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x In the Matter of the Impartial Hearing on Behalf of XX
Petitioner,
And
West Hampton Union Free School District,
Respondent. x
FINDINGS OF FACT AND DECISION
Impartial Hearing Officer James McKeever, Esq. Dated: June 26, 2017
Decision
On or about December 13, 2016, the parent filed a Due Process Complaint (“DPC”) alleging that the West Hampton Beach Union Free School District (“District”) failed to offer XX (“Student”) a free and appropriate public education (“FAPE”) for the 2015-2016 school year and part of the 2016-2017 school year, inter alia. Specifically, the parent alleges that the District failed to offer XX a FAPE upon his discharge from the Private School School, which was a private residential school located in New Hampshire, at the end of the 2014-2015 school year, when the District placed XX at the Private school School in Virginia during the summer of 2015 because the District failed to develop an IEP and failed to obtain approval from the Board of Education for XX’s placement. The parent also alleged that placement at Private school was inappropriate because the programing was not designed to meet XX’s needs. The parent also asserted that level of related services, as well as the District’s failure to provide a 1:1 aide, was inappropriate and caused a denial of FAPE.
Further, parent claims that the District failed to offer XX a FAPE in September 2015 when XX was placed at the HH program in Huntington, New York and that the subsequent home-schooling by HH in the fall of 2015 thorough January 2016 did not offer FAPE because the District failed to develop an IEP for XX’s placement and because the services were otherwise inappropriate to meet the student’s needs. The parent also asserts that the District failed to provide XX with counseling and social skills training and failed to provide parent training as per his IEP during this time period. The parent also objected to the home-school program because it was not in the student’s Least Restrictive Environment (“LRE”).
Additionally, the parent asserts that the District failed to offer XX a FAPE beginning in January 2016 through June 2016 when the XX was placed at the Neighboring School District Union Free School District (“Neighboring School
District”) because Neighboring School District was not the student’s LRE (IHO Exhibit 1).
For relief, the parent requests an order directing the District to provide compensatory educational services in the form of additional instruction as well as behavioral support, including life skills training. The parent also requests an award of compensatory speech and language services and occupational therapy services, as well as monetary damages in the amount of $750,000.00. The parent further requests that the District develop a new IEP that includes life skills and social skills training with appropriate academic and related service goals. Finally, the parent requests an order directing the District to conduct a Functional Behavioral Assessment (“FBA”), a Behavior Intervention Plan (“BIP), an Assistive Technology Evaluation, as well as an OT evaluation. Lastly, the parent requests that the District provide extended school day services for extra academic support and homework completion and provide behavior services on a 1:1 basis.
The District denied the parent’s claims and asserted that the Student was provided a FAPE for the school years at issue. Specifically, the District submits that following the student’s abrupt discharge from the Private School School, the District developed several interim programs to meet the students needs, which the parent agreed to. The District also contends that that parent’s requested relief is inappropriate.
On December 14, 2016, the undersigned was appointed to hear and decide this matter.
A pendency hearing was held on January 6, 2017. At this time, the parties agreed to an Interim Service Plan for the student, which continued the services referenced on the Student’s IEP dated June 10, 2016 (Tr. 4).
The hearing was held on January 23, 2017, January 24, 2017, February 6, 2017, February 7, 2017, March 24, 2017 and March 28, 2017.
At the request of the parties, post-hearing briefs were submitted on or about May 6, 2017. However, the transcripts were not provided to the IHO until June 12, 2017.
Throughout the hearing process, the parties made multiple requests to extend the compliance date due to witness availability, preparation for due process, preparation of post-hearing briefs and in order to receive all of the transcripts. The Orders of extension were served on all parties as per the Commissioner’s Regulations and are part of the hearing record.
The Record Close date was June 12, 2017.
The current compliance date is June 26, 2017. Findings of Fact:
The Student is a thirteen-year old boy who is classified as “Other Health Impaired” under the IDEA (Exhibit D-1). Classification is not at issue (Exhibits IHO Exhibit 1).
The Student has been diagnosed Attention Deficit Hyperactivity Disorder (“ADHD”), Oppositional Defiance Disorder, Generalized Anxiety Disorder, Dysthymic Disorder as well as Autism Spectrum Disorder and a Non-verbal Learning Disability (Exhibits P-F and P-M). The Student also presents with visualmotor/sensory and pragmatic deficits (Exhibit P-M). Cognitively, the student has a Full Scale Intelligence Quotient of 110, which places him in the “superior” range. However, his social/emotional and attention challenges interfere with his ability to be instructed (Exhibit P-BB). Academically, the student’s performance is in the “average” range. However, his math skills are below grade level (Exhibit P-BB).
During the 2014-2015 school year, the student attended the Private School School, which a was private residential school in New Hampshire pursuant to a Stipulation of Settlement between the parent and the District (Tr. 120-122). The parties agreed that the student made progress at the Private School(Tr. 657). However, the Private School closed at the end of the 2014-2015 school year and the student was left without a placement (Tr. 125).
Upon his discharge from the Private School School, the District, with the consent of the parent, attempted to find another residential placement for the student and sent out “packets” to state approved schools in New York State (Exhibit U, Tr. 125).
On or about June 10, 2015, the District’s Committee on Special Education (“CSE”) developed a new Individualized Education Plan (“IEP”). According to the IEP, the CSE recommended that the student be placed in a 8:1:1 class in a residential school for a 12-month program. The CSE also recommended an OT consultation 1 a week for 1 hour from September 2015 to January 2016 and then reduced the OT consultation to 2 times per month beginning in February 2016. The CSE also recommended a full-time, 1:1, aide as well as counseling services 1 time per week for 30 minutes, 1:1, and counseling services 1 time per week in a small group for 30 minutes. The IEP did not include parent training or speech and language therapy (Exhibit D-L). Additionally, the CSE recommended Extended School Year Services (“ESY”) in a 8:1:1 class with individual and group counseling 1 time per week for 30 minutes (Exhibit D-L).
Subsequently, the parent identified the Private school School as a possible placement for the student (“Private school”). Private school is a residential school located in Virginia (Tr. 124-126). The District’s CSE agreed with the parent and on or about August 7, 2015, the student was placed at Private school (Exhibit P-D, Tr. 126).[1] However, from the end of the 2015-2016 school year, until August of 2015, the student, who required a 12-month program, did not receive the services on his IEP (Tr. 662).
The summer program at Private school was called the “Bridge” Program, which was actually a summer camp, that was designed to help the student transition to the regular school year program in September 2015 (Tr. 127, 535). The IEP developed by Private school indicated that the student was provided with OT, Speech and counseling (Exhibit P-D). However, according to the parent, the student did not receive specialized instruction in an 8:1:1 class and/or his related services as set forth on the IEP developed by the District (Tr. 565, 570). The parent’s testimony on this point was not rebutted by anyone from the Private school. Thus, I find that the student did not receive the specialized instruction and/or the related services set forth on his IEP dated June 10, 2015, when he attended the summer program at Private school (Tr. 557, 576, 579, 652).
On or about August 20, 2015, the District’s CSE” developed another IEP. According to this IEP, the CSE recommended that the student be placed in a 8:1:1 class in a residential school for a 12-month program. The CSE also recommended OT services 1 time per week for 45 minutes, 1:1, and OT 1 time per week for 45 minutes in a group. The CSE also recommended speech and language services 1 time per week for 45 minutes, 1:1, and 1 time per week for 45 minutes in a group, as well as a speech and language consultation 1 time per week in the classroom. The CSE further recommended parent counseling and training 2 times per month for 45 minutes in a group that included the student via skype, as well as a psychological consultation to address the student’s behavioral and sensory issues in the classroom (Exhibit D-M). The ESY services included placement in an 8:1:1 class with counseling services 1 time per week for 30 minutes, 1:1, and counseling services 5 times per week in a small group for 30 minutes (Exhibit D-M).
On or about August 20, 2015, the District removed the Student’s aide from his IEP at the request of Private school and denied the parent’s request for more speech and OT services during the regular school year (Exhibit D-J). However, on about September 8, 2015, the District reinstated the student’s 1:1 aide at Private school (Exhibit D-K).
In September 2015, the student transitioned to the regular school year program at Private school. However, shortly thereafter, the student was resistant to his new placement and the Private school School determined that they could not meet the student’s behavioral needs, which had escalated when the summer program ended (Exhibit P, Tr. 125, 130). Subsequently, the student was discharged from Private school and returned to the District (Exhibit P-P, Tr. 128).
Upon his return, the District continued to search for a state-approved, residential school in New York (Exhibit U, NN). However, in the interim, as a temporary measure, the District’s CSE developed another IEP on September 30, 2015, which provided for 1:1 instruction in the home and related services of counseling, speech, OT and parent counseling and training (Exhibit D-N, Tr. 130). To this end, the District arranged for the student to receive his instruction and related services at HH located in Huntington, New York, which was a “Behavior Support” service that had worked the student during the 2013-2014 school year (Tr. 130). During this time, the student was bussed to HH where he received four hours of instruction per day. However, although the parent initially agreed to the interim plan of having the student attend HH in Huntington, the parent eventually objected to the placement because the student was not receiving instruction in a school setting and because the student did not have any exposure to his peers. Subsequently, the parent contacted the State Education Department and complained about the placement. Thereafter, the District arranged for HH to provide the student’s instruction and related services in the home (Exhibit D-O, Tr. 132, 508).
During this time, the District continued to search for a residential placement. However, the parent rejected the few schools that were willing to accept the student (Tr. 135).
On or about January 2016, the District filed a request for a hearing alleging that the parent refused to cooperate with the District with respect to the student’s placement (Tr. 508). However, the District withdrew its DPC after the parent agreed to consider a BOCES placement (Tr. 480).
While on home instruction, the student would often elope and/or barricade himself in his room, which prevented the delivery of his instruction and his related services (Tr. 134, 652). According to the parent, HH believed that the student should receive his services in a classroom at the District or at a library (Tr. 511, 714). However, the District refused (Tr. 715).
On January 8, 2016, the District’s CSE developed an new IEP (Exhibit D-A). This IEP provided for placement in a 8:1:1 class with counseling services 2 times per week for 30 minutes, 1:1, and group counseling services 1 time per week for 30 minutes; OT services 2 times per week for 30 minutes, 1:1; speech and language services 2 times per week, 1:1, for 30 minutes; and parent counseling and training 1 time per week at home and in school (Exhibit D-H). The District also offered Extended School Year services (“ESY”), which included placement in a 8:1:1 special class with counseling services 1 times per week for 30 minutes, 1:1, and 5 times per week for 30 minutes in a group (Exhibit D-H). This IEP did not include speech and language therapy, OT services or parent training during the summer of 2015 (Exhibit D-H).
The placement recommendation on this IEP was a BOCES class in a public school (Exhibit D-H, Tr. 135). On or about January 2016, the District offered the student a placement at BOCES, which was a day program (Tr. 135). Nevertheless, the District explained that although they believed that the student could be appropriately placed in a day program, the District agreed to search for a residential program at the parent’s request (Tr. 137). Thereafter, the parent rejected the BOCES placement because she did not believe the program would meet the student’s needs (Tr. 676).
On or about February of 2016, at the request of the parent’s Advocate, the student attended the Neighboring School District Union Free School District (“Neighboring School District”), which was funded by the District (Tr. 86, 106, 138).
The student’s program at Neighboring School District was a 15:1:1 special class with related services of speech, OT counseling and parent training (Tr. 483).
The Superintendent of Neighboring School District opined that the student’s program at Neighboring School District could be created at the District (Tr. 107). However, the Superintendent explained that the District was not required to create a program that did not exist and that “cross-contracting” with another school district for educational services was not inappropriate (Tr. 108).
On or about April 2016, at the request of the parent’s Advocate, NNN a special education teacher and a behavior therapist, as well as the Director of the Institute for Children with Autism, began working with the student in the home (Tr. 219). Mr. KKK provided behavior services in the home in order to assist the student with getting ready for school and entering the school bus (Tr. 484). Mr. KKK also provided behavior services to the staff of Neighboring School District in order to support the student’s placement (Tr. 483).
From February 2016 through June of 2016, the student attended Neighboring School District. During this time the student received 1:1 instruction in the hallway as the staff worked on transitioning the student into the classroom (Tr. 139, 493). Although the student engaged in inappropriate behaviors and was a “flight risk” during this time, the student made some progress during this school year (Tr. 99100).
On June 9, 2016, the District’s CSE developed an IEP for the 2016-2017 school year (Exhibit D-A). This IEP provided for placement in a 15:1:1 class with counseling services 3 times per week for 30 minutes, 1:1; OT services 2 times per week for 30 minutes, 1:1; speech and language services 3 times per week, 1:1 for 30 minutes; parent counseling and training 1 time per day for 2 hours at home and parent counseling and training 1 time per week for 1 hour at school (Exhibit D-A). Additionally, the student was provided with a full-time 1:1 teaching assistant; a BIP throughout the school day and the services of a behavior consultant for four hours per day (Exhibit D-D). The student also qualified for ESY services, which included placement in a 12:1:1 special class with counseling services 2 times per week for 30 minutes, 1:1; speech and language therapy 2 times per week for 30 minutes, 1:1 and parent training and counseling 1 hour per day at home (Exhibit D-D).
Neighboring School District did not have a 15:1:1 or a 12:1:1 program during the summer (Tr. 140). As such, the student could not attend the Neighboring School District program during the summer of 2016. The District could not locate a 12:1:1 (or 15:1:1) program during the summer of 2016 (Tr. 141). Thereafter, the District arranged for HH to provide home instruction to the student during the summer of 2016. The District also arranged for the delivery of the student’s related services in the home as well as ABA support services at the library (Exhibit D-C). However, the student did not cooperate with the related service providers in the home (Tr. 712). Additionally, the District failed to provide parent training or counseling services while the student was on home instruction during the summer of 2016.
On September 9, 2016, the District’s CSE developed an IEP for the 2016-2017 school year (Exhibit D-A). This IEP provided for placement in a 15:1:1 class with counseling services 3 times per week for 30 minutes, 1:1; OT services 2 times per week for 30 minutes, 1:1; speech and language services 3 times per week, 1:1, for 30 minutes; parent counseling and training 1 time per day for 2 hours at home and parent counseling and training 1 time per week for 1 hour at school (Exhibit D-A). The student was also provided with a full-time, 1:1, teaching assistant; a BIP throughout the school day and the services of a behavior consultant for four hours per day (Exhibit D-A). The student also qualified for ESY services which included placement in a 12:1:1 special class with counseling services 2 times per week for 30 minutes, 1:1; speech and language therapy 2 times per week for 30 minutes, 1:1 and parent training and counseling 1 hour per day at home (Exhibit D-A).
Due to a lack of academic progress during the 2015-2016 school year, the student was retained in the 7th grade for the 2016-2017 school year (Exhibit D-B).
According to the District, the student was not evaluated for assistive technology services because he was receiving 1:1 instruction and not in a classroom with other students (Tr. 147).
In September 2016, the student returned to the 15:1:1 class at Neighboring School District. During this school the student has been able to enter the classroom and he has made academic and social/emotional progress (Tr. 98, 100, 142, 310). Additionally, with the assistance of KKK, Neighboring School District has collected data on the student’s behaviors and is in the process of developing a BIP (285, 286).
On or about December 13, 2016, the parent filed the within DPC (IHO Exhibit 1). FAPE 2015-2016 and 2016-2017 School Years:
Two purposes of the 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education 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 8 (Rowley, 458 U.S. at 206-07; 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 (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]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (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" (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" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see 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" (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]; see Grim,
346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs.
B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[XX], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583
F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Summer and Early Fall 2015:
Here, it is undisputed that the student did not received any services after he was discharged from the Private School in May 2015 until he was placed at Private school in August 2015. Additionally, the evidence shows that the student was entitled to a 12-month program. Thus, although it is understood that the student was abruptly discharged from the Private School School, and that the District was actively searching for an alternative placement, I find that the student was denied a FAPE from the end of May 2015 to the beginning of August 2015 because student did not receive any educational services during this time.
Additionally, with respect to the Bridge program at Private school, although it appears that the school drafted an IEP for the student, which reflected special education and related services, the evidence shows that the Bridge program was only a summer camp and there is no evidence to support a finding that the student received the services on his IEP during this time period. Thus, I find that the student was denied a FAPE during this time. Further, I note that although it appears that the District’s Board of Education did not approved the student’s placement prior to his actual placement, this fact does not impact the FAPE analysis. Fall 2015:
Here, the evidence shows that he student was discharged from Private school in early September 2015. At or about this time, the District arranged for services to be provided at HH in Huntington and then in the student’s home. As indicated above, the evidence shows that the District did not provide counseling services and/or parent training during this time. Additionally, the evidence shows that the student refused to aXXept the services offered in the home, which contributed to his regression, behaviorally. Further, although I find that the District acted in good faith by arranging for services while the CSE searched for another residential placement, which the parent agree to, once the District was aware that the delivery of services in the home was unsuXXessful, arrangements should have be made to provide the student’s instruction and related services at another location. Thus, I find that the District’s failure to provide an alternate location for the delivery of the student’s services denied the student a FAPE during this time period. Spring 2016:
Here, the evidence shows the student was placed at Neighboring School District during the spring of 2016. The evidence also shows that the student’s program at Neighboring School District, which was funded by the District, was appropriate. Thus, I find that the District provided FAPE to the student during this time period. Summer 2016:
Here, the evidence shows that Neighboring School District did not have a 15:1 summer program for the student. The evidence also shows that the District did not have a 15:1 or 12:1:1 program within the District and could not locate a 15:1 or a 12:1:1 class in any neighboring school district. Thus, I find that although the District arranged for HH to provide instruction in the home, the evidence shows that the student continued to reject the services in the home and that the District failed to offer another location for instruction. AXXordingly, I find that the District failed to offer the student a FAPE during the summer of 2016. Fall 2016:
Here the evidence shows that the student was placed at Neighboring School District. The evidence also shows that the student has obtained an educational benefit from his placement and that he has made progress both academically and socially. Thus, although it is undisputed that Neighboring School District is not the student’s home district, the evidence shows that the District cannot provide the same program within the District and I know of no authority to support a finding that the District must create its own program for the student. AXXordingly, based on the undisputed fact that the student has obtained an educational benefit in the program at Neighboring School District, and by all aXXounts is doing well, I find that the District has provided FAPE to the student during the fall of the 2016-2017 school year. FBA and BIP:
Here, the evidence shows that the student’s team at Neighboring School District is in the process of obtaining data in order to develop an appropriate BIP to meet the student’s behavioral needs. Thus, I find that there is no need for an order directing the District to conduct its own FBA and BIP. Assistive Technology Evaluation:
With respect to assistive technology, the evidence shows that while the student has been provided aXXess to a laptop, an assistive technology evaluation was not conducted by the District because the student was receiving one to one instruction and not in a classroom. Irrespective of District’s position, the facts support a finding that an assistive technology evaluation should be conducted to determine whether the student can be supported in the classroom. AXXordingly, the parent’s request for an assistive technology evaluation is granted. OT Evaluation:
With respect to OT services, the evidence shows that the student has significant sensory issues and that there is a dispute as to how much OT is required in order to meet the student’s need. Thus, in light of the fact that there is no current OT evaluation, the parent’s request for a new OT evaluation is granted. Compensatory Educational Services:
Within the Second Circuit, compensatory education for a student after he or she is no longer eligible because of age or graduation to receive IDEA services has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; see also Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). In New York State, a student with a disability is eligible for services under the IDEA until he or she receives either a local or Regents high school diploma (8 NYCRR 100.5[b][7][iii], [vi-vii]; see 34 C.F.R. § 300.122[a][3][i]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the school year in which he or she turns twenty-one (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; see 8 NYCRR 200.1[zz]; see also 8 NYCRR 100.9[e]; Application of a Child with a Disability, Appeal No. 04-100). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
Here, the evidence shows that the District failed to provide the student with the appropriate educational services from the end of May 2015 until on or about the spring of 2016 and during the summer of 2016. Thus, I find that an award of compensatory education services is warranted. Additionally, although the parent’s DPC clearly asserts a compensatory educational claim, the specifics of the requested award were not presented to the undersigned. AXXordingly, based on the denial of FAPE referenced above, I find that the student is entitled to following compensatory educational award:
1. 100 hours of additional OT services;
2. 100 hours of speech and language services; and
3. 100 hours of counseling services.
However, I do not find that a compensatory educational award of additional parent training is warranted because the evidence shows that the parent has had a sufficient amount of parent training and continues to receive parent training under the student’s IEP.
The services shall be provided in addition to the services mandated on the student’s IEP and shall be provided either after school and/or during school breaks. Life Skills and Social Skills Training:
The parent requests that the District develop an new IEP that includes life skills and social skills training. I find that based on the facts referenced above, the student requires social skills training in order to obtain an educational benefit from his placement. The issue of life skills training can be addressed when the District develops the student’s transition goals. Thus, the parent’s request for an order directing the District to include social skills training on the student’s IEP is granted. Section 504:
The parent has not asserted a 504 claim in this proceeding. Thus, the parent is not entitled to monetary damages. Butler v. South Glens Falls Central Sch. Dist., 106 F. Supp. 2d 414, 420 (NDNY 2000).
Lastly, I have considered all of the other claims for relief and find that they are without merit.
ORDERED
The District shall conduct an OT and Assistive Technology evaluation within 60 days from the date of this order.
The District shall provide the student with 100 hours of additional OT services; 100 hours of speech and language services; and 100 hours of counseling services.
The services shall be provided in addition to the services mandated on the student’s IEP and shall be provided either after school and/or during school breaks.
Upon completion of the OT evaluation and the Assistive Technology evaluation referenced above, the District’s CSE shall reconvene a meeting and include social skills training on the student’s IEP, the amount of such services shall be determined by the CSE. Dated: Suffolk, New York
June 26, 2017
James McKeever
James McKeever, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a 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 either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm. District’s Exhibits:
A. IEP – CSE meeting date of 9/9/2016 – 9 pp
B. PWN – dated 9/9/2016 CSE 2 pp
C. PWN – dated 7/7/2016 2 pp
D. IEP – CSE meeting date of 6/10/16 9 pp
E. Update and Recommendations of Institute for Children with Autism dated
6/22/16 8 pp
F. Session/Behavior Notes for period 2/16-5/16 from Neighboring School District UFSD 6 pp
G. Class Schedule of Student (2015-16)
2 pp
H. IEP – CSE meeting date of 1/8/2016
9 pp
I. PWN – dated 10/5/2015
3 pp
J. PWN – dated 8/20/2015
3 pp
K – PWN – dated 9/8/15
3 pp
L – IEP – meeting date of 6/10/2015
9 pp
M - IEP – meeting date 8/20/2015
11 pp
N - IEP – meeting date 9/30/2015
9 pp
O - Prior Written Notice dated 10/05/2015
3 pp
P -Discharge/Treatment Summary – Private school School – dated 9/21/2015
2 pp
Q - Private school School Quarterly Progress Summary Report – 8/23/2015 –
10/23/2015 3 pp
R - Individualized Transition/Discharge Summary Private school School – discharge date 4 pp 9/13/2015
S -E-mail from Private school School to parents – 9/8/2015 (re weekly progress and incidents) 1 p
T -Nassau/ Suffolk County/Universal Referral Form – Central Point of A
(SPOA) – Children’s Intensive Mental Health Programs Form 10 pp
U- Schools: 53 pp
V-The Crisis Behavior Response Program Description of HH Children’s Services 2 pp
W -Psychiatric Evaluation – Stony Brook University Medical Center – Evaluation of 4/1/2013 11 pp
X-Psychiatric Evaluation of Mindful Ways – 12/17/2014, revised 1/7/2015 5 pp
Y-Speech and Language Evaluation of Westhampton Beach UFSD 6/19/2015; 6/22/2015 4 pp
Z-McGuire’s Central Auditory Processing Evaluation – 4/30/2015 4 pp
AA-Educational Evaluation conducted by WHB UFSD – 7/1/2015 4 pp
BB-Cape Cod Neuropsychological provided by parent – 7/7/2015; 7/9/2015 15 pp
XX -Behavior Intervention Plan of HHH Consultation Services, Inc. – 4/3/2014 as pertinent to XX’s attendance at Child Development Center of the Hamptons – Charter School 38 pp
DD -HH summary of proactive and reactive VIP Strategies 14 pp
EE-CDCH (Child Development Center of the Hamptons Charter School – grade 5
FF-Child Development Center of the Hamptons – CSE Annual Report of CDCH – 5/15/2014
GG -Private SchoolQuarterly Progress Report -12/30/2014
2 pp
HH -Private SchoolReport Card – 2014-2015
2 pp
II -Private SchoolQuarterly Clinical Progress Report and Discharge Summary – 6/23/2015 2 pp
JJ -Series of solicitations of WHB UFSD to state-approved non-public residential institutions – 10/7/2015; 10/1/2015; 8/3/2015; 5/19/2015 30 pp
KK- Summary compilation of status of residential application for XX as of 10/22/2015
LL -Correspondence from XXX Psychologist 9/3/2015 to WHB BOCES
Learning Center re parent declination of agreed upon placement
5 pp
MM-Correspondence from XXX Psychologist to parents re program provider HH (Crisis Behavior Response Program) 1p
NN -Series of correspondences and e-mails re state process at prospective residential placements – (Correspondence from Psychologist to parents re Intake Coordinator at Leake & Watt and 9/24/2015 NN-1), (E-mail from HH – 9/18/2015 re attendance at Crisis Response Program NN-2), (E-mail from Psychologist to parent re Astor Services for Children and Families – 8/3/2015 – NN-3), (E-mail from parent to Psychologist – 6/15/2015 re Children’s Home of Kingston placement – NN-4), (e-mail from parent to Psychologist re voice mail from Andrus School – NN-5), (E-mail from parent to Psychologist re Central placement at Glenhome School and Little Catholic School – 5/11/2015 – NN-6), 7p
OO– Transcript of June 30, 2015 CSE Meeting
118 pp
PP– Transcript of 9/9/2016 CSE Meeting pending transcription of Hand
Court Reporting
QQ – email from Parent to Dr. Psychologist re retaining of KKK agency
1p
RR – correspondence from Supt to Parent dated December 17,2015
1p
SS – Agreement and Release re. Private School2014-15 Placement
4 pp
Parent’s Exhibits: (P - Parent)
P-A. Melissa Dagitz, Private school School - (2 Pages) Private school School The Bridge Experience - (1 page) Private school School Summer Calendar - June to August 2015 - (1 page)Total pages: 4
P-B. Due Process Hearing August 31, 2015 (13 pages taken from transcript) Total pages: 13
P-C. June 10, 2015 PWN/IEP - (9 pages) Total pages: 9
P-D. Private school School Placement IEP, 2015-2016 School Year - (6 pages) Yy Yy email to Terry Columbus LKS, September 7, 2015 - (1 page) 8Allison Carroll email to Terry Columbus, LKS, September 4, 2015 - (1 page) Total pages: 8
P-E. XXX Psychologist , Home Instruction, October 23, 2015 - (1 page) Senior Director, HH, Start date, September 23, 2015 - (Pages 2-3) , NYSED, October 18, 2015 and Mr., Regional Associate NYSED, October 1, 2015 - (1 page) Total pages: 4
P-F. HH Educational Progress Report January 18, 2016 - (5 pages) , HH incident report, December 16, 2015 - (1 page) Speech Therapy Annual Review 2015-2016, January 18, 2016 - (2 pages) Speech Therapy Annual Review 2015-2016 (continued), January 18, 2016 HH work schedule, October 19, 2015 - (1 page) , HH discontinuing providers, January 19, 2016 - (1 page) HH, work schedule, October 16, 2015 - (1 page) Letter received by mail from MMM MMM, Superintendent of WHBSD - (1 page) December 17, 2015 Total pages: 12
P-G. June 10, 2016 PWN/IEP - (11 pages) Total pages: 11
P-H. XXX Psychologist , WHBSD, letter tobbbb, from Southampton School District, June 10, 2016 - (1 page) XXX Psychologist letter to parents concerning non placement at SHSD, June 21, 2016 - (1 page) Total pages: 2
P-I. July 7, 2016 PWN/IEP - (11 pages) Total pages: 11
P-J. Private school School Enrollment Agreement, August 5, 2015 Total page(s):
P-K. XXX Psychologist , WHBSD, Proposed Amendment to IEP without a Committee Meeting, September 8, 2015, (3 Pages) Total pages: 3
P-L. Attendance Information, January 18, 2017 (1 page) Total page(s): 1
P-M. Cape Cod Neuropsychology, January 15, 2015 (1 page) Total page(s): 1
P-N. Private SchoolDischarge Report, May 30, 2015, (3 Pages) Total pages: 3
P-O. September 9, 2016 PWN/IEP - (11 pages) Total pages: 11
P-P. Amendment, September 10, 2015 - (1 page) Total page(s): 1
P-Q. Carroll/WHBSD, October 2, 2015 - (2 pages) Total pages: 2
P-R. XXX Letter, July 30, 2015 - (2 pages) Total pages: 2
P-S. Laurie Ferris, Private School School, March 7, 2015 - (1 page) Total page(s): 1
P-T. Eileen Taylor, NYSED, October 1, 2015, - (1 page) Total page(s): 1
P-U. Private SchoolSummer Program, July 15, 2014 - (1 page) Total page(s): 1
P-V. Kevin Seaman’s email, July 30, 2015 - (1 page) Total page(s): 1
P-W. Discontinued Service HH, October 5, 2015 - (1 page) Total page(s): 1
P-X. Commute, September 19, 2015 - (1 page) Total page(s): 1
P-Y. Taylor, NYSED Bus to HH/Non Approved Placement (2 pages) Total pages(s): 2
P-Z. Carson Carroll / Independent Contractor (1 page) Total page(s) 1
P-AA. Services (1 page) Total page(s) 1
P-BB. CSE Meeting? (1 page)
Total page(s) 1
P-XX. Student - Westhampton Beach SD (2 pages) Total pages: 2
P-DD. Neighboring School District Union Free School District Absent Letter, January 5, 2017 Total pages: 1
P-EE. September 9, 2016, XX/WHBSD Minutes proceedings Total pages: 4
P-FF. LIDC/CSE Meeting, August 2, 2016 Total pages: 1
P-GG. Fwd: C. Carroll/WHBSD, October 2, 2015 - Zzz Total Pages: 1
P-HH. Session Notes - To XXX Psychologist - Counseling/Parent Training not starting, 10/26/15. Total Pages: 1
P-II. Neighboring School District Union Free School District, Absences letter, March 16, 2017 Total Pages: 3
P-JJ. Meeting Notice (CSE), December 21, 2015 Total Pages: 3
P-KK. Interim Alternative Educational Setting, December 15, 2015 Total Pages: 2
P-LL. HH Conversation (recording), January 19, 2016 Total Pages: 1
P-MM. Meeting Notice (CSE), September 21, 2015 Total Pages: 3
P-NN. Meeting Notice (CSE), August 7, 2015 Total Pages: 2
P-OO. CSE January 22, 2016 / HH Educational Progress Report/Speech Report Total Pages: 8
P-PP. Christina - HH (Recording, January 18, 2016 Total Pages: 1
P-QQ. Fwd: Keswick’s rates, August 2, 2015 Total Pages: 2
P-RR. Another Lie!, November 20, 2015 Total Pages: 2
P-SS. Carson right to go to his home school - Equal terms/LRE/Disability Segregation Total Pages: 2
P-TT. Carson Carroll Related Services/Placement - January 14, 2016 Total Pages: 1
P-UU. Liability Form, Keswick School, July 28, 2015 Total Pages: 2
P-VV. CSE Meeting 9/22/15 - Letter from XXX Psychologist Total Pages: 2
P-WW. Carroll - XXX Psychologist /BOCES Total Pages: 1
P-XX. Information on Home Instruction, October 15, 2015 Total Pages: 2
P-YY. Prescriptions for Carson Carroll, October 19, 2015 Total Pages: 3
P-ZZ. Placement, October 20, 2015 Total Pages: [2]
P-AAA. Carson ADOS test / HH, October 28 2015 Total Pages: 1
P-BBB. XX, NYSED/HH, October 30, 2015 Total Pages: 1
P-XXC. HH, September 18, 2015 Total Pages: 1
P-DDD. Home Instruction, October 23, 2015 Total Pages: 3
P-EEE. CSE Meeting / Kevin Seaman, October 29, 2015 Total Pages: [1]
HEARING OFFICER EXHIBITS
Footnotes
[1] The District’s Board of Education approved the placement after the student was already placed at Private school (Tr. 518)
[1] DPC 12/13/16 14 pages
[2] District’s Answer12/16/17 13 pages