Impartial Hearing Decision, No. 506568-20190415-sub-remand

********************************* * * * * * * * * * *

* In the Matter of The Appeal Of *

*

Mr. and Mrs.

* On Behalf Of *

*

*

* From Action Of *

*

The District

* *********************************

ON

THE REMANDED ISSUE IN THE ABOVE CAPTIONED MATTER

April 15, 2019

BACKROUND

This case began when the parents of [REDACTED] filed a Due Process Complaint Notice dated [REDACTED]. I was appointed impartial hearing officer shortly thereafter. Nineteen hearings were held, and hundreds of documents were entered into evidence. On December 14, 2018, I issued a decision. The District appealed my decision, and, on March 11, 2019, the State Review Officer issued a decision, finding that I had erred in my rationale for determining that the district had failed to offer a FAPE in the LRE to [REDACTED] for the 2016-2017 and 2017-2018 school years.

I had reached my decision based, primarily, on three issues:

1. The least restrictive environment;

2. The age range in [REDACTED]’s Life Skills Class;

3. The threat to [REDACTED]’s physical safety.

The SRO, noting that I had failed to render substantive determinations regarding the appropriateness of the student’s IEP, remanded this case to the me, stating: Among other issues, on remand the IHO should assess the evidence in the hearing record regarding the student’s progress or lack thereof and the appropriateness of the CSE’s recommendations to meet special education needs.

Upon remand, the IHO is strongly encouraged to conduct a prehearing conference for the purpose of clarifying the issues that remain outstanding.

Furthermore, it is left to the sound discretion of the IHO to determine whether additional evidence is required in order to make the necessary findings of fact and law relative to the outstanding issues and/or whether the parties should submit further evidence to otherwise fully develop the hearing record [SRO decisionpage 22].

On March 22, 2019, a prehearing teleconference was held with the attorneys for the parties and the SRO’s instructions were reviewed in detail. Both attorneys stated that they did not feel the need to submit additional evidence. I expressed the position that I could reach a decision on the evidence already on the record. The attorney for the district agreed to send me the transcripts, the exhibits and the closing statements. Based on the date when the district received its copy of the SRO’s decision, all parties agreed that the compliance date in this case is April 27, 2019.

In the interests of fully developing the record, I will briefly summarize my original decision. I will not include citations to exhibits and testimony. They will be found in my original decision. Following that, I will make a decision in accord with the SRO’s instructions.

1. Least Restrictive Environment

When I was led to the basement of the high school by school security following the directions of the attorneys, I was taken down two flights of stairs in the back of the building. Across from [REDACTED]’s classroom, room, were the boiler room and machine shops. Nearby was an Emergency Exit. There were no other classrooms on this level. Room [REDACTED] was completely isolated and segregated from all other students and classrooms. Section 200.6(a)(1) of the Rules and Regulations of the Commissioner of Education states that students with disabilities shall be provided with special education in the least restrictive environment. As I became more familiar with the high school layout, I soon realized that room [REDACTED] was, in fact, the most restrictive environment. To compound my concern, I discovered that [REDACTED]’s demographic study revealed that the enrollment in the high school had declined by 230 students from 2008, the year of its peak enrollment, when room [REDACTED] was used as the Life Skills class, to the date [REDACTED] entered the high school. Obviously, there was a great deal of empty space to move the [REDACTED]’s class upstairs to the classroom wings with other students who do not have disabilities, keeping in mind that, “The general education environment is considered the least restrictive environment because it is the placement in which there is the greatest measure of opportunity for proximity and communication with the ‘ordinary flow’ of students in the schools.”

For reasons never explained, the district, despite having more than ample space upstairs in the general education wings which would have placed [REDACTED] in the least restrictive environment, kept [REDACTED]’s class in the most remote, restrictive environment in the basement opposite the boiler room near a blocked Emergency Exit, isolated and segregated from all other classrooms, in violation of the spirit and the letter of both the IDEA and the Commissioner’s Rules and Regulation.

2. The Age Range in [REDACTED]’s Classroom

The age range in room [REDACTED] was seven years, from 14 to 21, twice the permissible range. The district justified this arrangement by arguing that contact with the younger students and the so-called “super seniors” was incidental, and that the older students were only in the same room with the 14-year-olds in the morning for 10 minutes of homeroom, before the first period, when attendance would be taken, announcements made, and other housekeeping activities took place. As soon as these were completed, the seniors left the classroom to other activities. At the end of the day, the district argued, the seniors returned only to be dismissed. There was only de minimus contact between the 14-year-old [REDACTED] and the seniors. There was no time for instruction to take place during the brief time when all the students were together. Dr. [REDACTED] testified that [REDACTED] would not to be in the classroom for instruction with the older students.

However, as the hearing continued, several statements by district witnesses were made which contradicted these statements and proved the opposite. Based on the testimony of two district witnesses, the younger and older students were instructed in the same room at the same time. Their contact was not de minimus.

Dr. [REDACTED] made several comments to that effect. In one, [REDACTED] explained that the 14-year-olds and the super seniors would receive instruction in different parts of the room. [REDACTED]’s teacher testified, explicitly, that the 14-year-olds and the super seniors were taught in the same classroom at the same time. This was justified, the district argued, because they were taught by different members of the teacher’s staff. No explanation was ever given as to how this instruction took place when [REDACTED] and the super seniors were together, allegedly, for only a brief moment. The district witnesses admitted that [REDACTED] and the super seniors were, in fact, instructed in the same room at the same time.

Section 200.6(h)(5) of the Commissioner’s Regulations is unambiguous. There is nothing in this regulation that could possibly be construed as permitting 14-year-olds and 21-year-olds to be instructed in the same classroom at the same time as long as they are taught by different members of the staff and in different parts of the classroom.

The District was in violation of the Commissioner’s Rules and Regulations.

3. [REDACTED]’s Physical Safety

When I was led to the basement of the [REDACTED] School by the school security, following the directions of the attorneys, I discovered that the Emergency Exit vestibule to the right of [REDACTED]’s classroom was filled with various building materials and equipment very, very similar to the objects shown in the photo of the hallway in front of [REDACTED]’s classroom at the beginning of the school year. I took my own photos to record what I had seen. Earlier, testimony had been given that, soon after school began, the parents saw that the hallway was blocked and complained to the superintendent who promised to clear the hallway immediately. It is not unreasonable to believe that the custodians did so by simply moving the obstacles from the hallway to the Emergency Exit vestibule.

When I arrived back at my office after the hearing had ended, I was so concerned about the exit being blocked, that I called a senior administrator in the District. I explained my concern about the safety of [REDACTED] and the other children in room. He agreed with me completely. We both concurred that an Emergency Exit, by its very nature, must be kept free of any obstacles at all times. We also agreed that, despite the proximity of the boiler room, the likelihood that a fire, explosion or other emergency would occur would be slim. However, if one occurred, a blocked Emergency Exit could lead to disastrous results. The safety of, [REDACTED]’s very life, would be put in jeopardy.

The administrator told me he would speak with the proper authorities the following morning and see that the exit was cleared immediately and kept clear. When I returned to the high school after some weeks for the next hearing, I followed my usual pattern, at noontime, of having lunch in the cafeteria and, then, going down to the basement to the faculty room next to the Emergency Exit to relax before the afternoon session. I looked into the vestibule and found, to my great disappointment, that the area was not cleared, and, in fact, new items had been added. As the year progressed, I found that the vestibule was so full that the custodians began using the hallway area in front of the vestibule for storage. Again, I took photos.

I have served as an impartial hearing officer for over thirty-five years and have conducted hearings in many schools throughout lower New York State. Having personally seen room [REDACTED] and the area surrounding it and considering the threat to the physical safety of [REDACTED] and her classmates, I am absolutely convinced that room [REDACTED] should not be used as a classroom for any students, special or general education.

Based on the above three issues, I found that the district did not provide [REDACTED] with FAPE in the least restrictive environment. The SRO rejected all three of my determinations and remanded the case to me to assess the evidence in the hearing record regarding the student’s progress or lack thereof and the appropriateness of the CSE’s recommendations to meet [REDACTED] special needs.

DECISION

As instructed, this decision will be limited solely to the remand issues raised by the SRO, i.e. the student’s progress or lack thereof, and the appropriateness of the CSE’s recommendations to meet [REDACTED] special education needs.

Statement of Facts

Parents’ Position

The parents argued that the district failed to provide [REDACTED] with a free and appropriate public education (FAPE) in the least restrictive environment for the years in question. Further, the parents alleged that the district failed to meet its obligation to consider the needs of the whole child and develop an appropriate IEP unique to [REDACTED]’s learning needs which would enable [REDACTED] to make progress in light of [REDACTED] circumstances.

District’s Position

The district argued that the IEPs developed for [REDACTED] for the 2016-2017 and 2017-2018 school years were appropriate and in compliance with substantive requirements of IDEA. Further, the district argued that [REDACTED] “made progress in grade in reading, writing, and math” [D - 44, pages 2, 3-4, 7].

Note: District exhibits are referred to as D-_; Parents’ exhibits are referred to as P-_; Transcripts are identified by page number, i.e. T-. There is only one IHO exhibit.

Witnesses

The first witness to appear in these lengthy hearings was [REDACTED], who was [REDACTED]’s teacher from [REDACTED] through [REDACTED] grade. [REDACTED] came across as a dedicated teacher who was knowledgeable and organized. She was credible and communicated clearly.

From her testimony, it was clear that [REDACTED] used a variety of creative teaching techniques. When I visited her classroom, as directed by the attorneys, I was impressed by her warm, inviting manner. Her classroom was alive with a wide range of instructional activities with students actively engaged.

Reading [REDACTED] testified that in [REDACTED] grade, [REDACTED] worked on materials up to a fourth-grade level and in seventh grade, [REDACTED] worked on materials up to a fifth-grade level [T-260-61]. In [REDACTED] grade, [REDACTED] administered the “Diagnostic Reading Inventory,” and reported that [REDACTED] scored at the fourth-grade instructional level [D-5. p.5]. By the end of eighth grade, [REDACTED] could read at an approximately third grade independent level and a “guided” fifth grade level [T-274, 307]. In January 2016, [REDACTED] tested [REDACTED]’s reading comprehension, using the “I-Ready” program [T-276], and reported that [REDACTED] performed “more than one level below” expectations in the areas of phonics, vocabulary and comprehension [D-28, T-145; D-8, p.8].

Writing [REDACTED] wrote that, by the end of [REDACTED] grade, [REDACTED] could write a paragraph that included a topic sentence, supporting details, and a closing sentence “with some support” [D-5, p.5]. Further, [REDACTED] testified that by the end of [REDACTED] grade, [REDACTED] could write complete sentences independently [T-270]. With the help of graphic organizers and teacher support, [REDACTED] learned to write three-paragraph information texts after reading books and taking notes as [REDACTED] read; and learned how to write a first-person narrative using the main character [D-44, p.2]. [REDACTED] also improved [REDACTED] descriptive writing, worked on Improving [REDACTED] ability to recall more details when comparing and contrasting different characters and “was able to discuss cause and effect relationships after reading non-fiction articles” [D-44, p.3]. [REDACTED] testified that [REDACTED] was “progressing satisfactorily” but with “maximum assistance” [D-44, p.2-3].

Math [REDACTED] testified wrote that, at the end of [REDACTED] grade, [REDACTED] learned math concept skills, but required visuals and teacher assistance to execute math tasks [D-5, p.5]. [REDACTED] learned how to read and write numbers in the thousands, and, with visual support, learned how to “identify value and place value of digits up to a million; and developed the ability to “multiply two by one digit numbers independently using a fact chart, multiply three by one digit numbers with visual and verbal cues…using a fact chart [and] use a calculator to check [REDACTED] work independently” [D-44, pp.3,4]. In [REDACTED] grade, [REDACTED] administered the “I-Ready” assessment which showed that [REDACTED] performed “well below average” [T-146].

Speech

In the area of speech, [REDACTED] achieved three of [REDACTED] for annual goals, including improving [REDACTED] ability to formulate grammatically correct sentences by selecting the appropriate conjunction from a work bank, and to summarize a non-fiction article, formulate comprehensive definitions by using a graphic organizer [D44, p.5].

[REDACTED] testified that, by the time [REDACTED] was in [REDACTED] grade: just grew into this really confident learner. [REDACTED] started to understand [REDACTED] strengths, [REDACTED] skills, [REDACTED] was more prepared for learning. When it was time to do any type of activity, [REDACTED] would make sure [REDACTED] had everything available to … [ was able to read longer texts, stamina increased, ability to say focused and on a task longer [T-pp. 46-48].

Other District Witnesses

Following [REDACTED], the district called [REDACTED], [REDACTED]’s grade teacher, [REDACTED], the district’s [REDACTED], the [REDACTED] and [REDCATED]. Each of them testified as to the role each played in the education of [REDACTED].

To support the parents’ position, both parents testified as well as two staff members from, i.e. [REDACTED] Two witnesses from the [REDACTED] also testified, i.e. [REDACTED] and [REDACTED].

Failure of the CSE

Based on the evidence and testimony in this case, I believe that the district failed to meet its responsibilities in that it prepared IEPs that were inconsistent and contradictory, containing goals and objectives that were highly questionable. [REDACTED] showed a lack of progress, and, in fact, district witnesses noted that, in some areas, [REDACTED] actually regressed. The record in this case provides a number of examples of the CSE’s failure and [REDACTED]’s lack of progress.

Discrepancies

The most glaring discrepancies in this case were revealed when planning at the end of [REDACTED] grade for the forthcoming year began and the [REDACTED] school year unfolded. [REDACTED] ’s parents became more and more concerned about [REDACTED]’s progress. The district vaguely reassured them, noting that [REDACTED] and [REDACTED] felt [REDACTED] was “making progress, although inconsistently” [T-p. 467, p. 817]. Overall, the staff reached the conclusion that progress towards [REDACTED]’s academic goals was mixed during the time [REDACTED] spent in high school, but [REDACTED] demonstrated some important success [P-SSSS, pp. 2, 10].

The parents disagreed with the conclusion that [REDACTED] demonstrated some important success and was making progress. They pointed out significant discrepancies in [REDACTED]’s IEPs. The parents claimed that the district’s CSE failed to monitor [REDACTED]’s progress and offered [REDACTED] the same inappropriate special education program from year to year. Specifically, they pointed out (and the SRO noted in his decision-pp. 21-22), the discrepancies between [REDACTED]’s academic abilities as reported by [REDACTED] in June 2016 and reflected in the November 2016 IEP as examples of the district’s failure to monitor [REDACTED] ’s performance and adjust program accordingly. In [REDACTED], the [REDACTED] reading assessment showed reading in the [REDACTED] level. [REDACTED]’s report in [REDACTED] indicated that [REDACTED] was reading up to a [REDACTED] -grade level with support. The IEP present levels of performance showed that [REDACTED] was reading at the [REDACTED] grade level [D-13, p.10; D23, p.8; T-p.48] No logical explanation was offered to clear up these obvious discrepancies. [REDACTED] appeared to be regressing.

In math, there were similar discrepancies which were pointed out by the parents and noted by the SRO. The example given notes that, “In June 2016, the IEP present level of performance indicated that [REDACTED] could add multi-digit numbers with regrouping using a number line and mental math, subtract with regrouping using graph paper and, with verbal cues, multiply double-digit numbers by a single digit, and divide single digit numbers using a fact sheet” [D-8, p. 9]. In contrast, “The November 2016 IEP present levels of math performance indicated that [REDACTED]’s math skills were in the kindergarten to first grade range, and that regression was noted in [REDACTED] basic math skills” [D-13, p. 9]. Instead of making progress, [REDACTED] appeared to be regressing.

The record in this case does not show that the members of the CSE team even recognized these discrepancies or devised new approaches to deal with [REDACTED]’s lack of progress. There was no attempt to explain what had happened or to reconcile these discrepancies with the truth. Either the members of the CSE team didn’t notice the glaring discrepancies in [redacted]’s IEPs, or they chose to ignore them. Either way, they failed in their responsibilities. It appears that the CSE, as it did with other issues, simply ignored reality.

Rather than looking like a bright, hopeful road map to success, the IEPs, with their discrepancies, began to resemble a jumble of inconsistency and contradictions.

Lack of Progress

The parents claim the CSE was not monitoring [REDACTED]’s progress or lack of progress and failed to make proper adjustments in the IEPs. They felt that the district was not telling them the truth. [REDACTED]’s father testified that he felt misled about [REDACTED]’s progress after the [REDACTED] evaluation: [W]e felt we were lied to. The things weren’t adding up for us, so the private testing was telling us that [REDACTED] was scoring very low… really [REDACTED] scores put [REDACTED] in the range of a first or second grade level for those skills… [W]e were comparing and contrasting to what was telling us in the CSE meeting… [I]t just seemed in direct opposition of [what] we were told our [REDACTED] was at… [T-1541].

Documentation

During these hearings, there were a number of district witnesses who admitted, directly or indirectly, that they did not have the necessary documentation needed to fulfill their roles as members of the CSE and make valid and reliable recommendations in their area of expertise.

In one of the more surprising moments during these many hearings, [REDACTED], when asked about documentation to support her recommendations to the CSE team, testified that she did not retain any data, notes, or other documentation which could be used to demonstrate [REDACTED]’s ability in relation to [REDACTED] IEP goals and objectives [T-p. 3133-34]. Rather defiantly, she testified that she was not required to retain records or notes of work with any student [T-3133-34, 3164]. Later in her testimony, she appeared to be “walking back” her statements by saying she had “some” records, producing her handwritten notes regarding sessions with [REDACTED] [P-G8 -p. 7; T-3149-3168]. Upon examination, the notes simply reflected meeting with week-to-week, without any information relating to [REDACTED] working on [REDACTED] goals and objectives.

[REDACTED] admitted that she did not collect formal data on [REDACTED]’s writing progress, and had “only notes to myself on how [REDACTED] was doing with school” [T-957]. Despite the lack of data, [REDACTED] revised [REDACTED]’s writing goal, lowering the requirement to one paragraph and reducing the mastery criteria [compare D-11, p.16, Goal 18 to D-13, p.2, Goal 14]. Without formal documentation, [REDACTED] wrote, on the [REDACTED] Progress Report, that [REDACTED] was “progressing inconsistently” in writing [(Writing Goal from the 11/14/2016 IEP, D-13; PR4 - p. 2-3; T-952].

The testimony of [REDACTED], the district’s [REDACTED], also revealed a lack of documentation and was not always consistent. On cross-examination, she was unable to confirm that she created any therapy notes for [REDACTED]’s group sessions [T-489]. When she was shown an exit ticket, she admitted that it did not identify any specific cards or objects [T-482]. On other aspects of her services, she would make a claim and then reverse herself. Nevertheless, she continued to insist that [REDACTED] perform on the [REDACTED]’s terms even though she admitted [REDACTED] regressed.

How could these service providers offer in-put into the development of goals and objectives that were valid and reliable when they lacked the required documentation? What is equally unsettling is, “Why did the parents’ attorney have to uncover the disturbing information?” Why didn’t the CSE team monitor [REDACTED]’s progress or lack of progress and the in-put of [REDACTED] service providers so that this issue could have been resolved before the IEPs were developed?

It is not a surprise that [REDACTED]’s IEPs were becoming an undocumented, inconsistent hodge podge rather than a critical legal document based on factual, substantiated data.

Grade Speech and Language Services

According to the “Meeting Information” section of the IEP developed at the CSE meeting on [REDACTED], [REDACTED],’s private [REDACTED], expressed concern about “goals for decoding and implementation of Wilson reading” [D-8, p. 2]. She stated, “she could administer the Wilson Assessment for Decoding and Encoding (WADE) and would suggest goals for district consideration, including the appropriate method to instruct the student in order to achieve any agreed-upon goals” [D-8, P. 2]. In fact, she did administer the WADE during the summer of 2016. The parents provided the results to the district; however, the district did not adopt or implement [REDACTED]’s recommended IEP goals [T-2143-45]. She testified, at the hearing, to her impression that the district “really did not want my opinion” [T-p. 2147]. She understood that the district chose to use “[REDACTED]” with which she had concerns. The system is automated on a computer. [REDACTED] had testified that [REDACTED] struggled with the computer-based program and [REDACTED] ability to maintain attention [T – pp. 862-866]. [REDACTED] testified that [REDACTED] needed to have someone guide [REDACTED] and collect data about the number of prompts [[T-2148]. Despite the warnings, the CSE adopted “[REDACTED.” One of the reasons that this program turned out to be ineffective was revealed at the 11/14/16 CSE meeting when it was noted that the program microphone had been broken and was not functioning properly [D-26, p.1].

Prompts

Another reason the goals and objectives as listed in the IEPs cause concern is the issue of “prompts.” [REDACTED], who came across as an experienced, competent professional, was asked to look at various goals in D-3 and give her opinion as to whether it was appropriate for [REDACTED] to receive “prompting and support” in working towards those goals. [REDACTED] testified that the goals presented at the CSE meeting on [REDACTED] could not be deemed appropriate because the goals did not state the level of prompting and support expected of the [REDACTED] grade teacher [D-8, p. 15, Goals 14, 15, and 16; T- pp. 1905-07]. Asked repeatedly, her consistent response was that she could not agree because “she didn’t know what prompting and support looked like in the context of the question” [T- pp. 1905-06]. There was nothing in the IEP to guide a service provider in interpreting “prompts and support,” i.e. the nature of the prompts, to what extent should they be given, how many should be given, keeping record of the number of times they were used, etc.

The parents again expressed their concerns about the appropriateness of the IEP goals, including their repetitive nature, the low mastery criteria, and concerns that the goals were not data driven [T-pp. 1547, 1549-50].

Evidence-based Instruction [REDACTED]’s parents had repeatedly requested, to no avail, that the CSE provide [REDACTED] with an evidence-based curriculum to meet [REDACTED]’s unique needs. At one point, members of the staff met with the CSE and recommended that the district implement “an evidence-based intervention program” such as “Visualizing and Verbalizing” or “Wilson” [D-23, p. 14, 15; D-8, p. 2]. At one our hearings, [REDACTED] explained these programs in detail.

As the IHO, I had an opportunity to gain a hands-on understanding of evidence[REDACTED] based learning and the Visualizing and Verbalizing program, in particular. I was most impressed. The program seemed well thought-out, creative, and appropriate for [REDACTED]. The reception for these programs at the CSE meeting did not go as well. The team members listened to [REDACTED]’s presentation, did not discuss it, and simply moved on to another issue [T- p. 1546]. The [REDACTED] IEP does not state any recommendation that the district implement any evidence-based academic curriculum [D-8].

The parents persisted but the district rejected both the Visualizing and Verbalizing program and the Wilson program. Instead, the CSE proposed a program called “[REDACTED].” That system eventually broke down and was not functioning. The best [REDACTED] could offer about [REDACTED] ’s progress using this System was that [REDACTED] did not make consistent progress [T-p. 817]. The [REDACTED] went on to use the “Visualizing and Verbalizing” program successfully with [REDACTED].

2017-2018 School Year

Despite the contradictions, discrepancies and highly questionable goals and objectives, the CSE met [REDACTED] to plan for the [REDACTED] school year and adopted what amounts to the same failed IEP of the year before. For example, the district recommended continuing all of the academic IEP goals from the [REDACTED] IEP [D-13, D-17]. The CSE reconvened on [REDACTED] to conduct a program review [[T-p. 1977]. Although the IEP Comments section states that the [REDACTED] district would update [REDACTED]’s IEP to “reflect the new information gathered’ at the CSE meeting, the CSE failed to revise any of [REDACTED]’s PLEPs and failed to make any changes to [REDACTED]’s IEP [T- p. 1977].

Blame

The parents claim that “the district referred to [REDACTED]’s intellectual disability over fifty times during this proceeding as an excuse for its failure to provide with an appropriate program that would allow [REDACTED] to make meaningful progress” [Parents’ Brief p. 1].

I cannot agree with that statement because I did not keep count. What I can say is that the district, from the outset of the nineteen hearings, gave the strong impression that, if a CSE program failed or a CSE member found that [REDACTED] showed no progress or, in fact, regression, it was [REDACTED]’s fault.

For example, the district argued that it gave [REDACTED] an opportunity to interact with her peers in the “Teen Peer Lunch” program [P- J3, page 2]. What the district failed to say is that, after a couple of meetings, [REDACTED] did not want to attend anymore because [REDACTED] was nervous and uncomfortable [T- p. 975]. When this program failed, the record shows that the CSE offered nothing in its place. From the testimony, it appeared as if the district felt it gave [REDACTED] an opportunity and, since [REDACTED] failed to take advantage of it, it was [REDACTED] fault. The district had fulfilled its responsibility. That attitude seemed to permeate the district’s approach throughout these hearings when [REDACTED] failed to make progress or regressed. As the hearing officer, I seldom had the impression that the district accepted its responsibility to develop new and innovative strategies to meet [REDACTED]’s unique needs. The district did make cosmetic changes, but any significant changes in the IEPs came about because of the pressure from the parents and the professionals they hired.

Placing blame is not the job of the CSE. The members of the CSE have no legal or moral authority to give up on [REDACTED] or any other child in their care. Their responsibility is to provide [REDACTED] with a free and appropriate public education in the least restrictive environment. The evidence and testimony prove that the CSE failed to meet its responsibilities for the [REDACTED] and [REDACTED] school years.

Peer Relationships

In the area of “Social/Emotional/Behavioral Goals,” one of [REDACTED]’s goals was, [REDACTED] will communicate and interact in a positive manner with [REDACTED] peers” [T- p. 3176]. Developing positive, healthy relationships with peers is important for all children, general and special education. In [REDACTED]’s case, it is particularly important considering [REDACTED] history of poor interpersonal relationships. In my opinion, the CSE failed to devise appropriate, measurable goals and objectives to help [REDACTED] in this area. I base my opinion on the following:

1. [REDACTED] testified that she had six students in her class, three of whom were “super seniors” and three were ninth graders [T-p. 773].

2. The older students were in class for a brief homeroom period, after which they left the room, only to return at the end of the day for dismissal. Of the three ninth graders remaining in the classroom, one moved out of the district at the beginning of the school year while a second left the classroom at 9:30 AM to attend a culinary program for virtually the entire day [T- p.180].

3. From that point on, [REDACTED] was the only student [REDACTED] was working with [T- p.181]

4. [REDACTED] testified that she worked with for six periods a day [T - p.773].

5. The only other people in the room, during this time, were the assistant to [REDACTED] and an aide [T- 775].

6. [REDACTED]left the classroom for lunch and, on certain scheduled days, for physical education or art where [REDACTED] was with general education students.

7. However, for the majority of the school day, every day, [REDACTED] was confined to room [REDACTED], by herself, with three adults.

Based on the evidence and testimony in this case, particularly the statements made by district witnesses, and my own observation, I think it would be fair to say that, despite more than ample room upstairs in the classroom wings of the high school, the CSE placed [REDACTED] in a room in the basement of the school, opposite the boiler room and near a blocked Emergency Exit, the most remote, most restrictive environment in the high school, isolated and segregated from all other classrooms, and, in that room, [REDACTED] was alone with three adults, isolated and segregated from all other students, both general education and special education, for the majority of the school day, day after day, week after week, month after month.

How could the CSE team members expect [REDACTED] to meet this goal and develop healthy, positive relationships with [REDACTED] peers when [REDACTED] was confined for the majority of the day alone in a room with three adults? If the excuse members of the CSE give is that they did not know about this isolation and segregation, they are confirming the parents claim that the CSE failed to monitor [REDACTED]’s progress or lack of progress. If the CSE team members did know this was going on and just ignored it, they have failed to fulfil their responsibilities in this critical area of peer relationships.

One of [REDACTED]’s other annual goals was to “display knowledge of social customs/mores and apply them to three daily life situations” [D-8, p.14]. What chance did [REDACTED] have to even begin to apply them to “three daily life situations,” when, for most of [REDACTED] daily life at school, [REDACTED] was confined to a single room with three adults and no other students?

Amazingly, when [REDACTED] was explaining why she changed this goal for [REDACTED], she testified, “[REDACTED] spent a lot of [REDACTED] time with peers and we were trying to help [REDACTED] become more social in that – those situations” [T-3175]. Obviously, [REDACTED] did not know that, in truth, [REDACTED] had little opportunity to spend time with peers and, in fact, spent most of time alone in a room with three adults and no peers. What is more disturbing is that, based on the record, not one team member of the CSE questioned the absurdity of [REDACTED]’s justification for changing [REDACTED]’s goal. Once again, it appears it was just ignored.

The parents reported that “[REDACTED] became anxious, unhappy, and expressed feeling like a failure over the course of the fall of the ninth-grade school year” [Parents’ Brief -p. 4]. It is not surprising that the parents took [REDACTED] out of this abnormal, unhealthy situation and placed [REDACTED] in a private school, where, according to all reports, [REDACTED] is happy and having success academically.

[REDACTED]’s father testified that:

[REDACTED] did a 180 in terms of a young adult. [REDACTED] is extremely happy, [REDACTED] enjoys going to school. [REDACTED] whole demeanor has changed, [REDACTED] posture, [REDACTED] confidence, [REDACTED] ability to advocate for [REDACTED] self. The ability to feel successful in your environment, it’s can do and not that you can’t. [REDACTED] is made to feel engaged. They look for solutions, and so if we reach a point when we struggle in any learning modality, the come up with options and work with us on what those could be to change [REDACTED] learning and adapt to [REDACTED] learning style. They have been – it’s an adaptive environment. is – [REDACTED] has adapted well… It’s just a very warm environment, there is – they have art, they have music, they have a music room where kids can write their own music, they have a sculpture room that overlooks the water. In addition, [REDACTED] has really –they fostered [REDACTED] creative abilities, so [REDACTED] is a budding artist and [REDACTED] loves to draw and [REDACTED] techniques have improved immensely and [REDACTED] really responds to that as a creative output. [REDACTED] is doing well, [REDACTED] has a full curriculum. So, in the past, when we asked for history and science, [REDACTED] has history, science and math, English and language arts. In addition, [REDACTED] receives in-school therapy twice a week for the visualization and verbalization program I talked about earlier. [REDACTED] is just again –then [REDACTED] has made friends in the environment because they have a social area that’s called social homework café where all the kids hang out and do their homework. [REDACTED] has the ability to make friends and has made friends. They do social events which is another thing that we struggled with here in terms of notice or – but there they have movie nights, they go bowling, they have parties, kids get to participate and do karaoke night. So, it’s a very interactive and engaging environment [REDACTED] has responded to and is happy” [T-1643-45].

[REDACTED], from the [REDACTED], was reported as stating that [REDACTED] “has progressed immensely in a short period of time. He noted that [REDACTED] skills in math have increased especially” [D-19- p.

1]

The success [REDACTED] is enjoying at the [REDACTED] is further evidence that the district failed to meet its obligations.

SUMMARY

In my opinion, the district’s CSE did a disservice to [REDACTED] and her parents. The IEPs it developed towards the end of the [REDACTED] school year and throughout the [REDACTED] school year were a Hodge podge of blatant discrepancies, contradictions, inconsistencies and highly questionable measurable goals and objectives. showed a lack of progress in critical areas and, in fact, regressed.

CONCLUSION

In my original decision, I found for the parents without assessing the appropriateness of the IEPs, as explained at the beginning of this decision. Now, having completed an examination of student’s progress or lack of progress and the appropriateness of the CSE recommendations to meet [REDACTED]’s unique needs, I can confirm my original decision.

Based on the evidence and testimony in this case, I find that the School District failed to provide [REDACTED] a free and appropriate public education in the least restrictive environment.

As I stated in my original decision, I further find:

1. The [REDACTED] is an appropriate placement for [REACTED];

2. The equities support the parent;

3. The district is ordered to reimburse the parents for tuition and r]elated expenses for [REDACTED]’s placement at [REDACTED] from [REDACTED] through the [REDACTED] school year and subsequent (years limited by graduation or age twenty-one) necessary to bring [REDACTED] to the functioning level [REDACTED] would have achieved had the district provided appropriate services and supports.

SO ORDERED THIS FIFTHTEENTH DAY OF APRIL 2019

Arthur J. Venezia, Ed.D.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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.