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The University of the State of New York more The State Education Department
In the Matter of the Special Education Due Process Hearing on the Petition of XXX by her Parents, RE and REDA
DA CTED
Petitioners CTE ID # 525135
Against D IHO- James A. Monk Ossining Union Free School District Board of Education School District/Respondent
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 Ossining 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 XXX (Child) , by her parents, RE and RED (Parents/Petitioners).
DA ACT
The due process hearing was held and a decision
CTE ED in this matter is being rendered pursuant to the IDEA, 20 U.S.C. Section 1400 et seq. and its implementing regulations
D 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.
In accordance therewith, the undersigned, under date of July 26, 2019, notified the parents that such hearing process was scheduled and would commence at 10:00 a.m. on August 9, 2019, at the Central Administration Building, 400 Executive Boulevard, Ossining ,N.Y. 10562 that the IHO would conduct the hearing in accordance with the regulations of the Commissioner of Education; that the parents may be represented by counsel or a person with special knowledge or training with respect to the problems of the Child or of special education and may be accompanied by other persons of the parents' choice; that the parents have the burden of proof with respect to the claim of the parents; ( the assignment of a daily lunch room aide at a private school placement at the expense of the public school district of residence)
that upon the hearing both sides will be given opportunity to be heard and present evidence and to confront and question all witnesses; and that each party shall have the right to prohibit the introduction of any evidence the substance of which had not been disclosed to the other party at least five days before being introduced.
The matter was concluded on August 9, 2019 the Parents having appeared on behalf of the child with no outside counsel and the District having appeared by Ms.REDA , Esq.
CTED
and said proceedings having been stenographically transcribed, constituting a full written verbatim record of the proceedings; and exhibits, 18 in number, having been marked and received into evidence and made a part of the record herein; and the Child, REDA
CTED
, having not been in attendance at the hearing
A written decision of the IHO is attached herewith.
Hearing Officer's Hearing Summary
Case Number : REDACTED Date of Hearing: 8/9/19 Date of Decision: 9/1/19 Student's Name: REDA
CTED
Address: DELETED, Ossining, N.Y.
Most Recent Designation of Handicapping Condition: UNCLASSIFIED, 504
ACCOMMODATION
Petitioner's Name: RE and RED on behalf of REDA
DA ACT CTED
Address: DELETED, ED N.Y.
CTEOssining,
D Respondent's Name: Ossining Union Free Schools Board of Education Address: Central Administration Building,400 Executive Boulevard, Ossining, N.Y.
Issue/ Purpose of Hearing: To resolve the parents concern relative to Ossining Union
R Free School District providing E
with a lunchroom aide daily at a private school location due to multiple food and airborne
D allergies.
A
C Committee for Special Education Current
T Recommendation: Student Unclassified
E
D
BACKGROUND
REDA
CTED
resides with her parents in the Ossining School District, Ossining, NY. Her parents placed XXX in Kindergarten at PSS School, Ossining, NY for 2019-2020. REDA
CTED
attended nursery school at the JJJ School and the parents expressed concerns about
REDA
CTED
s allergic reactions which were accommodated.
In June, 2019 XXX completed the program at REDACT
School in Pre K. The parents
REDA
rejected the findings of the Ossining CSE for 2019-2020
ED in finding that
CTED
was not classifiable under the IDEA. The parents have taken exception to the district CS E's failure to provide a one to one lunch room aide for REDA
CTED
each school day while at REDA
CTED
School in 2019-2020.
REDA
CTED
is a five year old girl who has severe anaphylactic food allergies. She was not classified by the CSE but provided a 504 Plan to address her food allergy concerns:
ISSUES
The hearing provided evidence of the completion of the CS E's consideration of an IEP for REDA as prescribed by law for 2019-2020.
CTED
The record will show that the parents requested a hearing making the following claim:
1. The district should provide a lunch room aide on a one to one level each day that
REDA
CTED
attends lunch in the 2019-2020 school year at the PSS School setting at public school expense. The District's response to the complaint included:
R
1. The District did offer E
an appropriate 504 Plan that addressed her needs under the law. D
A
2. The District CSE determined C
that REDAC did not meet the criteria to be classified as
TED
disabled for Special Education
T Services.
E
D
The parents seek relief in the form of a paid lunchroom aide daily at REDAC
TED
School for 2019-2020.
FINDINGS OF FACT
After considering all the evidence as well as the arguments of both school's counsel and the Parents, this Hearing Officer's Findings of Fact are as follows: The district produced Ms.REDA , Director of Special Education, who attended REDA 's
CTED CTED
CSE Meeting for her 2019-2020 placement. She provided extensive and credible testimony regarding the input by all participants in the CSE review.
It must be noted that no one at this proceeding took exception to the classification determination of REDA for the 2019-2020 school year. Provision of a lunchroom aide at
CTED
REDAC was the only contested matter.
TED
The parents testified that they were concerned about REDA 's past allergic episodes and
CTED
made a heartfelt plea for an accommodation that assured them any future allergy related incidents would be properly addressed and avoided if at all possible. The parents pointed to a decision of March, 2013 by Judge John Koeltl District Judge of the Second Circuit that ruled in favor of the parents in a similar but not an identical matter. The IHO sees clear differences in the two matters.
The IHO must note that I respect and sympathize with the parents efforts on behalf of their daughter and their desire to obtain the best possible educational opportunity for her. However, their testimony provided no evidence that the Ossining School District had any legal obligation to provide the services they requested.
CONCLUSIONS OF LAW
In order to make 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. 02008). 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 Ossining School District met these criteria.
legal Brief Summations
In his brief and at the hearing the parent cited a case of the second circuit in 2013 whereby Judge John Koeltl decided what they considered a similar issue involving a special education classified child. However, the case before me is distinctly different from the case and that ruling cannot be applied in this instance. (D.C. ex rel E.B. v New York City Department of Education. 950 F. Supp. 2d 494 SONY 2013 Decided March 26, 2013)
The parents went on the state "The Parents agree with the CSE"s conclusion that REDA qualifies for protection and a 504 Plan. Moreover, the Parents agree that the
CTED
measures set forth in the 504 Plan are required to ensure REDA 's safety. There is no
CTED
dispute as to the appropriateness of the 504 Plan and the Parents and the School District are aligned with respect to the measures set forth in the 504 Plan."
The parents go on to state that "In any event, and regardless of which party bears the burden of proof, REDA qualifies for an IEP because she has an "other health
CTED
impairment" that adversely affects her education and requires special education services."
They further argue that REDAC 's need for supportive "related services" of a
TED
one-to-one professionally trained aid to secure her safety and education meets the d·efinition of "special education" under the IDEA statute, as expanded by New York state law and regulation."
The parents rationalize that "As the one-to-one aide requested by the Parents here is necessary to secure a safe learning environment for REDA and to ensure that
CTED
she is able to remain in school without extended absences, this supportive related service qualifies as "special education services" under the IDEA. See River Forest
Schoof Dist. No. 90 v. Illinois State Bd. of Educ., No. 95 C 5353, 1996 WL 189279, at *23 (N.D. Ill. Apr. 17, 1996) (holding that school district was required to provide one-to-one aide to child with health disabilities as such an aide was an integral part of the student's educational program)."
The parents conclude that "For all of the foregoing reasons, REDA qualifies for
CTED
protection under the IDEA. As such, the Parents respectfully request that the Hearing Officer enter an award ordering the School District to provide REDA with an IEP that
CTED
provides for a professionally trained one-to-one aide to be present with REDA during her
CTED
lunch period throughout the 2019-20 academic year." ·
' In the District's brief and at the hearing the district cited
The State Education Department's April, 2008 (later updated in November, 2013) "Continuum of Special Education Services for School-Age Students with Disabilities" which clarified that "a teacher assistant or teacher aide can assist in the delivery of special education, but cannot be provided as the only special education service the student receives nor can they be the only provider of special education services to a student with a disability."
The district's contention is that "As a result of the CSE meeting on May 23, 2019, the Student was found ineligible for an IEP. The Student was provided with a 504 Accommodation Plan to address her life-threatening food allergies and was provided with numerous accommodations". "Accordingly, even though it is undisputed that the Student has life threatening food allergies, this disability alone does not qualify the Student for an IEP".
"The District submits that the case cited by the Parents, D. C. ex rel. E.B. v.
New York City Dept. of Educ., is exactly the scenario contemplated by this guidance.
The student in D.C., was a student with a co-existing condition (autism, pervasive development disorder, mild mental retardation, and severe language disorder), along with a food allergy. The fact that the student was diagnosed with myriad of conditions and there was a significant adverse impact on his academics, qualified the student for an RED
ACT
not the fact that he had a food allergy. 950 F. Supp 2d 494 (2013)." ED
The district argues that "There is no evidence that the Student's food allergies and/or her asthma results in "limited strength, vitality or alertness, including a heightened alertness to environmental stimuli ... " Indeed, the Student's own teacher, Ms. REDA
CTED
, described the Student as "bright, does well academically"; "assertive"; "very strong peer"; and "energetic." Additionally, the School Physical form submitted by the Parents and completed by the Student's physician recommended, "Full activity without restriction including physical education and athletics." There was not one shred of evidence submitted during the Hearing to support a classification of "Other Health-Impaired" for the Student."
The district contends that "As there has been no evidence submitted to establish that the Student's food allergies adversely affect her academic performance, the District respectfully submits that the CSE's determination that the Student is ineligible for an IEP was appropriate and supported by the evidence".
The district argues that "a child that needs only a related service and not special education services is not a child with a disability under the IDEA. 34 CFR §
300. 8(a)(2){i). New York State confirms the fact that a need for a related service alone is not dispositive of whether a student requires special education. In New York State guidance, Continuum of Special Education Services for School-age
Students with Disabilities. the question of whether a teacher aide or teaching assistant can be the only service provided to a student with a disability? New
York State sets forth: "No. a teaching assistant or teacher aide can assist in the delivery of special education, but cannot be provided as the only special education service the student receives nor can they be the only provider of special education services to a student with a disability. A student who requires only this level of service (e.g. a health aide to assist with mobility and/or toileting)
could be eligible for such service pursuant to Section 504 of the Rehabilitation Act."
The district concludes that ''The documentation presented during the CSE meeting and the evidence submitted at the Hearing supports the CSE's determination that the Student was not eligible to be classified under the IDEA",
SUMMARY OF IHO FINDINGS
The 504 Plan for the 2019-2020 school year clearly described the needs of REDA
CTED
and the goals and objectives were tailored to meet those needs. It was clearly evident to me that the 504 Plan in question was likely to produce progress and not regression. The thoroughness of the goals and objectives appeared to provide RE X with an opportunity
DA for more than mere trivial advancement. The 504 Plan's additional
CTE services described for 2019-2020 were undeniably appropriate for REDA for the upcoming
D school year.
CTED
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 issue originally before me has remained constant. The dispute centered around a resolution of the parent's concern relative to Ossining Union Free School District providing REDA CTED with a lunchroom aide daily at a private school location due to multiple food and airborne allergies. The testimony and information produced in the record does not support the justification of the Ossining School District's obligation to provide a lunchroom aide for REDA while in
CTED
attendance at REDAC Private School.
TED
REDA s ability to function in a mainstream setting was well established and with the
CTED
appropriate 504 Plan support system she likely will continue to progress in any school setting.
It is the decision of this Hearing Officer that the Ossining School District did, in fact, offer an appropriate program and placement for REDA CTED
2019-2020. The testimony from the district witness was consistent in explaining the intentions of the district in addressing REDA 's specific academic needs for 2019-2020 while placed by the parent's at the REDA
CTED CTED
Private SchooL
After carefully reviewing the entire record, I have determined that the parents are not entitled to reimbursement for the costs of school services in the form of a daily lunchroom aide at the private school placement. My decision was guided by my intention to apply the proper legal standard in determining whether REDA
CTED
was offered a FAPE in the LRE, including whether the Ossining School District complied with the procedural requirements in the IDEA and whether the recommended special education programs and services considered were reasonably calculated to confer educational benefit.
PLEASE TAKE NOTICE OF THE PARTIES RIGHT TO APPEAL AS
DESCRIBED IN THE ACCOMPANYING 12 PAGE REVISION OF PART 279 OF THE
COMMISSIONER'S REGULATIONS EFFECTIVE 1/1/2017.(PLEASE NOTE SECTION
279.4 ADDRESSING "INITIATION OF REVIEW".
This decision rendered September 1, 2019.
Impartial Hearing Officer
Dr, James A. Monk
100
**INDEX**
PAGE# LINE#
INDEX TO TESTIMONY:
REDACTED
: Direct Examination by REDACTED 32 11 cross Examination by Mr. RE . 53 22
D
A INDEX TO DISTRICT EXHIBITS IN EVIDENCE;
C
T
1 DISTRICT'S ANSWER 6/20/19, 3 PAGES
E
5 2 2 504 ACCOMMODATION PLAN, 5/23/19,
D
3 PAGES 5 2
3 INELIGIBILITY DOCUMENT, 5/23/19,
2 PAGES 5 2
4 NOTED DAT.ED 3/6/19, 1 PAGE s 2
5 PSYC~OEPUCATIONAL EVALUATION
DATED 5/3/19, 3 PAGES 5 2
6 SOCIAL HISTORY, 5/13/19, 2 PAGES
7 CLASSROOM OBSERVATION, 5/15/19,
2 PAGES 5 2
8 TEACHER PROGRESS REPORT, 5/16/19,
1 PAGE 5 2
9 NOTED DATED 5/22/19, 1 PAGE 5 2
10 PHYSICAL EXAM FORMS, 5/17/19, 5 PAGES 5 2
11 FOOD ALLERGY & ANAPHYLAXIS EMERGENCY
CARE PLAN, 2 PAGES 5 2
12 REFERRAL TO CSE, 3/13/19, 3 PAGES 5 2
13 PRIOR WRITTEN NOTICE/CONSENT, 4/18/19,
2 PAGES 5 2
(CONTINUED)
COMPU-TRAN COURT REPORTING
101
INDEX TO DISTRICT EXHIBITS (CONTINUED): 14 REFERRAL TO 504 COMMITTEE, 4/18/19,
1 PAGE s 2
15 SIGNED CONSENT FOR INITIAL EVALUATION,
4/24/19, 1 PAGE 5 2
16 SECTION 504 COMMITTEE CONSENT FOR
EVALUATION, 4/24/19, 1 PAGES 5 2
17 MEETING NOTES, 4 PAGES 5 2
18 SECTION 504 COMMITTEE RECOMMENDATION
FOR SERVICES, S/29/19, 1 PAGE 5 2
COMPU-TRAN COURT REPORTING