Westhampton Beach Union Free School District, Impartial Hearing Decision

REDACTED COPY FOR SED

August 15, 2017

Mr. OO XX, Esq.

XXXXXXXXXXXXXXX

Remsenburg, NY 11960

Esq.

P.O. Box Stony Brook, NY 11790

Re: OO v Westhampton Beach Union Free School District

Dear Mr. XX and Mr. Seaman,

Enclosed is a copy of the Findings of Fact & Order in the above-named case.

Thank you, Dr. James A. Monk Impartial Hearing Officer cc: Ms. Judy McCarthy

Secretary to the Superintendent/District Clerk

Westhampton Beach UFSD

THE UNIVERSITY OF THE STATE OF NEW YORK,

NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of J and Z XX, on behalf of XX, Petitioners, v. Westhampton Beach Union Free School District Respondent.

Case ID 503548 Findings of Fact and Order

I Introduction and Jurisdiction

The undersigned, James A. Monk, a duly certified Impartial Hearing Officer (IHO), having been so designated by the State Education Department, and heretofore having been duly appointed by the Board of Education of the Westhampton Beach Union Free School District (Respondent), pursuant to Chapter 853 of the Laws of New York (Section 4404 of the New York State Education Law) and in accordance with Section 200.5 (c), Regulations of the Commissioner of Education (Subchapter P, Part 200 - Children With Handicapping

Conditions) , to conduct a due process hearing upon the petition of OO (Child) , by his parents, LL and MM (Parents/Petitioners). The due process hearing was held and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. Section 1400 et seq. and its implementing regulations 34 C.F.R. section 300 et seq. and the New York State Education Law section 4404 et seq, and its implementing regulation 8 NYCRR section 200.5 et seq.

On April 24, 2017, I was appointed as Impartial Hearing Officer (IHO) by the Westhampton Beach Union Free School District to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 29 U.S.C. §1415(f)(1) and Part 200 of the Regulations of the New York State Commissioner of Education regarding the educational program of XX (OO). The case convened on June 15, 2017.

Two 30-day extensions were granted in this case. A schedule for post-hearing submissions was established. Additional documents were requested and forwarded, and the record closed

(except for receipt of briefs) on June 27, 2017, when parent requested materials were received. Briefs were submitted and the record closed on 8/1/17.

OO is a 14-year-old student (DOB classified as having an intellectual disability. As of June 22, 2017, the Westhampton Beach School District indicated it did not have an in-district program for OO for 2017-2018 and presently his pendency placement is home tutoring with related services provided to OO in the district. His parents, MM and LL

XX object to the district’s denial of their request to have OO educated full time in the district.

The Due Process Complaint Notice, dated and received by the district on April 12, 2017, was filed by MM and KK XX (MM, LL) . The case was identified in the state's Impartial Hearing Reporting System (IHRS) as . Appearing in this case for the district was Kevin Seaman, Esq. Mr.XX, father of OO and an attorney, represented the parents. On June 27, 2017, the district's Motion to Dismiss the Due Process Complaint was denied.

On June 1, 2017 a prehearing conference call was conducted. The parties participated in a pre hearing conference call and determined that an earlier request to consolidate the issues in conjunction with the 5/31/17 request from Attorney XX was acceptable and there being no objection, the consolidation was so ordered in accordance with Section 200.5(j)(3)(ii)(a). The order simply involved the addition of the 2017-2018 placement and program for OO.

It must be noted that prior to this IHO Hearing, there was an Impartial Hearing conducted by IHO Nancy Lederman. I think it is critical to review Lederman’s findings and rulings. Let’s examine the findings and rulings of the Lederman SRO Decision (SRO 1/26/17, pages 57 and 58) and I will provide a summary of the action tOOen by the district as a result of Lederman’s rulings (IN CAPS).

1. The Westhampton Beach School District shall enroll OO formally within the School District, and assume responsibility for convening a CSE and providing an appropriate placement for OO.

Action TOOen: THIS WAS ATTEMPTED BY THE CSE ON 1/20/17 WITH NO

DECISION MADE.

2. Within 10 days from the date of this Order, the district shall retain a qualified consultant on inclusion, with experience at the middle/high school level, to advise and report to the district on inclusion for OO at the middle school level.

Action TOOen: TWO CONSULTANTS WERE RETAINED, ONE CHOSEN BY

THE DISTRICT, VICTORIA REGAN, AND ONE CHOSEN BY THE PARENTS,

KATHLEEN FEELEY. IN GENERAL, OUTSIDE EXPERTS, SUCH AS FEELEY

AND REGAN, MAY WELL BE EXPERTS ABOUT THE TOPIC OF INCLUSION,

HOWEVER THE FOCUS IN THIS CASE WAS ON ELIGIBILITY AND

APPROPRIATENESS OF A PROGRAM FOR OO FOR WHICH THE SCHOOL

DISTRICT PROFESSIONAL STAFF HAVE AN EXPERTISE BASED ON BOTH

THEIR SPECIALIZATION AND THEIR FAMILIARITY WITH THE CHILD “IN

SITU”.

a. The consultant shall be charged to conduct a review of OO's educational record and examination of instructional programs and curricula available in

Westhampton Beach School District, to assess whether supplementary aids and supports would allow him to benefit from inclusion in any classes in the district, and to mOOe recommendations in accordance with the results of the review.

Action TOOen: BOTH CONSULTANTS APPEARED TO COMPLY WITH

THIS RULING. (See Exhibits J and L)

b. The consultant may also examine instructional programs in other districts, including Eastport-South Manor School District, to assess whether supplementary aids and supports would allow him to benefit from inclusion in available classes, and to mOOe recommendations in accordance with the results.

Action TOOen: BOTH CONSULTANTS APPEARED TO COMPLY WITH

THIS RULING. (See Exhibits J and L)

c. The consultant shall be retained for a reasonable time necessary to complete the review, and may be retained to assist in developing a plan to implement recommendations or other follow-up, including training for staff as may be needed.

Action TOOen: BOTH CONSULTANTS COMPLETED THEIR REVIEW

AND NEITHER ONE WAS RETAINED AS OF THE RECORD CLOSE

DATE OF THIS HEARING (8/1/17).

3. Within 10 days of receiving the consultant’s report, the district shall convene a CSE to develop an IEP and provide an appropriate placement for OO.

Action TOOen: NO CSE ACTION TOOEN AS OF 8/1/17

a. The CSE shall receive and consider the results of the report prepared by the consultant, as set forth in Paragraph 2 of this Order. The CSE shall invite the consultant to the meeting to report orally on the report's findings. The results and recommendations of the report shall be included on the child's IEP.

Action TOOen: BOTH CONSULTANTS APPEARED AT CSE MEETINGS

BUT THE IEP WAS NEVER FINALIZED AS OF 8/1/17.

b. Placement shall include a life skills program sufficient to address goals in

OO's IEP.

Action TOOen: PLACEMENT NEVER FINALIZED

c. To the extent inclusion in a general education or less restrictive self-contained class is not recommended by the CSE, placement for OO shall be in a class with students with similar needs. OO shall not be placed in a class with mostly non verbal students.

Action TOOen: PLACEMENT NEVER FINALIZED

d. If the district intends to place OO out of district, the CSE will invite to the CSE meeting representatives from the agency or district where it intends to place him, and discuss the child's needs and how the program will address them, which shall be entered on the child's IEP.

Action TOOen: PLACEMENT NEVER FINALIZED

Hearing Officer’s Hearing Summary

Dates of Hearing: 6/15/17, 6/16/17, 6/22/17 Date of Decision: 8/15/17 Student’s Name: OO

Address: DELETED, Remsenburg, N.Y. 11960

Most Recent Designation of Handicapping Condition: Intellectual Disability/Down Syndrome

Petitioner’s Name: LL and MM (for OO) Address: DELETED, Remsenburg, N.Y. 11960

Respondent’s Name: Westhampton Beach Union Free Schools Board of Education Address: Central Administration Building, 340 Mill Road, Westhampton Beach, N.Y. 11978

Issue/ Purpose of Hearing: To resolve the parents concern relative to Westhampton Beach Union Free School District providing an appropriate placement and program for OO in 2016-2017 and 2017-2018

Committee for Special Education Current Recommendation: Placement on Home Tutoring with all the appropriate related services required in his IEP provided either at home or in the WBSD (related services only). This is a pendency placement.

II Issues in the Case

The Due Process Complaint Notice in the case before the Westhampton Beach Union Free School District ( ) alleged that OO was being denied placement into the Westhampton Beach School District in violation of his right under IDEA to a free and appropriate education (FAPE), seeking as relief his enrollment and admission in the Westhampton Beach School District.

It must be noted that no one at this proceeding took exception to the classification of OO for the 2016-2017 and 2017-2018 school years. Placement was the only contested matter, but all felt that OO was being provided with the appropriate classification recommendations needed to address his disabilities. In the Parents’ brief they rely on IHO Lederman’s finding “The simple ruling here is that [WHB] is not required to create a program, but it is required to examine whether OO’s needs can be met within any district class with supplementary aids and services.” There appears to be ample proof of that process tOOing place for the planning of the 2017-2018 school year.

The case against Westhampton Beach in the consolidated claim challenged the recommendation made by the Westhampton Beach UFSD CSE for OO's program and placement outside the School District for the 2016-2017 and 2017-2018 school years. In addition the complaint claimed the district CSE Chairperson recommended an educational placement inconsistent with the CSE member consensus, the district CSE Chairperson recommended an educational placement within a more restrictive learning environment than necessary, the district CSE Chairperson recommended an educational placement without exploring the possibility of implementing OO’s IEP goals within district, the district CSE Chairperson recommended an educational placement she was not familiar with, the district CSE Chairperson recommended an educational placement that was not attended by a representative from such location, the integrity of the CSE was compromised by the attendance of two members who should have been removed for partiality. In the parents brief they state that (the plaintiff respectfully submits that absent an order directing WHB to timely provide the readily available special education and related services necessary to educate Aiden “within district”, WHB will simply continue to violate Aiden’s rights in perpetuity – or at least until he “ages out”.) (Brief page 7). This contention completely ignores the district CSE’s right to mOOe a placement determination and assumes incorrectly that the district has a program readily available which they have repeatedly indicated they do not have.

Furthermore in the parents’ brief (page 8) the plaintiff respectfully urges [the IHO] to render a decision that is consistent with the facts and the current law by issuing an order compelling

WHB to attempt in “good faith” to implement Aiden’s IEP goals “within district”.

Specifically, the plaintiff’s “prayer for relief” remains predicated upon the following three- fold reasoning: First, implementing Aiden’s IEP “within district” remains the least restrictive learning environment (LRLE); Second, implementing XX’s IEP “within district” remains entirely possible; and Third, absent an “order” compelling WHB to implement XX’s IEP “within district”, WHB will simply continue to defy its legal obligations. The parent arbitrarily assumes that the LRE is “within district” but the program they suggest is simply not the LRE for OO at this time. The contention that implementing OO’s IEP within district remains entirely possible was clearly disputed by numerous district witnesses and not well supported even by some parent witnesses. The parents’ contention that absent an order compelling WHB to implement OO’s IEP within the district, that WHB will continue to defy its legal obligations, is simply not supported by both case law and IDEA requirements.

I would be remiss if I did not note that I respect and sympathize with the parents efforts on behalf of their son and their desire to obtain the best possible treatment for OO, however, issuing warnings to CSE members prior to the June 20, 2017 CSE Meeting that “If you attend or participate in this illegally convened CSE meeting, you will undoubtedly become entangled in outstanding State and Federal litigation. As such, please tOOe measure of the foregoing advisement” was clearly NOT in their child’s best interests and resulted in key participants refusing to attend and thus preventing the CSE from finalizing a 2017-2018 placement decision. (Joint Exhibit AA)

III Findings of Fact

SRO Lederman provided a brief history of OO’s school experiences to date. She wrote: “OO is a 14-year-old child, classified as a student with an intellectual disability. OO, who has Down syndrome, attended elementary school in the Remsenburg-Speonk School District from kindergarten through grade 2. He was verbal, with echoing speech, and motivated by music and reading. He could decode words, but had a hard time understanding what they meant, and needed a lot of prompting and repetition. OO was an early reader, able to decode, but with more difficulty in comprehension, although the level of his understanding was not always clear due to fine motor issues that affected his articulation. Mathematics is very difficult for him, and his life skills program consisted of working on some basic life skills. In math, he struggled with basic foundation concepts. He had a lot of physical weOOness, with short stamina, and needed a one-to-one aide for toileting assistance, dressing with zippers and buttons, and holding onto crayons and using manipulatives in kindergarten. OO was enrolled in an 8:1:1 class in the Center Moriches School District in Grades 3 and 4. He returned to Remsenburg-Speonk in 5th grade (2013-2014) and 6th grade (2014- 2015). In 5th and 6th grade he received instruction in an integrated co-teaching (ICT) class, educated with disabled and non-disabled peers. He also received the support of a 1:1 aide, as well as related services of speech and language therapy, occupational therapy, and physical therapy.”

The Westhampton Beach School District receives students from four sending districts, Remsenburg-Speonk, Quogue, East Quogue, and East Moriches. The contract with Remsenburg- Speonk obligated Westhampton Beach School District to educate Remsenburg-Speonk students in grades 7 through 12 to the same degree that Westhampton Beach would educate its own resident students. Special education programs in the Westhampton Beach School District include integrated co-taught services and resource room in all three buildings. In the elementary school, there are currently two 8:1:l classes with students eligible for alternate assessment. In the middle school, there is a 15:1:1 class, and in the high school a 15:1 special class. For resident students whose needs are more intensive and for whom the district does not have an appropriate program to meet the student's needs, placement is typically sought in another School District, a BOCES program, an approved private school, a day school program, or a state operated school or residential program. In the 2016-2017 school year about 23 students were placed in other schools or programs; about half of those were students from sending School Districts.

From the start, the parents expressed their strong feeling that Westhampton Beach was their community, a theme voiced throughout many conversations, and that it was important that OO stay with the children with whom he had gone to school and maintained friendships as he transitioned out of elementary school as well as attend the school district that his siblings would be attending.

The parents' efforts were met with opposition, although with persistence they did eventually secure a meeting with the Board of Education and Michael Radday, the Superintendent. However, the district took the position that they simply did not have enough students in Westhampton to warrant creating a program to meet OO’s needs.

The CSE fashioned an appropriate program that included a life skills program focused on teaching self-care skills, independence skills, and vocational career skills.

Westhampton’s understanding of applicable law was that the district was obligated to enroll a student from the sending elementary schools "unless there's a valid and sufficient reason to not enroll the student." There was considerable misunderstanding among all parties about the obligation of Westhampton Beach concerning OO.

The refusal by Westhampton Beach to educate OO in-district was based on its belief that the district's 15:1:1 class was not an appropriate placement for OO in 2016-2017. Students in the 15:1:1 middle school program at Westhampton Beach are Regents diploma bound students who are studying Common Core and tOOing Regents classes with a slightly modified curriculum. They claimed it would not be appropriate for him to participate in the Regents traMM program in the district's middle school.

There is no life skills program at the middle school or high school level, as they have not had enough student population to develop such programs. The district took the position that "teaching a student one-on-one in the baMM of the classroom is not a program" and there would be nothing to he gained for OO in placing him at the high school for the 20172018 school year as the parents repeatedly demanded.

The parents' actions were based on their belief that community integration was paramount for OO. Mr. X testified at length about the importance of OO attending school in Westhampton Beach, stating that his success in the future is going to be predicated upon the friendships and networks developed in the community. Mr. X and Consultant Feeley testified about the benefits of community for OO, citing friends, parties, church attendance, restaurants, and sports teams.

The June 17, 2016 IEP for OO for the 2016-2017 school year provided a special class of 12:1:1 in English, math, science, social studies, career and vocation skills, learning lab, adaptive physical education, as well as individual speech language therapy and occupational therapy, and parent counseling and training. The IEP cited recommendations made at the May 24, 2016 review for the 12:l:1 class, with a focus on life skills/academics, and noted that the CSE considered "programs and/or services that are less restrictive (regular education with resource room, integrated co-taught classroom, or special class 15:1:1)" but these were rejected because of OO's current levels of performance, academic functioning, physical needs, and management needs, indicating a more intensive setting needed with the support of a 1:1 aide.

The IEP had 27 goals for OO in the 2016-2017 school year. The goals for 2016- 2017 were almost exactly the same, with some alteration, as the goals in OO's IEP for the 20152016 school year. Mr. X confirmed that there was nothing he objected to in the June 2016 IEP recommendation for program and services, and that the goals for OO were goals he needed to work on and accomplish. An IEP developed by Westhampton Beach CSE for OO in the 20162017 school year recommended an 8:1:1 program in Eastport--South Manor School District. The CSE meeting was contentious, and the concern was not about ratios of a placement, but the locale of the placement, which was the parents' biggest concern. The meeting addressed recommendations for placement, and the parents left abruptly when their concerns weren't being addressed. The parents objected to the recommendations of the Westhampton Beach CSE, and refused to send OO to Eastport-South Manor. The parents continued to refuse to send OO to Eastport-South Manor, even on an interim or pendency basis as an IHO hearing ensued. Their objection was based primarily on location, although they also disputed the appropriateness of an 8:1:1 placement. They also stated their objection to the class as being inappropriate due to the composition of nonverbal children, although their refusal to place him was clear at the CSE meeting and long before they had seen any profile of the class. The parents' objection was consistent again declaring any outside placement to be an inappropriate placement because it was not in their community.

The parents persisted in arguing multiple allegations of discrimination. As IHO I was asked by the parents to rule on monetary punitive damages which are unavailable in this forum. (Brief Page 30 “the plaintiff respectfully requests reimbursement for attorney fees, compensatory education, and any other equitable remedy deemed necessary to reconcile the harms suffered by OO to-date.”) The parents are free to pursue these claims elsewhere, but in considering the action before me, all references to discrimination are beyond the scope of this decision. My duty is to assess whether the district has offered a FAPE for OO, under IDEA, NY Education Law §4400 et seq., and federal and state regulations.

In the parents' post-hearing brief, there is no substantive description of OO or his special education needs, other than to describe him as a child with Down syndrome and to declare his placement in the Westhampton Beach district school as the only appropriate placement possible, citing numerous cases regarding inclusion and unwarranted outsourcing.(Parents’ Brief Pages 8,,9,10)

Assessment of OO's needs must include weighing the benefits that might accrue by attending school near to his home, as indicated by the preference in regulation for a child to attend school near to his home, against benefits only available out of the district. It was undisputed that the parents had no disagreement with the IEP goals and objectives. I note Mr. and Mrs. X's agreement with evaluations and goals on the Westhampton Beach IEPs other than location. Mr. X was adamant that nothing else was at issue, that for both school years he had no complaint about review of OO's goals, evaluations, discussions relevant to those goals and evaluations, and that his complaint focused on geographic placement. There was no real dispute about the type of program needed by OO.

Although the parents disputed whether a suitable program could only be addressed out of district, there was no real dispute with the type of program. The parties also agreed, at least in part, that the number of students in the class didn't matter, what mattered most for OO was the type of program. They agreed that implementation of OO's IEP would require the life skills curriculum for OO to develop activities of daily living skills.

PPS Director, Angela Austin, stressed the importance that a program not be created where a student was isolated if there were no other students with similar needs because students benefit from being in a class of like students so they can see models of the work they are doing. Also placing OO in a class with only nonverbal students would be an inappropriate action, depriving him of educational benefit. (Austin Depo pp 361-363)

Central to this case are the questions of whether the district has an obligation to create an in-district program for the child and whether the child’s parents have the right to demand the district create a program within the district. The parent argued that the requirement governing least restrictive environment required a comprehensive definition of inclusion that included the concept of community integration within a child's IEP, falsely assuming that this automatically entitles OO to placement in the Westhampton Beach School District.

The parties did not disagree on the size or structure of a program for OO. Thus the parties did not actually disagree about what constituted least restrictive environment for OO. Both Westhampton Beach and OO's parents expressed a willingness to accept placement in either a 12:1:1 or 8:1:1 setting, the parents, however, only agreeing if offered in-district. Again, the only bone of contention was in or out of the district. In fact, the parents argued in their brief that if OO was to have staff assigned providing basically 1:1 assistance regardless of the recommended program, it did not matter if he was the only student in a class at Westhampton Beach.

The focus of the parents' claim was exclusively on their argument concerning location, stressing the importance of community above all other factors in OO's success. Although much of their argument is based on general information about children with Down syndrome, and largely on speculation about how OO would react negatively if placed in another School District, the parents' concern for their child is unquestioned and their concerns for his welfare are genuine.

The implementation of OO’s IEP as requested by the parents cannot be accommodated as currently structured within the Westhampton Beach School District. The district does not have a 15:1 program other than the Regents traMM program, it does not have a 12:1:1 or an 8:1:1 program, and it does not have a life skills program at the appropriate level.

Unfortunately at the conclusion of the hearing the minutes of a CSE meeting of June 20, 2017 does not reflect any definitive action by that CSE toward recommending a 20172018 program and placement for OO. Although there was considerable discussion at that meeting about OO’s placement for 2017-2018, the committee failed to conclude with any specific placement decision. The parent, Ms. X, actually ended the meeting without the district objecting and to my knowledge there was no follow up meeting planned at the time that the record was closed on June 22, 2017. I have tOOen this unique and perplexing factor into account in my decision in this matter.

Clouding the matter further, in an attempt to comply with the Lederman IHO decision of 1/26/17, the district employed two consultants to carry out part of the IHO’s decision that “the district hire a qualified consultant on inclusion. The consultant was directed to examine programs both inside and outside the district for OO and mOOe recommendations in accordance with the results of the review”. In an attempt to assure impartiality the district chose one consultant and the parents chose another and predictably they both came up with opposing views on a program for OO in 2017-2018 leaving the sides at a stalemate and IHO Lederman’s intentions unfulfilled.

Consultant Kathleen Feeley, after conducting a thorough review, concluded that ”OO with supplementary aids and supports would benefit from inclusion in classes within the district and mOOe meaningful progress in the middle school that is a close to his home as possible, specifically the Westhampton Beach Middle School, the school he would have attended if he did not have a disability.” (Exhibit L page one). Unfortunately, Feeley failed to tOOe into account that the district had no students to place in such a setting with similar needs as OO and a far more appropriate setting was available in a nearby district. Victoria Regan’s consultant summary report (Exhibit J) reflected the extensive time expended by the former Brentwood UFSD Special Education Director. She reviewed district records pertaining to the student, observed OO within the in-district setting where related services were provided as well as in the home where the academic instruction was imparted, visited numerous district classes, and reviewed class profiles within the Westhampton Beach UFSD middle school as well as the Westhampton Beach high school, reviewed curricular materials, made a visitation to student classrooms in the Eastport South Manor School District, the Southampton UFSD, and the Hampton Bays UFSD. She reviewed the curriculum, content, and class profiles pertinent to those neighboring districts' programs as to the students actual status academically and socially. The final recommendation of Regan provided for OO’s placement in a neighboring school district that possessed a life skills program within a small class placement, allowing the student to be in a building with typical students in an instructional group with peers with similar needs. It provided him with a functional program that possessed strong transitional programs to the high school level, the supplementary aids and services as provided within OO's most recent IEP to be undertOOen in conjunction with a small group "life skills" program available not within the Westhampton Beach UFSD, but within the neighboring districts cited by the consultant. The consultant specifically found that the Westhampton Beach UFSD did not currently have available special education classes and instructional groupings that would be able to accommodate OO.

IV Conclusions of Law

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the School District during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended statute took effect for impartial hearings commenced on or after October 14, 2007 (see Application of the Bd. of Educ., Appeal No. 08-016).

In order to mOOe an appropriate recommendation, it is necessary to have adequate and sufficient evaluative information (Application of a Child with a Disability, Appeal No. 05-062; Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ., Appeal No. 02-008). When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed. An individual evaluation must include at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 (b)(1). Neither federal nor state regulations prescribe a particular set of tests which must be used in each evaluation (34 C.F.R.sect.300.532,8NYCRR 200.1)

The law requires that a child’s IEP include “a statement of the special education and related services and supplementary aids and services, based upon peer-reviewed research to the extent practicable to be provided to the child” 20 U.S.C. s 1414(d)(1)(A)(i)IV.

Under the IDEA and its implementing regulations an IEP must contain:

1. The student’s present levels of academic achievement and functional performance.

2. Measurable annual goals for the child.

3. The methods used to measure the student’s progress toward those goals.

4. The special education and related services that the IEP recommends.

5. An explanation of the extent to which the student will be educated with nondisabled peers.

6. The reasons for any alternate assessments.

7. The start date for recommended services, their duration, and their frequency. 20 USC s.1414(d)(1)(A); 8 NYCRR tit. 8 s. 200.4(d)(2).

Under IDEA all children with special needs are entitled to a free and appropriate public education (FAPE) and it must include special education and related services which meet the needs of the student and they must be reasonably calculated to enable the child to receive educational benefits. HendriMM Hudson CSD v Rowley (20 USC s1400(d)(1)(A). Nothing that the parents presented disputed the fact that the IEP offered OO in 2016-2017 and 2017-2018 met his needs and was reasonably calculated to enable him to receive educational benefits.

A FAPE has been defined as an education offered to a student when 1. A board of education complies with the procedural requirements set forth in the IDEA and 2. The IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (See Exhibit P). (again Rowley). The CSE now needs to adopt and implement the educational goals and objectives in the May 31, 2017 IEP in a setting outside the district that provides for a program that can best serve to meet OO’s needs with all the supplementary aides and services.

If procedural violations are alleged as set forth in the IDEA an IHO may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’s right to a FAPE (b) significantly impeded the parent's’ opportunity to participate in the decision mOOing process regarding the provision of a FAPE to the child or (c) caused a deprivation of educational benefits. 20 U.S.C. s1415(f)(3)(E0(ii). Reference in this decision is also made to the Least Restrictive Environment. The students’ recommended program must also be provided in the least restrictive environment. 20 U.S.C. s 1412(a)(5)(A). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled”. I did not see any indication of procedural violations, nor did I see any evidence of any violation of the parents’ rights to participate in the decision mOOing process.

The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (WalczOO, 142 F.3d at 132, quoting TuMMer 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; WalczOO, 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 WalczOO, 142 F.3d at 130 [citations omitted]; see 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 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 114 [2d Cir. 2008]. The IEP (Exhibit P) developed on 5/31/17 meets the requirements as set forth in the above decisions. It simply needs to be implemented in a setting that the CSE determines appropriate.

The parents’ claim that a FAPE was not offered to OO in the two years in question and that the Supreme Court decision in the Forest Grove Decision Forest Grove School District v T.A. 557 U.S. 230 (2009) entitles the parents to equitable considerations and are relevant in fashioning relief. Mr. X, however, falls short in proving that a FAPE was not offered by the WBUF School District in the 2017-2018 school year at issue. In fact, nothing offered by the parents substantiates a denial of FAPE by the School District other than speculative arguments against the recommendations of the CSE to place OO in an appropriate setting outside the School District. I find that the parents claim is not supported by equitable considerations. There is no evidence that the parents had a sincere interest in exploring options offered by the CSE and it can be inferred from their actions subsequent to and prior to each CSE meeting that the parents had no intention to accept the CSE recommendations unless the CSE agreed to in-district placement.

The principles of least restrictive environment apply to various self-contained placements across the continuum as well. The law recognizes the need to weigh the importance of providing an appropriate education and the benefits to be gained from services which cannot be obtained in a less restrictive setting. P. v. Newington Bd. of Ed., 546 F.3d 111 (2d Cir. 2008); RonMMer v. Walter, 700F.2d 1058 (6th,Cir. 1983), cert. denied 464 US 864,104 S.Ct.196.

School Districts are required to ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services. Under the law, however, placement does not mean a particular school, but rather a setting, such as regular classes, special education classes, and special schools. 34 CFR §300.115, 8 NYCRR §200.6. No federal or appellate court has recognized right to a neighborhood school assignment under the IDEA. Placement within the district, although a legitimate concern of parents that a child attend school with other neighborhood children, has been held to be a concern beyond the educational benefit inquiry made under IDEA. White v. Ascension Parish School Board, 343 F.3d 373 (2003); Lebron v. N. Penn Sch. Dist.; 769 F. Supp. 2d 788 (2011); see also Application of A Student with a Disability, Appeal No, 15-028, April 1, 2014.

Least restrictive environment for OO involves a procedural as well as a substantive review. “Case law regarding inclusion requires a demonstration by the district that programs and services could not be implemented within a regular education classroom with supplementary aids. Oberti v. Bd. of Educ. Borough of Clementon Sch. Dist., 995 F.2d 1204 (3d Cir·. 1993).” (Lederman SRO Decision Exhibit A p.52) The testimony of both Angela Austin and Victoria Regan demonstrated that programs and services could not be implemented within a regular educational classroom for OO.

“Although geographic proximity remains a factor that the district must consider, the district has authority to select the school site as long as it is educationally appropriate, and the district has fulfilled its legal obligations by considering placing the student in his neighborhood school before deciding to implement his IEP elsewhere. IDEA §601 et seq., 34 CFR §300.116(b)(3),(c). Lebron v. N. Penn Sch. Dist., 769 F. Supp. 2d 788(2011). See also Beth v. Van Clay, 282 F.3d 493 (2002).” (Lederman SRO Decision Exhibit A p.53) Westhampton Beach is not required to create a program, but it is required to examine whether OO's needs can be met within a district class with supplementary aids and services. I feel that they have tOOen on this examination and made a well informed determination.

V Order

It is the decision of this hearing officer as follows: After careful review of the record before me I am issuing a final decision. The issues originally before me have remained constant. The dispute centered around the appropriate placement and program for OO for two school years, 2016-2017 and 2017-2018.

The District has sustained its burden to demonstrate that it was fully prepared to provide a FAPE for the challenged school years. There is no reason to doubt that an improved level of progress would have resulted had OO attended the Westhampton Beach School District recommended out of district placement. The IHO finds that the District had both the intention and the resources to offer OO a FAPE for the 2016-2017 and 2017-2018 school years. In addition, the IHO finds that the parents preferred in district placement for OO is not the LRE. It does not, in fact, meet any of the established criteria as outlined for the Least Restrictive Environment. The IDEA requires all students with disabilities be moved to a more restrictive school setting when “the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily”. 20 U.S.C. 1412(a)(5)(A). The testimony and information produced in the record does not demonstrate any reasonable accommodation at WBUFSD could be made, nor how OO’s numerous academic deficits could be addressed within district. The record will also show ample proof of the need to address OO’s expressive and receptive language deficits and life skills goals and these were best met out of district.

OO’s inability to function in a mainstream setting has been well established and with the appropriate support system he likely would have continued to progress in the CSE recommended program in 2016-2017.

It is the decision of this Hearing Officer that the Westhampton Beach School District did, in fact, offer an appropriate program and placement for OO during the two years in question. The testimony from district witnesses was consistent in explaining the intentions of the district in addressing OO’s specific academic needs in each of the two years in contention. Even though the parents were adamant in disagreeing with the two contested IEP placements the program that was to be offered OO each of the two years as described by district personnel was appropriate and, in all likelihood, would have benefitted OO.

After carefully reviewing the entire record, I have determined that the district's recommended program and placement for the 2016-2017 and 2017-2018 school years were reasonably calculated to confer educational benefit and thus, offered the student a FAPE in the LRE. My decision was guided by my intention to apply the proper legal standard in determining whether OO was offered a FAPE in the LRE, including whether the Westhampton Beach School District complied with the procedural requirements in the IDEA and whether the recommended special education programs and services were reasonably calculated to confer educational benefit.

The parties are ordered to immediately complete the placement process for 2017- 2018 and the CSE will need to canvas out of district programs and offer the student an appropriate program that fulfills the requirements of the Draft IEP of 5/31/17 (Exhibit P). The parents’ insistence on an in-district program and placement are not a viable alternative for the 2017-2018 school year and should NOT be a consideration for placement by the CSE.

PLEASE TAKE NOTICE OF THE PARTIES RIGHT TO APPEAL AS DESCRIBED IN

THE ACCOMPANYING “FINALITY OF DECISION; APPEAL; IMPARTIAL REVIEW.

This decision rendered August 15, 2017.

_________________________

Impartial Hearing Officer

Dr. James A. Monk

APPENDIX A: WITNESSES

Angela Austin, Director, Pupil and Personnel Services, Westhampton Beach School District Victoria Regan, Inclusion Consultant assigned by the Westhampton Beach School District Kathleen Feeley, Inclusion Consultant assigned by the Westhampton Beach School District Eileen Tyznar, Consultant Advocate hired by the Parents KK XX, Mother of OO MM XX, Father of OO and Parent’s Attorney

APPENDIX B: EXHIBITS (Attached)