NY IHO #524371-20191226: Rhinebeck...

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THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the Parent and Guardian of {},

Petitioner,

Hearing Officer: Michael Lazan v.

Case No: 524371 [REDACTED] CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving a [REDACTED] who has been determined to be eligible for services as a student with Other Health Impairment. A due process complaint (“Complaint”)

was received by Rhinebeck Central School District (“Respondent” or “Rhinebeck” or “District”)

pursuant to the Individuals with Disabilities Education Act (“IDEA”) on March 21, 2019 in regard to the Student. This Hearing Officer was appointed to preside over this case on March 22, 2019. On March 28, 2019, this Hearing Officer held a prehearing conference.

[REDACTED], Esq., counsel for parents, appeared. [REDACTED], Esq., counsel for the District, appeared. An order clarifying the issues in the case was issued on June 19, 2019 (IHO Exh. 1). A motion to dismiss by the District was denied on June 24, 2019 (IHO Exh. 2).

The matter proceeded to hearing on: June 19, 2019; June 27, 2019; July 22, 2019; July 23, 2019; September 5, 2019; and September 6, 2019. The names of witnesses and a description of the documents in evidence are referenced in the transcript. Because of the extensiveness of the testimony and issues in this case, because of witness availability, to allow the parties to write briefs (IHO Exhs. 3, 4) and to allow this IHO to write this decision, multiple timelines extensions were granted here. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 5). .

ISSUES

1. Did the IEPs that were in effect during the 2015-2016, 2016-2017, 2017-2018, and 2018-2019 school years deny the Student a FAPE?

Petitioner contended that the IEPs: 1) were not based on sufficient evaluations and/or did not contain accurate and/or sufficient “Present Levels of Performance;” 2) did not provide sufficient goals in regard to reading, keyboarding/writing skills, fluid reasoning issues, memory issues, and attentional issues; 3) did not provide sufficient intervention to address the Student’s school avoidance issues; 4) did not provide sufficient services to address the Student’s keyboarding/writing skills; and 5) did not provide sufficient services to address the Student’s counseling needs.

2. Did Respondent fail to sufficiently assess the Student in all areas of suspected disability during the triennial evaluation in 2017?

Petitioner contended that Respondent should have conducted a psychological/psychoeducational assessment at that time.

3. Did Respondent fail to provide the Student with any/sufficient Functional Behavior Assessment(s) and/or Behavior Intervention Plan(s) during the 2015-2016, 20162017, 2017-2018, and 2018-2019 school years?

4. Did Respondent discriminate against the Student during the 2015-2016, 2016-2017, 2017-2018, and 2018-2019 school years in violation of Section 504 of the Rehabilitation Act of 1973?

Facts

The Student is a fifteen-year-old boy who has been classified as a student with Other Health Impairment. The Student has been diagnosed with [REDACTED].

The Student attended school at Respondent during the 2013-2014 school year, in the fourth grade. At this time, the Student attending mostly general education classes, with a 12:1:1 special class for two hours per day, together with related services of with counseling and occupational therapy (Exh. 21). The Student had issues with [REDACTED].

For the 2014-2015 school year, in fifth grade, the Student’s specialized instruction hours were reduced to one hour per day in a 12:1+1 special class, together with counseling and occupational therapy (Exh. 3). The Student had [REDACTED]. As a result, a functional behavior assessment (“FBA”) of the Student was conducted in January, 2015 to address

[REDACTED].

The Student’s sixth grade IEP, for the 2015-2016 school year, was developed at a March 15, 2015 CSE meeting (Exh. 4). The IEP changed the Student’s program significantly. The CSE developed goals in the study skills, reading, writing, mathematics, motor skills and social/emotional/behavioral domains and recommended a daily 10:1+1 special class, with counseling and occupational therapy (Exh. 4). For the 2016-2017 school year, for the seventh grade, the Student’s IEP was developed at an April 27, 2016 CSE meeting. Again, the CSE recommended a program consisting of a daily 10:1+1 special class and counseling (Exh. 6), and indicated that the Student needed a BIP, though no BIP was created for this school year (Exh.

LL). The Student had difficulty completing his work during this year, and failed English language arts and math for the year (Exh. E).

A psychological evaluation was conducted of the Student as reported on March 10, 2017 (Exh. 26). This evaluation indicated that the Student had executive functioning needs. Though the evaluation showed that the Student’s overall academic and cognitive functioning continued to be in the average range, the Student had relative weaknesses in fluid reasoning, working memory and long-term retrieval (Tr. @ 137). The evaluation included an administration of the Behavior Assessment System for Children-Second edition (“BASC-2”), which indicated that the Student had issues with [REDACTED].

For the 2017-2018 school year, which corresponds to eighth grade, the Student’s IEP was developed at a March 13, 2017 CSE meeting (Exh. 7). One of the Student’s teachers reported that he is [REDACTED]. The CSE recommended a program consisting of general education classes, a daily resource room, two periods per day of direct consultant teacher support, two periods per day of indirect consultant teacher support and counseling, together with supplementary aids and services and program modifications. There was no objection to the recommended program (Tr. @ 178). The IEP said that the Student [REDACTED].

The Student’s attendance [REDACTED]. Another CSE meeting was held on February 1, 2018. A modified day program was recommended, with direct consultant teacher services twice daily for forty-one minutes, indirect consultant teacher services twice daily for forty-one minutes, a resource room program daily, and additional 1:1 tutoring and specialized transportation (Exh. 8; Tr. @ 191-194). [REDACTED].

The District scheduled a CSE meeting on May 22, 2018 to plan for the Student’s 2018- 2019 program at Rhinebeck (Exh. 9). The Student was invited to this meeting but did not attend, and Petitioner was not sent an invitation to this meeting. The IEP recommended that the Student receive a general education program with a resource room twice daily, for forty-one minutes, in a

5:1 ratio.

Then the Student was removed from [REDACTED].

Another CSE meeting was scheduled for March 7, 2019. The meeting was attended by the Student, [REDACTED], along with attorneys for the District (Exh. 10). The CSE recommended that the Student to return to a program at [REDACTED] High School with two periods of resource room support per day, individual counseling, parent counseling and training, modifications and accommodations. The District scheduled another CSE meeting for April 11, 2019 (Exh. 11). The Student and Petitioner did not appear. At this meeting, the CSE recommended an 8:1+2 program for five hours and thirty minutes a day, with individual counseling and parent counseling and training. The CSE also directed that a search be conducted for [REDACTED].

Conclusions of Law

In New York State, the burden of persuasion in special education cases is on the school district except for the second criterion in cases for tuition reimbursement or payment. NY Ed. L.

4404(1).

Did the IEPs that were in effect during the 2015-2016, 2016-2017, 2017-2018, and 20182019 school years deny the Student a FAPE?

Did Respondent fail to provide the Student with a Functional Behavior Assessment and/or Behavior Intervention Plan(s) during the 2015-2016, 2016-2017, 2017-2018, and 20182019 school years?

1. Claims prior to March 21, 2017.

There is a two-year statute of limitations for IDEA claims in New York State. The claims must be brought within two years of when the parent “knew or should have known” about the claim. 20 USC 1415 (f)(3)(C). The statute creates exceptions where there are (i) specific misrepresentations by the local educational agency that is had resolved the problem forming the basis of the complaint, or (ii) the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent. 20 USC 1415

(f)(3)(D).

The Student’s IEPs dated March 15, 2015, October 20, 2015, April 27, 2016, and March 13, 2017 were created more than two year prior to filing. Petitioner contended that the two year statute of limitations should be tolled because Petitioner did not know her rights due to the school district’s failure to provide procedural safeguards. However, Petitioner received notices that undermine her argument. These notices indicate, in underscored capital letters, that “You have protections under the procedural safeguards of the regulations of the commissioner of education” (Exh. H). The notices also indicate that “(p)reviously, you have received a Procedural Safeguards Notice that explains your rights regarding the special education process.”

The notice also indicated that Petitioner could ask questions of a New York State Education Department official if she needed further information, even providing a phone number for a [REDACTED], who is listed as “Director of Special Programs” (Exh. J). Petitioner did not testify that she had not received the procedural safeguards or did not know of her rights to a hearing between 2015 and 2017. Petitioner argues that the District withheld information because it did not do the required FBA and BIP, did not report to Petitioner that it was not following the Student’s IEPs. Petitioner also argued that the District did not conduct cognitive and academic evaluations at the time of the Student’s triennial review. These contentions are misplaced since they do not directly relate to Petitioner’s awareness of her due process rights. Petitioner provides no caselaw in support of the proposition that a parent’s lack of knowledge about the underlying

FAPE claims somehow allows parents to evade the restrictions found in the applicable statute of limitations. All claims relating to IEPs created on March 15, 2015, October 20, 2015, April 27, 2016, and March 13, 2017 must be dismissed.

2. FBA/BIP and Behavioral Issues

In New York State, where a student's behavior that impedes his or her learning or that of others, the CSE may be required to consider having an FBA in certain non-disciplinary situations. 8 NYCRR 200.4(d)(3)(I); 8 NYCRR 200.22(a), (b). An FBA is defined in State regulations as “the process of determining why a student engages in behaviors that impedes learning and how the student's behavior relates to the environment” and “include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.” 8 NYCRR 200.1(r). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors. 8 NYCRR 200.22(a)(2). An FBA must also include a baseline setting forth the “frequency, duration, intensity and/or latency across activities, settings, people and times of the day,” so that a BIP (if required) may be developed “that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement.” 8 NYCRR 200.22(a)(3)).

Districts are also required to consider behavioral supports such as BIPs when a Student “exhibits persistent behavior that inhibits learning.” 8 NYCRR 200.22(b)(1)(I). A BIP must include a baseline measure of the problem behavior, intervention strategies, and a schedule to measure the effectiveness of the interventions. 8 N.Y.C.R.R. Sect. 200.22(b)(4).

Caselaw supports the proposition that an FBA is not always required where a student has behavioral issues if the Student’s IEP adequately addresses the issues. A.C. ex rel. M.C. v. Bd. of Educ., 553 F. 3d 165 (2d Cir. 2009). But the lack of an FBA is only ameliorated by an IEP that has “numerous specific strategies” to address behavioral issues. The court or hearing officer must take “particular care” to make sure that the IEP adequately addresses the Student’s behaviors. R.E v, New York City Department of Education, 694 F.3d 167, 190-194 (2d Cir.

2012). Here, there is no convincing evidence that the District proposed or implemented

“numerous specific strategies” to carefully address the Student’s behavioral issues, in particular the Student’s difficulty with attendance at school. Indeed, after 2015, {}. However, courts in this Circuit have made it clear that the school district has a duty to act to address the Student’s attendance issues where the issues are related to the Student’s disability. As stated in M.M v.

New York City Department of Education, 26 F. Supp. 3d 249, (S.D.N.Y. 2014): “(f)ew things could be more indicative of an emotional problem that ‘adversely affected’ a student’s education than one that prevented her from attending school.” 26 F. Supp. 3d at 256. -

Remedy

Where Districts have failed to offer students a FAPE, courts have wide discretion to ensure that students receive a FAPE going forward. As the Supreme Court has stated:

The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.

School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S.

359, 371 (1985).

As relief, Petitioner requests placement at [REDACTED].

Petitioner also seeks compensatory education, which is an available option under the Act to make up for denial of a free and appropriate public education. While, as Respondent pointed out, the Circuit has previously enunciated a “gross violation” standard in this connection, Garro

v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994), this standard is at odds with the standards in most jurisdictions and has not been applied in recent decisions issued by the Second Circuit. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015). In P. v. Newington

Bd. of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21. In so analyzing this issue, the court referenced the seminal compensatory education case of Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.

Cir. 2005). In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F.

3d at 524; --

see ---

also

Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a qualitative, fact-intensive inquiry used to craft an award tailored to the unique needs of the disabled student). Additionally, there is authority in this jurisdiction for a “quantitative” approach to compensatory education.

Application of a Student with a Disability, Appeal No. 14-172 (reducing a quantitatively determined award of additional services based upon evidence in the hearing record demonstrating that the student received some special education services and received some degree of benefit therefrom).

Petitioner does not ask for a specific amount of services for compensatory education and instead asks for hearing officer discretion on this issue. The caselaw does not prohibit hearing officers from issuing compensatory education awards based on the record even without a specific proposal from a parent. Since the Student was under the aegis of the [REDACTED]. Under the circumstances, the Student is hereby awarded 100 hours of compensatory education, to be delivered by a special education teacher, at a reasonable and customary rate in the community.

ORDER

As a result of the foregoing, I order the following:

1. Respondent shall provide the Student with a00 hours of compensatory tutoring, to be delivered by a certified special education teacher, at a rate that is usual and customary in the community;

2. Such services shall be used by December 31, 2021;

3. Within twenty days of this order, Respondent shall convene a CSE meeting to discuss the Student’s placement, and to discuss the possibility of placement at Chamberlain. Dated: December 26, 2019 ACRD: December 26, 2019

Michael Lazan

Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Petitioner’s other claims relating to the IEPs do not have merit. Petitioner contended that the IEPs were not based on sufficient evaluations and/or did not contain accurate and/or sufficient “Present Levels of Performance,” but Petitioner’s brief does not clearly address these contentions. Petitioner also contended that [REDACTED].

Rhinebeck Central School District, Impartial Hearing Decision

Facts

Remedy