly constituted CSE results in an invalid IEP.
(See SRO Nos. 93-17, 92-31, 94-11, 96-87, 91-23, 93-11, 96-57, 96-28, 96-30, 00-031,
00-044, 99-8, 91-21, 91-23, 91-37, 91-10, 91-20, 93-32, 96-57, 93-42, 93-15, 96-22, 96-
23, 91-33, 92-17, 93-7, 92-3, 92-33, 93-29, 94-4, 96-55, 96-66, 91-33, 97-21, 97-49, 00-
043, 00-069) However, IHOs and State Review Officers ("SROs") are constrained by federal and State regulations from finding that a FAPE is denied by a procedural violation unless the procedural inadequacy impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii], 34 C.F.R. § 300.513[a][2], 8 NYCRR
200.5U][4][ii], E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21,
2008]
and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]
aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])
As also noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs and provides for the use of appropriate special education services. (Supra) On June 22, 2011, the CSE team reviewed the following documents: Annual Progress Report (06/22/11), Parent Report and
Observations (06/22/11), a Progress Report (06/22/11), a Teacher Progress Report (06/22/11), a Evaluation (06/08/11), an
Progress Summary (06/08/11), a Screening (06/07/11), an ( ) Report (06/03/11), an APE Progress Report
(06/02/11), an Reevaluation (12/07/09) and a
Reevaluation (09/23/09).
The Parent testified that she shared the privately obtained doctor reports with the CSE and they ignored the reports of her doctors. (P-38 @ 53-9, P-28 & P-30) In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. (See SRO No. 14-101, citing 34 CFR 300.324[a]
& 8 NYCRR 200.4[d][2]) However, the CSE is not mandated to accept or adopt the Parent's recommendations, or those of the Parent's "experts."
The June 22, 2011 IEP accurately classifies the student as having (P-31)
The evaluative materials reviewed to create the IEP are extensive and are incorporated into the document. The IEP correctly notes that the "Parent is advocating for increased frequency of , Therapy, and services, as well as a full time program", which acknowledges the Parents experts' requests that the student receive (40)
hours of 1:1 discrete trial weekly composed of (25) hours in school and (15)
hours at home. (Id.) The June 22, 2011 IEP's "management needs" is also comprehensive and reflective of the information in his evaluations, stating as follows:
[Student name] has delays in cognitive skills, language skills, social skills, activities of daily living, and motor skills which require a small teacher to student ratio with minimal distractions in order for him to progress in all areas of educational development. [Student name] is a strong visual learner who uses visual cues (pictures, gestures), verbal and physical prompts to process language, organize thoughts and communicate more effectively. He needs teacher redirection to maintain attention to tasks and refocus when distracted. He requires multiple repetitions over time, skills broken down into small increments, using visual manipulative materials for acquisition and retention of new skills. Use of varied materials, with different people and across many environments is needed to facilitate generalization of skills. (Id.)
The June 22, 2011 IEP provides the student with assistive technology at school and at home sets extensive related service goals. (Id.) The IEP recommends that the student be placed in a 8:1:2 student to teacher ratio, with related services of , parent counseling and training, , , daily multisensory instruction, daily refocusing and redirection, daily visual cues and a teaching assistant as needed. (Id.) The student is also recommended for a "12-month" school year to prevent regression and provided special transportation accommodations. (Id.)
Finally, the June 22, 2011 does not recommend a BIP for the student. (Id.) The student's Psycho-Educational Re-Evaluation dated December 7, 2009 also does not recommend a BIP for the student. (P-39) The "Target Behaviors" report dated December 17, 2010 defines the student's behavior as follows: "Lack Inhibition Control -
[Student name] will answer questions without waiting to hear the whole question, or respond based on prior knowledge and not based on current situation." (P-37)
The student's pediatrician wrote a letter that is undated, but proffered to have been written in May of 2011, wherein he notes that the student has responded remarkably well to the (10) hour/week program that he has been in for roughly one year. (P-36) On the one hand, the pediatrician said that he has been working with the student for the past three years and over the past one year, he has noticed a dramatic improvement in his behavior, where the student is much more settled and approachable and no longer prone to verbal or physical outburst. (Id.) On the other hand, he says that he wants to "capitalize" on the situation to "return the student to the developmental level he would have been at if he had been receiving the appropriate services all along", and so he recommends significantly increasing the student's services from (10) hours per week, to (40) hours weekly at school and at home. (Id.) In light of the student's improving behavior, the pediatrician's recommendation to dramatically increase the student's ABA services does not comport with the IDEA requirement that a student's recommended program must be provided in the "Least Restrictive Environment" ("LRE"). (See 20 U.S.C. § 1412[a)[5][A], 34 CFR §
300.114[a][2][i] and § 300.116[a][2], 8 NYCRR § 200.1[cc], 200.6[a][1], Newington, 546 F.3d at 111, Gagliardo, 489 F.3d at 105, Walczak, 142 F.3d at 132 and Patskin, 583 F.
Supp. 2d at 428)
As previously stated, the law only charges the school district with providing the student with an IEP that is "reasonably calculated to provide some 'meaningful' benefit" (see Mrs. B. and Rowley, supra), while also providing that benefit in the least restrictive environment ("LRE"). (See 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] and Newington, Gagliardo, Walczak,
E.G. and Patskin, supra) For all of the reasons stated above, I find that the school district did offer the student a FAPE for the 2011-2012 school year.
I next turn to the question of whether the school district offered the student a FAPE for the 2012-2013 school year. Here, the relevant IEP is dated May 22, 2012. (P-27) The May 22, 2012 IEP indicates that the CSE team was composed of the special education teacher, the BOCES administrator, the student's , his , the Parent's "private practitioner" (" "), the student's mother, the Parent's attorney, the CSE Chairperson, a general education teacher, a school psychologist and a behavior intervention specialist. Accordingly, Ifind that the student's CSE team on May 22, 2012 was duly composed under law. (See 8 NYCRR § 200.3(a)(1))
The same evaluations and reports relied on in the student's June 22, 2011 IEP were used for the May 22, 2012 IEP. (P-27 & P-31) The student's services also remained identical to his previous IEP, and were even expanded to add (1) session off individual for (30) minutes, (1) of individual for (30) minutes, as well as one (1) hour of parent training/ASA for (3) hours a day on extended school breaks. (P-27)
The Parent stated that she still thought the student needed more services, and the CSE team agreed that "on an interim basis", the increase in services were sufficient to meet the student's needs. (Id.) The student remained classified as having and was again recommended for a 12-month school year. (Id.)
The student's teachers and related service providers reported that he had achieved most of the goals on his IEP and that they had seen improvement in the student's behavior.
(Id.) Shortly after the May 22, 2012 IEP meeting, the student's report card shows that he was overwhelmingly meeting standards in twenty-one out of twenty-three categories, with the exception of "recalling basic facts" and "understanding mathematical concepts", where he was graded . (R-8) This supports a finding that the student IEP dated May 22, 2012 was reasonably calculated to provide the student with meaningful benefit.
For all of the reasons stated above, Ifind the school district did offer the student a FAPE for the 2012-2013 school year.
There is information that a CSE meeting was held for the student on June 7, 2013.
(P-38 @ 99) However, any IEP that would have resulted from the June 7, 2013 meeting was not submitted in evidence. In fact, the July 3, 2013 CSE meeting was a "reconvening" of the June 7, 2013 meeting. (P-13) Accordingly, the relevant inquiry here for the student's
2013-2014 school year concerns the IEP dated July 3, 2013, which was submitted in evidence. (Id.) That IEP supersedes any previous IEP created for the student.
The July 3, 2013 IEP was created two days after the school district's summer school session began on Monday, July 1, 2013. As previously stated, a school district is required to have an IEP in effect "for each child with a disability in [its] jurisdiction" at the beginning of the school year. (Supra) Procedurally, that did not happen for the student's 2013-2014 school year.
The July 3, 2013 CSE team was composed of the student's mother, his , a school psychologist, the student's ; his
Behavior Intervention Specialist, the CSE Chairperson, the school district's attorney, the Parent's attorney and her paralegal, an "agency representative", a general education teacher and a special education teacher. (P-13) Accordingly, I find that the July 3, 2013 IEP was properly constituted under law.
The student's classification was continued on July 3, 2013. He also remained recommended for a 12-month school year and assistive technology was provided for him at school and at home. (Id.) In addition to reviewing previous evaluative materials like the student's Annual Progress Report (06/22/11), his Parent Report &
Observations (06/22111), his Report (06/22/11) and his Teacher Progress Report (06/22/11), the CSE team also reviewed update reports concerning the student like an Report (07/03/2013), a Parent Report &
Observations (07/03/13), his Teacher Progress Report (07/03/13), a Progress Summary (06/07/13), an Evaluation (06/07/13), a Parent Report &
Observations (06/07/13), a Evaluation (06/07/13) and a Teacher Progress Report (06/07/13). (Id.)
The Parent testified that by the end of the 2012-2013 school year, with the student receiving (15) hours of home-based services, she noticed that he had made some progress in his behaviors. (P-38 @ 99) While the student still showed aggressive behavior and tantrum behavior, he did not tantrum as often, and showed less aggression, while also not engaging in as much self-injurious behavior like hitting and biting himself. (Id.)
Specifically, the Parent stated:
[Student name] started to communicate his desires more clearly by the end of the 2012-2013 school year, and he spoke more spontaneously without as much prompting. [Student name] started to be able to answer some interverbal questions and use flexible language. For example, at the beginning of the 2012-2013 school year [student name] could answer 'What is your mom's name" with ["mother's name"], but was not able to answer
'Who is your mother?" with ["mothers name']. By the end of the 2012-2013 school year, [student name] could answer the latter question and more. But
[student name] still could not engage in conversation, did not ask questions or understand a lot of questions asked of him, and he was unable to identify feelings. (Id. @ 97)
The Parent testified that the student's pediatrician reevaluated the student on May 8, 2013 and recommended that the student's hours remain at (15) hours per week, which she relayed to the CSE team on July 3, 2013. (P-38 @ 98-9) At the Parent's request, the student received a Triennial Psychological Evaluation on March 13, 2013. (R-
24) The report makes the following summary and recommendation:
[Student name] presently derived cognitive measures (measured by the 5th edition Stanford-Binet Intelligence Scale), as well as his functional adaptive skills (assessed via the revised Vineland Adaptive Behavior Scales), are nearly consistent with those noted from assessments in 11/09 and 05/11. He continues to function in both areas (in the of Intellectual Disability in the former, and the for the latter).
These continued deficits do not mitigate the academic and skill gains he appears to be making in other areas. They only serve to attest that his level of skill acquisition and refinement continues at about the same rate as has previously been determined. These scores collectively confirm his need for continuing special education placement in a self-contained program serving students with developmental disabilities. The nature and type of this program will be decided in concert with his mother and his school district.
Consultother evaluations completed by both his as well as his for further specific recommendations. (Id.)
The CSE team on July 3, 2013 corroborated the Parent's testimony in that it found that the student was making gains in his language. (P-13) His adaptive skills were found to continue to improve, as well as his behavior which was not a frequent, although maladaptive behaviors were exhibited by the student at home. (Id.) The student was also noted to have difficulty responding to his peers. (Id.) The CSE team recommended that the student's FBA/BIP be collaborative to include the behaviors that the student exhibited at home. (Id.) Although the occupational therapist recommended that the student's be reduced to twice a week, the CSE agreed with the Parent to the student's receipt of three times per week. (Id.) The CSE reduced the "parent counseling and training" to (10)
hours per week because the "student is making progress both in school and at home." (Id.)
As noted above, in response to Parent's concerns about the student's behaviors at home, the CSE recommended an FBA and a BIP. (P-48) Also as noted above, the student's reported that the student had made meaningful progress and that his needs could be addressed sufficiently in twice a week.
(P-48 & R-18)
The Regional Clinical Lead Manager of New York Branch for the ( "), reported that the student was making gains in language and that his adaptive skills continued to improve but that he was having difficulty responding to his peers. (R-49 @ 15) She further reported that the student's overall behavior continued to improve, and that he exhibited problem behaviors less frequently, while now being able play with the "play station" and games that are age appropriate. (Id.)
The student's Triennial Evaluation dated March 30, 2013 states that the student's scores were the sample for his age, but that the tests are not "normed" on students with disabilities and therefore should be used for reference only. (P-22) The report recommended that the student continue to receive services due to his weaknesses in the areas of receptive and expressive language, with said recommendation being adopted by the CSE team. (Id. & P-13)
The student's pediatrician testified that based on his examination of the student, parental reports, and a review of the student's records, he concurred with the diagnosis of and believed that the student had that was .
(P-48 @ 35) He recommended that the student receive intensive programming, the key being that it be delivered in a structured, sequential and consistent way with regular and rigorous data collection. (Id. @ 36) The pediatrician further recommended that the student receive the maximum amount of hours of one-to-one home-based in order to meaningfully remediate his language and communication deficits, social deficits, and problem behaviors associated with his diagnosis of . (Id. @ 41)
Specifically, he recommended that the student's home-based be administered by a properly certified specialist, due to the severity of the student's delays across the board.
(Id.)
The pediatrician recommended that the student be placed in a small, structured educational environment specifically designed for children , which consistently utilized throughout the entire curriculum, and that it was imperative that the he receive consistently both in school as well as in his home to ensure that his skills would be generalized. (Id. @ 42-3)
The pediatrician conducted reevaluations of the student on January 10, 2013 and May 8, 2013. (Id. @ 43) He reviewed the student's updated records (including, but not limited to, updated reports dated March 28, 2012 and a Triennial psychological report dated March 13, 2013, respectively), conducted a reassessment of the student where he observed his behavior to assess his neurological function and received parental reports. (Id. @ 45) At the January 10, 2013 the pediatrician also saw some progress since seeing the student in 2011. (Id. @ 46) However, he noted that the student was still acting aggressively and having uncontrollable rage episodes including yelling, throwing objects, and engaging in self-injurious behavior at home. (Id.) Additionally, the student's language and communication skills still appeared and he observed impairments in fine and gross motor skills. (Id.)
After the January 10, 2013 visit, the pediatrician recommended that the student was still in need of continued intervention, consisting of intensive programming both in school and at home, including at least 15 hours per week of one-on-one home based services, provided by a highly trained and certified provider. (Id. @ 47) After the May 8, 2013 visit, the pediatrician noted that the student's level of academic deficiency places him at great risk for regression without continued intervention, yet he made the same recommendation again. (Id. @ 49)
On February 27, 2014, the pediatrician saw the student again. (Id. @ 52). He testified as follows concerning this visit:
This follow-up visit consisted of reviewing updated information and using those reports as well as my own observations and discussions with [student's name] mother to assess [student's name] cognitive and behavioral functions.
I learned that [student name] was acting aggressively toward others in school, throwing tantrums, and hitting and biting himself regularly over the course of the 2013-2014 school year. Accordi ng to [student's name] mother, this behavior was occurring at home as well. For example, [student name]
was having protracted, 70 minute tantrums during which he was self-injuring.
This was extremely concerning to me as a clinician.
I concluded that [student's name] problem behaviors were increasing and that [student name] still had "significant impairment from affecting his communication, social skills, judgment, attention and ability to make proper social decisions, with impairment of activities of daily living such as judgments about behavior, dressing and self-help skills." (Id. @ 52-3)
As a result of the February 27, 2014 visit, the pediatrician augmented his recommendation to "a minimum of 30 hours per week of services (at school and at home) in order to control his problem behaviors and for him to make meaningful progress in the above areas of deficit." (Id. @ 54-5) He also recommended that the student be placed in a small, structured school environment specifically designed for children on the , which offers one-to-one, consistent, throughout the school day and meticulously follows true methodology pursuant to the research, throughout the entire educational program, in all aspects, including the student's related services. (Id. @ 56)
The pediatrician's February 27, 2014 recommendation of 30 hours per week of services for the student was not available to the CSE team on July 3, 2013. (P-13) The CSE team on June 7, 2013 specifically found that the student was "not a behavior problem." (Id.) The CSE noted that the student did not demonstrate any aggressive behaviors towards others in school, although he did exhibit some inattentiveness but could easily be refocused and redirected. (Id.) The Parent testified that the CSE was advised and so considered the pediatrician's recommendations. (Supra)
The July 3, 2013 CSE team also recommended that the student receive a small teacher/student ratio with individualized instruction and minimal distractions to address significant delays, as well as intensive supervision and individualized attention to function in the educational setting. (P-13) A BIP was not recommended for the student. (Id.) The student was to be placed in an "8:1+2" setting. (Id.) He was to continue to receive related services of , , , parent counseling and training, , , refocusing and redirection and visual cues. (Id.) Assistive technology and a teaching assistant were to be provided to the student daily as needed for a 12-month school year. (Id.)
While some behavior issues were reported by the student's mother and pediatrician, all of his providers, and even his pediatrician and mother noted that the student had progressed by the time of the July 3, 2013 CSE meeting. (Supra) It is the law's aim to mainstream students to the maximum extent appropriate. (See Newington, 546 F.3d at
119-20, North Colonie, 586 F. Supp. 2d at 82, Patskin, 583 F. Supp. 2d at 430, Oberti, 995 F.2d at 1217-18 and Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]) By definition, that aim requires an effort to minimize special education services with, in theory, the goal of eventually having the student in a general education setting without special education services if possible. In light of the student's progress, it was not irrational, illogical, or not in keeping with the information the CSE team on July 3, 2013 received, to reduce the student's hours from 10 to 15 hours per week, even considering the information received from the student's mother and pediatrician.
Accordingly, Ifind that the student's IEP dated July 3, 2013 was reasonably calculated to provide an educational benefit, and that the school district did offer the student a FAPE for the 2013-2014 school year.
Finally, I turn to the question of whether the school district offered the student a FAPE for the 2014-2015 school year. On July 3, 2013, the student's designation as a "12month" student was continued along with his receipt of assistive technology services. (P-
13) The student's IEP for the 2014-2015 school year should have been in place before the beginning of the 12-month school year on or about July 1, 2014. However, the only IEP received in evidence relevant to the 2014-2015 school year is dated August 8, 2014. (P-4)
Accordingly, I find that the school district did not procedurally comply with its duty to have the student's IEP in place by the start of his 12-month school year. (Supra)
The CSE team on August 8, 2014 was composed of the CSE Chairperson, a General Education Teacher, a Special Education Teacher, the BOCES Administrator, a , the student's mother, the Parent's attorney, the school district's attorney and two Behavioral Consultants. (P-4) As such, I find that the student's
CSE team on august 8, 2014 was duly composed under law. (Supra)
Updated and historical documents for the student were reviewed by the CSE team on August 8, 2014, including the following reports and/or evaluations: a Parent Report and
Observations (08/08/14), a Teacher Progress Report (08/08/14), a Progress Report
(06/26/14), a Clinical Summary (05/27/14), an Report (05/20/14), a Progress Summary (05/20/14), a Classroom Observation (04/29/14), a Classroom Observation (03/07/14), a Speech and Language Reevaluation (02/28/14), an Progress Report (02/03/14), a BIP (01/31/14), a Clinical Summary (01/27/14), an Report
(07/03/13), a Parent Report and Observations (07/03/13), a Teacher Progress Report
(07/03/13), a Progress Summary (06/07/13), an Evaluation (06/07/13), a Parent Report and Observations (06/07/13), a
Reevaluation (06/07/13), a Teacher Progress Report (06/07/13), a
Annual Progress Report (06/22/11), a Parent Report and Observations (06/22/11), a Progress Report (06/22/11), a Teacher Progress Report (06/22/11), a Evaluation (06/08/11), an Progress Summary (06/08/11), a Screening (06/07/11), an Report
(06/03/11), an APE Progress Report (06/02/11), an Reevaluation
(12/07/09) and a Reevaluation (09/23/09). (P-4)
Despite the student's pediatrician's recommendation for 30 hours per week of services at home and school, an his mother's request for increased services, the August 8, 2014 CSE team made the following recommendations for his "12-month" 2014-2015 school year:
For the 2014-2015 school year, student will be transferred within the
SWBOCES system from the Concord Elementary School to the Pocantico
Hills Elementary School. He will continue to receive support in an 8:1:2 special class. Moreover, he will continue to receive support from a Teaching Assistant on an as needed basis. He will also receive individually three times per week for 30 minutes, in a small group (2:1) once per week for 30 minutes, individually three times per week for 30 minutes and social skills in a small group (2:1) once per week for 30 minutes.
Parent Counseling and Training is being reduced from 10 hours weekly to six hours weekly during for 2014-2015 school year. In addition, Parent Counseling and Training between school and home will continue twice per month for one hour. (Id.)
The CSE team found that the student's "SRA" scores revealed that he was functioning on a in reading and math. (Id.) "Behavioral incidents" were noted as occurring on 10 days during which his BIP was implemented. (Id.) The student was said to have been redirected usually within a few minutes and then able to finish out his day. (Id.) When student had any sensory concerns he would be taken by a Teaching Assistant to the room. (Id.) The BOCES administrator and the Case
Consultants said that the student had made "tremendous gains in his behavior, socially and programming." (Id.)
The following additional findings were made by the student's CSE team on August
8, 2014:
Student is said to be a happy student who is responsive and a helper in class. Moreover, he is a part of the group. In addition, student is easily redirected. A Behavior Intervention Plan was developed with the school psychologist, BOCES administrator, teacher, and Case Consultants.
Subsequently, according to , "Behaviors overall within the home setting have decreased however they are still observed." consultants were involved in the discussion regarding student's present level of performance as it pertained to academic achievement, functioning, performance and learning, as well as, social development and management needs. Moreover, they discussed student's progress regarding obtaining goals as per student's IEP and the appropriateness of the recommended goals for the 2014-2015 school year. (Id.)
The manager testified that the student had made gains in his behavior, which, although still observed at home had overall decreased. (P-48 @ 16) Her colleague reported working with the school program to develop a behavior plan that would work in both home and school settings. (P-48 @ 17) The colleague also noted that the student had made improvement in behavior and skills acquisition. (P-48 @ 17) The manager also testified that is not always clear what triggers the student's problem behaviors, which have been observed to vary per occasion, the height of which were exhibited at home in September 2012. (P-48 @ 20-1)
The manager noted that as of January 12, 2015 the student's is receiving services at home via a family insurance plan and had a bank of accumulated hours:
" also provides approximately ten additional hours weekly of home services to the student which is funded through the family's insurance. The student has a bank of 680 hours annually of home services. Those services are provided at his home, at his after-school program and in the community.
A medical doctor's prescription enabled funding of the additional home services through the family insurance." (P-48 @ 24-5)
The manager affirmed that she observed a decrease in all of the student's behaviors and that his teachers and service providers informed her that the student exhibited very little problem behaviors in the school setting. (P-48 @ 27-8)
The BOCES "Behavioral Summary" dated May 17, 2014 corroborates the manager's testimony. The Behavioral Summary noted that in terms of "yelling/screami ng", and "biting/hitting himself', the student's behavior remained the same as in the previous year. (P-8) The student's "whining and crying" had been noted earlier in the year, but they had not been seen over the last three months. (Id.) Several other behaviors had only been noted in school during 4 dates in October & November when the student engaged in more serious forms of problem behaviors like pushing (people, objects, and furniture), throwing
(furniture and toys), hitting others (and with objects) and kicking. (Id.) However, these last four behaviors had not been witnessed in school during the last 3 months. (Id.) The report noted that in terms of the frequency of the student's behaviors:
Continues to be low (3 or less episodes per day), as was true earlier in school year. Additionally, 38 of 49 days produced zero episodes of Problem
Behavior (78%). This is comparable to the rate determined in January, 2014
(76%). (Id.)
Regarding the duration of the student's behaviors, the Behavioral Summary report stated the following:
[Student name] had 10 days on which measurable Problem Behavior (of the types noted above) was determined. 3 dates yielded total duration
(under 1 minute), and 4 others produced (between 3 and 7 minutes of cumulative Problem Behavior).
An addltlonal3 dates saw duration (between 12 & 21 minutes of total Problem Behavior). Only 1 date was linked with a duration of Problem Behavior (47 minutes, on 5/21/14).
Several of the 11 dates on which duration was calculated were consecutive
(3/3 & 3/4. 4/21-4/23), suggesting that an existing pattern of problem behavior persisted over several days (and was not Just a static event). (Id.)
Finally, the Behavioral Summary concluded with an identification of the motivation behind the student's behavior and its consequences:
Motivation:
[Student's name] Problem Behavior has occurred for 2 major reasons recently. These are:
• Having a demand made at the table(during formal Instruction): this had previously been noted as well
• Seeking sensory reinforcement (not previously identified: replaces an earlier designation of having demands made away from the table, during Natural Environment Teaching)
Consequences:
These data are approximately equivalent to those reported several months ago. [Student's name] Behavior Intervention Plan had been adapted from home and is currently in use in school. Based on these data, this existing
Behavior Intervention Plan should continue to be employed. (Id.)
The BOCES program coordinates behavioral procedures, pursuant to the student's
BIP, with the after-school providers at the . (P-16) Among other things, the BIP calls for record-keeping concerning the student's behaviors to persist throughout the day for all of his behavior categories with a denial and reward component to encourage proper behavior. (Id.)
The student's IEP dated August 8, 2014 is reasonably calculated to provide him with an educational benefit. It lowers the student's hours to (6) from (10) in recognition of his continued progress, to comport with the law's requirement to place in the LRE in the effort to mainstream the student to the maximum extent appropriate. (Supra)
The Parent testified that since the student started at Pocantico in September of 2014, his behaviors became unmanageable and out of control at school, with frequent and aggressive tantrums occurring in school during the 2014-2015 school year. (P-38 @ 126)
The fact that the student's behavior subsequently increase is not proof that the August 8, 2014 IEP was defective. The law is clear that hindsight is not a basis for questioning the appropriateness of an IEP, but that the IEP should be judged as a "snapshot" of the student at the time of the CSE meeting. (See SRO No. 03-011, citing Roland M. v. The
Concord School Committee, 91O F.2d. 983 at 922 [1st Cir. 1990]) As noted above, the record indicates that the student's August 8, 2014 IEP was based on sound and voluminous evaluative materials from numerous sources and is reasonably calculated to provide the student an educational benefit in the LRE, in order to mainstream the student to the maximum extent appropriate. I find the student's August 8, 2014 appropriate for the student at that point in time.
The Parent also submitted in evidence a report from a private school recommending that the student be enrolled a their 1:1 therapy program for 40 hours per week. (P-32) However, that report was not current in that it is dated May and June of 2011. (Id.) A supervisor from another private school testified on behalf of the Parent and stated that after meeting the student in January of 2015, and believes that the student would be an excellent fit in their 1:1 program. (P-37 @ 66 7 73) The supervisor did not recommend any specific amount of hours of that the student should receive.
There is no basis to adjudge the supervisor's testimony not credible. While she is clearly a person "interested" in the outcome of this case, the law clearly provides that the testimony of such persons, absent more, is admissible. (See CPLR § 4512) However, based upon the totality of the record before me, I believe that a complete 1:1 program at this time is too restrictive for the student, who despite his continuing behavioral problems was progressing until perhaps the 2014-2015 school year. (Supra)
The law mandates an offer of an "appropriate" education by the school district, "not one that provides everything that might be thought desirable by loving parents."
(See Walczak , Tucker and Grim, supra) The school districts not required to "maximize" the potential of students with disabilities, but to provide a program that provides progression, not regression . (See Cerra, P. v. Newington Bd. of Educ. And Perricelli, supra) The record showed that the student progressed for all the years in question , up to and including at the time of the creation of his August 8, 2014 IEP. Accordingly , I find that the student was offered a FAPE for all of the years in question .
Having found that the student was offered a FAPE, the necessary inquiry is at an end and I need not determine if the program proposed by the Parent is appropriate, or whether equitable considerations bar an award on behalf of the Parent. (See (Burlington, 471 U.S. at 370)
NOW therefore, it is hereby
ORDERED that the relief sought by the Parent herein is DENIED; and it is further
ORDERED the CSE shall immediately and comprehensively reevaluate the student in all areas related to the suspected disabilities; and it is further
ORDERED that upon its expedrtious completion of the student's reevaluations, the CSE shall forthwrth reconvene to produce a new IEP for the student that considers all of his available evaluations and any related services that he should receive for the 2015-2016 school year.
DATED: April 27, 2015
New York , New York
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the Parent plans to appeal the decision a notice of intention to seek review shall be personally served upon the school district not less than (10) days before service of a copy of the petition for review upon such school district, and within (25) days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its appeal.
An appealing parties' petition for review shall be personally served upon the opposing party within (35) days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the (25-) or (35-)day period. (8 NYCRR § 279.2[b])
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home. html.