Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

___________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF PARENTS ON BEHALF OF THEIR CHILD.

AGAINST DECISION

CASE# 519171

REDACTED CENTRAL SCHOOL DISTRICT

___________________________ Overview This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The school district will be referred to as District, the parents as Parents and the student will be referred to as Student.

This case is about a student who can no longer safely remain in his educational setting. He has not been offered a new placement and has not received any academic instruction since beginning of the 2018-2019 school year. The Student’s behavioral difficulties began at the end of the 2016- 2017 school year and increased during the 2017-2018 school year. The Parents filed a complaint notice on October 5, 2018. On October 19, 2018, I issued an interim order for a remand to the CSE to expand the search for available state-approved, non-public schools including day and residential programs (Ex. IHO 1). On the same day, I issued a pendency order for 15 hours of home ABA; related services of individual speech and language therapy two times per week for 30 minutes; and individual occupational therapy one time per week for 30 minutes (Ex. IHO 2). A hearing was held on November 6, 2018 and November 30, 2018. During the hearing, the District presented three witnesses to defend their case: The Director of Special Education, the Behavior Autism Specialist, and the Special Education Coordinator for BOCES. The Parent testified on behalf of the Student.

An impartial hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of the Bd. of Educ., Appeal No. 04-017; Application of a Child with a Disability, Appeal No. 02-003; Application of the Bd. of Educ., Appeal No. 01-087). The Commissioner's Regulations provide that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination." (8 NYCRR 200.5[i][4][ii]). My decision follows. Parents’ Position In their complaint notice, dated October 5, 2018, the Parents stated that the Student was not receiving an education because of the District’s inability to find a program that could address the Student’s behavior. They also allege that the District failed to follow the behavior plan in the Student’s Individual Education Program (IEP). The Parents are seeking placement in a residential program for students with “level 3” autism that can manage the Student’s aggressive behavior. In the interim, the Parents are seeking 35 hours per week of autism education at home. (Ex. 1). District’s Position In their response, the District denied the claim that the Student is not receiving schooling because the District is providing 15 hours per week of home ABA, and speech and occupational therapy services. They also denied that they failed to follow the behavior plan in the IEP as the plan is not applicable because the Student is not in school. The District admits that they have not been able to place the Student in a 12:1:4 classroom, as recommended by the Committee on Special Education (CSE) or identify another program to address the Student’s needs. They assert the Parents are inappropriately advocating for an educational placement that violates the least restrictive environment. (Ex. 2). Student History At the time the complaint notice was filed, the Student was 13 years old. His classification is autism. (Ex. 19). The Student has a diagnosis of Autism, and Attention Deficit Hyperactivity Disorder (ADHD) – combined type (Ex. K). The Student is academically well below grade level in reading, math, and writing. He has many behaviors associated with autism, including significant noncompliant, acting out behavior including verbal and physical aggression, and significant delays in academic, language, and motor skills. (Ex. 19). The Student struggles with transitions, and perseveration on topics and on changes. (Ex. K). The Student presents with deficits with fine motor and visual motor skills, sensory and intellectual functioning (Ex. 8). The Student requires 24-hour per day, direct supervision. He is below the ^[1]st percentile on the Vineland III for activities of daily living (Ex. 3). In statements of substantial regression dated February 5, 2018, it was noted for both speech and language therapy and occupational therapy that after a break of three-five days, it takes one week for the Student to recoup skills. (Ex. 6, Ex. 7.) On the Weschler Intelligence Scale for children (WISC-V) the Student had a full scale IQ in the extremely low range; verbal comprehension, and fluid reasoning in the very low range; working memory and processing speed abilities in the extremely low range; and visual spatial abilities in the average range. (Ex. 16).

The District’s Program In the IEP, dated March 9, 2018, the CSE recommended a special class 12:1+ (3:1); individual speech and language therapy, individual occupational therapy, individual counseling, and group counseling. (Ex. 19). Given the forgoing escalation of dangerous behaviors and the fact that he was no longer permitted to attend the placement the IEP is clearly not appropriate given the Student’s current functioning. Notwithstanding my finding of a lack of FAPE (infra), the District did take measures to mitigate against the potential harm from the Student’s lack of placement. A Functional behavior Assessment (FBA), dated August 24, 2018 recommended 15 hours per week of individual Applied Behavior Analysis (ABA); eight hours per month of supervision of the ABA program by a Board-Certified Behavior Analyst (BCBA); four hours per month of parent consultation by a BCBA; and two hours per month of case management by a BCBA. (Ex. 33). A report on possible placements for the Student, dated September 2018 listed seven possible placement options. Two were not appropriate for the Student, one did not have any openings, and the others put him on their wait list. (Ex. 34). During the hearing, the Director of Special Education testified that she contacted agencies about placements in programs for students with autism, but none of the programs had an opening. (T. 166 – 171). The District is currently providing support for the Student’s behavior through home services by an agency, and related services, but is not providing an academic program. The Director of Special Education testified that BOCES was unable to find a tutor that specializes in autism (T. 199 – 200). At the time of the hearing, the District applied to four residential programs for the Student per IHO order (T. 210). Medical Opinions In a letter about the Student, dated September 9, 2018, by the Developmental/Behavioral Pediatrician, he wrote, “He has increasingly presented difficult and dangerous behaviors ranging from impulsivity and elopement to lack of understanding of personal space, anger, and aggression that is increasingly harder to predict and manage.” He wrote that he supports the Student attending a boarding school for autism and asked the CSE to also support this. (Ex. C). The Developmental/Behavioral Pediatrician wrote to the Intake Coordinator of an inpatient program in support of the Student’s application to the program in a letter dated September 11, 2018. He wrote, “[The Student] has become increasingly violent, despite ABA therapy, school intervention and significant medication.” (Ex. F). The Student’s Psychiatrist wrote a letter, dated October 23, 2018 in support of inpatient admission for the Student, describing his difficulties with dysregulation and aggression daily, and stating that the Student needed a “higher level of care” as soon as possible. (Ex. A). Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).1 A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). Procedural Standard

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.^[2]d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176.

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007. Substantive Standard

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).x

Analysis

The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the Complaint Notice. N.Y. Educ. Law §4404(1)(c); See, Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13- 200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also, L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

After listening to the testimony in this matter, I conclude that both parties have become frustrated by a common predicament. Namely, the inability to adapt to the Student who has undergone some intense changes in the last two years such that a convenient program and placement is not to be found. Although I sense that both parties are working diligently to resolve the issues presented, I find that the District has committed two procedural errors that require remediation. First, they became aware of the fact that the pre-existing placement and program was not available, but they failed to initiate new evaluations to assist in understanding the issues and guiding the CSE in adjusting the IEP. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Second, they have hesitated in reconvening the CSE. On the record before me I can not determine if these oversights were the cause of any educational deprivation or the denial of a FAPE, but the break in protocol did impact the Parent’s participation in a substantial manner and for that I find there was a denial of FAPE. Problems at School There is a pattern of an increase in the Student’s behavioral problems starting at the end of the 2016-2017 school year. In a progress report, the Student’s reading teacher for the 2016-2017 school year, dated June 22, 2017, wrote “Over the past quarter we have seen an increase in behaviors” (Ex. 24, p. 1, p. 2). In notes from speech, it states “Over the past quarter [the Student] perseverations have increased.” (Ex. 24, p. 5). Under social/emotional/behavior, it was noted “Over the past quarter, we have seen an increase in agitation and behaviors. [The Student] has had difficulty using his coping skills to help with this and requires maximum support.” (Ex., p. 9). A behavior intervention plan, dated December 9, 2017, noted an increase in physical aggression (Ex. 14). In a document on personal care aide planning by the Student’s teacher for the 2017 – 2018 school year, she described the need for a 1:1 aide because of physically aggressive behavior towards staff and other students that is triggered by changes to routine, anxiety and things not going the way the Student wants them to. She said that he needs 2:1 adult supervision if traveling in the community because of safety issues. (Ex. 10). In a letter to the Parents, dated May 4, 2018 from the Coordinator of Community Services for a respite program, she wrote that based on her observation of the Student and information about him, the program would not be able to accept the Student because of the staffing levels required for his safety (Ex. G). The Principal of the Learning Center where the Student attended school sent a letter to the Parents, dated June 5, 2018, asking that the Parents keep the Student home from school on the two days scheduled for field trips. She wrote, “Due to [The Student’s] unpredictable, extremely aggressive behavior, having him out of the building in a park setting would be unsafe.” (Ex. E). The Extended School Year (ESY) Principal sent a letter to the Parents, dated July 24, 2018 to inform them that the Student was suspended for pulling a fire alarm. She added that he also caused injury to many staff members and endangered himself (Ex. 22). In a progress report, dated June 28, 2018, it was noted that the Student had an increase in physical aggression (Ex. 23, p. 7, p8.) The Student began to hit other students that year as well as staff (Ex. 23, p. 8). The increase in aggressive behavior in the classroom began in February.… “We have noticed a change in that some of these behaviors can occur without a known trigger.” (Ex. 23, p. 8). The Student’s behavior worsened at the end of the school year. “This quarter, [the Student] has had a lot of difficulty in responding in a safe manner. He has had difficulty with not being able to be in charge of everything… as well as coping with even very small changes. He escalates quickly over very small things in response with hitting, kicking, swearing, headbutting, etc.… When reminded to use coping skills and given lots of opportunities to practice, he does not utilize them when upset.” (Ex. p. 8). In the summary of student progress for the summer program, dated August 8, 2018, the special education teacher noted similar concerns. She wrote “When [the Student] is in a good mood, he will follow directions with only 1 to 2 verbal prompts. When [the Student] is agitated over anything, it takes maximum verbal and physical prompts in order for him to follow directions and to keep the classroom safe. When he becomes upset or agitated, he responds to directions by aggressing towards staff (hitting, kicking, punching, scratching, etc.)… The way [the Student] responded when presented with a change was completely inconsistent and unpredictable. At times, he would go along with the change by responding in a safe manner. Other times, he would respond by yelling, screaming, hitting, kicking, bolting, etc. These behaviors could last anywhere from a couple minutes to upwards of an hour.… His behaviors were daily and unpredictable”. The Student was suspended twice that summer for pulling a fire alarm and for hitting a teacher in the face. (Ex. J). In the counseling summary from the ESY, dated August 13, 2018, the counselor wrote “He frequently required additional adult support and for the room to be cleared to keep his peers safe.” (Exp. J)

Need for Evaluative Materials and a Formal CSE Meeting The Director of Special Education testified that the Student was due for a re-evaluation in March 2019 (T. 194). In an apparent justification for the delay, she said the Parents did not request an evaluation of the Student in writing (T. 194 – 195). The Parent testified that he was told last year that the Student would be evaluated the following year. He said that he received a letter from the District requesting approval for an educational evaluation, signed it, and submitted it during the first week of September (T. 271). The District did order a functional behavioral assessment of the Student by the agency that is currently providing ABA services (Ex. 33). The Behavior Autism Specialist who conducted the FBA testified about that evaluation (T. 222 – 226, 229 – 231). I note that the parties appear to have a rapport that allows for cooperative efforts on behalf of the Student but the lack of formality that has developed in the relationship between the District personnel and the Parents may be a contributing factor in the failing efforts to place the Student.

For example, the Director of Special Education first testified that the District did not schedule a new CSE meeting because they received the hearing request (T. 186, 197). She later stated that at the end of August, “we were still anticipating that BOCES might take him back,” and learned he could not return to the program in September (T. 198 – 199). She said that the CSE was still looking for a small class “so it would really be just a change in location” (T. 199). Meanwhile the Parent testified that he did request an IEP meeting. (T. 311). Significant impedance of the Parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education

Again, the Parent was surprised that the Student was no longer accepted at BOCES. In fact an erroneous notice was sent to the Parents indicating the Student would remain. BOCES was communicating with the District and the District with BOCES but not with the Parents. The Special Education Coordinator for BOCES testified that she contacted the CSE by phone call, email, and a letter to the Director of Special Education in June 2018 to inform them that they could not provide a program for the Student (T. 246 – 247). The Director of Special Education testified that she learned that BOCES did not consider their program appropriate for the Student at the end of the summer program (T. 166). However, the Parent received a letter from the BOCES placement office, dated August 21, 2018 welcoming the Student for the 2018 – 2019 school year. (T. 284, Ex. D). The Parent stated that he did not know the Student was removed from the BOCES program until the hearing (T. 284 – 285). The Parent testified that because they were unaware that the Student was no longer part of the BOCES program, he told the District in June that the Student needed a new placement because BOCES was unsafe. He said they requested autism specific services for the Student and asked for placement in an agency program (T. 275 – 276). The Parent testified that at the end of August, his lawyer contacted the District to inform them that the Student could not go back to BOCES and needed a new program, but did not receive a response from the District (T. 285). The Parent testified that when he met with the school personnel and requested autism specific services in June, he did not ask for a residential placement. (T. 282). The Parent said that he and his wife looked for autism programs for the Student themselves, including residential placements and found that most of the residential programs on the New York State list of approved nonpublic school’s “are less restrictive than what my son needs.” T. 282 – 283). The Parents did not investigate schools that are not New York State approved (T. 288). The Parent testified that he would be happy if the Student was admitted into one of the two autism day agency programs that he considers appropriate. (T. 292). However, one program rejected the Student and during the hearing, the Parent learned that the Student is on a waiting list for the other program (T. 293, 294). The Parent testified that the Student could be safely transported on a bus to a day program in Erie or Niagara County, but he thinks that Rochester would be unsafe in the winter and too long a ride (T. 295 – 296). The Parent testified that “Residential is my only choice is a last resort for appropriate therapies to cope with his autism symptoms.” (T. 294). He added that he considers a residential placement appropriate if there is no local placement available, but prefers a local placement if it is appropriate (T. 298). Remedy I direct the District to 1) coordinate a comprehensive evaluation of the Student including a neuropsychological evaluation2 and upon its conclusion to reconvene a meeting of the CSE; 2) continue the expanded search for placement including the residential and day programs in all New York State Approved Schools. 3) to continue the existing pendency services per my order until such time that the CSE recommends and is able to implement a new program.

Dated: January 4, 2019

So Ordered

___________________________ Martin Kehoe, IHO consider an expanded search for a placement to a private school and present the District with a complaint notice for prospective funding. (see, Connors v. Mills, 34 F.Supp. 2d 795[N.D.N.Y. 1998]). Regarding the latter, I only suggest a complaint notice because I believe that is the express method for resolving a private placement. It is not my intention to promote needless litigation.

PLEASE TAKE NOTICE

The Parents and/or the District has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

Footnotes

[1] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.

[2] As we concluded the hearing process, I was aware that the Parent sought to amend the complaint notice to address a more comprehensive remedy. The amendment was opposed, and I denied the request. However, given the unusual circumstances of this case, and the mutual efforts of both the Parents and the District I offer two thoughts even though they are inconsistent with the District’s pleadings and are not mentioned in the complaint notice:1) When the CSE reconvenes to review the updated information, they may wish to consider if additional services can be recommended to address any possible regression from the lengthy absence of academic instruction, and 2) the Parent may wish to