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FINDINGS OF FACT & DECISION
IHRS Case Number: 549825
Student Name: [REDACTED]
(hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
District: Westhampton Beach UFSD
Hearing Requested By: Parents
Dates of Hearings: March 15, 2021
March 16, 2021
April 9, 2021
April 13, 2021
May 11, 2021
May 27, 2021
June 18, 2021
July 14, 2021
Actual Record Close Date: August 3, 2021
Hearing Officer: Jeffrey J. Schiro, Esq.
Office of Special Education Case
Cover Sheet
IHRS Case Number: 549825
School District: Westhampton beach ufsd
Impartial Hearing Officer: Jeffrey J. Schiro, Esq.
Request Date/Date Complaint: January 22, 2021
Filed/Date of Decision: August 13, 2021
Date of Distribution, if Different than Decision Date:
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2021
For the Student:
[REDACTED], Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2021
For the Student:
[REDACTED], Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2021
For the Student:
[REDACTED], Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2021
For the Student:
CHRISTIAN KILLORAN, ESQ., Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2021
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent, pro se
[REDACTED], Educational Consultant
[REDACTED], Parent Trainer & Transition Coordinator
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2021
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent Trainer & Transition Coordinator
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Legal Intern
[REDACTED], Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2021
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent Trainer & Transition Coordinator
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Legal Intern
[REDACTED], Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 14, 2021
For the Student:
[REDACTED], Parent, pro se
[REDACTED], Parent Trainer & Transition Coordinator
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Legal Intern
[REDACTED], Director of Pupil Personnel Services
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parents of the student in a due process complaint received by the Westhampton Beach Union Free School District (the “District”) on January 22, 2021. The primary issues to be determined at this hearing are: (1) did the District comply with directives set forth in a December 24, 2020 Findings of Fact and Decision (“FOFD”) rendered by Impartial Hearing Officer Roslyn Roth; (2) did the District’s Committee on Special Education (the “CSE”) predetermine multiple decisions concerning the student’s educational program and placement; and (3) did the CSE recommend an appropriately ambitious educational program for the student in the least restrictive environment (Joint Ex. I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local CSE that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.
§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR
§ 200.5(k).
II. PROCEDURAL HISTORY
On January 25, 2021, the District appointed the undersigned to serve as the IHO in this matter (Ex. IHO-I at 1). See 8 NYCRR § 200.5(j)(3)(i). In a letter to the parties dated February 21, 2021, I set forth disclosures concerning my prior professional background, requested the parties’ availability to participate in a pre-hearing conference and summarized the procedures which would govern the hearing (Ex. IHO-I). A pre-hearing conference with the parties was held on February 24, 2021 to clarify the hearing issues and set dates for the hearing (R. 1-47). See 8 NYCRR §200.5(j)(3)(xi). Hearings on the merits of this matter were thereafter held on: March 15, 2021; March 16, 2021; April 9, 2021; April 13, 2021; May 11, 2021; May 27, 2021; June 18, 2021; and July 14, 2021 (R. 48, 382, 697, 997, 1226, 1497, 1783, 2051; Exs. IHO-II, IHO-VI, IHO-X).[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the January 2021 due process complaint, the student was [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment (Joint Ex. I; Ex. SD-2 at 6). The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Joint Ex. I; Ex. SD-2 at 1).[3] See 8 NYCRR § 200.1(zz)(7).
The student resides within the Remsenburg-Speonk School District (“Remsenburg”). Remsenburg is an elementary school district which ends as grade six. When children finish sixth grade at Remsenburg, they have a choice between attending middle school and high school in the Eastport-South Manor School District or the Westhampton Beach School District. For all times relevant to this hearing, parents have elected for the student to receive instruction from the Westhampton Beach School District.
The student in this case has been the subject of ten prior State-level administrative appeals.[4] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated in full here.
In September 2019, the parties entered into an Agreement as to the substance and logistics of the student’s education during ongoing litigation. Pursuant to the September 2019 Agreement, the student is to be transported by the District to one of its schools to receive related services of physical therapy, adaptive physical education speech and language therapy and occupational therapy. Upon completion of his related services, the student is to be bused to the local library for the provision of his special education instruction. Should the local library become unavailable, due to an emergency, a library closure, or other circumstances not caused by and beyond the control of the parties, then the student’s special education instruction is to take place in the student’s home, if available. In the event the library shall be closed for a period exceeding seven days and the student’s home is unavailable, the parties are to seek in good faith to orchestrate another, alternative, off-site placement location (Joint Ex. VII).
During the commencement of the 2020/21 academic year, concurrent with the COVID-19 pandemic, the library became unavailable. Accordingly, in advance of the first day of school, the District’s Director of Pupil Personnel Services sent the parents correspondence outlining the District’s instructional plan due to the library’s closure: the student would receive daily related services at school from 7:30 a.m. to 9:00 a.m.; then receive bussing from the school to his home; and receive in-person home instruction from a special education teacher three days per week and remote instruction for the same teacher two days per week (R. 674; Ex. SD-23). The parents responded that their home was unavailable (R. 320). On September 3, 2020, the District’s Director of Pupil Personnel Services sent the parents another letter stating that, in light of their disagreement with in-person home instruction, the special education teacher would be available to provide all of the student’s instruction remotely (Ex. SD-25).
On the day prior, however, i.e., September 2, 2020, the parents filed an action in the Federal District Court for the Eastern District of New York, seeking a preliminary injunction directing the District to provide the student with instruction at school, or alternatively, at the public library. After applying the requisite preliminary injunction test, see L.A. v. New York City Dep’t of Educ., No. 20-CV-05616, 2020 WL 5202108 (S.D.N.Y. Sept. 1, 2020) (quoting Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d. 519, 529 (2d Cir. 2020), District Judge Joanna Seybert, in a Memorandum & Order dated September 10, 2020, denied the parents’ application for emergency injunctive relief, see Killoran v. Westhampton Beach School District, 20-CV-4121, 77 IDELR 96 (E.D.N.Y. Sept. 10, 2020).
In a prior due process complaint relevant to this hearing, dated August 11, 2020, the parents alleged that the District failed to offer the student a FAPE for the 2020/21 school year (IHRS Case No. 540170). An impartial hearing before IHO Roslyn Roth convened on September 8, 2020 and concluded on November 13, 2020 after seven days of proceedings. In an Interim Order dated September 27, 2020, IHO Roth held that she “lack[ed] jurisdiction to issue a pendency decision as this issue has been determined by a federal district court.” Since the parents had elected the courts as the forum to determine pendency, IHO Roth determined that the issue of pendency was removed from the administrative process and the parents’ request for pendency was denied (Ex. SD-26 at 3). After the September 27, 2020 Interim Order, the parents continued to decline to allow the provision of special education instruction to the student at their home, either in-person or remotely (R. 329).
In an FOFD dated December 24, 2020, IHO Roth determined that neither the CSE process, nor recommendation made, at an August 10, 2020 IEP meeting denied the student a FAPE. As a consequence, IHO Roth denied the parents’ request for compensatory education services for the student (Joint Ex. V at 8-13). The parents appealed IHO Roth’s December 24, 2020 FOFD to the SRO. In a decision dated February 19, 2021 (Appeal No. 21-019), the SRO affirmed IHO Roth’s FOFD (Ex. SD-10).
As part of her December 24, 2020 FOFD, IHO Roth directed that:
Within 30 days of the date of decision, the District is to reconvene to recommend a specific placement for the student; and the CSE is directed to review the student’s transition goals to include community opportunities within the Westhampton Beach local community that can provide pre-employment opportunities; and the student’s IEP is to be amended to include a Transition Coordinator who can collaborate and cooperate with both the District and the Parent (Ex. Joint Ex. V at 14).
In response to IHO Roth’s directive, the District’s CSE convened on January 21, 2021. The meeting began at 9:00 a.m. and ended at 12:00 p.m.[5] At the meeting, each provider of services reported on the student’s then-present levels of performance in each area of functioning, as well as his strengths, needs and learning characteristics. While full consensus of the committee members could not be reached, the CSE determined that the student did not demonstrate the foundational skills needed to meaningfully participate in learning in a general education environment. At the time of the January 21, 2021 CSE meeting, the continuum of special education services available in the District included: general education with related services, consultant teacher services, resource room, integrated co-teaching services and a 15:1 special class program. After considering the continuum of special education services available in the District, the CSE also determined (again, not full consensus) that the student did not demonstrate the foundational skills needed to meaningfully participate in any of the special education programs available at the District (Joint Exs. III, IV; SD-2).
The CSE further determined that the student’s needs could be addressed in a 12:1+1 special class program comprised of students with similar academic, social, physical and management needs (Joint Exs. III, IV; Ex. SD-2). Prior to January 21, 2021 meeting, the CSE canvassed for potential placements in neighboring schools, which resulted in twelve declinations and one approval (R. 247-250; Joint Ex. IV at 151-152; Exs. SD-4, SD-5). [REDACTED] BOCES indicated to the District that it had an appropriate placement for the student and [REDACTED], the Principal of the (BOCES-operated) [REDACTED] Learning Center, attended and participated in the January 21, 2021 meeting (R. 159-165, 261-262; Joint Exs. III, IV; SD-6).[6] From the principal’s input, the CSE determined that [REDACTED] BOCES 12:1+1 special class program was comprised of children with similar profiles (e.g., no non-verbal children, no children with behavior plans) and could address the student’s academic, social, physical and management needs while supporting the achievement of his IEP goals (Joint Exs. III, IV; SD-2).
At the January 21, 2021 CSE meeting, the principal further explained that the [REDACTED] BOCES 12:1+1 special class program is implemented at two distinct sites: the [REDACTED] Learning Center and the Transitional Services Program at the [REDACTED] Learning Center. The former site teaches students academic skills during whole group instruction, while the latter site offers different programs in employment areas such as technology, retail, and culinary to prepare students for the transition from school to post-secondary activities (Joint Exs. III, IV at 163-164, SD-2).
With this input, the CSE recommended that, for the balance of the 2020/21 school year, the student receive the majority of his instruction in the [REDACTED] BOCES 12:1+1 special class program, along with 1:1 adaptive physical education and the services of an aide (2:1) for transitions between classes and to and from his bus. The CSE also recommended that the student receive the following related services: specialized transportation (adult attendant); individual occupational therapy, two times per week for thirty minutes per session; individual physical therapy, three times per week for thirty minutes per session; individual speech and language therapy, three time per week for thirty minutes per session; small group (5:1) speech and language therapy, one time per week for thirty minutes per session; special instruction in home and the community, four times per week for ninety minutes per session; and parent counseling and training, two times per month for sixty minutes per session (Joint Ex. IV at 190-191; Ex. SD-2 at 13-14, 19).
On January 25, 2021, the District received written notice from [REDACTED] BOCES that it accepted the student into its 12:1+1 special class program (Ex. SD-6). While the District arranged for a tour of both program sites (i.e., [REDACTED] and [REDACTED]) for the parents, they elected to tour only the Westhampton site (Exs. P-5, SD-7, SD-8).
At the January 21, 2021 CSE meeting, transition coordinator services were also discussed and [REDACTED], a private consultant retained by the District to provide parent training to the family, agreed to be appointed as the student’s transition services coordinator. In that role, [REDACTED] recommended measurable postsecondary goals for the student, that she had discussed with the parents in June 2020, which were incorporated into the January 2021 IEP (Joint Exs. III at 2, IV, VIII; SD-2 at 16-18, SD-14, SD-15). A team meeting with the parents was later held on February 25, 2021 for a private educational consultant to discuss with the student’s related service providers how they could implement measurable post-secondary goals and transition in their services (R. 337-338).[7]
While the parents agreed to [REDATED]’s appointment as the student’s transition services coordinator, they opposed the CSE’s program and placement recommendations for the student. At the January 21, 2021 CSE meeting, the parents advocated for the student’s placement in the District’s 15:1 special class program and general education electives with the support of a 1:1 aide. The CSE rejected placement of the student in its 15:1 special class program because the other students attending that program have dissimilar academic, social, physical and management needs. While the student who is the subject of this hearing is intellectual disabled and alternately assessed, the other students attending the 15:1 special class program possessed low average-to-average intellectual ability, participated in State and local assessments and were working toward a Regents diploma (Joint Ex. III at 2, IV; SD-2 at 18). The parents filed for due process on the day following the CSE meeting and this hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The District The parents’ claim that the District failed to abide by the terms of IHO’s Roth’s Order is without merit. The District offered the student an appropriately ambitious educational program in the least restrictive environment. Lastly, the parents’ claims that the District predetermined the student’s educational placement and denied the parents a meaningful opportunity to participate in the January 2021 CSE meeting are without merit (R. 168-207; Joint Ex. II; Ex. SD-36).
B. The Parents The District predetermined multiple decisions concerning the student’s educational program and placement and failed to incorporate the parents as meaningful participants in the development of the student’s IEP. The District failed to recommend an appropriately ambitious IEP for the student in the least restrictive environment. The District failed to implement an appropriate set of coordinated transitional activities and goals (R. 207-222; Joint Ex. I; Ex. P-18).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[8]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471
F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).[9]
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Compliance with IHO Roth’s Order In their due process complaint, the parents assert that the District failed to abide by the terms of IHO Roth’s December 24, 2020 Order (Joint Ex. I).
IHOs do not have jurisdiction to enforce the orders of other IHOs. It is well settled that the enforcement of an IHO’s order can properly be sought by filing an administrative complaint with the State Education Department’s Office of Special Education pursuant to applicable federal and state regulations, or in federal court under 42 U.S.C. § 1983. See 34 C.F.R. §§ 300.151-300.153; 8 NYCRR § 200.5(l); A.T. v. New York State Educ. Dep't, 1998 WL 765371, at *7 (E.D.N.Y. 1998); Blazejewski v. Bd. of Educ., 560 F. Supp. 701 (W.D.N.Y. 1983); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-060 at 8 (SRO July 28, 2011); Application of a Child with a Disability (Wappingers Cent. Sch. Dist.), Appeal No. 06-130 (SRO Dec. 8, 2006); see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 (2d Cir. 2005) (noting that impartial hearing officers have no enforcement mechanism of their own).
At the February 24, 2021 pre-hearing conference, I advised the parties that, consistent with the precedent cited above, I lacked the jurisdiction to enforce IHO Roth’s December 24, 2020 Order. I did indicate, however, that I would consider the District’s level of compliance with that Order as a component of the applicable FAPE analysis. Based on the evidence contained in the hearing record, I find that the District fully complied with IHO Roth’s December 24, 2020 Order (Joint Ex. V). On January 21, 2021, the District’s CSE reconvened and recommended a specific educational placement for the student, i.e., the [REDACTED] BOCES 12:1+1 special class program (Joint Ex. IV at 191). During the January 21, 2021 meeting, the CSE appointed [REDACTED] as the student’s transition coordinator (Joint Ex. IV at 195-196; Ex. SD-2 at 18) who went on to suggest a transition goal of researching volunteer opportunities in the local community which was inserted into the student’s IEP (Joint Ex. IV at 206; Ex. SD-2).
C. Predetermination/Parent Participation The parents assert that the District predetermined the student’s educational placement and failed to include them as meaningful CSE members (Joint Ex. I).
As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting. See T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 (S.D.N.Y. July 30, 2015); see also 34 C.F.R. §§ 300.501(b)(1), (3); 8 NYCRR §§ 200.5(d)(1), (2). The key factor with regard to predetermination is whether the school district has "an open mind as to the content of [the student's] IEP." T.P., 554 F.3d at 253; see D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 (E.D.N.Y. Sept. 2, 2011), aff'd, 506 Fed. App'x 80 (2d Cir. Dec. 26, 2012); R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 (E.D.N.Y. 2009), aff'd, 366 Fed. App'x 239 (2d Cir. Feb. 18, 2010). School districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.'" DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 (S.D.N.Y. Jan. 2, 2013), quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; (S.D.N.Y. 2008); see B.K. v. New York City Dept. of Educ., 12 F. Supp. 3d 343, 358-59 (E.D.N.Y. 2014) (holding that "active and meaningful" parent participation undermines a claim of predetermination).
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322; 8 NYCRR § 200.5(d).
Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. See T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. Sept. 23, 2015); A.P., 2015 WL 4597545 at *8, *10; E.F. v. New York City Dep’t of Educ., 2013 WL 4495676 at *17 (E.D.N.Y. Aug. 19, 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("A professional disagreement is not an IDEA violation"); School for Language & Communication Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) ("Meaningful participation does not require deferral to parent choice"). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP. See Cerra, 427 F.3d at 192; see also T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009) (noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree).
The transcript of the January 21, 2021 CSE meeting reflects that the parents actively participated in the decision-making process. At the parents’ request, the CSE appointed [REDACTED] as the student’s transition coordinator (Joint Ex. IV at 195-196). At the father’s request, the CSE meeting was extended beyond the allotted three-hour time frame to allow the transition coordinator to provide a presentation regarding transition needs and measurable post-secondary goals (R. 196, 200-206, 603, 959). At the hearing, the transition coordinator agreed that the transition material she presented to the January 2021 CSE was incorporated into the student’s IEP (R. 1854).
Similarly, hearing record reflect that the parents were able to express their concerns regarding the recommended program and services and that January 2021 CSE considered the parents’ request for the student’s placement in a general education setting or a 15:1 special class program at the District’s high school. The January 2021 CSE ultimately declined those alternatives because the student did not demonstrate the foundational skills needed to meaningfully participate in those programs and because the other students attending those programs had dissimilar academic, social, physical and management needs (Joint Ex. III at 2, IV; SD-2). Based on this record, I find that the parents’ disagreement with the District’s proposed IEP and placement recommendation does not amount to a denial of their meaningful participation in the CSE process.
D. Educational Placement and LRE The parents’ primary argument throughout the hearing was that the District failed to place the student in the LRE – which the parents’ assert is the District’s high school (Exs. Joint Ex. I; P-18).
The IDEA requires that a student's recommended program must be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.107, 300.114(a)(2)(i), 300.116(a)(2), 300.117; 8 NYCRR §§ 200.1(cc), 200.6(a)(1); T.M., 752 F.3d at 161-67; Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin v. Bd. of Educ. of Webster Cent.
Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. See 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR § 200.6(a)(1); Newington, 546 F.3d at 112, 120-21; Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1215 (3d Cir. 1993); J.S. v. N. Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 (N.D.N.Y. 2004); Mavis v. Sobol, 839 F. Supp. 968, 982 (N.D.N.Y. 1993).
The placement of an individual student in the LRE shall: "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home." 8 NYCRR §§ 200.1(cc); 200.4(d)(4)(ii)(b); see 34 C.F.R. § 300.116. Consideration is also given to any potential harmful effect on students or on the quality of services that they need. See 34 C.F.R. § 300.116(d); 8 NYCRR § 200.4(d)(4)(ii)(c). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services. See 34 C.F.R. § 300.115; 8 NYCRR § 200.6. The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; the continuum also makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. See 34 C.F.R. § 300.115(b).
To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering: (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. See T.M., 752 F.3d at 161-67 (applying Newington two-prong test); Newington, 546 F.3d at 119-20; N. Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also Oberti, 995 F.2d at 1217-18; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 (5th Cir. 1989). A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to:
(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class. See Newington, 546 F.3d at 120; see also N. Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430.
The Court recognized the tension that occurs at times between the objective of having a school district provide an education suited to a student's particular needs and the objective of educating that student with nondisabled peers as much as circumstances allow. See Newington, 546 F.3d at 119, citing Daniel R.R., 874 F.2d at 1044. The Court explained that the inquiry is individualized and fact specific, taking into account the nature of the student's condition and the school's particular efforts to accommodate it. See Newington, 546 F.3d at 120.
If, after examining the factors under the first prong, it is determined that the school district was justified in removing the student from the general education classroom and placing the student in a special class, the second prong requires consideration of whether the school district has included the student in school programs with nondisabled students to the maximum extent appropriate. See Newington, 546 F.3d at 120.
The January 21, 2021 CSE meeting began with a discussion of the continuum of programs available at the District’s high school and whether the student could be satisfactorily educated in a general education class. [REDACTED], a school psychologist, described the continuum of special education services at the District’s high school as being related services only, consultant teacher services, resource room, integrated co-teaching services (for grades 9-11), and a 15:1 special class (Joint Ex. IV at 10-12). [REDACTED], a general education teacher, described the characteristics of learners in the high school’s general education classes as: capable of attending to instruction for a forty-one minute period, possessing problem-solving and critical thinking skills, capable of following directions, organized and possessing appropriate time management skills, capable of collaborating with classmates, capable of self-advocating for one’s own learning needs, responsible for one’s own school supplies; and possessing independent health, safety and self-care skills (Joint Ex. IV at 16-17). The District’s Director of Pupil Personnel Services shared with the other members of the CSE that the curriculum in a twelfth-grade general education class requires students to read major works of literature, meet stringent writing requirements and answer broad and complex questions (Joint Ex. IV at 28-32).
The January 2021 CSE next examined the educational benefits available to the student in a general education class with appropriate supplementary aides and services. At that time, the supplementary aids and services included in the student’s IEP were: an aide to assist in transitions between classes and to and from the bus, checks for understanding, movement breaks, reteaching, and provision of augmentative communication devices (Joint Ex. IV at 41-42; Ex. SD-12). The CSE members discussed teaching methods used with the student when introducing new concepts (Joint Ex. IV at 32). [REDACTED], the student’s speech pathologist, stated the student needs to re-learn constantly, is inconsistent with responses, and needs visual prompts and repetition to learn content (Joint Ex. IV at 54-63). When asked if a general education teacher could address the student’s learning needs, the speech pathologist responded that, “even if there’s someone sitting with him,... [the student] would be getting... a small percentage of what’s going on” (Joint Ex. IV at 61-62). Regarding the effect of the student’s inclusion on the education of other students, the speech pathologist stated that the student “would feel frustrated in a class like that [i.e., a general education class]” (Joint Ex. IV at 62), “he would be doing his like self-soothing... that can also be disruptive in the classroom” (Joint Ex. IV at 63).
[REDACTED], the student’s special education teacher, stated that the student has difficulty generalizing and answering open-ended questions. He needs visuals, verbal prompts and repetition in order to learn (Joint Ex. IV at 75-76). The special education teacher opined that “it would be difficult in a twelfth-grade regular high school class for one teacher to address all of that” (Joint Ex. IV at 76).
[REDACTED], the student’s adaptive physical education teacher, stated that the student needs pre-teaching, repetition, verbal directions, modeling, practice, visuals and re-teaching in order to learn (Joint Ex. IV at 81-82). Given that a general education physical education classroom is a “very unpredictable environment,” he did not believe it to be appropriate for the student (Joint Ex. IV at 85).
[REDACTED], the student’s occupational therapy, stated that the student does not generalize and has trouble with transitions. He needs visual and physical cues, repetition, demonstration, and practice in order to learn (Joint Ex. IV at 98). The occupational therapist stated that in a general education class, the student “would have a hard time focusing on the learning part of it and would be distracted” (Joint Ex. IV at 103).
The January 2021 CSE then began discussing the possible placement of the student in a 12:1+1 special class setting to provide the modeling, repetition and re-teaching the student was said to need in order to learn (Joint Ex. IV at 117). The principal then gave the CSE a presentation about BOCES’s 12:1+1 special class program offered at the [REDACTED] Learning Center and at the Transition Services Program at [REDACTED] (Joint Ex. IV at 159-168). Based on the principal’s presentation at the January 2021 CSE meeting, the District’s Director of Pupil Personnel Services testified that at the BOCES placement, the student would “interact with peers” and be “part of a group that has similar needs” (R. 583). She stated that the Transition Services Program offered “a lot of school-wide events,” such as trips, dances and community outings, and the opportunity to develop internships in the community (R. 394-395). After the principal’s presentation at the January 2021 CSE meeting, the District’s Director of Pupil Personnel Services asked whether anyone at the CSE felt that a small class setting was “not an appropriate placement for [the student] to successfully... master his goals” (Joint Ex. IV at 118). Only the parents disagreed (R. 890), although the student’s mother suggested she might accept a 12:1+1 special class placement if it was available in the District (Joint Ex. IV at 123).
Alternatively, the educational consultant suggested at the January 2021 CSE meeting that the student could succeed in the District’s 15:1 special class program but “would need a one-to-one aide in that classroom to keep him on task and he would need the curriculum modified to his ability (Joint Ex. IV at 135), which the transition coordinator endorsed at the hearing (R. 2026). [10] At the hearing, the transition coordinator testified that the District could create a 12:1+1 for the student, even if he were the only enrolled student in such a class (R. 2024). Both the transition coordinator and the educational consultant’s positions are tantamount to a recommendation that the District create a new class for the student, which the SRO has previously held the District is not required to do. See Application of a Student with a Disability (Westhampton Beach Union Free Sch. Dist.), Appeal No. 19-121 at 21 (SRO Dec. 26, 2019).
Based on the evidence contained in the hearing record, particularly the extensive discussions that took place during the January 2021 CSE meeting, I find that the CSE's recommendation that [REDACTED] BOCES implement the student's IEP was appropriate. As set forth in prior State-level administrative decisions pertaining to the student, while a school district "must provide a continuum of alternative placements that meet the needs of the disabled children that it serves," the Second Circuit has held that "a school district need not itself operate all of the different educational programs on this continuum of alternative placements. The continuum may instead include free public placements at educational programs operated by other entities, including other public agencies or private schools." T.M., 752 F.3d at 165. This is consistent with State law, which allows school districts to "[c]ontract with other districts for special services or programs." See N.Y. Educ. Law § 4401(2)(b).
With respect to LRE, State and federal regulations provide that a district must "ensure" that a student attend a placement "as close as possible to the [student's] home" and "[u]nless the IEP of a [student] with a disability requires some other arrangement, the [student] is educated in the school that he or she would attend if nondisabled." 34 C.F.R. §§ 300.116(b)(3), (c) (emphasis added); see 8 NYCRR §§ 200.1(cc), 200.4(d)(4)(ii). In weighing this provision, numerous courts have held that, while a school district remains obligated to consider distance from home as one factor in determining the school in which a student's IEP will be implemented, this provision does not confer an absolute right or impose a presumption that a student's IEP will be implemented in the school closest to his or her home or in his or her neighborhood school. See White v. Ascension Parish Sch. Bd., 343 F.3d 373, 380-82 (5th Cir. 2003); Lebron v. N. Penn Sch. Dist., 769 F. Supp. 2d 788, 801 (E.D. Pa. 2011) (finding that "though educational agencies should consider implementing a child's IEP at his or her neighborhood school when possible, [the] IDEA does not create a right for a child to be educated there"); Letter to Trigg, 50 IDELR 48 (OSEP 2007); see also R.L. v. Miami-Dade Cnty. Sch. Bd., 757 F.3d 1173, 1191 n.10 (11th Cir. 2014); A.W. v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004); McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d 663, 672 (6th Cir. 2003); Kevin G. v. Cranston Sch. Comm., 130 F.3d 481, 482 (1st Cir. 1997); Flour Bluff Ind. Sch. Dist. v. Katherine M., 91 F.3d 689, 693-95 (5th Cir. 1996); Urban v. Jefferson Cnty. Sch. Dist. R–1, 89 F.3d 720, 727 (10th Cir. 1996); Poolaw v. Bishop, 67 F.3d 830, 837 (9th Cir. 1995); Murray v. Montrose Cnty. Sch. Dist. RE-1J, 51 F.3d 921, 929 (10th Cir. 1995); Schuldt v. Mankato Indep. Sch. Dist. No. 77, 937 F.2d 1357, 1361–63 (8th Cir. 1991); Barnett v. Fairfax Cnty. Sch. Bd., 927 F.2d 146, 152-53 (4th Cir. 1991) (holding that a district must "take into account, as one factor, the geographical proximity of the placement in making these decisions"); H.D. v. Cent. Bucks Sch. Dist., 902 F. Supp. 2d 614, 626 (E.D. Pa. 2012); Straube v. Florida Union Free Sch. Dist., 801 F. Supp. 1164, 1177-79 (S.D.N.Y. 1992).
The evidence in the hearing record demonstrates that the District did not have the 12:1+1 special class program in place at the District’s high school at the time of the January 2021 CSE meeting. Thus, the student's IEP required the "other arrangement" of a special class placement at a school other than a school located within the District. See R.L., 757 F.3d at 1191 n.10; White, 343 F.3d at 380 (finding that "it was not possible for [the student] to be placed in his neighborhood school because the services he required are provided only at the centralized location, and his IEP thus requires another arrangement"); Lebron, 769 F. Supp. 2d at 801; see also Placements, 71 Fed. Reg. 46588 (Aug. 14, 2006) (noting that school districts need not place students in the closest public school to the student's home if "the services identified in the child's IEP require a different location"); Letter to Trigg, 50 IDELR 48.
As described herein, the District provided sufficient evidence to support a finding that the program recommended in the January 2021 IEP offered the student a FAPE in the student's LRE. I have considered the parents’ remaining claims and have concluded that they are without merit.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The parents’ claim that the student was denied a free appropriate public education (FAPE) in the least restrictive environment (LRE) during the 2020/21 school year as a result of recommendations made at a January 21, 2021 meeting of the District’s Committee on Special Education (CSE) is DENIED and their complaint is DISMISSED.
Dated: August 13, 2021
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial 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 plan 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
JOINT
I. Due Process Complaint Notice/Impartial Hearing Request, 1/22/21 (received), 2 pgs.
II. District Response to Due Process Complaint Notice, 2/8/21, 17 pgs.
III. Prior Written Notice, 1/21/21, 3 pgs.
IV. Transcript of January 21, 2021 CSE Meeting, 1/21/21, 216 pgs.
V. Findings of Fact & Decision (IHRS Case No. 540170) IHO Roslyn Roth, 12/24/20, 17 pgs
VI. Transcript of Team Meeting, 2/25/21, 61 pgs.
VII. Pendency Agreement, 9/20/19, 3 pgs.
VIII. PBS Consulting Annual Report, 6/1/20, 2 pgs.
PARENTS
1. [Reserved]
2. [Reserved]
3. [Reserved]
4. Parents’ Response to Prior Written Notice, 2/26/21, 2 pgs.
5. Letter to parents from [REDACTED] (program tours), 2/24/21, 1 pg.
6. Request for Records, 12/23/20, 1 pg.
7. Email to parents from [REDACTED], 2/3/21, 2 pgs.
8. Email from [REDACTED], 2/26/21, 4 pgs.
9. Letter to [REDACTED] from parents, 3/1/21, 6 pgs.
10. [Reserved]
11. [Reserved]
12. [Reserved]
13. [Reserved]
14. NYSED Guide to Quality Individualized Education Program (IEP) Development &
Implementation, 12/2010 (revised), 72 pgs.
15. Parents’ Response to Team Meeting, 1/22/21, 3 pgs.
16. Letter to [REDACTED] from [REDACTED], 3/5/21, 2 pgs.
17. Email to [REDACTED] from [REDACTED], 3/8/21, 2 pgs.
18. Parents’ Post-Hearing Brief, 8/4/21, 33 pgs.
SCHOOL DISTRICT
1. [Reserved]
2. Individualized Education Program (IEP), 1/21/21, 19 pgs.
3. [Reserved]
4. Screening Letters to Potential Placements, various dates, 14 pgs.
5. Screening Responses from Potential Placements, various dates, 14 pgs.
6. Commitment Letter – E. [REDACTED] BOCES, 1/25/21 (received), 2 pgs.
7. Letter to parents from [REDACTED] (tour invitation), 1/27/21, 1 pg.
8. Email to District from parents (response to tour invitation), 2/11/21, 1 pg.
9. [Reserved]
10. SRO Decision, Appeal No. 21-019, 2/19/21, 24 pgs.
11. Prior Written Notice, 8/10/20, 3 pgs.
12. Individualized Education Program (IEP), 8/10/20, 21 pgs.
13. Transcript of August 10, 2020 CSE Meeting, 8/10/20, 152 pgs.
14. Parent Training Notes, 6/11/20, 1 pg.
15. Consultant Services Contract (2020/21 SY), 6/8/20, 12 pgs.
16. Letter to parents from [REDACTED] (scheduling annual review), 1/21/20, 1 pg.
17. Letter to District from parents (scheduling annual review), 1/22/20, 1 pg.
18. Email to District from parents (scheduling annual review), 2/6/20, 1 pg.
19. Letter to parents from [REDACTED] (scheduling annual review), 2/11/20, 1 pg.
20. Email to District from parents (scheduling annual review), 2/11/20, 1 pg.
21. Letter to [REDACTED] from parents (annual review), 6/10/20, 3 pgs.
22. Email exchange b/w [REDACTED] and parents (scheduling annual review), 6/22/20,
1 pg.
23. Letter to parents from [REDACTED] (pendency instruction), 8/28/20, 1 pg.
24. Letter to parents from [REDACTED] (pendency instruction), 9/1/20, 1 pg.
25. Letter to parents from [REDACTED] (pendency instruction), 9/3/20, 1 pg.
26. Interim Order on Pendency (IHRS Case No. 540170) IHO Roslyn Roth, 9/27/20, 5 pgs.
27. Email exchange b/w District & parents (pendency instruction), 9/2020, 3 pgs.
28. Letter to parents from [REDACTED] (pendency instruction), 9/14/20, 1 pg.
29. Letter from parents to District (pendency instruction), 12/10/20, 3 pgs.
30. Letter to District from parents (pendency instruction), 12/11/20, 1 pg.
31. Letter to [REDACTED] from parents (records request), 12/23/20, 2 pgs.
32. Email exchange b/w District & [REDACTED] (pendency instruction), 1/2021, 4 pgs.
33. [Reserved]
34. [Reserved]
35. Letter to [REDACTED] from [REDACTED] (pendency instruction), 1/4/21, 1 pg.
36. District’s Post-Hearing Memorandum of Law, 8/6/21, 34 pgs.
IMPARTIAL HEARING OFFICER
I. Letter to parties from IHO Jeffrey J. Schiro (hearing procedures), 2/21//21, 6 pgs.
II. Letter to parties from IHO Jeffrey J. Schiro (hearing notice), 3/2/21, 1 pg.
III. Administrative Subpoena – [REDACTED] (signed), 3/2/21, 1 pg.
IV. Administrative Subpoena – [REDACTED] (signed), 3/2/21, 1 pg.
V. Order of Extension, 4/7/21, 1 pg.
VI. Letter to parties from IHO Jeffrey J. Schiro (hearing notice), 4/30/21, 1 pg.
VII. Order of Extension, 5/7/21, 1 pg.
VIII. Administrative Subpoena – WB UFSD (signed), 5/26/21, 1 pg.
IX. Administrative Subpoena – [REDACTED] (signed), 5/26/21, 1 pg.
X. Letter to parties from IHO Jeffrey J. Schiro (hearing notice), 6/15/21, 1 pg.
XI. Order of Extension, 6/6/21, 1 pg.
XII. Order of Extension, 8/2/21, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 370-373, 992, 1218-1221, 1776-1778, 2116-2117; Exs. IHO-V, IHO-VII, IHO-XI, IHO-XII). As a result of school closures across New York State due to Novel Coronavirus (COVID-19), all hearings in this matter were conducted remotely. See Louise DeCandia, Novel Coronavirus Impact on Special Education Due Process Timelines (Office of Special Educ. Mar. 16, 2020) (“At this point, it is not expected that in-person hearings would continue to be conducted. Current regulations provide other methods for hearings to be conducted without meeting in person.”).
[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7). A December 2018 psychological evaluation estimated the student’s Full Scale IQ to be 42 (Joint Ex. III at 2).
[4] See Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.
[5] A written verbatim transcript of the January 21, 2021 CSE meeting was entered as an exhibit into this hearing record (Joint Ex. IV).
[6] A board of cooperative educational services (BOCES) is a voluntary, cooperative association of school districts in a geographic area that share planning, services and programs to provide educational and support activities more economically, efficiently, and equitably than could be provided by an individual school district. See N.Y. Educ. Law § 1950. There are 37 BOCES in New York State. All but nine of the 691 operating school districts in New York belong to a BOCES. BOCES services are focused on education for students with disabilities, career education, academic and alternative programs, summer schools, staff development, computer services (managerial and instructional), educational communication, and cooperative purchasing. See N.Y. Educ. Law §§ 1950(4)(d)(1), (4)(bb), (4)(dd), (4)(gg), (4)(hh).
[7] A written verbatim transcript of the February 25, 2021 team meeting was entered as an exhibit into this hearing record (Joint Ex. VI). The February 25, 2021 team meeting devolved from its stated agenda when the educational consultant proposed that that the student’s “transition goals be integrated into a related service format delivered by myself at the school in between the delivery of his other related services” (Joint Ex. VI at 19). The transition coordinator also suggested at the team meeting that the educational consultant “go in [to school] at least one hour a week to address at least one of the three [transition] goals” (Joint Ex. VI at 40). The District’s Director of Pupil Personnel Services objected to the transition coordinator and educational consultant’s suggestions as violative of the parties’ September 2019 Pendency Agreement and the transition coordinator’s contract with the District (Joint Ex. VI at 41, VII; P-16; SD-15).
[8] The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[9] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." See Endrew F., 137 S. Ct. at 1000.
[10] Ms. [REDACTED]s suggestion is essentially that the District create a parallel 1:1 program for the student to be embedded within the District’s 15:1 special class program.