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In the Matter of the Impartial Hearing
on Behalf of XX,
Petitioner,
And
Dryden Central School District,
Respondent.
FINDINGS OF FACT AND DECISION
Impartial Hearing Officer
James McKeever, Esq.
Dated: November 29, 2017
Decision
Background:
On February 1, 2017, the parent filed a Due Process Complaint (“DPC”)
alleging that the Dryden Central School District (“District”) failed to offer XX (or “student”) a free and appropriate public education (“FAPE”) for the 2016-2017 school year, inter alia. In this complaint, the parent alleged that the District attempted to interfere with a psychiatric IEE, which was ordered pursuant to a prior DPC. The parent also asserted that her rights under FERPA were violated because she did not provide consent for the District’s physician to review the student’s medical records and/or to conduct an assessment of the student.
On February 14, 2017, the parent filed a second DPC against the District asserting additional claims regarding the District’s alleged failure to provide FAPE. In this complaint, the parent alleged that the student was entitled to compensatory educational services due to the District’s failure to provide home instruction from January 2016 through March of 2016, as well as a claim for occupational therapy services. The parent also requested an order directing the District to cease providing “AIS” and “RTI” services in lieu of special education services in an Integrated Co-Teaching (“ICT”) setting and requested an independent Functional Behavioral Assessment (“FBA”). Additionally, the parent asserted that the student was denied a FAPE based on the District’s failure to provide physical therapy services and adaptive physical education during the 2016- 2017 school year, as well as a denial of FAPE based on the District’s failure to include the parent in the District’s monthly multidisciplinary team meetings. The
Parent further alleged a denial of FAPE based on the District’s failure to include an appropriate amount of social skills training on the student’s May 2016 IEP.
Finally, the Parent asserted a 504 claim based on the allegation that the District was providing counseling services to the student at lunch.
The District filed a Response to each complaint asserting that the student was offered a FAPE for the subject school years and that the student was not entitled to compensatory educational services.
On or about February 24, 2017, the parent’s DPCs were consolidated by IHO
Nancy Lederman, who was the IHO appointed to this matter at the time.
On March 13, 2017, the District filed a cross DPC alleging that the parent failed to cooperate with the District with respect to the implementation of the student’s OT services under the student’s IEPs for the 2015-2016 and 2016-2017 school years, as well as the delivery of an award of compensatory educational services for OT, which was directed by the State Review Office (“SRO”) by Decision and Order No. 16-035, by refusing to provide a doctor’s prescription for said OT services. Consequently, the District requested an Order seeking a medical assessment of the student over the parent’s objection for the purpose of obtaining a prescription for the subject OT services (8 NYCRR 200.5(b)(3)). The District also requested a Order for the appointment of a Guardian Ad Litem (“GAL”).
Further, the District claimed that the parent sought to impede the District from conducting monthly team meetings provided for under the student’s 2016-
2017 IEP.
On March 14, 2017, the parent filed a “response” to the District’s complaint.
Thereafter, IHO Lederman recused herself.
On March 17, 2017, the undersigned was appointed to this matter.
Subsequently, each party filed a motion to dismiss the other party’s DPC.
Both motions were denied by a Decision and Order, dated April 19, 2017 and May 4, 2017, respectively.
Upon receipt of the undersigned’s decision denying the parent’s motion to dismiss the District’s DPC on May 4, 2017, and just prior to the commencement of the hearing, the parent advised that she was withdrawing her DPCs, without prejudice. At the time, the parent also alleged that the IHO was bias and conspiring with the District against the parent.
Thereafter, the undersigned advised the parent that she may withdraw her
DPCs on her own behalf. However, the undersigned would now appoint a GAL with respect to the issue of the withdrawal of the DPCs on behalf of the student.[1] The parent objected.
On May 5, 2017, the parent advised that she was “rescinding” her withdrawal and reinstating her DPCs.
On May 7, 2017, the parent then advised that she was again withdrawing her DPCs.
On or about May 8, 2017, the District’s DPC was consolidated with the two DPCs filed by the parent.
On May 8, 2017, the undersigned scheduled a conference call on the record for May 16, 2017 at 1:00 p.m. in order to address the appointment of a GAL on the record. The parent initially advised that she would appear at the conference and requested an “open” hearing. The parent also advised that she would be inviting a local news reporter to attend the conference.
Thereafter, the parent advised that she would not attend the conference.
On May 16, 2017, the conference was held on the record. The parent did not appear.
During the conference, and reflected in a subsequent Order, it was noted that the parent had filed two DPCs on behalf of the student, who is classified as a student with autism, with respect to the provision and/or delivery of occupational therapy to the student, as well as other services. As indicated above, the parent withdrew her DPCs upon receipt of the interim decision denying the parent’s request to dismiss the District’s DPC and just prior to the commencement of the hearing. Although the regulations permit either party to withdraw a DPC prior to the hearing, without prejudice (8 NYCRR 200.5(J)(6)(i)), the effect of the parent’s withdrawal, in this instance, would have foreclosed the undersigned’s ability to address the issue of the provision and/or delivery of occupational therapy to the student, who, according to the parent, had not been receiving these services for quite some time, as well the other issues referenced in the parent’s DPCs.
Additionally, I was advised that the parent had previously filed 6 additional DPCs during the 2016-2017 school year, before a different IHO, and then withdrew those
DPCs just prior o the commencement of that hearing. I was also advised the IHO
XX, who issued a decision in 2016, was about to appoint a GAL for subsequent DPC filed by the parent, but could not because the parent then withdrew that DPC (Tr.
42-43).
Finally, at the time of the parent’s withdrawal of the two DCPS before me, the District had not withdrawn its cross DPC. Thus, based on these unique facts, I found that the parent’s interests were opposed with those of the student and that the interests of the student would best be protected by appointment of a GAL, notwithstanding the parent’s notice of withdrawal. I also find that the parent’s procedural posturing was abusive and possibly detrimental to the student’s educational interests (At this point, the parent had filed at least 9 DPCs within the last school year).
Further, I note that although the District requested the appointment of GAL in its cross DPC, the issue was not addressed when the parties brief the issues raised in the parent’s motion to dismiss the District’s DPC. Thus, at that time, the District’s request for the GAL was denied.
On or about May 22, 2017, I issued an Order appointing a GAL for the student. Thereafter, I conducted an extensive search for a GAL willing to serve in this matter, which was made very difficult by the fact that the GAL was required to serve without compensation.
Thereafter, on or about May 31, 2017, the parent filed a third DPC alleging that the District failed to offer the student a FAPE because the District did not provide special transportation on the student’s IEP.
On or about June 23, 2017, the parent filed a fourth complaint alleging that the District denied the student a FAPE when the CSE failed to consider Extended School Year services (“ESY”) during the 2015-2016 school year. The parent also alleged that the District denied the student FAPE when the CSE failed to recommend ESY services during the 2016-2017 school year.
Subsequently, on or about June 27, 2017, the parent filed a fifth complaint asserting a 504 claim under the Rehabilitation Act of 1973. In this complaint, the parent claimed that the District violated the student’s rights under Section 504 when the District contacted Child Protective Services in retaliation against the parent for filing the DPC on June 23, 2017. Additionally, at this time, the parent again re-filed her first and second DPC, dated February 1, 2017 and February 11, 2017, respectively.
By decision and order dated June 9, 2017 and July 1, 2017, the aforementioned DPCs were all consolidated.
On or about July 14, 2017, the parent sent another notice of withdrawal of her first DPCs.
On July 17, 2017, the parent served her prehearing disclosures on the
District.
The hearing was scheduled for July 24, 25, 31 and August 7, 8, and 9, 2017.[2]
The hearing commenced on July 24, 2017 at 9:30 a.m. At approximately
9:45 a.m., the parent advised, via email, that she would not participate in the hearing and failed to appear.
As such, the hearing proceeded without the parent.
At the beginning of the hearing, the GAL advised that the parent’s first and second DPC should not be withdrawn (Tr. 7). The GAL also stated that she supported the District’s request for an Order permitting the District’s to obtain a prescription for OT services over the objection of the parent. The GAL further stated that she believed that the parent had obstructed the District’s efforts to provide the OT services at issue (Tr. 15).
At the conclusion of the hearing, the District requested that post-hearing briefs be submitted on September 18, 2017.
On August 17, 2017, the parent advised that the student would no longer attend school in the District and that the parent was relocating to a neighboring school district.
On August 24, 2017, the parent filed a motion for summary judgment.
On August 28, 2017, the District filed a response to the parent’s motion for summary judgment and filed a cross-motion for a default judgment and a motion to dismiss the parent’s complaints.
Thereafter, the District requested additional time in which to submit its brief. The request was granted and the new date for submission of the post-hearing briefs was extended to October 18, 2017.
On September 28, 2017, which was after several requests for an extension, the GAL filed her position with respect to the District’s motion.
On October 2, 2017, the District advised that it would not be submitting a “reply’ to the GAL’s position.
On the same date, and in light of the fact that the motion was not fully submitted until October 2, 2017, and in an effort to expedite the process and provide the parties with sufficient notice as to what issues remained before the undersigned, which was requested by the District, I issued a ruling, via email, with respect to several of the parent’s claims. I also advised the parties that the ruling on those issues/ruling would be set forth in the final decision (Email dated October
2, 2017).[3]
Thereafter, the parties were expected to submit their post hearing briefs by October 18, 2017. However, at the request for the District, the date for submission was extended from October 18, 2017 to October 30, 2017.[4]
Throughout the hearing process, the District made multiple requests to extend the compliance date due to witness availability, preparation for due process and preparation of post-hearing briefs. The Orders of extension were served on all parties as per the Commissioner’s Regulations and are part of the hearing record.[5]
The Record Close date is November 20, 2017.
The current compliance date is November 29, 2017.
Findings of Fact:
The student is an 11-year-old boy classified as at student with “autism” under the Individuals with Disabilities Education Act (“IDEA”). Classification is not at issue (Exhibit 119).
XX enrolled in District in June of 2012 and entered first grade in September of the 2012-2013 school year (Tr. 18).
The parent filed a DPC regarding the 2015-2016 school, which resulted in award of compensatory OT services (Tr. 19). The decision was appealed to the SRO, who also issued an award of compensatory educational services, which included OT services (Tr. 19).
During the 2016-2017 school year, the student attended the fourth grade for the second time at the District’s elementary school (Tr. 9).
Academically, student performs in the average range in reading and math, but he struggles with writing and requires assistive technology to complete writing tasks (Exhibit 119). The student also requires constant prompting from staff to complete his assignments.
Cognitively, the student tests in the “low average” range, with particular weaknesses in processing speed and working memory (Exhibit 119).
Socially, the student struggles to make friends and often exhibits off-task and disruptive behaviors, which causes his peers to avoid him.
During the 2016-2017 school year, the student attended an ICT class for math, English, science and social studies. The student also received social skills training, individually, once a week for thirty minutes and three times per week for thirty minutes in small group, as wells as counseling services in a small group, once a week for thirty minutes. The student’s IEP also indicated that he would receive additional counseling services both individually and in a small group, once a week for thirty minutes, respectively, for 25 WWWW per the Order of the SRO, dated August 8, 2016. Additionally, the student was mandated to receive OT therapy services, individually, twice a week for thirty minutes and an additional two, thirty minute sessions, individually, for thirty minutes as “compensatory services” for the 2016-2017 school year (Exhibit 119).
Under Supplemental Aids and Services, the student was seated in an area with minimal distractions and was provided with a graphic organizer for his writing assignments, among other supports (Exhibit 119, page 23).
With regard to OT, the student presents with below average processing in the area of fine motor integration, which consists of copying shapes, and with fine motor precision, which entails coloring-in items. The student also presents with deficits in the area of sensory processing, which causes the student to become unfocused, restless and fidgety after working or being seated for approximately 15 minutes. Consequently, the student requires OT services for handwriting, as well as a sensory diet, with sensory breaks, to keep him regulated in the classroom (Exhibit 1, pages 29-31), because his sensory needs impact his ability to participate in school activities (Exhibit 119).
A. Removal from School and Request for Compensatory Educational Services:
The District first developed an IEP for the student on May 11, 2015 (Exhibit
143). At that time, the District recommended that XX be placed in an ICT class with related services (Exhibit 143). However, this IEP was not implemented because the parent did not provide consent for XX to receive special education services during the 2015-2016 (Tr. 22).
On or about December 10, 2015, when the student was in fourth grade for the first time, the parent removed XX from school because the parent alleged that the student was anxious and experiencing suicidal ideation (Exhibit 46, Tr. 23). In support of her contention, the parent submitted a letter from Dr. CCCC, who stated that XX should be removed from school “until he had an appropriate IEP” (Tr. 24). Thereafter, the student did not return to school until March 8, 2016.
The District contends that XX did not have any medical issues that precluded him from attending school (Tr. 24). The District also noted that XX did not have any attendance issues before the removal by the parent (Tr. 27).
Nevertheless, at the parent’s request, the District agreed to provide the student with one hour per day of home instruction, which was the standard amount of home instruction for a student who was in a general education program.
The District indicated that it had a difficult timing finding a tutor to provide the home tutoring services. However, once the District was able to locate a tutor, the parent objected because the tutoring hours were scheduled after school.
Subsequently, the parent located a tutor who was able to provide the tutoring services during the school day, and the District agreed pay that person to provide the tutoring services (Tr. 28). However, in late January 2016, which was approximately 4 days after the parent’s tutor began, the parent refused to allow the tutor to provide the services because the parent did not agree with the curriculum (Exhibit D-23, Tr. 29). Subsequently, the District could not find a replacement tutor and then determined that it did not have enough evidence to support home instruction (Tr. 36, 38).
Thereafter, the parent sent the District a letter stating that she might be willing to allow XX to return to school. However, the parent demanded that the District confirm in writing that the parent would not be responsible in the event
XX harmed himself or anyone else at school (Exhibit 30). The District did not agree to the parent’s demand and noted that XX was a “sweet little boy” who does not get into fights with other students (Tr. 40).
B. IEE and the alleged Interference:
As a result of the parent’s assertion that the student was suicidal, IHO XX order a psychiatric IEE to confirm whether the student was experiencing suicidal ideation (Exhibit 35, Tr. 41). The evaluation results showed that XX was not suicidal (Exhibit 35, Tr. 33, 35, 43). Subsequently, Dr. NNNN, the District’s physician, reviewed the IEE. After Dr. NNNN reviewed the IEE, he sent a letter to the District’s superintendent, wherein he reiterated the results of the IEE and related some concerns that he had (Exhibit D-19, Tr. 34). Thereafter, the parent alleged that Dr. NNNN’s letter to the District’s superintendent interfered with the administration of IEE (Tr. 35). However, the IEE doctor did not review Dr.
NNNN’s letter to the District’s superintendent (Tr. 41).[6]
C. OT Services:
The District first recommended OT services for XX on May 11, 2015, which was the initial eligibility meeting (Tr. 47). The OT services were recommended to address XX’s issues with handwriting. However, according to the District, because the Parent did not consent to the implementation of the IEP, the student did not receive his OT services during the 2015-2016 school year (Tr. 47). Following the filing of a DPC for the 2015-2016 school year, the student was awarded compensatory OT services by IHO XX and the SRO (tr. 19).
During the 2016-2017 school year, the parent consented to the District providing XX with special education services (Tr. 50). However, the parent objected to the District’s demand for a medical prescription in order to provide OT services (Tr. 47). The District stated that they could not locate an OT provider who would agree to provide OT services without a prescription. . The parent told the District that she refused to provide a prescription for the student to received OT services in school “on principle” because it was not required under the IDEA.
As a result of the parent’s refusal to provide prescription for OT services, and the District’s inability to locate an OT provider who would agree to provide OT services without a prescription, the student did not receive the OT services referenced on his IEP, or the compensatory OT services ordered by IHO XX and the SRO, during the 2016-2017 school year.[7]
At some point, the student’s doctor actually provided a prescription to the District for the student to receive OT services, which occurred at the request for the District’s OT provider. However, the District’s OT provider failed to obtain consent from the parent. Thereafter, the parent revoked the prescription and had the student’s doctor write a letter confirming that he was no longer prescribing OT services (Tr. 50).
Subsequently, the District continued to make efforts to locate an OT provider who would agree to provide the services without a prescription (Exhibit
86, Tr. 58, 59). However, according to the District, no one would agree to do so.
The District explained that it typically utilizes BOCES for the provision of OT services to its students because they are a small school district and do not require the need for a full-time OT provider. The parent alleged that the District was engaged in a scheme with BOCES wherein the District received “kick-backs” from BOCES when the District utilizes BOCES for their related services. As such, the parent demanded that the District hire its own OT provider and not use
BOCES for XX (Tr. 560).
The District believes that there is discrepancy with respect to the Office of
Professions Regulations, which indicates that OT providers can provide services for handwriting without a prescription, and NYCRR Section 76.5, which indicates that you need prescription for all OT services. Additionally, the District stated that they were told by SED that they must have a script to provide a “medically related service,” such as OT (Tr. 60). Further, the District referenced a Field Advisory issued by SED, which indicated that OT services should be provided by prescription or a referral of a physician, nurse practitioner or other health care provider (Exhibit 89, page 20, Tr. 61).
The District had a provider ready, willing and able to provide OT services and created a slot on student’s schedule for OT services during the 2016-2017 school year (Exhibit 81, Tr. 66-67). The OT provider assigned to XX remained available to provide the service during the entire 2016-2017 school year in the event the parent changed her mind and provided consent for the services. The
District also told the parent they would pay for the script if that was an issue for the parent (Exhibit 80, Tr. 64).
D. Team Meetings:
In an effort to support the student at school and in the home, the District agreed to hold a multi-disciplinary team meetings with the parent, once a month, to discuss the student’s needs. However, the parent demanded that the District provide her with a “5 day letter” before each meeting was scheduled. According to the District, the parent believed that the multi-disciplinary meeting was the same as a CSE meeting, which the District explained to the parent was not correct. The parent told the District staff that they were “idiots” (Tr. 112), and that she was “not attending “shit” with them (Tr. 114).
In the spring of 2017, the parent revoked consent for the team meetings
(Exhibit 126, Tr. 68). The parent also withdrew her consent for parent training and counseling; student counseling; the implementation of the student’s BIP; the behavior consultation services; and student’s social skills training (Tr. 70).
E. Email correspondence from the Parent:
The District stated that the parent would send multiple emails to the District staff every day. The District also stated that there were times when the parent sent up to 75 emails in one day (Tr. 71). The District further stated that they were not always sure what the parent was seeking. However, the content and tone of the parent’s correspondence was hostile, threatening and abusive (Tr. 71).
The parent’s emails to the IHO were also numerous, hostile and abusive.
The emails show how the parent attempted to bully not only the District staff, but also the IHO and the GAL throughout this process. Attached to this decision is a sample of the parent’s correspondence, which shows the level of disrespect the parent has for this process and for anyone who might disagree with her (IHO
Exhibit 1).
F. ELA and AIS services:
The student qualified for daily Academic Instruction Services (“AIS”) in ELA, which was in addition to the special education services on his IEP (Exhibit 111, Tr.
72, 75). The District noted that the AIS services were added to help the student with his writing (Exhibit 125, Tr. 76-79). The parent alleged that the AIS services were provided in lieu of the student’s special education services. However, the District explained that each service was provided separately and that there were different providers for each service (Tr. 79). The District also noted that the AIS services and the special education services were provided at different times during the day (Tr. 80). Nevertheless, the parent objected.
G. FBA Without Consent:
The District funded an independent FBA in 2015, which was conducted by Dr. Susan WWWW (Tr. 81). Following the completion of the FBA, Dr. WWWW, developed a draft BIP for the 2015-2016 school year. However, the BIP could not be implemented because the parent refused to provide consent for services during that school year.
Subsequently, when the parent eventually provided consent for the 2016-2017 school year, the District collected data around the student’s targeted behaviors and worked with its behavior analyst to adjust the student’s BIP, with minor changes (Tr. 82). The District did not conduct a new FBA, which the parent did not understand and/or believe (Tr. 82, 84). Thereafter, the parent requested that an independent evaluator conduct a new FBA. The District declined the parent’s request (Exhibit 87, Tr. 85).
H. Behavior Services:
On December 13, 2016, the CSE team met with the parent and reviewed the student’s BIP (Exhibit 100, Tr. 87). Thereafter, the BIP was finalized (Exhibit 100).
In addition to student’s BIP and counseling at school, the District recommended parent training and counseling in the home, which was to be facilitated by Dr. Friga, who is a Board Certified Behavior Analyst retained by the District (“BCBA”). The training only occurred on one occasion because the parent refused the services. The parent then filed a complaint about Dr. Friga to the board of the BCBA (Tr. 88). Subsequently, after an investigation, the parent’s complaint was deemed unfounded.
Thereafter, the District removed parent counseling from the student’s IEP.
However, the District continued to recommend the weekly team meeting, counseling and social skills training for the student because the District believed that these services were necessary for the student to receive a FAPE (Tr. 90).
I. Social Skill Training
The District provided the student with social skills training during lunch in order to avoid having the student miss additional academic instruction (Tr. 94).
The student’s social skills training was separate from his counseling services, which was provided during breakfast (Tr. 91). The parent objected to this arrangement. Consequently, the District changed the student’s schedule so as not to provide any services during lunch or recess (Tr. 95).
J. Physical Therapy:
The District funded an IEE evaluation for physical therapy, which was reviewed at the initial CSE meeting in May of 2015. The District found that although the physical therapy evaluation determined that the student would benefit from PT services (Tr. 98), the District staff said that there was no issue with the student navigating the school environment. The District also determined that the IEE did not address PT in the school environment (Tr. 97). Consequently, the CSE offered to conduct a PT evaluation in school to determine whether there was a need for PT services at school (Exhibit 1, page 61, Tr. 98). The Parent initially refused to provide consent. However, subsequently the parent agreed, but the revoke her consent (Tr. 100).
K. Adaptive Physical Education (“APE”):
The parent requested an independent APE evaluation, which the District granted (Tr. 106). The parent also provided consent for the evaluation (Tr. 103).
However, the parent indicated that her consent was qualified in that she refused to provide consent for one or more of the instruments used in the evaluation.
Once the evaluation was completed, it was determined that the student did not qualify for APE (Tr. 105).
L. Transportation:
On or about May 24, 2017, the District changed the student’s afternoon bus schedule from a bus with approximately 7 students to a bus with approximately 40 students. The parent objected. Consequently, the undersigned directed the District to maintain the student’s busing schedule as it was at the time the DPCs were filed in this matter until a hearing could be held and the issue could be addressed on the record.
In the interim, on May 24 2017, the parent filed a second request for a pendency order. This time the parent requested an order directing the District to reinstate the student’s afternoon bus, which included only 7 students. The parent asserted that the smaller bus in the afternoon was the student’s pendency placement because this has been the student’s bus schedule since 2012. The parent also claimed that the student’s bussing needs were referenced on the student’s IEP, under his management needs, which stated that the student will be provided with an aide and a personal device on the morning bus, but not on the afternoon bus.
The parent further asserted that the issue of transportation was discussed at the CSE meeting held in May of 2015 and that the issue was addressed in a prior hearing before IHO Lana XX and referenced in her decision.
By email dated May 24, 2017 the District took “exception” to my ruling and asked to be heard on the record.
On May 30, 3017, the parties were heard on the record on the issue of transportation and pendency. Additionally, just prior to the conference call, the District served a memorandum of law in opposition to the parent’s request for pendency. In its opposition, the District asserted that because there is no special transportation referenced on the student’s IEP dated December 13, 2016, the student was not entitled to pendency on the issue of transportation and that consequently, the District is entitled to change the student’s bus schedule based on the scheduling needs of the District. The District also claimed that the undersigned did not have subject matter jurisdiction over the issue of transportation because the issue was not raised in the parent’s DPCs and that the issue of pendency was already decided by the undersigned in a separate decision dated April 10, 2017.
On May 30, 2017, the Parent submitted a “Reply” to the District’s opposition to her request for pendency on the issue of transportation and reiterated that the student’s pendency placement was the P15 bus in the afternoon with an aide and only 7 students.
On May 31, 2017, the District served a “Sur-Reply” with respect to the issue of transportation and asserted that the CSE never recommended that the student be placed on a “special education or a smaller bus size.”
On May 31, 2017, the parent filed another DPC alleging that the District denied the student a FAPE by failing to include special transportation on the student’s IEP for the 2016-2017 school year.
By Decision and Order dated June 12, 2017, I found that although not explicitly referenced on the student’s IEP, the student’s “operative placement” was the afternoon (P15) bus with approximately 7 students.
Subsequently, I was advised that this Order was appealed to the SRO.
M. ESY Services:
Following a CSE meeting held on August 31, 2016, the parent sent an email to the District and requested that the student be provided with ESY services. The
District responded that based on the parent’s request, they would collect data during the school year to see if the student regressed with respect to his academic skills and then decide whether the student was eligible for ESY services (Tr. 120).
During a CSE meeting held on June 23, 2017, the team reviewed the student’s progress reports, report cards as well as the student’s progress with respect to his behaviors, and found “no concerns” (Tr. 128). Thus, the District determined that the student did not quality for ESY services (Exhibit 136, Tr.
130).8
FAPE:
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]).
The District noted that they attempted to hold his meeting sooner, but the parent was unavailable.
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). Additionally, to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances: Endrew F. v.
Douglas County School District, 137 S. Ct. 29 (2016). 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[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch.
Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch.
Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
Following are the arguments set forth in the District’s post-hearing brief, which I will address separately:
1-The Parent’s DPCs must be dismissed as the IHO did not have Jurisdiction to hear them following the Parent’s Voluntary Withdrawal of same.
The District contends that the IHO is without jurisdiction to hear any of the Parent’s DPCs in this proceeding, as all of those DPCs were withdrawn by operation of law on the dates the Parent withdrew them prior to the start of hearing.
The District relies on 8 NYCRR 200.5(j)(6)(i) which states that: “prior to the commencement of the hearing, a voluntary withdrawal by the party requesting the hearing shall be without prejudice unless the parties otherwise agree.”
Additionally, the District notes that the regulation further defines that the commencement of the hearing excludes any initial prehearing conference, and means the first date the hearing is held after such conference.
As indicated above, the undersigned retained jurisdiction over the parent’s initial two DPCs following the parent’s notice of withdrawal on May 4, 2017, because the parent’s withdrawal did not appear to be in the student’s educational interest. Specifically, as referenced above, the parent’s notice of withdrawal immediately followed an adverse ruling with respect to the parent’s request for an order of dismissal of the District’s DPC. Additionally, at the time of the parent’s withdrawal, it was understood that the student had not received OT services for approximately two years, which is the one service that the District believed the student “really” needed. Moreover, prior to the parent’s withdrawal of these two DPCs, I was advised that the parent had filed and withdrawn approximately 9
DPCs against the District, which occurred just prior to the commencement of a hearing and/or just prior to the appointment of a GAL (By IHO XX) in the last calendar year. Thus, based on the record before me, and in light of the parent’s eradicate behavior, which I found was detrimental to the student’s educational interest, I determined that despite the parent’s notice of withdrawal, retaining jurisdiction of the parent’s first two DPCs until a GAL could review the DPCs, was warranted. I also note that at this time, the District had a cross-DPC, which was not withdrawn, thus it was necessary that a GAL be appointed to protect the student’s interests with respect to the claims asserted by the District. Further, it is undisputed that subsequent to my ruling, the parent reinstated her DPCs, which cured the jurisdictional issue. Thus, the District’s argument is unpersuasive.
Additionally, with respect the DPCs that the parent filed later in this proceeding, the parent’s actions, which the District’s agrees was confusing and difficult to decipher, were without effect because by this point I had ruled that a
GAL would be appointed to protect the student’s interest in this matter, which superseded the parent’s right to withdraw any of the DPCs on behalf of the student.[9] Finally, it must be noted that in its initial response to the parent’s first
DPC, the District actually requested that a GAL appointed to serve the interests of the student. Thus, I find that the District’s subsequent objection to the appointment of the GAL was without merit.
2-The Parent’s Due Process Complaints must be Dismissed due to her Refusal to Participate in the Hearing Process.
Here, the District contends that all of the parent’s DPCs should be dismissed because the parent refused to participate in the hearing. I find that although it is true that that the parent failed to appear at the hearing, it is undisputed that the GAL was appointed to protect the student’s interest with respect to the DPCs filed by the parent, and that the GAL appeared and participated at the hearing. Thus, I find that there is no basis to dismiss the DPCs based on the parent’s failure to appear at the hearing. I note that although the GAL indicated in her motion papers that she supported the District’s request for a default judgment, at the hearing, the GAL expressly stated that the parent’s first DPCs should not have been be withdrawn by the parent. Additionally, in her post-hearing brief, the GAL stated that the student may benefit from compensatory OT services (GAL-Brief-page 6), which is not consistent with a dismissal for the parents DPCS. Accordingly, under these facts, the District’s request for a dismissal of the parent’s DPCs must be denied.
3-The District is entitled to a Default Judgment with respect to its Due Process Complaint:
Here, the District contends that the parent’s refusal to participate in the underlying hearing with respect to the District’s March 13, 2017 DPC, warrants finding that the testimony and evidence provided by the District with respect to it s complaint must be “taken as true.” Consequently, the District requests a default judgment for the relief requested in its cross DPC. I disagree. Specifically, based on the documentary evidence offered by the District, which was voluminous, and the state regulations with regard to the provision of OT services, which is discussed later in this decision, I find that the District’s request for a default judgment is without merit. Additionally, as discussed above, although the GAL indicated in her motion papers that she supported the District’s request for a default judgment, at the hearing, the GAL expressly stated that the parent’s first DPCs should not have been be withdrawn by the parent. Additionally, in her post-hearing brief, the GAL stated that the student may benefit from compensatory OT services (GAL-Brief- page 6), which is not consistent with a default judgment for the District.
Notwithstanding the GAL’s belief that the parent obstructed the District’s ability to provide the student with OT services.
4-In the alternative, the District is Entitled to the Relief sought in its DPC based upon the Merits:
Here, the District contends that it has demonstrated that the parent’s
“persistent actions” impeded and/or obfuscated the delivery of OT services to her son, and that the parent also sought to prevent the monthly team meetings provided under the student’s IEP as a support for school personnel on behalf of the student.
I agree with the District that the parent unreasonably prevented the District from conducing the monthly multidisciplinary meetings referenced on the student’s IEP. Specifically, I find that the parent’s demand that the District provide the parent was with a “5-day” notice letter, as it would with respect to the scheduling of a CSE, was not required. Thus, the District is correct with respect to this point.
However, with respect to the subject OT services, I find that the District’s insistence that the parent provide the District with a prescription from a physician in order for the District to provide OT services to the student was incorrect.
Article 156 of the New York State Education Law, §7900 relates to the profession of “Occupational Therapy.”
Article 156, §7901 defines occupational therapy as follows:
“The practice of the profession of occupational therapy is defined as the functional evaluation of the client, the planning and utilization of a program of purposeful activities, the development and utilization of a treatment program, and/or consultation with the client, family, caregiver or organization in order to restore, develop or maintain adaptive skills, and/or performance abilities designed to achieve maximal physical, cognitive and mental functioning of the client associated with his or her activities of daily living and daily life tasks. A treatment program designed to restore function, shall be rendered on the prescription or referral of a physician, nurse practitioner or other health care provider acting within his or her scope of practice pursuant to this title. However, nothing contained in this article shall be construed to permit any licensee hereunder to practice medicine or psychology, including psychotherapy or to otherwise expand such licensee's scope of practice beyond what is authorized by this chapter.
The issue of when occupational therapy services actually require a prescription or a referral from a physician was specifically addressed by NYSED in is practice memo referenced at: http://www.op.nysed.gov/prof/ot/otpre.htm:
“When Occupational Therapy Services Require a Prescription or Referral:”
Occupational therapists can perform occupational therapy evaluations without a referral or prescription. However, to implement an OT treatment plan, under certain circumstances described below, you must have a referral or prescription from a licensed health care provider acting within his or her scope of practice.
Effective February 3, 2012, Education Law §7901 was amended to provide that an occupational therapy treatment program "designed to restore function" must be rendered on the prescription or referral of a physician, nurse practitioner or other health care provider acting within his or her scope of practice.
Prior to this amendment, an occupational therapist could only provide treatment following receipt of a prescription or referral, provided by a physician or nurse practitioner.
The board has interpreted this change to mean that an OT treatment program that is not restoring a function can be provided without a script, and believes that this would apply typically to school age children receiving therapy to assist them in developing functions they do not currently possess. Treatment programs involving handwriting, literacy and learning disorders are examples of such therapy. [emphasis added].
However, a treatment program for adults, who have lost function due to a stroke or accident and who require therapy to restore their ability to perform activities of daily living, such as dressing, bathing and household mobility, would still only be able to be performed after receipt of a prescription or referral.
Additionally, Medicaid, an insurance provider or school district may still have a policy that would require a prescription or referral in all instances. However, barring such a policy, an occupational therapist or occupational therapy assistant should not deprive a client of needed services, due to the lack of a prescription or referral when that client is receiving therapy under a treatment program not designed to restore function.
When required, prescriptions and referrals establish an important link between the patient's/client's occupational therapist and his/her primary healthcare provider because they set forth a client’s diagnosis and provide direction as to the frequency or type of therapy required.
The referral/prescription becomes part of the record, which the occupational therapist must maintain for each patient/client he or she serves (See, http://www.op.nysed.gov/prof/ot/otpre.htm).
Based on the above referenced Practice Guide issued by SED, which was last updated in July of 2017, and thereby current, it is clear that the student’s parent was not obligated to provide a prescription for the subject OT services. Specifically, in this instance, where the District agreed that the subject OT services were to assist with the student’s handwriting ability, which is clearly a function he did not currently possess, the regulation expressly states that the service can be provided without a prescription. Thus, notwithstanding that parent’s failure to appear at the hearing, the District’s request for an order permitting the District to conduct a medical evaluation of the student over the parent’s objection for the purpose of obtaining a prescription for OT services must be denied. Additionally, by the same reasoning, the District’s request for an order relieving it of its obligation to fulfill the student’s prior compensatory award for OT services, to the extent the IHO possesses this authority, must also be denied because the parent was not required to provide the prescription requested by the District.
Further, although it is understood that that the District made exhaustive efforts to secure an OT provider who would agree to deliver OT services in the school setting without a prescription, and was unable to do so, this fact does not excuse the District of its obligation to provide OT services in this case.
Further, although the District believed that there was a discrepancy with respect to 8 NYCRR 76.5(d) and the language referenced by the Office of
Professions Regulations at NYSED, the language referenced above clearly and expressly states that the District was permitted to provide the OT services without a prescription in this case.
Finally, although the District asserted that they were told by SED that they must have a script to provide a “medically related service,” such as OT, this fact does not excuse the District for failing to provide the subject OT services because as indicated above, the OT services recommended for this student was not medically related (Tr. 60).
Lastly, although the District is correct that a Field Advisory issued by SED, dated June 2016, indicates that OT services should be provided by prescription or a referral of a physician, nurse practitioner or other health care provider, the (Exhibit 89, page 20, Tr. 61), the Field Advisory was simply a “summary” of how
New York State laws and Regulations differed from the federal requirements as of June 2016. As noted above, the Practice Guide issued by SED, which was last updated in July of 2017, noted when a prescription for OT services was required and when it was not.
Thus, based on the foregoing, the District’s request for an order relieving it of its obligation to provide the OT services ordered by the SRO is denied.
Additionally, the District’s request for an order allowing it to obtain a medical evaluation of the student over the objection of the parent for the purpose of obtaining a prescription for OT services is denied.
5-Some or all of the Parent’s DPCs must be dismissed on Grounds of Mootness given that the Student is no longer Enrolled in the District
Here, the District contends that given that the student is no longer enrolled in the District, “some or all of the Parent’s claims are no longer in controversy and must be dismissed on grounds of mootness.” By email, dated October 2, 2017, the undersigned stated the following:
The District’s request for dismissal of the parent’s DPC’s is denied. However, based the parent’s relocation to another school district, the District’s request for dismissal of the following claims and/or requests made by the parent is granted:
1-A medical evaluation at pubic expense;
2-Implementation of the IEP;
3-Discontinuation of AIS/RTI services;
4-Amended IEP re social skills services, PT; APE; formal team meetings; five day notice of team meeting; amendment to IEP re special transportation; 5-A determination that the District’s procedures in determining eligibility for ESY comply with the IDEA;
6-An order for additional IEE’s;
7-An order that a trainer provide training to the District on ESY;
8-An order that the District discontinue the use of a certain form for determining ESY services;
9-An order that the CSE provide additional services and special transportation in the future;
10-An order to disclose the identify of the individual who made a CPS report and to rescind such report; 11-Imposing sanctions for such report; and
12- awarding money damages.
Thus, to the extent the District was referencing these claims and/or requests for relief, which is not stated in its brief, these claims and/or requests for relief were denied on October 2, 2017.
6-The Parent’s Claims Relating to the 2015-16 school year must be Dismissed on
Grounds of Mootness:
Here, the District asserts that “in its Responses to the Parent’s February 2017 DPCs and throughout this proceeding, the District has moved for the dismissal of the Parent’s claims pertaining to the provision of homebound instruction to the student during the period of time he was unilaterally removed from school by his parents during the 2015-16 school year, and regarding the purported interference of the school physician with a psychiatric IEE completed by order of the IHO in the earlier 2015-16 impartial hearing, on several grounds, including mootness. “
Here, although the District asserts that the parent’s claims were “moot,” the District’s brief fails to state why these claims are moot. Thus, without a clear argument from the District, I cannot rule on this issue.
Additionally, although the District asserted that “The IHO’s Interim Decision dated April 18, 2017 did not include any ruling with respect to the dismissal on the separate grounds of mootness,” the District’s “responses” to the parent’s initial DPCs, dated February 10, 2017 and February 22, 2017, failed, again, to state why any of the parent’s claims were moot. Thus, the Interim Decision addressed the District’s assertion that the parent’s claims were either barred by the principals of res judicata and/or beyond the “subject matter jurisdiction” of the IHO (See IHO Interim Decision, dated April 18, 2017 at IHO Exhibit 6. As well as the District’s Responses dated February 10, 2017 and February 22, 2017, at IHO Exhibit 2).
Finally, I note that the District also appears to assert that the IHO’s Interim Decision did not address the alleged “mootness” regarding the parent’s request for ESY services. However, by the District’s own admission, it is undisputed that parent did not assert a claim for ESY services until June 23, 2017, which is clearly after the April 2017.
Accordingly, based on the above, the District’s request for dismissal of the parent’s claims regarding home instruction and the alleged interference with the psychiatric IEE, based on mootness, must be denied. Likewise, the District’s request for dismissal of the parent’s claims for ESY services, based on mootness, must be denied.
8-The Parent’s June 27, 2017 Complaint Alleging Claims Under Section 504 Must Be Dismissed as the IHO has No Jurisdiction:
Here, the District asserts that the allegations of retaliation asserted by the parent in the DPC dated June 27, 2017 are beyond are beyond the scope of the IHO’s jurisdiction. I agree. Specifically, I find that the parent’s claims regarding an alleged report made by the District to Child Protective Services about the parent does not concern the evaluation, educational placement or provision of FAPE to their children (35 C.F.R. §300.504(A)(l)(2); 35 C.F.R. §3000.506(a)). As such, this claims is dismissed.
However, to the extent this claims falls under Section 504, which the District appears to believe that it does, I find that the District’s claim that “there is no evidence in this proceeding to show that the District ever consented to provide jurisdiction for the IHO to hear such a claim,” is disingenuous. Particularly in light of the fact that the District appointed IHO Lederman to hear the Section 504 allegations pled in the Parent’s February 11, 2017 DPC, which is currently before the undersigned. Additionally, I note that the District’s silence on this issue, as least up to now, and its apparent failure to appointment anyone else to hear the parent’s 504 claim regarding this issue, is improper.
9-No Denial of FAPE on Procedural Grounds:
The parent asserted that the District committed several “procedural violations,” which resulted in a denial of FAPE. The issues, as outlined by the District are as follows:
FBA:
Here, the parent alleges that the District conducted an FBA without the parent’s consent. However, the evidence shows that the District only collected data with respect to the student’s behaviors in order to finalize the BIP, which was initially drafted by the parent’s independent evaluator, Suzanne WWWW (Exhibit
D-5). Additionally, there is no evidence in the record to show that the District, or anyone else conducted a new FBA since the IEE in 2015. Thus, in light of the fact that the parent failed to offer any evidence to the contrary, this claim is dismissed.
ESY:
Here, the parent asserts that the student was denied a FAPE when the District failed to consider the student’s needs for ESY services during the 2015- 2016 and 2016-2017 school years. However, the evidence shows that the parent refused to permit the District to implement the proposed IEP for the 2015-2016 school year. Thus, any claim for that school year must be denied.
With respect to the 2016-2017 school year, the evidenced shows that the CSE team conducted a program review of the student’s academic performance in June of 2017 and determined that that were no concerns with respect to regression (8 NYCRR § 200.6(k)(l), (k)(l)(v)). Specifically, the evidence shows that the CSE reviewed the student’s progress reports and his progress monitoring data, as well as his report cards and the reports from the student’s teachers summarizing his needs and current levels of performance in school, and found no regression with respect to the student’s academic performance. Thus, base on these facts, I find that the District’s conclusion that the student did not require ESY was correct and that its decision not to offer ESY services did not result in a denial of FAPE.
Additionally, contrary to the parent’s assertions, there is no evidence in the record to support a finding that the CSE’s decision with respect to ESY services was “pre-determined” (T.P. v. Mamaroneck UFSD, 554 F.3d 247, 253 (2d Cir.
2009)). Accordingly, the parent’s claim regarding ESY services is dismissed.
Retention in 4th Grade:
Here, the evidence shows that the parent removed the student from school from December 2015 through March of 2016, which resulted in a significant loss of instruction. The evidence also shows that at the end of the 2015-2016 school year, the parent requested that the student be retained in 4th grade and that the District agreed to same (Tr. 28). Thus, I find no evidence to support a finding that the student’s retention in 4 grade resulted in a denial of FAPE (Endrew F. v. Douglas
County School District, 137 S. Ct. 29 (2016). (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).
Failure to Provide the Parent with Copies of the
Documentation to be discussed at the June 23rd CSE meeting:
Here, the evidence shows that the District provided the parent with copies of all the documentation that was to be discussed at the CSE meeting on June 23, 2017 by way of regular mail and by e-mail to the Parent (Exhibits 134, 136 and
137).
Thus, I find any claims to the contrary are without merit. Additionally, I note that the parent failed to offer any evidence to support this claim.
Composition of the CSE Meeting on June 23, 2017 and Parent Participation:
Here, the evidence the shows that all the required members of the CSE team attended the June 23, 2017, CSE meeting (Exhibit 138). Additionally, based on my review of the meeting minutes and the audio-recording of the meeting, I find that the evidence the shows that the District staff did not impede the parent’s participation in the CSE meeting. I also find that parent voluntarily left the meeting (Exhibits 139, 141). Thus, the parent’s claim with respect to the issue is denied.
Physical Therapy:
IHO XX addressed the parent’s request for PT services and the issue of the
PT IEE in her decision dated April 26, 2016, which was also addressed in the decision of the SRO, dated August 8, 2016. As such, I find that this claim is without merit and is, consequently, dismissed.
APE:
The parent asserts that the District denied the student a FAPE because if failed to offer APE services during the 2016-2017 school year.
Here, the evidence shows that the District conducted an APE evaluation of student following the parent’s request in August 2016, which showed that the student did not require APE (Exhibit 91). Additionally, the evidence shows that the District offered the parent an APE IEE, which the parent failed to obtain (Exhibit
104). Thus, in light of the above, I find that the District’s determination that the student did not require APE services in order to obtain a meaningful educational benefit did not deny the student a FAPE. Accordingly the parent’s request for APE services is denied.
10- FAPE on Substantive Grounds:
The parent also asserted that the District denied the student a FAPE on substantive grounds.
The District contends that “the totality of the evidence demonstrates that the IEP resulting from the CSE’s August 31, 2016 annual review meeting, subsequently reviewed and revised at the October 7, 2016 and December 13, 2016 CSE meetings, was reasonably calculated to provide the student a FAPE. The
District also submits that the GAL joined the District in its motion to dismiss the Parent’s DPCs and to grant the District a default judgment.
Notwithstanding the District’s assertions that the GAL supported the District, I will address the substantive issues, as outlined by the District, as follows:
Home Instruction:
First, the parent’s request for an award of compensatory educational services for time when the student was removed from school during the 2015-2016 school was not a claim that was before IHO XX and/or the SRO. Thus, I determined that the claim should not by dismissed based on res judicata.
However, the evidence presented at the hearing shows that the parent unilaterally removed the student from school during the subject time period and failed to substantiate the necessity of the student’s removal. Additionally, the evidence shows that the District made significant efforts to provide the student with home instruction during this time period and that but for the parent’s interference, and subsequent refusal to allow the student’s tutor to provide the services, the student would have received home instruction. Thus, under these facts, I find that the District is not responsible to provide the student with compensatory educational services during for this time period ((Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997])
Interference with IEE:
The parent claims that the District’s physician, Dr. NNNN, interfered with the administration of the parent’s psychiatric IEE that was granted by IHO XX. I note that although the District asserted that this is claimed should have be dismissed because the issue of the psychiatric IEE was initially before IHO XX, the parent’s claim regarding the District’s physician’s alleged interference with the IEE was clearly not a claim that was raised by the parent previously. Thus, I found that the principle of res judicata was not applicable.
However, based on the record before me, it is undisputed that Dr. NNNN did not have not any contact with the doctor who performed the psychiatric IEE. The evidence also shows that NNNN never conducted any medical assessment of the student.
Thus, based on these facts, the parent’s claim with respect to this issue is dismissed.
Delivery of OT Services:
The main issue in this case is whether the District denied the student a FAPE when if failed to provide the student with his mandated OT services without compelling the parent to obtain a prescription for the services. As indicated in the analysis regarding the District’s request for a default judgment with respect to the claims asserted in the District’s cross-DPC, NYSED does not require a prescription for OT services (See, http://www.op.nysed.gov/prof/ot/otpre.htm). Thus, although I understand that the District made very significant efforts to locate an outside provider who would agree to provide the OT services without a prescription, which was to no avail, this fact does not require the parent to obtain a prescription in order to access the OT services on her son’s IEP. Thus, it is not relevant as to whether the parent refused to agree “on principle” to provide a script, because
NYSED’s interpretation of its own regulation states that the parent need not provide a prescription for the services.
With respect to the issue of FAPE, the District conceded that the one service the student truly required, was OT services. Thus, based on the fact that the District failed to provide the student with the OT services referenced on his IEP during the 2016-2017 school year, I find that the student was denied a FAPE
(Endrew F. v. Douglas County School District, 137 S. Ct. 29 (2016). (Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). Finally, I note that although the parent did not provide a prescription for OT services, it is undisputed that the parent provided consent for the delivery of OT
services.
Compensatory Education:
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]).
As indicated above, I found that XX was denied a FAPE during the 2016-2017 school year based on the District’s refusal to provide OT services without a prescription. According to the student’s IEP, XX was to receive OT services two (2)
times per week for thirty (30) minutes. Thus, I find that the student is entitled eighty (80) thirty-minute sessions of compensatory OT services, which is based on approximately 8 sessions per month for a 10-month school year. I note that this issue is limited to the 2016-2017 school because IHO XX and the SRO addressed the issue of OT services during the 2015-2016 school year.
Finally, because it is undisputed that the student no longer attends school in the District, the student’s compensatory service award shall be provided through a bank of services to be provided by the District. The parent shall locate the provider.
The District shall either reimburse the parent or pay the OT provider directly.
Finally, I have considered all of the parent’s other claims for relief and find that they are unwarranted.
ORDERED
The District shall fund eighty-(80), thirty-(30) minute sessions of OT services by way of reimbursement to the parent and/or direct payment to the OT provider.
The rate for said services shall not exceed the rate charged to the District by private OT providers with whom the District has contracted with previously. The parent shall locate the OT provider, who must be qualified to provide the services.
The parent shall utilize the OT services by January 1, 2019.
Ordered:
The District’s cross-DPC dated March 13, 2017 is dismissed in its entirety.
Dated: Suffolk, New York
November 29, 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:
DISTRICT PRE-HEARING DISCLOSURES
EXHIBIT # EXHIBIT NAME
Exhibit D-1 CSE Report 12/19/14 (62 pps)
Exhibit D-2 8/10/15 PWN and IEP (20 pps)
Exhibit D-3 XXXXXletter to PARENT 7/20/15 Occupational Therapy Report
(32 pps)
Exhibit D-4 XXXXXEmail to 6/23/15 re: AT Evaluation Report from, BOCES (6 pps)
Exhibit D-5 Turning Point Behavioral Services re: Functional Behavioral Assessment for J.H. 3/26/15; 3/27/15 (19 pps)
Exhibit D-6 , Psy.D., Neuropsychological Evaluation J.H. May 2015 (32 pps)
Exhibit D-7 XXXXXletter to PARENT re: PWN Request for Independent Educational Evaluation at Public Expense 8/14/15 (2 pps)
Exhibit D-8 PARENT Email to XXXXX8/13/15 (1:05 PM) re: Prescriptions for
OT (4 pps)
Exhibit D-9 NYSED 9/3/15 letter to PARENT and AAAA re: Written Decision of State Complaint dated 7/9/15 (10 pps)
Exhibit D- PARENT Email to XXXXX9/4/15 (2:40 PM) re: OT Prescription
10 Withdrawal (2 pps)
Exhibit D- J. CCCC letter 12/10/15 (1 pp)
11
Exhibit D- J. VVVVV letter 12/29/15 Homebound Instruction (1 pp)
Exhibit D- AAAA letter 1/4/16 Homebound Instruction (1 pp)
13
Exhibit D- PARENT Email 1/4/16 Tutoring (2 pps)
14
Exhibit D- AAAA letter 1/13/16 Homebound Instructions (1 pp)
15
Exhibit D- PARENT Email 1/13/16 MMMM (2 pps)
16
Exhibit D- PARENT Email 1/14/16 Medical Certification (2 pps)
17
Exhibit D- M. NNNN letter 1/15/16 (1 pp)
18
Exhibit D- J. VVVVV Email 1/20/16 (2 pps)
19
Exhibit D- PARENT Email 1/20/16 (3 pps)
20
Exhibit D- PARENT Email 1/27/16 (2 pps)
21
Exhibit D- J.VVVVV Email 1/27/16 (1 pp)
22
Exhibit D- MMMM Email 1/26/16 (2 pps)
23
Exhibit D- AAAA Email 1/29/16 (4 pps)
24
Exhibit D- PARENT Emails 1/29/16 (4 pps)
25
Exhibit D- MMMM Home Tutoring Update 2/1/16 (14 pps)
26
Exhibit D- AAAA LETTER 2/3/16 (1 pp)
27
Exhibit D- PARENT Email 2/5/16 (1 pp)
28
Exhibit D- PARENT Email 2/5/16 (2 pps)
29
Exhibit D- AAAA letter 2/8/16 (1 pp)
30
Exhibit D- PARENT Email 3/7/16 (1 pp)
31
Exhibit D- DISTRICT Correspondence re: Release Records M Member (4 pps)
32
Exhibit D- PARENT Email 1/28/16 with Due Process Complaint (9 pps)
33
Exhibit D- Consolidation Order 2/11/16, Case No. 95518 (1 pp)
| 37 | Physical Therapy Related Services (revised 9/1/16) (1 pp) Exhibit D- AAAA Email to PARENT 6/24/16 (10:01 AM) Social Promotion (2 |
| 38 | pps) Exhibit D- AAAA Email to PARENT 8/10/16 (8:37 PM) Rejection of Unilateral |
| 39 | Placement Option (4 pps) Exhibit D- PARENT Email to XXXXXFri 8/12/16 (10:10 AM) (Consent for |
| 40 | Compensatory Services) (2 pps) Exhibit D- IHO Decision – IHRS Case No: 93438 (92 pps) 41 Exhibit D- SRO Decision – Appeal No. 16-035 (44 pps) 42 Exhibit D- AAAA Email to PARENT 8/16/16 (7:41 AM) (1 pp) 43 Exhibit D- District Email to PARENT 8/23/16 (1:46 PM) (CSE Meeting Notice |
| 44 | 8/31/16) (4 pps) Exhibit D- 8/31/16 CSE Meeting Sign-In Sheet and Minutes (9 pps) 45 Exhibit D- 8/31/16 CSE Progress Reports, Report Cards, Attendance Report, 46A Evaluations and Other Information (15 pps) Exhibit D- 8/31/16 CSE Meeting Recording 46B Exhibit D- 8/31/16 CSD Meeting Transcript (139 pps) 46C Exhibit D- Supplemental OT Report 11/25/15 (6 pps) 47 Exhibit D- PT Referral 8/23/16 (1 pp) 48 Exhibit D- PARENT Email to XXXXX8/31/16 (6:00 PM) (Evaluations) (1 pp) 49 Exhibit D- XXXXXEmail to PARENT 9/1/16 (10:28 PM) (Draft IEP 8/31/16 |
| 50 | CSE Meeting) (22 pps) Exhibit D- PARENT Email to XXXXX9/2/16 (11:54 AM) Draft IEP (4 pps) 51 Exhibit D- PARENT Email to XXXXX9/2/16 (1:21 PM) Draft IEP (2 pps) 52 Exhibit D- XXXXXEmail to PARENT 9/9/16 (4:50 PM) CSE Paperwork (35 |
| 53 | pps) Exhibit D- PARENT Email to XXXXX9/9/16 (7:33 PM) (CSE Paperwork) (4 |
| 54 | pps) 50 |
| 55 | Evaluation) (4 pps) Exhibit D- PARENT Email to XXXXX9/12/16 (11:05 AM) (Consent for Re- |
| 56 | Evaluation – Assessments) (2 pps) Exhibit D- 9/13/16 Letter with corrected IEP (24 pps) 57 Exhibit D- XXXXXEmail to Michael Friga re: Initial Consent JTH (1 pp) 58 Exhibit D- Betsy Primo Email to PARENT 9/13/16 (5:07 PM) Accommodations |
| 59 | (2 pps) Exhibit D- PARENT Email to XXXXX9/17/16 (9:22 AM) (Provision of OT |
| 60 | Services) (1 pp) Exhibit D- PARENT Email to HHH 9/22/16 (12:36 PM) (Recess) (3 pps) 61 Exhibit D- PARENT Email to XXXXX9/26/16 (4:27 PM) Team Meeting (2 pps) 62 Exhibit D- XXXXXEmail to PARENT 9/26/16 (9:35 PM) CSE Correspondence |
| 63 | (8 pps) Exhibit D- XXXXXEmail to PARENT 9/26/16 (9:46 PM) Response to questions |
| 64 | asked about XXX Performance in PE (7 pps) Exhibit D- PARENT Email to XXXXX9/27/16 (4:07 PM) Resolution Proposal |
| 65 | (1 pp) Exhibit D- PARENT Email to XXXXX9/27/16 (12:57 PM) Team Meeting – |
| 66 | Team Meeting (4 pps) Exhibit D- PARENT Email XXXXXFri 9/30/2016 7:52 AM (refusing to attend |
| 67 | 9/30/16 team meeting (5 pps) Exhibit D- XXXXXEmail to PARENT with Revised Meeting Notice on 9/30/16 |
| 68 | at 9:32 PM (to include Math/Reading Assessments) (3 pps) Exhibit D- XXXXXEmail PARENT 9/30/16 at 11:36 PM (Scope of APE |
| 69 | evaluation) (1 pp) Exhibit D- Team Meeting Minutes (15 pps) 70 Exhibit D- XXXXXEmail PARENT, Sunday 10/2/16 at 7:34 PM (re: Mychack |
| 71 | Review Results of Math/Reading Assessments) with signed Parent Invitation Response Form 10/1/16 (3 pps) Exhibit D- XXXXXEmail PARENT 10/3/16 at 10:42 PM (Math/Reading |
| 72 | Assessments not completed in time for report to be given to parent |
| two | days prior to October 7th CSE meeting) (1 pp) Exhibit D- XXXXXEmail to PARENT 10/4/16 re: APE Consent (6 pps) 73 Exhibit D- PARENT EMAIL October 4, 2016 at 7:25 (APE |
| 74 | Consent/Information) (5 pps) Exhibit D- October 5, 2016 Letter District to PARENT Summarizing |
| 75 | Resolution Outcome, IHRS Case No: 1000039 (1 pp) 51 |
| 76 | attend CSE in person, phone only and CSE sign-in sheet and meeting minutes (10 pps) Exhibit D- 10/7/16 CSE Meeting Recording 77 Exhibit D- 10/7/16 PWN- Proposed Continuation for Special Education (26 |
| 78 | pps) Exhibit D- Documentation re: Parent Teacher Conference and Team Meetings |
| 79 | (7 pps) Exhibit D- XXXXX11/1/16 Letter to PARENT – Consent to Release Student |
| 80 | information (5 pps) Exhibit D- Daily Schedule (4 pps) 81 Exhibit D- Behavior Consultation Meeting 9/27/16 (2 pps) 82 Exhibit D- Health Office Log 2015-16 and 16-17 (5 pps) 83 Exhibit D- Behavior Intervention Plan (4/20/18 updated 10/24/16) (5 pps) 84 Exhibit D- XXXXXcorrespondence to PARENT 11/4/16 Prior Written Notice – |
| 85 | Proposed Reevaluation and Request for Consent (8 pps) Exhibit D- OT Provider Responses 9/14/16 – 4/20/16 (31 pps) 86 Exhibit D- 11/8/16 Prior Written Notice – Request for Independent |
| 87 | Educational Evaluation at Public Expense (2 pps) Exhibit D- PARENT Email to XXXXX11/8/16 re: BIP (2 pps) 88 Exhibit D- 6/2016 SED FIELD Advisory (33 pps) 89 Exhibit D- Confidential Education Assessment (Received 11/14/16) (5 pps) 90 Exhibit D- APE Evaluation 11/2/16 (19 pps) 91 Exhibit D- BBBB Email to PARENT 11/16/16 re: Team Meeting (2 pps) 92 Exhibit D- XXXXXEmail to PARENT 11/16/16 re: CSE Meeting (1 pp) 93 Exhibit D- PARENT Email to XXXXX11/17/16 – Revoking Consent PT for |
| 94 | Evaluation (1 pp) Exhibit D- XXXXXEmail to PARENT 11/29/16 – Meeting Date Request (1 pp) 95 Exhibit D- BBBB Email to PARENT 12/7/16 – December Team Meeting and |
| 96 | PARENT Response to same (6 pps) 52 |
| 104 | IEEs (17 pps) Exhibit D- 1/12/17 Email – Returned Mail (1 pp) 105 Exhibit D- PARENT Email to BBBB 1/13/17 re: Team Meeting Dates (3 pps) 106 Exhibit D- PARENT Email XXXXX1/24/17 Records (1 pp) 107 Exhibit D- XXXXXEmail to PARENT 1/26/17 Monthly Meeting Agenda (3 |
| 108 | pps) Exhibit D- PARENT Email BBBB 1/31/17 February Team Meeting (2 pps) 109 Exhibit D- 12/9/16 Progress Report (8 pps) 110 Exhibit D- AIS Plan and Progress Reports (4 pps) 2016-17 111 Exhibit D- XXXXXEmail PARENT 3/7/17 Prescriptions (2 pps) 112 Exhibit D- PARENT Email BBBB 3/7/17 March Team Meeting (1 pp) 113 Exhibit D- 4th Grade Report Card (4 pps) 114 Exhibit D- PARENT Email XXXXX3/12/17 – IEP Amendment Meetings (4 |
| 115 | pps) Exhibit D- PARENT Email XXXXX3/20/17 - Physician referral for OT (3 pps) 116 Exhibit D- PARENT Email XXXXX3/30/17 – Prescription (1 pp) 117 Exhibit D- PARENT Emails XXXXX3/28/17 with signed Consent to Amend |
| 118 | IEP /AT on tests (8 pps) 53 |
| 124 | Enrollment/Attendance (pps TBD) Exhibit D- 6/23/17 Progress Report (9 pps) 125 Exhibit D- PARENT Email XXXXX11/16/16 revoking consent for the IEP (1 |
| 126 | pp) Exhibit D- PARENT Emails BBBB 5/4/17 May Team Meeting (3 pps) 127 Exhibit D- PARENT Notice of Withdrawal 5/7/17 (1 pp) 128 Exhibit D- PARENT Email XXXXX3/8/17 March Team Meeting (2 pps) 129 Exhibit D- Sensory Trial Data (10 pps) 130 Exhibit D- PARENT correspondence 5/4/17 and 5/8/17 revoking consent for |
| 131 | services (2 pps) Exhibit D- Correspondence 5/12/17 – 5/31/17 re: Scheduling of CSE meeting (6 |
| 132 | pps) Exhibit D- Prior Written Notice 5/31/17 re: Email request IEEs (2 pps) 133 Exhibit D- 6/5/17 Meeting Notice with attachments (6/23/17 meeting) (8 pps) 134 Exhibit D- PARENT Email 6/12/17 – Remove transportation from meeting |
| 135 | agenda (1 pp) Exhibit D- Various PARENT Emails 6/1/17 – 6/21/17 (25 pps) 136 Exhibit D- XXXXXEmail to PARENT 6/22/17 resending records (2 pps) 137 Exhibit D- 6/23/17 CSE Sign-in and Minutes (9 pps) 138 Exhibit D- 6/23/17 CSE Meeting Recording 139 Exhibit D- DRA2 Student Assessment folder (5 pps) 54 |
Exhibit D- 6/23/17 PWN and IEP (28 pps)
141
Exhibit D- 6/12/17 PARENT letter rescinding Complaint withdrawals (1 pp)
142
Exhibit D- 5/11/15 PWN & IEP (15 pps)
143
Exhibit D- 5/11/15 Meeting transcript (259 pps)
144
Exhibit D- 8/10/15 Meeting transcript (48 pps)
145
Exhibit D- Implementation Math Goal 9/16-3/17 (88 pps)
146
GAL Exhibits:
1- Letter dated 9.26/16 from District;
2- Letter dated 9/29/16 from Dr. CCCC; and
3- Motion is support of default judgment.
IHO Exhibits:
1-Parent’s DPC and Response to District’s DPC;
2- District’ DPC and Responses to Parent’s DPCS;
3- Orders of Consolidation
4-Parent’s Motions and Responses;
5-District’s Motions and Responses;
6-IHO Interim Decisions;
7-Orders of Extension; and
8-Post Hearing Briefs (District and GAL).
9-Sample emails from parent-(parent’s emails were constant and voluminous-for the brevity, I am only providing a sample).
55
The hard copies of these exhibits shall be provided to the District with the
Certification of the Record. I note that the parties have copies of all of these documents.
Finally, I do not have a current address for the parent. As such, the Decision was via email.
Footnotes
[1] In Winkelman v. Parma City School Dist., 550 U.S. 516 (2007), the Court held that “parents enjoy rights under the IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf.” Id. However, in the event an impartial hearing officer determines that the interests of the parent are opposed to or are inconsistent with the interests of the student, or that for any other reason the interests of the student would best be protected by the appointment of a GAL, the impartial hearing officer shall appoint a GAL to protect the interests of such, student…”(8 NYCRR 200.5[j][3][ix]).
[2] The hearing dates scheduled in May 2017 were canceled because at that time I did not a anyone willing to serve as the GAL.
[3] The District’s attorney requested an index of IHO exhibits before she drafted her brief, which was couched with a request for more time in which to submit her brief. The IHO advised the attorney, more than once, that if she wished reference anything in the record that was not in the District’s exhibits, she could identify the document by its name and date, or include the document as a District’s exhibit. Additionally, and contrary to the assertions by the attorney for the District, the District was advised as to which issues raised by the parent were moot.
[4] On or about October 25, 2017, in response to another request from the attorney for the District, the undersigned reiterated that that “transportation’ was not an issue.
[5] When the parent refused to participate in the hearing, she waived her right to all subsequent communication, with the exception of service of the final decision.
[6] The District asserted that this claim should be dismissed pursuant to the principles of res judicata. However, based on my review of the DPC before IHO XX, the parent’s claim regarding the alleged interference with the IEE appeared to be a new claim.
[7] On or about July 2015, the parent filed a complaint with the State Education Department (“SED”) (Exhibit 9), regarding the provision of OT services, inter alia. SED issued a decision on September 3, 2015. According to the District, SED advised the District to make “reasonable efforts to obtain informed consent from the parent and referenced NYCRR Section 76.5. (Page 5, under allegation two). NYCRR Section 76.5 states that a prescription or a referral of a physician is necessary for the delivery of OT services. Thus, the District relied upon this language when they requested the prescription for OT services from the parent (Tr. 49).
[9] The parent was advised that she could withdraw the subject DPCs as they related to her due process rights, but not that of the students because I had found that the parent’s interest were opposed to the students (See Winkelman, Id).