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In the Matter of the Application of
STUDENT, a Child with a Disability, by the
student’s parents, for a Due Process
Impartial Hearing,
Petitioners, FINDINGS OF FACT
AND DECISION
-against-
[REDACTED] CENTRAL SCHOOL
DISTRICT,
Respondent.
________________________________________________________________________
FINDINGS OF FACT AND DECISION
Student’s Name: STUDENT
Date of Birth: DATE OF BIRTH
District: [REDACTED] Central School District
Hearing Requested By: Parents by notice dated June 17, 2021
Dates of Hearing: September 29, 2021 (pre-hearing); November 11, 2021 (pre-hearing); December 13, 2021; January 20, 2022; April 11, 2022; June 10, 2022; June 17, 2022; and July 6, 2022
Record Close Date: October 25, 2022
Hearing Officer: Leah L. Murphy, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29, 2021, FOR A PRE-HEARING CONFERENCE
For the Student:
PARENT ATTORNEY
For the District:
SCHOOL ATTORNEY
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 11, 2021, FOR A PRE-HEARING CONFERENCE
For the Student:
PARENT ATTORNEY
For the District:
SCHOOL ATTORNEY
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2021, FOR A HEARING
For the Student:
PARENT ATTORNEY
PARENT LEGAL ASSISTANT
PARENT
For the District:
SCHOOL ATTORNEY
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2022, FOR A HEARING
For the Student:
PARENT ATTORNEY
PARENT LEGAL ASSISTANT
PARENT
For the District:
SCHOOL ATTORNEY
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2022, FOR A HEARING
For the Student:
PARENT ATTORNEY
PARENT LEGAL ASSISTANT
PARENT
For the District:
SCHOOL ATTORNEY
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 10, 2022, FOR A HEARING
For the Student:
PARENT ATTORNEY
PARENT LEGAL ASSISTANT
PARENT
PARENT WITNESS CONSULTANT
For the District:
SCHOOL ATTORNEY
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2022, FOR A HEARING
For the Student:
PARENT ATTORNEY
PARENT LEGAL ASSISTANT
PARENT
PARENT WITNESS BCBA
For the District:
SCHOOL ATTORNEY
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 6, 2022, FOR A HEARING
For the Student:
PARENT ATTORNEY
PARENT LEGAL ASSISTANT
PARENT
For the District:
SCHOOL ATTORNEY
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION
Procedural Background
This matter concerns student STUDENT, a AGE student, born on DATE OF BIRTH, who, at the time relevant to this proceeding, was classified with an Other Health Impairment, and resided within the [REDACTED] Central School District (referred to alternately as the “District” and/or “[REDACTED]”). The parent has commenced three requests for impartial hearing, pursuant to their rights under the Individuals with Disabilities Improvement in Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., all concerning the 2020/2021 school year. I was appointed to serve as the impartial hearing officer (“IHO”) for the first Due Process Complaint (“DPC I”) on June 22, 2021, which was filed by the student’s parents on June 17, 2021. [1] (Parent Exh. 1) The second DPC was initiated, by notice dated August 16, 2021 (“DPC II”). (IHO-I) As DPC I was pending, I was appointed for DPC II on August 17, 2021. A subsequent DPC was filed on September 10, 2021 (“DPC III”), to which I was appointed on September 11, 2021. (IHO-III). The District filed responses to all three DPCs, generally denying the allegations for each. (P-2; IHO-II; IHO-IV). The student and parents are represented by PARENT ATTORNEY, PRIVATE LAW FIRM. For DPC I, the District was represented by SCHOOL ATTORNEY 2, of PRIVATE LAW FIRM 2 FOR DISTRICT. For DPC II and III, the District is represented by SCHOOL ATTORNEY, of PRIVATE LAW FIRM FOR DISTRICT.
By way of background, the student moved from the PRIOR DISTRICT School District (“PRIOR DISTRICT”) into [REDACTED] in July 2020. The parent asserts that STUDENT has been diagnosed with disruptive mood dysregulation disorder, obsessive compulsive disorder (“OCD”), attention deficit hyperactivity disorder (“ADHD”) combined type, unspecified anxiety disorder and sensory difficulties. At the time of the registration, the parent expressed a belief that the student was autistic. In September 2020, the student entered the third grade in [REDACTED] as a student eligible for special education services and was placed in a small special class with a student to teacher ratio of 12:1:1 at PUBLIC ELEMENTARY SCHOOL 1. The student was also recommended for related services of occupational therapy and counseling. The placement at the time of the student’s entry, was largely based upon the student’s prior Individual Education Program (“IEP”) from PRIOR DISTRICT. At the time, other than a social history, the District had not conducted any evaluations of its own and initial programming was based upon information received from the parent and PRIOR DISTRICT.
DPC I was initiated by the parent for the purpose of obtaining an Independent Education Evaluation (“IEE”). The parents alleged the District failed to conduct a comprehensive psychoeducational evaluation of the student and wrongly based its IEP determination upon evaluations conducted by PRIOR DISTRICT. DPC I concerned events which transpired after February 2021, when the District began a search for an out of district placement for STUDENT DPC I references a disciplinary action and a Committee on Special Education (“CSE”) meeting held on March 11, 2021, where it was alleged the CSE recommended a change to STUDENT’s placement. The parent also alleged the District failed to fully respond to the parents’ numerous requests for STUDENT’s student records. The parents argued that any change or review of STUDENT’s program was thwarted by the failure to properly evaluate the student and the lack of information which should have been provided in the records she requested.
In the meantime, the parents also alleged that on April 1, 2021, they asked for a “comprehensive independent evaluation at public expense.” (DPC I). The District denied the request, claiming that it was not required to grant the request for an Independent Education Evaluation (“IEE”) because it had not yet conducted its own evaluation of the student. The parents then initiated DPC I, seeking the IEE and certain damages related to the District’s failure to appropriately evaluate the student. I clarified the issues going forward in DPC I to be related to the parent’s request for the IEE, the failure of the District to conduct evaluations, and compensatory damages (which I determined was for compensatory education) as a result of the District’s actions around evaluating the student. While DPC I described the parent’s efforts to obtain student records, DPC I did not allege violations of the IDEA or a denial of the student’s right to a free appropriate public education (“FAPE”) as a result of the District’s failure to provide student records.
Before the hearing in DPC I commenced, the Department granted the parents’ request for the IEE by her preferred provider and the only remining issue was whether the parent was entitled to compensatory education services due to the District’s failure to comprehensively evaluate the student and alleged delay in granting the IEE. A decision was rendered concerning DPC I on February 27, 2022. Familiarity with the decision is assumed, which found that the District had failed to comprehensively evaluate the student. As relief, to the extent it had not already done so, I ordered the District to conduct a comprehensive evaluation. To address the delay in the evaluation, I ordered compensatory educational services in the form of direct and indirect behavioral consultation for the student.
This hearing concerns DPC II and DPC III. Both parties agreed that DPC II and DPC III should be consolidated. DPC III was similar to DPC II except it included claims related to the alleged delay in the District granting the requested IEE and student records. In particular, the parents alleged that the IEE delay made it impossible for the independent evaluator to conduct a classroom observation, which they sought. The parents also claim that at the time of the independent evaluation the evaluator did not have the full complement of student records. The parents are seeking funding to compensate the evaluator for time spent to review the records, update the evaluation report and participate in the CSE meeting where the updated evaluation report would be reviewed. I consolidated DPC II and III, hereinafter referred to as “DPC II”.
DPC II raises and preserves issues concerning student records, the student’s program, efforts to transfer the student out of the District, and certain disciplinary actions as a violation of the student’s right to a free appropriate public education (“FAPE”) under the IDEA. DPC II presents a much more detailed description of the events which form the basis for the complaint during the entire 2020/2021 school year. The DPC II complaint is one hundred and eighteen pages, has three hundred and twenty-seven numbered paragraphs,[2] and attaches a subpoena, and seventeen exhibits. DPC II provides a detailed educational history of the student, including the alleged facts which form the basis for the asserted violations of the student’s rights. The introductory paragraph of DPC II asserts that the action is being brought pursuant to the IDEA, Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act (“ADA”), but the complaint also references the common law tort of negligent infliction of emotional distress and violations of the Fourteenth Amendment of the U.S. Constitution and Section 1983 of the Civil Rights Act.
By letter dated October 11, 2021, the District moved to dismiss certain claims raised in DPC II. (IHO-V). The parent responded to the motion by letter dated October 25, 2021. (IHO-VI). I partially granted the District’s Motion to Dismiss by Order dated November 4, 2021. (IHO-VII). I granted the District’s Motion to Dismiss the claims raised in DPC II pursuant to Section 504 of the Rehabilitation Act; Title II of the Americans with Disabilities Act; Section 1983 of the Civil Rights Act; the Fourteenth Amendment to the U.S. Constitution; and common law claim for negligent infliction of emotional distress. I further granted the District’s motion to dismiss claims concerning the evaluation of the student during the 2020/2021 school year which were duplicative of those in DPC I. As part of the decision on the motion to dismiss, I set forth the remaining issues to be determined at the hearing. (IHO-VII). I provided both parties an opportunity to be heard on my clarification of the issues for the hearing. (IHO-VIII; IHO-IX). In addition to written submissions, the parties presented their positions at a pre-hearing conference held on November 11, 2021. Thereafter, I submitted to the parties the list of issues to be determined as a template for the presentation of evidence. (IHO-X).
Issues to be Determined
The parties were notified that the hearing would determine whether the District violated the student and parents’ right to a free appropriate public education during the 2020/2021 school year by engaging in certain alleged procedural and substantive violations of the law as set forth in the complaint. For each issue, if the allegation is sustained, the consequences of the actions taken by the District will be considered to assist in a determination of what, if any, remedy is appropriate.
Legal Framework
Two purposes of the Individuals with Disabilities Education Act (IDEA) (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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 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 a procedural violation is 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 (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]; 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]; 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 impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (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" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (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 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The burden of proof is on the school district during an impartial hearing, See M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). With this framework in mind, I will review the issues as determined prior to the commencement of the hearing.
Findings of Facts
In the Summer of 2020, the student moved from the PRIOR DISTRICT School District (“PRIOR DISTRICT”) into [REDACTED]. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, testified on behalf of the District. (Tr. 105). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the District received the student’s “full registration” on August 14, 2020, which “let [them] know that [STUDENT] was going to be a student within [the] district.” (Tr. 110; D-34). Before August 14, 2020, the student was not registered as a student in the District.
The first indication that the student would be moving to [REDACTED] came in June 2020. At that time, it appears as if a person from the PRIOR DISTRICT Pupil Personnel Office, PRIOR DISTRICT CONTACT PERSON, contacted DISTRICT SECRETARY TO DIRECTOR OF SPECIAL EDUCATION, a secretary in the District’s Special Education office, by email dated June 8, 2020. (P-219; D-45). PRIOR DISTRICT CONTACT PERSON states in her email “we were told the [STUDENT] family will be closing on a home in your district. I’ve attached [STUDENT]’s paperwork and will transfer the IEP once registration is complete.” (P-219; D-45). DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION forwarded the email to DISTRICT REGISTRAR, stating “[REDACTED] suggested I give you heads up for this new family coming to the District.” (P-219). At the time, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION had not yet begun her employment as the Director of Special Education with the District and the family had not yet closed on the purchase of their home.
The parent testified that she informed someone at PRIOR DISTRICT that they would be moving to [REDACTED], but she had no recollection of when she first contacted [REDACTED] directly. (Tr. 1484). PARENT could not recall who she contacted at [REDACTED]. (Tr. 1484). PARENT stated that she contacted the District by phone and she printed documents out from the District’s website. (Tr. 1485). PARENT could not recall if she completed documents she received from the special education office. (Tr. 1486). PARENT testified that she printed out the documents in August. (Tr. 1487). PARENT testified that she handed in the registration form in the last couple of weeks of August 2020. (Tr. 1490). PARENT could not recall submitting documents to two entities in the District - the registrar’s office and the special education office. (Tr. 1491).
PARENT’s recollection of the registration process was not very crisp. PARENT stated that she could not recall what specific registration documents she submitted other than a belief it included the social and developmental history. (Tr. 1496; D-34) PARENT was at times a reluctant witness. PARENT’s testimony was purposely evasive, perhaps as a function of an annoyance at being cross-examined. Often, PARENT’s answer to questions was simply “I don’t recall” or she would answer a question with a vague response which presented to me as a feigned misunderstanding of what the question was. (Tr. 1497). PARENT stated that some of the documents from PRIOR DISTRICT were not provided by her but by the former school district. (Tr. 1503).
On July 13, 2020, DISTRICT REGISTRAR wrote to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, who had just begun in her position, stating “I have another new student . . . [STUDENT] grade 3 (IEP mom said he was in a 12:1:1 class.)” (D-48). DISTRICT REGISTRAR states in her email that she had “mailed out the CSE paperwork with the registration packets.” (D-48). As part of the registration packet, the District sent the parent consents for the release of information, a social and developmental history form; and the District’s Procedural Safeguards Notice. (D-48). On July 27, 2020, DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION wrote to DISTRICT REGISTRAR to follow-up on whether STUDENT had registered “for sure” since the student was not appearing on the “school tool” database for registered students. (P-40). As of July 27, 2020, the family had not returned the registration paperwork. (P-40)
Thereafter, the family returned the registration materials, including the “Social and Developmental History” completed by the student’s mother, PARENT, on August 14, 2020. (D-34). In the social history, the parent reports that the student’s “present difficulties” include unexplained temper tantrums; short attention span; bedwetting; eating problems and nervousness. (P-41). The parent reported that STUDENT has difficulty with vision and that he “cannot see well at all.” The student was on “anti-psychosis” medication and had been diagnosed with “AMOD/ADHD/Autism/Sensory.” (P-41). The form identifies the student’s pediatrician, psychologist, and psychiatrist. In the social history, the parent encourages a review of the PRIOR DISTRICT IEP for school information. (P-41). The parent described her child as follows:
[STUDENT] is a very skillful amazing child. His heart is so big. He gets easily overwhelmed. He will RUN out of building to get away. Please find a “safe” place for him when he needs alone time. He has a hard time w/over stimulation – gym, lights, sounds even a room sometimes.
(P-41).
All the student’s “registration information” was entered into evidence. In addition to the social history, the registration includes a Health History Information form, dated August 14, 2020; a consent for the release of records, signed by the parent on August 20, 2020, authorizing release of school records from PRIOR DISTRICT to [REDACTED]; an “Online pre-registration form,” printed on August 19, 2020; a Permission to Release Records Form, dated August 14, 2020, addressed to PRIOR DISTRICT; a Special Services Information Form, dated August 14, 2020; an email from the registrar, DISTRICT REGISTRAR, to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , dated July 13, 2020 (notifying DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION of a “new student” with a handwritten notation which states “Not registered as of 8/11 .. . 8/20 per DISTRICT REGISTRAR now fully registered.”); the PRIOR DISTRICT IEP, dated May 15, 2020; a psychological evaluation from the EVALUATION CENTER, dated May 22, 2018; an ADHD & Autism Psychological Services and Advocacy evaluation, dated March 7, 2019; and an PRIOR DISTRICT Functional Behavior Assessment, dated May 11, 2020. (D-34). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that a student is not considered “fully registered” within the District until all parts of the registration paperwork is completed. (Tr. 135). For purposes of this matter, I find that the student was fully registered on August 20, 2020.
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the evaluation from the EVALUATION CENTER indicated that the student had been evaluated for autism, but the condition was “unfounded.” (Tr. 129). The stated purpose of the EVALUATION CENTER evaluation was reported to “rule out Autism Spectrum Disorder.” (Tr. 130). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION further stated that the evaluation itself described a “socially engaging little boy who struggled highly with active, impulsive behavior and attention. “ (Tr. 130) While DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION acknowledged that the parent had described the student as being diagnosed with “autism” in the social history form, both of the evaluations sent by PRIOR DISTRICT indicated that the child had been evaluated for autism but it was ruled out. (Tr. 132). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION also noted that the student’s classification in PRIOR DISTRICT was “Other Health Impaired” - not autism. (Tr. 133).
The PRIOR DISTRICT CSE convened on May 15, 2020, and created an IEP for the 2020/2021. (D-34) According to the IEP, at that meeting, the PRIOR DISTRICT CSE reviewed the evaluations in the registration packet, including the following: a Functional Behavior Assessment (“FBA”) dated May 11, 2020; an Occupational Therapy Evaluation dated May 7, 2020; and the ADHD and Autism psychological evaluation dated March 7, 2019.[3] (D-34). Another psychological evaluation entered into the record was sent from PRIOR DISTRICT to the District when the student first enrolled in the District, but is not listed on the student’s PRIOR DISTRICT IEP. This evaluation, dated May 22, 2019, was from the EVALUATION CENTER. (D-34).
The PRIOR DISTRICT IEP sets forth the recommendations for the 2020/2021 school year, for a small special class (referred to as the Transitions Program) with a student to staff ratio of 12:1:3 and related services of occupational therapy in a small group twice a week for thirty-minute sessions and psychological counseling in a small group once a week for a thirty-minute session. (D-34). For the extended school year, the PRIOR DISTRICT IEP recommended that STUDENT attend a special class (12:1:3) and OT in a small group once a week. The student did not access the extended school year services from PRIOR DISTRICT which, according to the IEP, were scheduled to commence on July 6, 2020, and continue through August 14, 2020. (D-34). The family had not been fully registered in the District prior to August 14, 2020. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the District offered extended school year services to students for the period of July 2 through August 14, 2020. (Tr. 136).
On August 24, 2020, DISTRICT REGISTRAR wrote again to DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION regarding STUDENT’s enrollment. DISTRICT REGISTRAR was unsure of whether DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , had spoken to the parent and noted that the special education class for a third-grade student such as STUDENT, was at DISTRICT ELEMENTARY SCHOOL 1 DISTRICT ELEMENTARY SCHOOL 1 (“DISTRICT ELEMENTARY SCHOOL 1”), which was not the school zoned for STUDENT’s residence (noted by DISTRICT REGISTRAR to be “DISTRICT ELEMENTARY 2”). (P-40). DISTRICT REGISTRAR informed DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION that she was “just checking placement and if we need transportation to both DISTRICT ELEMENTARY 2 and DISTRICT ELEMENTARY SCHOOL 1.” (P-40).
In response to this email, on August 24, 2020, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION emailed her secretary, DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION, asking if they had STUDENT’s PRIOR DISTRICT IEP. DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION told DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION that they had a paper copy of the student’s IEP from PRIOR DISTRICT and his “psych.” In the email, DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION stated that she had given DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION the file the previous week with a message to call DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL (the principal at DISTRICT ELEMENTARY SCHOOL 1). DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION’ email said that the file was back on her chair a few days later. (P-40). According to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , she reviewed STUDENT’s file in late August. (Tr. 138).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that after her review of the student’s registration materials, she called the student’s mother, PARENT (Tr. 139). PARENT testified that she had one conversation with DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION about STUDENT’s placement for the 2020/2021 school year. (Tr. 1500) PARENT stated that this conversation came after PARENT dropped off the registration documents in the end of August, 2020. (Tr. 1501). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that she told PARENT that she had reviewed the PRIOR DISTRICT IEP and the District did not have the 12:1:3 class in the District recommended by PRIOR DISTRICT. (Tr. 139). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION told PARENT that the District had a 12:1:1 and a 15:1 but “based on the information that I reviewed with his behavior, he would probably need a more therapeutic program than we could possibly offer in our district.” (Tr. 139). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that she told PARENT that typically students with similar needs are considered for the Questar program at BOCES/QUESTAR which is a 6:1:2 program. (Tr. 139).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that PARENT reacted strongly and stated, “she would not allow her son to go to BOCES/QUESTAR, and that she would fight me every step of the way.” (Tr. 140). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that in trying to work with the parent, and help STUDENT transition into the district, they scheduled the CSE meeting. (Tr. 140). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that she had raised the Questar program after having spoken to the Director of Special Education from PRIOR DISTRICT about STUDENT (Tr. 140) The student had been in a 12:1:1 which was changed to a 12:1:3 - a more restrictive program even though it seemed as if he needed more support. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that she was also influenced by her review of the student’s records which led her to believe STUDENT would need a more therapeutic program than the District could offer in a community school within the District. The FBA and the PRIOR DISTRICT IEP reflected a need for a more intensive level of support. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that the student “needed a lot of behavior management.” (Tr. 141).
PARENT confirmed that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION called her before the start of the 2020/2021 school year. (Tr. 1512). PARENT stated that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION called her to advise her that the District did not have a place for STUDENT and she wanted to place STUDENT at Questar. (Tr. 1513). PARENT testified that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION provided no reason for suggesting Questar and, according to PARENT, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated “we feel BOCES/QUESTAR is better for him.” (Tr. 1513). PARENT did not recall what information DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION had to come to her conclusions. (Tr. 1514). PARENT stated that she did not ask DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION why she thought BOCES/QUESTAR would be a better placement. (Tr. 1514). PARENT stated that the conversation with DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was less than ten minutes. (Tr. 1514). PARENT testified that she told DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION that she wanted STUDENT educated in his home district since they had a special education class. PARENT testified that she did not ask DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION anything about the class at DISTRICT ELEMENTARY SCHOOL 1. (Tr. 1517).
PARENT had particular resistance to answering a question about the student’s IEP from PRIOR DISTRICT. After being shown the IEP, and asked if it refreshed her recollection as to the size of the class as a 12:1:3, PARENT stated ”I was not in the classroom to count the number of adults and children and say they were exactly 12 children and four other adults in the classroom.” (Tr. 1520). When asked if she understood that the recommendation was for a 12:1:3 class program, PARENT did not answer. When I asked PARENT if she understood the question, she said yes, but did not answer it. PARENT’s reluctance was so apparent, I had to ask if there was something about the question she did not understand. (Tr. 1520). PARENT stated she understood the question, but she was having difficulty with scrolling through the digital copy of the IEP in evidence. PARENT took her time to scroll through the document claiming that it was not scrolling easily, and had to be asked if she was at the page, several times. When she arrived at the page, she asked for this very simple question to be repeated. When she was asked if she had the page in front of her, she stated “I did and I answered the question you asked regarding that.” (Tr. 1521). When she was asked again if she was on the recommendation page of the IEP, she said she did not have it in front of her.
PARENT’s avoidant responses to very straight forward questions, leads me to question her credibility. In this same exchange, when she was reminded of the question, concerning her understanding of the recommendation from PRIOR DISTRICT, she said “based on this page I cannot recall.” (Tr. 1522). PARENT stated that she did not participate in the CSE meeting where the IEP was developed, but she was listed as in attendance as being on the phone on the IEP. (D-34; Tr. 1522). PARENT’s non-responsive demeanor during cross-examination led to her being admonished, by me, as follows:
I will give direction to the witness. This is cross-examination, Miss [REDACTED]., which means Mr. [REDACTED] can ask leading questions which you probably got a sense of during some of the other testimony. So he can ask you a leading question, he can ask you a question which requires a yes or no answer. Your attorney is going to have an opportunity to redirect. During cross-examination you have to answer the question that was asked.
(Tr. 1525). Ms. [REDACTED] often asked to have the questions repeated; stated that the questions were “not clear enough to answer;” and requested that the questions be more specific. (Tr. 1530; 1531). PARENT also exhibited long pauses before answering questions. I had to ask Ms. [REDACTED] several times whether she understood the question, even when it was a straightforward question. After one display of obvious avoidance, I had the following exchange:
- Could you be more specific with your question please?
Hearing Officer: Do you understand the question, Miss [REDACTED]?
- I do understand the question.
Hearing Officer: Then answer it. Either answer it or state you don’t understand it. It doesn’t help you to be so difficult in answering the questions because they are not hard questions. So, I know you have good testimony to give me, and I would like to hear it, so just answer the questions and Mr. [REDACTED] will have an opportunity to redirect you.
(Tr. 1532). PARENT’s credibility was assessed with caution. PARENT’s credibility was impacted by her evasive response to some questions and a failure to find support in the record to corroborate some of her claims. At times, Ms. [REDACTED]’s description of the events during the 2020/2021 school year were in line with a litigation strategy but not with the evidence.
PARENT attempted to downplay STUDENT’s behavior issues prior to arriving at the District. PARENT testified that STUDENT’s behavior when he was in PRIOR DISTRICT, was similar to when he was in the District, stating “he had minor incidents, nothing that was catastrophic or rose to the level of [REDACTED]’s description of him.” (Tr. 1523). In contrast, based not only on the PRIOR DISTRICT IEP and the evaluations which came with STUDENT, his emotional outbursts were described as being at a level of ten out of ten. PARENT could not recall being told that STUDENT was having significant emotional outbursts both verbal and physical while at PRIOR DISTRICT. (Tr. 1529). PARENT stated that she was told by his previous districts that STUDENT was “having a hard time with properly handling emotions, that at times he was dysregulated.” (Tr. 1529)
Before the start of the school year, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION contacted the classroom teacher for the 12:1:1, DISTRICT CLASSROOM TEACHER 1, and the building principal, DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL, notifying them of the new student. (Tr. 142). DISTRICT CLASSROOM TEACHER 1 said she would contact STUDENT’s teacher from PRIOR DISTRICT. The evidence reveals that as of August 28, 2020, at the request of the student’s mother, STUDENT’s former teacher from PRIOR DISTRICT emailed his new teacher, DISTRICT CLASSROOM TEACHER 1, for the 2020/2021 school year at DISTRICT ELEMENTARY SCHOOL 1. (P-42). The two teachers did not appear to have an opportunity to speak but his former teacher’s email to DISTRICT CLASSROOM TEACHER 1 stated that STUDENT’s academics had come a long way and he did well on remote instruction. The former teacher told DISTRICT CLASSROOM TEACHER 1 that STUDENT needed a safe place for when he gets upset and he needs to walk away, “chasing and talking to him doesn’t work.” (P-42). In an e-mail exchange between the student’s mother, PARENT, and DISTRICT CLASSROOM TEACHER 1, the parent was informed that STUDENT’s class is a 12:1:1 with students in the third, fourth and fifth grades. (P-44).
The parent testified that she had no understanding at that time of distinctions in special classes in a public school based on size or profile of the students. PARENT stated that she “didn’t realize there was any distinction for a special education class in a public school.” (Tr. 1576) The distinction for the parent was only that there are students who cannot get out of bed and go to a public school who would need a different type of class out of the District. All other special education students were essentially the same in her eyes. (Tr. 1576).
The CSE meeting for the 2020/2021 school year, took place on September 11, 2020. (Tr. 142; D-3). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that at the meeting, the parent spoke about how STUDENT did in PRIOR DISTRICT and DISTRICT CLASSROOM TEACHER 1 described her class. Ultimately, the CSE recommended DISTRICT CLASSROOM TEACHER 1’s special class with a student to teacher ratio of 12:1:1. (Tr. 144). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was not at all convinced that this was an appropriate program for the student. When asked why it was recommended DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated: “[w]e try to work with families, we don’t really - we always feel that we can try to service the kids the best we can. Sometimes kids when they are in classes, maybe it’s an issue with personality with the teacher or whatever might have led with some of the behaviors, we wanted to at least give [REDACTED] a chance to be in our district and be part of our school and be in a community-based school.” (Tr. 144). The class that was recommended for the student was for students with developmental disabilities. The students in the class were alternately assessed. STUDENT was not a student with any cognitive impairment and the placement was not appropriate for the student. The profile was not similar, and the student’s needs could not be met in a special education class with no therapeutic support.
The CSE met to develop an IEP for STUDENT on September 11, 2020. (Tr. 142). The IEP created at that meeting, essentially mirrors the PRIOR DISTRICT IEP. (D-3). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that after introductions she asked the parent to “discuss with us her hopes, how STUDENT was in his last district.” (Tr. 143). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the discussion was largely about his IEP from PRIOR DISTRICT. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that the recommendation for the 12:1:1 was made in an effort to work with STUDENT’s family.
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the first couple of weeks of the school year were okay, but the student began to exhibit behavioral issues on the bus. (Tr. 145). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that they met several times to find ways to support the student, but the behaviors began to escalate. STUDENT started to demonstrate noncompliant behavior, swearing, threatening staff, and displaying physical aggression. (Tr. 145). The student kicked the bus aide in the stomach a couple of times. (Tr. 146). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION reached out to the parent and had two meetings with the parent, DISTRICT TRANSPORTATION DIRECTOR, the Director of Transportation, and DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL, the DISTRICT ELEMENTARY SCHOOL 1 Principal. (Tr. 146). The parent was concerned that she was not getting information about STUDENT’s behavior in a timely manner. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that if there is an incident on the bus, a “bus referral” is sent to the building principal who typically follows up with the parent. (Tr. 149). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that they agreed that bus drivers would give referrals to the principal at the end of the bus run and the principal would send it to the parent. (Tr. 150). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION said that after this was arranged, she did not hear any problems with communicating to the parent about bus incidents. (Tr. 150)
Other topics discussed at this meeting included ways to support STUDENT on the bus. It was agreed that the school psychologist, DISTRICT SCHOOL PSYCHOLOGIST DISTRICT SCHOOL PSYCHOLOGIST, would work with STUDENT and practice on a bus sent to DISTRICT ELEMENTARY SCHOOL 1. (Tr. 151). The District purchased weighted blankets for the student and provided the student with an electronic hand held game system (“Gameboy”) with headphones. According to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, the parent was open to the strategies being proposed to help STUDENT with his bus behavior. (Tr. 151). The evidence in the record indicates that the parent was a willing participant in the decision to drive STUDENT to school. At no time during the school year, does the parent assert any objection to having to drive STUDENT to school. She was keenly aware of the difficulties STUDENT was having on the bus and the parties cooperatively worked at addressing the poor bus behavior. It was only after the litigation was commenced that the parent complained that the student was “suspended” from riding the bus. The parent did not dispute that she volunteered to drive the student. The parent conceded that the behaviors the student was exhibiting on the bus in the District were similar to difficulty he had in two previous school districts. (Tr. 1566).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that in the fall when the issues with bus behavior were being discussed, STUDENT was removed from riding the bus. (Tr. 152). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that after their meeting, PARENT agreed to drive STUDENT back and forth while they were conducting the travel training and strategies to help STUDENT on the bus. (Tr. 152) PARENT could not have been surprised by the bus removal. PARENT noted in an earlier email to DISTRICT CLASSROOM TEACHER 1, before the start of the school year, that she anticipated trouble on the bus for STUDENT and she would gladly drive him to school if it became a problem. (P-44). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that the student did not miss any school because of the issues he had on the bus. (Tr. 154).
E-mails entered into the record show that the school psychologist, DISTRICT SCHOOL PSYCHOLOGIST, and STUDENT’s teacher, DISTRICT CLASSROOM TEACHER 1, began to work on practicing appropriate bus behaviors. (P-46) PARENT testified that she was aware of concerns on STUDENT’s behavior on the bus. She was told that STUDENT was “unsafe, that he would not listen to instruction of the bus driver, the aide on the bus. I was told that he was defiant and destructive.” (Tr. 1043).
In addition to behavioral concerns on the bus, STUDENT began to exhibit challenging behaviors in school. (Tr. 153). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the behaviors began with noncompliance to directives to start an assignment or to be in a certain area. The student’s parent also testified about difficult behaviors the student was engaged in at the beginning of the school year. (Tr. 1570). PARENT stated that she was aware that STUDENT was eloping and engaging in verbal and physical aggression. (Tr. 1570). Behaviors began to escalate where the student would go through drawers and cupboards in the classroom and emptying them. (Tr. 154). The student began to climb on the bookshelves and would scream loudly, yell, and swear in the classroom. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that it got to the point that STUDENT was being aggressive throwing items at staff and students, which necessitated clearing the room of the other students. (Tr. 154).
As the school year progressed, the student’s behaviors in the school building became more problematic. According to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, STUDENT started to climb on furniture, throw things, yell, scream, swear and became aggressive towards students and staff. There were occasions when STUDENT’s behaviors resulted in the room having to be cleared. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the District sought the parent’s consent to conduct a Functional Behavior Assessment (“FBA”) to address STUDENT’s behavior in school. (Tr. 156; D-32). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that the parent’s consent was requested in October 2020. (Tr. 156). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that they requested the parent’s consent to conduct the FBA on four occasions and received it back from the parent on January 5, 2021. (Tr. 156; D-32). After receipt of consent, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the teacher and school psychologist collected data, reviewed the FBA and create a Behavior Intervention Plan (“BIP”). (Tr. 159)[4] After the FBA was completed, a CSE meeting was scheduled.
E-mails entered into evidence detail some of the difficulties STUDENT was exhibiting in school throughout the school year. On October 6, 2020, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was notified by the school principal, DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL, that the student had a bad day. The student was upset upon arrival because his parent had not allowed him to purchase breakfast and lunch. (P-46). During class, STUDENT was upset about not being able to have breakfast and his teacher removed the rest of the students from class until STUDENT calmed down. Eventually, STUDENT was taken to the hallway where he rode a scooter. Later the same day, STUDENT would not leave DISTRICT CLASSROOM TEACHER 1’s room during recess. When DISTRICT CLASSROOM TEACHER 1 was at lunch, DISTRICT INDIVIDUAL AIDE 1, a 1:1 aide, was needed to stay with the student. On this day, DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL called the parent to report STUDENT’s difficulty and to inquire if she had any strategies that worked for STUDENT when he was upset. (P-46)
DISTRICT CLASSROOM TEACHER 1 also reported that she called the principal down in the morning because STUDENT had started to have more episodes in which he was unable to remove himself to the break area and deescalate. DISTRICT CLASSROOM TEACHER 1 notes in her email that “behavior today was extremely erratic.” (P-46) DISTRICT CLASSROOM TEACHER 1 stated that STUDENT was in control and able to work in class between each episode. DISTRICT CLASSROOM TEACHER 1 stated that “prior to last week while he has needed behavior support for the most part, he has been able to be directed to the quiet area to calm down. Outbursts have been verbal and of short duration. There is an issue around snacks and lunch. The student struggles to follow any directions or plan that does not appeal to him at the time, behaviors are becoming more of a concern.” (P-46).
The exchange reveals that the student was disrupting the class which necessitated the principal going to the classroom. DISTRICT CLASSROOM TEACHER 1 took the other children out of the room. The situation deescalated when the student was taken into the hallway and rode his scooter. The student had another incident that same afternoon where he refused to leave the classroom for recess and was screaming out again. The principal, DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL, stayed with the student in the classroom while the rest of the class was taken out. The principal said that the student “did mention that he was going to jump off the roof.” (P-46). In her email, the principal indicates that she did contact the parent to “inquire if she had any strategies that worked for him when he is upset.” (P-46). DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL did not testify and it is unclear whether DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL told PARENT about STUDENT’s comment about jumping off the roof. In the afternoon, STUDENT’s occupational therapist wrote to the school principal, the student’s teacher and DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION about another incident during the session. (P-46). STUDENT threw his crayons at the OT and bolted out of the classroom. The OT followed him while he ran around the building. The afternoon incident necessitated the assistance of the school psychologist and a “crisis de-escalation person,” DISTRICT CRISIS PERSONNEL. DISTRICT CRISIS PERSONNEL needed to intervene and completed his own incident report. (P-83). Emergency Intervention Forms are completed when a hold was used to address the student’s behavior. (P-83). Ultimately, the parent was called to take the student home.
In the same email chain, DISTRICT CLASSROOM TEACHER 1 indicated that there had been more episodes where STUDENT gets upset and is unable to remove himself from the break area and de-escalate. DISTRICT CLASSROOM TEACHER 1 had to remove the students so that she could assist STUDENT. DISTRICT CLASSROOM TEACHER 1 noted that the student struggles to follow any direction or plan that does not appeal to him at the time. (P-46). DISTRICT CLASSROOM TEACHER 1 stated that the student’s “behaviors have become more of a concern.” (P-46). In response to these emails, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION told the school psychologist to “look at starting an FBA and BIP for him.” (P-46). In what seems to be the first mention of an out of district placement, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION further states the following:
I am concerned about the disruption in your program and to others as well as safety concerns. We can look for outside placement, but I am not sure we will find a place for him. I have 2 [REDACTED] students who are currently waiting for placement. Let’s look at doing the FBA first, I will get [REDACTED] to send home permission.
(P-46). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that she sent the parent a consent form for an FBA and Behavior Intervention Plan (“BIP”) in October 2020. (Tr. 156).
The parent testified that she was asked to consent to an FBA in September or early October 2020. PARENT stated that the District “claimed they didn’t get the signed paperwork until January.” (Tr. 1573). PARENT testified that she received the request for consent in October and returned it shortly thereafter. She acknowledged that she received several emails from DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s secretary, DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION, indicating that they had not yet received the consent for the FBA. (Tr. 1694; P-154). PARENT testified that she had several phone conversations with DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION indicating that she sent the consent form. Ultimately, the consent form was received by the District on January 5, 2021. (Tr. 1694; D-32).
The student’s behavior continued to be disruptive. On October 15, 2020, DISTRICT SCHOOL PSYCHOLOGIST sent an email reflecting that she was continuing to work with STUDENT on bus behaviors. (P-48) On October 22, 2020, an email from the principal was sent questioning what would be needed from the building to return STUDENT to the bus and noting that they would be providing the student with a “game-boy.” (P-49). On October 30, 2020, a weighted blanket was purchased to assist the student with his sensory dysregulation. DISTRICT CLASSROOM TEACHER 1 also sent an email to the transportation department with suggestions for assisting STUDENT during the bus ride. (P-50).
Another more serious in school incident was reported on November 4, 2020, when STUDENT ran out of his gym class. The incident necessitated the assistance of the school psychologist. (P-51). After this incident, DISTRICT CLASSROOM TEACHER 1 reached out to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION by email, dated November 4, 2021, stating the following:
I think we need to talk about staffing and perhaps placement for [STUDENT]. He is highly unpredictable, and it is difficult to manage the level of needs, particularly when he is out of the room, but also in the room at times with the current ratio. I was hopeful that things were improving but I do think he is a student who will cycle.
(P-52). In response, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION indicated that she would be happy to meet to discuss STUDENT. At the same time, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION heard from the school principal, DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL, who informed her that STUDENT had to be restrained for kicking, hitting, and knocking over a chair. DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL noted “major concerns” for the safety of the student and others. (P-52). It should be noted that there was no Emergency Intervention Report placed into evidence regarding this incident.
On December 10, 2020, DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL notified PARENT about a “write up” concerning STUDENT’s bus behavior. DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL requested that PARENT speak to STUDENT about two incidents concerning his bus behavior. To the extent that there begins to be a breakdown in the good will between the school and the parent, it is evident in PARENT’s response. She informs DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL that she will speak to STUDENT but will impose no consequences. (P-54). PARENT states “it would have been nice to be contacted by the bus garage” as she expected to deal with issues accordingly. (P-54). PARENT further notes her disappointment in the poor communication about these incidents.
On January 13, 2021, the school psychologist, DISTRICT SCHOOL PSYCHOLOGIST, wrote to DISTRICT CLASSROOM TEACHER 1 about removal of STUDENT from her counseling group due to his disruptive behavior. (P-55). DISTRICT SCHOOL PSYCHOLOGIST removed STUDENT from a group counseling session which was taking place remotely. DISTRICT SCHOOL PSYCHOLOGIST states that she removed him from the meeting, and she had never had to do that before with a student, “but he was bring inappropriate and distracting to the other students who were well focused.” DISTRICT SCHOOL PSYCHOLOGIST states that she gave the student warnings before she removed him. (P-55). When asked if there had been any adults in the room, DISTRICT SCHOOL PSYCHOLOGIST states that the student was by himself. DISTRICT SCHOOL PSYCHOLOGIST stated that it was difficult to see the student because of the poor lighting in the room.
DISTRICT CLASSROOM TEACHER 1 responds to DISTRICT SCHOOL PSYCHOLOGIST by saying that she intends on asking for a “1:1 next year.” (P-55). DISTRICT SCHOOL PSYCHOLOGIST agrees that this is necessary, candidly saying “DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION wants him to continue in your room when you have a bunch of alt assessed kids, an aide seems necessary.” (P-55). DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL notes that she believes the aides in DISTRICT CLASSROOM TEACHER 1’s class should be trained in restraints and DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION states she can “check with Questar” to see if the training is offered. (P-56). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s comment to obtain training for staff from Questar in crisis prevention intervention (“CPI”) for staff, suggests that staff did not have current training.
The FBA consent form, which had been sent in October 2020, was returned by the parent on or about January 7, 2021. (D-32; P-58; Tr. 155). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that they tried to get consent for the FBA on at least four occasions. (Tr. 156). The consent form was signed by the parent and dated January 5, 2021. (D-32). Upon receipt of the consent, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that staff began to collect data and scheduled a meeting to review the FBA and create the BIP. (Tr. 159). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that the District needed to conduct their own FBA rather than use the FBA from PRIOR DISTRICT.
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the school psychologist, DISTRICT SCHOOL PSYCHOLOGIST, did a records review, collected data through observations, teacher interviews, and then she compiled all of that in an FBA report. (Tr. 160; D-10). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that upon completion of the FBA, a CSE meeting was scheduled for its review. (Tr. 161). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the FBA was reviewed, and the Behavior Intervention Plan (“BIP”) was created at the CSE meeting held on April 1, 2021. (Tr. 162).
Emails entered into the record between STUDENT’s teacher, DISTRICT CLASSROOM TEACHER 1, and DISTRICT SCHOOL PSYCHOLOGIST show how the FBA was created. In the emails, beginning on January 27, 2021, DISTRICT SCHOOL PSYCHOLOGIST and DISTRICT CLASSROOM TEACHER 1 discuss the next steps for the FBA. DISTRICT SCHOOL PSYCHOLOGIST tells DISTRICT CLASSROOM TEACHER 1 that they should choose a couple of behaviors to target and then she will provide DISTRICT CLASSROOM TEACHER 1 with data collection sheets. At this point, DISTRICT CLASSROOM TEACHER 1 advises DISTRICT SCHOOL PSYCHOLOGIST that the biggest issue is STUDENT’s grabbing things that do not belong to him and becoming aggressive. DISTRICT CLASSROOM TEACHER 1 notes that she needs “to have an aide with him at all times.” (P-58). Rather than create a new FBA, DISTRICT CLASSROOM TEACHER 1 and DISTRICT SCHOOL PSYCHOLOGIST seem to adopt the PRIOR DISTRICT FBA as “very accurate.” DISTRICT CLASSROOM TEACHER 1 emailed DISTRICT SCHOOL PSYCHOLOGIST on February 2, 2021, and states “I did re-read his FBA from PRIOR DISTRICT and it is very accurate. I do not think we need to change much.” (P-60).
During this period, it is apparent the District was considering a change in placement for STUDENT. By February 8, 2021, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION had contacted BOCES CONTACT PERSON from the Questar program at BOCES. In her email she states the following: “I have a 3rd grade student who needs a 6:1:1 program placement. Do you have any openings? I will start the paperwork process if you think you do.” (P-63). It is clear DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was looking for a program at Questar with openings to finish out the 2020/2021 school year. There is nothing in the record to suggest that the parent was involved in this discussion at this point. In response BOCES CONTACT PERSON informs DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION that they have a 6:1:1 placement but not for 3rd grade and describes other options. (P-63). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION proceeded with the application process at Questar for the 2021/2022 school year.
A “School Summary for [STUDENT]” was drafted by DISTRICT CLASSROOM TEACHER 1 on February 9, 2021, presumably in preparation for the March CSE meeting, but also to send with the out of district placement application to Questar. (P-64). In the summary, DISTRICT CLASSROOM TEACHER 1 states the following:
Behaviors that are exhibited daily, even when having a relatively successful day include yelling at staff and peers, going into drawers and cabinets to look for items that he desires, refusing to follow a routine direction and interrupting instruction. More severe outbursts have been exhibited an average of 2-3 times per week. These behaviors include yelling and swearing, throwing or dumping materials, climbing on or under furniture pushing furniture, walking out of the room and pulling out computer cords. Most of these incidents while intense last for fifteen minutes and occurred multiple times in one day. On three occasions this year, [STUDENT] required crisis intervention in school as he was unresponsive to other interventions and behaviors escalated and became more physical. All these times, [STUDENT] hit or kicked staff, climbed up onto or knocked over furniture, ran away from staff or tried to climb out a window. In addition, [STUDENT] has had several bus incidents involving verbal and physical aggression towards staff who were giving directives.
(P-64). DISTRICT CLASSROOM TEACHER 1 goes on to state that the behavior plans put in place to reward STUDENT for completing tasks and using the classroom “quiet area” when needed had proven ineffective in terms of being able to help STUDENT make consistent progress. (P-64).
The student’s parent testified that she was aware of the behavior plan being used in DISTRICT CLASSROOM TEACHER 1’s classroom for STUDENT. (Tr. 1699). DISTRICT CLASSROOM TEACHER 1 used a point system in an effort to motivate STUDENT. (Tr. 1700). PARENT testified that DISTRICT CLASSROOM TEACHER 1 would send the “point sheets” to PARENT through Google docs, on a daily basis for review. (Tr. 1701; 1702). PARENT communicated with DISTRICT CLASSROOM TEACHER 1 through a communication app, known as the “dojo texts,” and would receive the google doc point sheets to see how STUDENT was doing. (Tr. 1703). PARENT was also aware that STUDENT was permitted to take a break in a quiet area without any penalty. (Tr. 1705).
According to an email sent on February 10, 2021, to DISTRICT SCHOOL PSYCHOLOGIST from DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s secretary, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was asking for the swift completion of the FBA so that it could be included in the “BOCES/Questar” application for STUDENT (P-65). In response, DISTRICT SCHOOL PSYCHOLOGIST states that she did not have the FBA completed because “[w]e are still in the midst of data collection.” (P-65). When asked when the application was being sent out, DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION informs DISTRICT SCHOOL PSYCHOLOGIST, she was told the application would be going out that same day. DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION informs DISTRICT SCHOOL PSYCHOLOGIST that she will follow up with her later and send out the PRIOR DISTRICT FBA with the application. (P-65). DISTRICT SCHOOL PSYCHOLOGIST does not anticipate having the FBA completed that day but agrees that the PRIOR DISTRICT one is “very spot on to him, so ours won’t be too different.” (P-65). Certainly, DISTRICT CLASSROOM TEACHER 1 and DISTRICT SCHOOL PSYCHOLOGIST ruminate on the appropriateness of STUDENT’s placement in DISTRICT CLASSROOM TEACHER 1’s class, but the parent’s participation in the decision is not evident.
The FBA entered into evidence is dated February 10, 2021. Without completing the “data collection,” DISTRICT SCHOOL PSYCHOLOGIST was able to finish the FBA that same day. (P-65; D-10; P-5; P-6). Having completed the FBA, according to one email exchange dated March 2, 2021, DISTRICT SCHOOL PSYCHOLOGIST and DISTRICT CLASSROOM TEACHER 1 appear to be at a loss as to how to complete the Behavior Intervention Plan (“BIP”). DISTRICT CLASSROOM TEACHER 1 writes “what the heck do they want for a BIP?” DISTRICT SCHOOL PSYCHOLOGIST responds as follows:
I do have a district form for a BIP, but that’s supposed to be written as a committee following the FBA. I don’t think we will ever actually have a meeting for the FBA though, I can try to throw a BIP together quick tomorrow using that form if you want.
(P-66). It appears as if the written FBA and BIP was necessary to complete an application to the out of District placement referred to by DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , for a 6:1:1 class at Questar BOCES.
A “Student Intake Committee Review” form from Questar was entered into the record. (P-104). The document reveals that the intake information was received on February 10, 2021, and was for the 2020/2021 school year. (P-104). Prior to the CSE meeting scheduled for March 11, 2021, for the student’s annual review, the parent participated in an “Intake Visit” with Questar on March 10, 2021. (P-104). The summary of the intake indicates that the parent participated in the “virtual intake with the student. (P-104). It is noted that the student is close to grade level in reading and math and has no academic goals in those areas. (P-104).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that a CSE meeting was held on March 11, 2021, originally scheduled as the student’s annual review. (Tr. 162). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that at the meeting, there were several things that needed to be added to the student’s current IEP, specifically an individual aide for the classroom and bus, for the current school year. (Tr. 162; D-4). There are two IEPs generated from the CSE meeting held on March 11, 2021, one which would be for the completion of the 2020/2021 school year (D-4) and the other, annual review, which included the recommendations proposed for the 2021/2022 school year, (D-6). At the meeting, the CSE made recommendations for the 2021/2022 school year which would seek an out of district placement. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that STUDENT was demonstrating a continually escalating and disruptive pattern of behaviors which was impacting not only his education but that of the other students in the classroom. (Tr. 163). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that the CSE also discussed the BIP at the meeting and then a final BIP, dated March 18, 2021, was sent home to the parent. (Tr. 167; D-11). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that this BIP was sent with the application to Questar. (Tr. 168).
PARENT testified that there was a discussion at the March 11, 2021, CSE meeting about BOCES/QUESTAR (also known as “Questar”). (Tr. 1378). PARENT testified that the CSE wanted to have STUDENT at BOCES/QUESTAR but she did not understand “why they felt that BOCES/QUESTAR would be a better fit than where he was.” (Tr. 1378). PARENT testified that “at that point she was willing to look at anything because [she] was concerned for J. continuing to go to DISTRICT ELEMENTARY SCHOOL 1, his behaviors had deteriorated.” (Tr. 1379). From PARENT’s perspective, the relations between STUDENT and the school had deteriorated, and she felt they had “given up on him.” (Tr. 1379). This is one example of PARENT’s testimony being different from the real time evidence in the record. PARENT stated the following:
I was fearful that my child was going to be seriously physically harmed. I, you know, was already well-aware of the mental damage and emotional damage that had been inflicted on my son, but I felt that things were getting physical to the point where it may cause permanent damage, even death.
(Tr. 1380) While the parent testified to having these feelings in March 2021, there is nothing in the record to corroborate that PARENT had such grave concern with STUDENT’s school at that time. When asked what she meant by “mental damage,” PARENT stated the following:
He ended up in [REDACTED] [psychiatric hospital] last year. He always enjoyed going to school, he didn’t want to go to school. He was constantly being destructive, he did not have, for example, a 1:1 special education teacher to be by his side all of the time so that there was someone there for him when he needed someone.
(Tr. 1380). PARENT infers that STUDENT’s hospitalization was due to STUDENT’s experiences in school, but there is no support in the record for such conclusion.
If PARENT believed STUDENT was being “mentally damaged” as a result of his treatment in school, she did not share that concern with the staff of [REDACTED] Hospital upon her son’s admission in May 2021. The [REDACTED] records were placed into evidence by the District. At admission, STUDENT was assessed and the section of “history of present illness” states the following:
[REDACTED] year-old single white male with past psych hx of DMDD and ADHD is being referred for admission by his mother due to escalation in aggressive and dysregulated behaviors. Mom reports pt. has been exhibiting escalation in aggressive episodes which are becoming increasingly unsafe, i.e., yelling, screaming, making threats to kill family and himself, displaying increased impulsivity and rage lasting for hours, becoming very anxious and perseverative, very difficult to redirect. Mom reports on Sunday pt became very agitated tried to open car doors while mom was driving making it necessary for her to pull over; while at the rest stop pt became even mor agitated, was throwing cans of soda and bottles at mom (hit her on the forehead), damaging car by pouring soda everywhere and carrying on despite mom’s attempts to deescalate him. Mom ended up calling the police for help and had to subdue him as he kept on fighting with them. Pt. was taken to the ER where he was scheduled for psych transfer . . .Mom reports no issues with sleep or appetite, feels that pt requires medication adjustment and stabilization.
(D-30). Nowhere in the two hundred and sixty-seven pages of records from [REDACTED], is there any mention of concerns regarding how the student was treated in school. The student’s aggressive and challenging behaviors were the result of a serious and pervasive psychiatric disorder and not a result of how he was being treated in school. The student’s behaviors had been evident in both the Sherburne and PRIOR DISTRICT school district prior to STUDENT’s arrival in the District. The parent was aware of the student’s challenging behaviors at school and at home. It was only after she had adopted a litigation posture that STUDENT’s behavior was attributed to his experience in school. While school personnel made attempts to manage STUDENT’s outbursts, this was not isolated to the school environment. Even the parent had difficulty managing the student’s behavior, which necessitated calling the police for assistance.
PARENT testified that STUDENT was not being provided with the support he needed in school to be successful. While PARENT believed the student needed more support, she clearly did not want him removed from his community school. (Tr. 1382). PARENT confirms that when she spoke to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, prior to the start of the school year, she was told by DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION that STUDENT needed to go to BOCES/QUESTAR because the District did not have a placement for STUDENT (Tr. 1383). PARENT wanted STUDENT in the local school district and she did not see a problem because the District had the special education class. (Tr. 1383). PARENT stated that she was never told that the class was for students with intellectual disabilities. (Tr. 1383). PARENT stated that because STUDENT’s disability was behavioral his needs were not being met in that class. (Tr. 1384). PARENT states that no one explained to her that the “alternately assessed” students in the class had IQs significantly below STUDENT. (Tr. 1384). From PARENT’s perspective a “special class” meant a special class and she did not differentiate that term.
PARENT understood that STUDENT’s behaviors were a function of his anxiety. She stated that “when STUDENT’s anxiety level goes up, at that point that kind of will set off more anxiety and nervousness and everything is too much for him and he gets angry and he gets explosive, then he acts out whether it’s verbally or physically, and he does not have the ability once that ball starts rolling to put those breaks on.” (Tr. 1388). PARENT acknowledged that during the 2020/2021 school year, there were unique transitions due to school closures related to the Covid pandemic.
Despite her understanding of STUDENT’s difficulty, she rejected DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s suggestion to place the student in the therapeutic program at the beginning of the school year. PARENT testified that she believes that STUDENT needs “trained trusting staff with a 1:1 special education teacher that understands his disability,” but that is not what she asked for at the start of the school year. (Tr. 1394). PARENT was satisfied with STUDENT being placed in a “special education class” even though she was unaware of the profile of students. While PARENT may not have understood the composition of the class, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION did. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION all but conceded that the 12:1:1 class was not appropriate for STUDENT and clearly, it was not. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s concession to work with the parent led to an abrogation of identifying an appropriate program for the student.
PARENT testified that during the 2020/2021 school year, she “had to seek counseling and medication” because her own anxiety was well out of control.” (Tr. 1397). PARENT does not attribute the anxiety to the challenge of parenting a child with an emotional disability, rather, she testified that “she was fearful for her child’s life because I felt the school had given up on him, they let him regress to the point where he felt dejected, he felt unwanted and every day I feared yet another phone call for what my child could have possibly done wrong today, and if I was going to have to pick him up from school and if he was going to be suspended or if he was going to make it through the day.” (Tr. 1397) It is undisputed, by either party, that the placement in the 12:1:1 class at DISTRICT ELEMENTARY SCHOOL 1 was not appropriate to meet the student’s needs for the 2020/2021 school year.
PARENT testified that at the March 11th CSE meeting she understood that STUDENT would possibly be going to BOCES/QUESTAR the following school year. (Tr. 1406; Tr. 1713). PARENT did not agree that STUDENT should finish the 2020/2021 school year in yet another school, and he didn’t. STUDENT finished the 2020/2021 school year at DISTRICT ELEMENTARY SCHOOL 1. PARENT felt three schools in one year would be too much for STUDENT (Tr. 1406). PARENT stated that two IEPs were created at the March 11, 2021, CSE meeting. One was for the 2021/2022 school year with a recommended placement at BOCES/QUESTAR. (Tr. 1731). PARENT testified that she understood that regarding the 2020/2021 school year, they were waiting to find out if there was an opening for STUDENT at BOCES/QUESTAR. (Tr. 1731).
PARENT testified that after the CSE meeting, she was contacted by DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION because there was no opening at BOCES/QUESTAR the remainder of the 2020/2021 school year. PARENT testified that she provided consent to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION to send packets to programs that may have an opening for STUDENT for the remainder of the 2020/2021 school year. (Tr. 1733). PARENT stated that there was a discussion of adding the individual aide for STUDENT for the remainder of the 2020/2021 school year and that was placed on the second IEP generated from this meeting. (Tr. 1729). At no time did the CSE make a recommendation for an out of district special education placement for the 2020/2021 school year. (D-4, D-5; Tr. 1737). PARENT stated that she did not voice any objection to the recommendation for BOCES/QUESTAR for the 2021/2022 school year at the time of the March CSE meeting. (Tr. 1737).
After the March 11th CSE meeting, STUDENT continued to struggle with his behavior. On March 15, 2021, DISTRICT CLASSROOM TEACHER 1 reported that she had to place STUDENT in a basket hold when he attempted to bolt from the building. (D-21; P-83). The incident report reflects that the hold lasted ten minutes and that the student did not have a behavior plan in place. (D-21; P-83). DISTRICT CLASSROOM TEACHER 1 completed three incident reports where she had to implement a restraint of STUDENT, on March 15, 16, and 21, 2021. (D-21; P-83). After these incidents, DISTRICT CLASSROOM TEACHER 1 continued to seek guidance for a BIP for STUDENT In an email to DISTRICT SCHOOL PSYCHOLOGIST, dated March 15, 2021, DISTRICT CLASSROOM TEACHER 1 asks “can we update or create a BIP for [STUDENT]. I need to know how to ‘plan’ for physical interventions. The crisis intervention form asks if he has a plan in his BIP for handling physical crisis, so I wondered what the district form included.” (P-72). While District staff were using crisis intervention holds with STUDENT, there was no BIP in place and there was no guidance on under what circumstances a hold should be used or how to be administered.
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s testimony regarding when the BIP was created is inconsistent. The BIP entered into evidence is dated March 18, 2021, but DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the BIP was actually created at a CSE meeting held on April 1, 2021. According to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, the FBA and BIP were “discussed . . . and put it into place” at the April CSE meeting. (Tr. 169; D-5). The IEP from that meeting was placed into evidence. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that PARENT voiced no objection to the BIP at that time. (Tr. 169). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that at the meeting they “went through the behaviors that were being demonstrated, we talked about how the behavior question was done and we created the behavioral plan.” (Tr. 170).
On March 15, 2021, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was notified by Questar that they could accept STUDENT for the 2021/2022 school year in a 6:1:2 class at BOCES/QUESTAR. (P-75). In the email, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION is asked if she wants to secure the spot for the next school year. In addition, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION is informed that they are working from a waitlist to get STUDENT into the program for the remainder of the 2020/2021 school year. (P-75). It is not clear whether the parent was aware of these developments.
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that in late March 2021, STUDENT was suspended out of school for issues related to STUDENT’s aggressive behavior. (Tr. 170-171; D-39). The student was banging on office furniture and being noncompliant. The student was suspended for five days. (Tr. 171). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that STUDENT’s behavior necessitated being held in restraints on several occasions during the 2020/2021 school year. (Tr. 172). The District entered into evidence seven “incident reports” which reflected the need to engage in restraints of the student. (D-39). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the incident reports are completed when a restraint is used. (Tr. 173).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified about her conversations with the parent, concerning an out of district placement. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that prior to the annual review, scheduled for March 11, 2021, she reached out to the parent to talk to her about “programming options.” (Tr. 175). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated this initial conversation was in February 2021. (Tr. 175). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that due to the escalating behaviors, she asked PARENT if she would be “okay if we looked at a placement now.” (Tr. 176). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that PARENT was agreeable, so they completed the application and started the referral process to Questar. (Tr. 176). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that she only sent out the application to Questar after PARENT had given her permission to start the process. (Tr. 177). The process included sending out a referral packet that they used for all students, and they also sent the IEP, the FBA and the BIP. (Tr. 177).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that once Questar had reviewed the packet, they schedule an “intake” meeting to determine if the student is an appropriate fit educationally and behaviorally. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that PARENT agreed to it and then she reached out to Questar to see if they had an opening. (Tr. 178). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION participated in this meeting which was held via Zoom due to the pandemic. (Tr. 178). During the meeting, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the Questar staff discussed the program. Afterwards, STUDENT was accepted, and according to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, the parent was happy about the acceptance. (Tr. 179).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION described the program as a ”therapeutic behavioral program for students with behavioral needs.” (Tr. 179). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated the student’s entire day would be structured. The staff includes a psychiatrist, and a Board-Certified Behavior Analyst (“BCBA”). (Tr. 180). All staff are trained with Therapeutic Crisis Intervention (“TCI”) skills. (Tr. 181). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that she believed the Questar program would be appropriate for the student, and it was recommended for STUDENT for the 2021/2022 school year. (Tr. 181; D-6). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that throughout the CSE meeting where the program was discussed (on March 11, 2021) the parent gave no indication that she was not in agreement. (Tr. 181).
Because the student’s behavior was escalating, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that she reached out to the parent to see if she would agree to an effort to have STUDENT finish the school year in the more supportive placement. (Tr. 182). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION said that the strategies put into place to assist STUDENT in DISTRICT ELEMENTARY SCHOOL 1 were not successful. The evidence suggests that PARENT questioned moving STUDENT and at that point, began her quest for STUDENT’s records. (Tr. 182).
PARENT testified that during the 2020/2021 school year, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was looking at multiple schools, including BOCES/QUESTAR, for placement for STUDENT in the last quarter of the school year. (Tr. 1461). PARENT stated that there were no spots available at BOCES/QUESTAR for the remainder of the 2020/2021 school year. PARENT testified that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION had told her that she had found a “temporary” placement, but this was rejected by PARENT In general, PARENT stated that over the course of the 2020/2021 school year, her communication with DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was primarily DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION reporting the difficulty STUDENT was having in the special class at DISTRICT ELEMENTARY SCHOOL 1. (Tr. 1479) PARENT viewed her interactions with DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION as being “pushed” into an out of district program.
PARENT testified that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION reached out to let her know “all of the incidents,” but she did not feel any solution to help STUDENT was offered. (Tr. 1479). PARENT stated that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was letting her know of these incidents throughout the school year from September to the end of the year. (Tr. 1480). PARENT stated that she anticipated these calls, because in her view STUDENT “didn’t have the proper trusting supports in place.” (Tr. 1482). The dispute during the 2020/2021 school year arises out of the District’s belief that appropriate support would be available in the out of District placement refused by the parent in the beginning of the school year.
In May 2021, the student was hospitalized for nearly a month at [REDACTED] Hospital. (Tr. 183). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that at that time, she was unaware what precipitated the hospitalization and the only records they received were a summary of the student’s education while hospitalized. (Tr. 184). After the initiation of this impartial hearing, the District did receive the complete [REDACTED] Hospital records which were placed into evidence. (D-30). As previously noted, the “psychiatric assessment” taken when STUDENT arrived at the hospital indicates that the parent was reporting escalating aggressive and dysregulated behavior. (D-30). The student was hospitalized after an incident which occurred while STUDENT was driving with his mother and became intensely agitated. The parent had to call the police to bring STUDENT to the emergency room. In the “initial treatment plan,” it was recommended that in addition to inpatient hospitalization, individual and family therapy the student have a “therapeutic school.” (D-30).
It is noteworthy that at the time of this hospitalization, in May 2021, the parent did not report a diagnosis of autism to the psychiatrist assessing STUDENT. The intake note states the following: “mom stated pt.’s first psychologist believed pt. was on Autistic Spectrum but pt. is not officially dx with ASD (he had 2 psychological tests that ‘he apparently passed’) as per mom.” (D-30). As of May 2021, if the parent had a belief that STUDENT was autistic, she had abandoned that belief or at least accepted that there were two evaluations which did not identify STUDENT as autistic when she reported STUDENT’s history to the physician’s at [REDACTED]. PARENT testified that she arranged to have the [REDACTED] and ADHD and Autism evaluations conducted to determine if STUDENT had autism. (Tr. 1510). PARENT testified that neither evaluation resulted in a diagnosis of autism. (Tr. 1510; D-34). When asked if she had any documentation suggesting a diagnosis of autism, PARENT stated the following: “[e]xplain documentation, it’s on file and has been on file at his pediatrician’s office for years.” (Tr. 1511). If that were so, that is not what she told the physician who conducted the assessment of STUDENT when he was admitted to [REDACTED]. PARENT conceded that she did not provide the District with any reports or documents from medical doctors or therapists, indicating that STUDENT was autistic. (Tr. 1511).
Throughout the 2020/2021 school year, there is evidence that STUDENT’s behavior had, on several occasions, led to the need for the use of restraints by school personnel. PARENT testified that the use of restraints had happened in schools before she moved into the District. (Tr. 1711). PARENT sent an email to STUDENT’s teacher, DISTRICT CLASSROOM TEACHER 1, on October 7, 2020 telling her that when STUDENT is in Sherburne - in kindergarten and first grade - STUDENT was put in holds multiple times daily. (Tr. 1712; P-43). PARENT stated that the holds would be prompted by STUDENT engaging in verbal aggression, flipping desks, eloping. (Tr. 1712). PARENT testified that STUDENT was also placed in holds several times while in PRIOR DISTRICT. (Tr. 1713). PARENT could not recall if she shared with DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, when they spoke in August 2020, that while in his former school districts, he was placed in holds due to his behavior. (Tr. 1713).
In an exchange with DISTRICT CLASSROOM TEACHER 1 about the use of holds, PARENT emailed the following: “I truly understand the necessity. I have done it before. Please make it an absolute last resort which I’m sure it is.” (Tr. 1715). PARENT described a situation where she might use a hold. PARENT stated “when [STUDENT] was getting extraordinarily anxious and it was leading to him getting angry, I would be able to just kind of bear hug him with pressure and it would kind of relieve his anxiety and generally settle him.” (Tr. 1717).
By the end of the school year, the parent had developed mistrust of the District. The parent had requested records, an Individual Education Evaluation, and brought this impartial hearing with many claims for relief concerning the 2020/2021 school year.
Claims for Relief
A. The Child Find Duty
The first issue for determination concerns whether the District had violated its “Child Find” duties, at the time of the student’s arrival in [REDACTED]. The purpose of the “child find” provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may need special education and related services, but for whom no determination of eligibility as a student with a disability has been made. (See Handberry v. Thomspon, 446 F. 3d 335, 347-48 (2d Cir. 2006); E.T. v. Bd. of Educ., 2012 WL 5946537, at 11 (S.D.N.Y. Nov. 26, 2012); A.P. v. Woodstock Bd. of Educ, 572 F. Supp. 2d 221, 225 (D. Conn. 2008), aff’d, 370 Fed. App’x 202 (2d Cir. 2010); see also 20 U.S.C. § 1412(a)(3)(A); 34 CFR 300.111; 8 NYCRR 200.2(a)(1), (7)). The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State “to ensure that they receive needed special education services.” 20 U.S.C. § 1412(a)(3)(A); 34 CFR 300.111 (a)(1)(i); 8 NYCRR 200.2(a)(1); Forest Grove Sch. Dist.v. T.A., 557 U.S. 230, 245 (2009); E.T., 2012 WL 5946537, at 11 (S.D.N.Y. Nov. 26, 2012): see 20 U.S.C. § 1412(a)(10)(A)(ii); see also 8 NYCRR 200.2(a)(1), (7); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 294, 400 n. 13 (N.D.N.Y. 2004). The “child find” requirements apply to “children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade.” 34 CFR 300.111 (a)(1)(i); 8 NYCRR 200.2(a)(1), (7); D.K. v. Abington Sch. Dist., (S.D.N.Y. 2011); 20 U.S.C. § 1412(a)(3)(A); 34 CFR 300. To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. 34 CFR 300.111 (a)(1)(i); 8 NYCRR 200.2(a)(1), (7).
Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. (See Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (noting that “[s]chool districts may not ignore disabled students’ needs, nor may they await parental demands before providing special instruction”); see also Application of the Bd of Educ., Appeal No. 11-153; Application of the Bd of Educ., Appeal Nos. 11-092 & 11-094. A district’s child find duty is triggered when the district has “reason to suspect a disability and reason to suspect that special education services may be needed to address that disability.” (J.S., 826 F.Supp. 2d at 660, quoting New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n. 13 (N.D.N.Y. 2004)) Additionally, the “standard for triggering the child find duty is suspicion of a disability rather than factual knowledge of a qualifying disability.” (Reg’l Sch. Dist. No. 9 Bd. of Educ. v. Mr. and Mrs. M., 2009 WL 2514064, at *12 (D.Conn.2009)). To support a finding that a child find violation has occurred, “the [d]istrict must have ‘overlooked clear signs of disabiity’ or been ‘negligent by failing to order testing,’ or there must have been ‘no rational justification for deciding not to evaluate.” (J.S., 826 F. Supp. 2d at 661, quoting Educ. v. L.M., 478 F. 3d 307, 313 (6th Cir. 2007; see A.P., 572 F. Supp. 2d at 225).
While the child find obligation is an affirmative one, it applies to those students who are residents of the school district not identified for special education services. The parent alleges that the receipt of the social history as part of the registration material, which indicated that STUDENT had autism, triggered the District’s obligation to conduct a “child find evaluation.” The question of whether STUDENT carried a diagnosis of autism, was not clear from the registration materials. As DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION indicated, there was conflicting information. On the one hand, the parent had placed “autism” on the social history form as one of STUDENT’s diagnoses. Nevertheless, the two evaluations received from PRIOR DISTRICT, which appeared to be conducted for the purpose of exploring this condition - concluded that the student was not autistic. The District was obligated to conduct an evaluation of the student, but the “child find” duty was not implicated in this matter. When the District received the documents, the student had not yet been fully enrolled in the District.
As was determined in the prior hearing, the District had failed to comprehensively evaluate STUDENT upon his admission to the District school, and were ordered to conduct the evaluations which were missing. However, that abrogation of its duty to evaluate was not a violation of the child find provisions of the IDEA. I find no violation of the District’s Child Find Duty and such claim is dismissed. I further find that the parent’s claim that the District failed to evaluate the student for autism was not supported by the facts and is a red herring. Prior to the request for due process, the parent had not told the psychiatrists at [REDACTED] that she believed STUDENT was autistic. In fact, she simply reported that autism had been ruled out. A claim that the District acted inappropriately by failing to evaluate the student for autism is misleading, given the parents failure to voice the same concern when STUDENT was hospitalized.
- Whether the receipt of the parent’s social history indicating STUDENT’s autism triggered a child find evaluation?
I find that the District did not violate any “child find” obligation to STUDENT The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). In this case, STUDENT had already been identified and was poised to receive special education services when he arrived in the District.
- Did the District receive a social history indicating that STUDENT was autistic?
The social history submitted with STUDENT’s registration included a notation from the parent of multiple diagnoses, including autism. (D-34). Also included with the registration material were two evaluations, both of which ruled out autism as a diagnosis. One evaluation was conducted by the EVALUATION CENTER (“[REDACTED]”), dated May 22, 2018, which ruled out autism. (D-34). The summary of the findings does not include a diagnosis of autism. The diagnoses identified in the [REDACTED] report are ADHD and Unspecified Anxiety Disorder. (D-24). The PRIOR DISTRICT IEP does not include any mention of autism as a program concern. There is evidence that the student was experiencing emotional outbursts which led to physical restraints and poor self-regulation in PRIOR DISTRICT, but it does not appear that those behaviors were attributed to autism. The underlying cause of the student’s emotional dysregulation was not identified as autism.
The other evaluation included in the student’s registration material is a report from ADHD & Autism Psychological Services and Advocacy (“[REDACTED]”), dated March 7, 2019. (D-34). While the EVALUATION CENTER report ruled out autism in 2018, in 2019, the [REDACTED] report states that the student had been referred by the Arise Parent Advocates because STUDENT’s mother was concerned with “the presence of autism; social-emotional needs; self-harm; opposition; and refusals.” (D-34). The parent obviously was not convinced by the EVALUATION CENTER report that STUDENT was not autistic. The report states that “according to school records [STUDENT] has made threats to kill himself and others, has exhibited aggression, refused directions, and used profanity.” (D-34). Because the parent was concerned about autism, the [REDACTED] evaluation included administering the ADOS-2, which is a diagnostic rating scale for identifying autism spectrum disorders. The report states that the results of the ADOS did not support the presence of an Autism Spectrum Disorder. (D-34). The Evaluation did reveal the presence of a slight social communication impairment which was impacted by the student’s ADHD.
The [REDACTED] report found that the diagnosis of ADHD was confirmed and “due to [STUDENT]’s oppositionality, tantrums out of proportion to the antecedent, and irritability, a diagnosis of Disruptive Mood Dysregulation Disorder is assigned.” (D-34). While the [REDACTED] report acknowledges a concern with autism, it was not assigned as a result of this evaluation. The report states, however, that STUDENT presents with a social communication impairment, “which appears to be best conceptualized by his attention impairment and sever mood dysregulation.” (D-34).
There are no evaluations in the record which would confirm a diagnosis of autism, quite to the contrary, the two evaluations received by the District when STUDENT registered both rule out the diagnosis of autism. The record is not clear on why she placed “autism” on the social history form, when she registered in the District. The PRIOR DISTRICT IEP suggests that the CSE from the student’s prior district viewed STUDENT’s behaviors as a function of a social impairment and inability to regulate his emotions. At the beginning of the 2020/2021 school year, the District used this IEP as a guide for placement of the student in the 12:1:1 special class and autism is not reflected in the IEP.
As previously noted, before the parent requested any impartial hearings concerning the 2020/2021 school year, she abandoned a belief that STUDENT was autistic. When STUDENT was admitted to [REDACTED] hospital in May 2021, the parent did not include autism in her list of diagnoses of STUDENT
- Was the District obligated to conduct a child find evaluation upon receipt of the social history?
I do not find that the District was obligated to conduct a “child find” evaluation upon receipt of the social history. As was determined in an earlier decision concerning the same child, I issued a finding that the District had violated its obligation to comprehensively evaluate the student during the 2020/2021 school year. In that case, I ordered a comprehensive evaluation and compensatory education targeted to addressing the student’s behavior.
- Whether the District violated the “child find” obligation by failing to comprehensively evaluate STUDENT?
- What was the District’s obligation to conduct a “child find” evaluation when he moved into the District?
- Did the District comply with that obligation?
- What, if any, are the consequences of the District violating its child find duty to the student, if the allegations are sustained.
As noted, the District was not obligated to conduct a “child find” evaluation in this matter.
- Procedural Safeguards Duty
- Whether the District provided prior written notices (“PWN”) before it proposed to initiate or refused a change to the identification, evaluation, or educational placement?
- What, if any, are the consequences of such failure to provide the parent with required PWNs, if the allegation is sustained?
Prior written notice is required under the following circumstances:
- When the District proposes to initiate or to change the identification, evaluation, or educational placement of the student, or the provision of a free appropriate public education; or
- When the District refuses to initiate or to change the identification, evaluation, or educational placement of the student, or the provision of a free appropriate public education.
8 N.Y.C.R.R. 200.5(a) and (c). The complaint is silent regarding what particular actions or refused actions for which the District failed to provide prior written notice. The allegation is a global charge that the parent was not provided with prior written notice. The District put into evidence several letters written to the parent during the 2020/2021 school year which demonstrate compliance with the requirement to provide prior written notice to the parent. (D-41). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION also testified that these letters were mailed to the parent. The letters are dated as follows: on September 18, 2020, sent after the September 11, 2020 CSE meeting recommending the student receive special education; on October 7, 2020, when the District sought the parent’s consent for an FBA to be conducted; on March 11, 2021, at the time of the CSE meeting for the student; on June 4, 2021, when the District sought consent for a comprehensive evaluation of the student; and September 3, 2021, when the District sought further consents for evaluations. (D-41). As such, the District has sustained its burden that it provided the parent with prior written notice during the 2020/2021 school year.
- Whether the District withheld requested student records?
- What is the District’s obligation to provide student records?
- Did the District comply with such obligation?
- Did the District withhold records?
- What, if any, are the consequences of failure to provide student records if the allegation is sustained?
Under the IDEA and the New York State Education Law, parents have the right to inspect and review any education records relating to their child that are collected, maintained, or used as part of the referral and evaluation for special education process. 8 N.Y.C.R.R. § 200.2(b)(6) and 2000.5(d)(6). The District must comply with a request for records without undue delay.
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified about the parent’s request for records at the hearing. (Tr. 190) The parent’s first request for records was made on March 23, 2021, when DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION had broached the subject of recommending a placement for STUDENT at Questar, a small class which was located in BOCES/QUESTAR School (“[REDACTED]”), a Board of Cooperative Educational Services (“BOCES”) school. After the CSE meeting held on March 11, 2021, the parent requested “access to all records pertaining to [STUDENT] and information about [STUDENT]’s potential placement at BOCES/QUESTAR as soon as possible.” (P-12; Tr. 1742). STUDENT had been suspended and a manifestation determination CSE meeting was scheduled to determine if the conduct which was the basis for the suspension was a manifestation of the student’s disability. (P-12). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION responded to the request, by email dated March 23, 2021, by explaining the purpose of the scheduled meeting. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION suggests abandoning the manifestation determination meeting and that the meeting be used as a “requested review” of the FBA/BIP and talk about the student’s behavior. (P-12). She also notes that there is no plan to move STUDENT at that time because there were no openings for the student at BOCES. (P-12).
PARENT testified that she requested STUDENT’s records because she had done further research into BOCES/QUESTAR and she was not sure it was going to be the best placement for STUDENT (Tr. 1742). PARENT also testified that she wanted to review the school records to prepare for the manifestation meeting. (Tr. 1743). In addition to the records, PARENT also requested the IEE for information to consider the BOCES/QUESTAR placement for the 2021/2022 school year. (Tr. 1747).
Included in the correspondence are directions from DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION to her secretary to provide to the parents “a copy of the draft FBA and BIP; a copy of the BOCES/QUESTAR application; and a “copy of the write-ups from the most recent suspension.” (P-12) The parent requested “all records” and what was sent in this initial response, was not all the student’s records. The parent sent a second email the following day, on March 24, 2021, stating “I am still requesting access to all records relating to [STUDENT]” for the manifestation determination meeting. (P-12). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION responds by informing PARENT that she would change the meeting to a “requested review,” which was rescheduled to April 1, 2021. (P-12). PARENT is pleased to have more time to review STUDENT’s records and asks “[w]hen can I access them.?” (P-12). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION replies by stating the following: “[h]ere is the suspension letter and the FBA, the BIP will be created at the meeting. [REDACTED] has already sent the [REDACTED] application. These are all the documents you had requested.” (P-12). But what was sent was clearly not “all” of what PARENT requested. She asked for “all of [STUDENT]’s records,” what she received was an incomplete selection of documents, chosen by DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION and non-responsive to PARENT’s request. (P-12).
On March 30, 2021, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION wrote to PARENT responding to a request for an Independent Education Evaluation (“IEE”). (P-13). Included in DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s email, is a reference to an available spot in another school district for a 6:1:1 Class. (P-13). The email reflects, at least from DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s perspective, agreement “on a 6:1:1 program for the fall for [STUDENT].” (P-13). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION states that “we believe that it may be in [STUDENT]’s best interest to begin with such a program now, since the opportunity appears to be available.” (P-13). PARENT clearly did not want such placement for the remainder of the 2020/2021 school year as DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION asks her to “please let me know if you have reconsidered and will allow me to send his IEP to the other school district, which has a placement for him now until the end of the school year.” (P-13). For such an important decision, PARENT asks again “to access all records regarding [STUDENT].” (P-13).
After the April 1, 2021, CSE meeting, PARENT wrote an email to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , dated April 26, 2021, stating that she had not received the records she had requested in March and asking what she needed to do to access all of STUDENT’s records. (D-50; P-14). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION responded by email dated April 27, 2021, stating that she had mailed out the records on March 31, 2021 “with all the paperwork we discussed.” (D-50). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s repeated assertion that she had sent out the records requested, while perhaps not intentional, is oblivious to what PARENT was requesting. On May 3, 2021, PARENT writes to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION that she received “a few pages of information. I still have not received his progress reports, attendance records, IEPs etc.,” (P-13). PARENT acknowledged during the hearing that on other occasions throughout the school year, she did receive the student’s IEPs and progress reports. (Tr. 1749). PARENT received the student’s IEP progress reports and report cards throughout the school year. (P-86; P-87; P-91; Tr. 1755, Tr. 1756).
There is a packet of information which was entered into evidence with a handwritten note from DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s secretary, saying “this is exactly what was sent to [PARENT] via certified mail on 5/3/21 - + 20-21 4/1/21 IEP + 21-22 3/11/21 IEP.” (D-51). This packet of information includes the documents specifically requested by PARENT, such as the progress report, attendance record, and draft IEPs. The packet was sent by returned receipt requested mail. (D-52). Included in this packet are the following records: Progress Report for Goals and Objectives, dated 5/3/21; a “Tool School,” student information record, including attendance; disciplinary records related to an incident which occurred on March 22, 2021; reports of emergency interventions from 3/16/21, 3/15/21, 3/16/21, and 3/24/21; Bus Behavior Referral forms from 3/17/21, 3/19/21, 9/7/20; a Medicaid consent form, dated 10/19/20; a prescription for Occupational Therapy, dated 10/7/20; IEP Direct documents of a draft IEP, shared with Questar, dated 3/18/21; and IEP Direct document of a draft IEP, dated 4/19/21. (D-51, D-52).
PARENT wrote another email to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, dated June 6, 2021, stating “I have repeatedly requested access to all of my son’s records yet have received just a few dozen pages. Please let me know when I can have access to all records relating to [STUDENT] to make informed decisions about his education.” (P-15). In response, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION states “[PARENT] I have sent you all the records I have.” (P-15). PARENT testified that by June 6, 2021, she was requesting the records so that she could make educational decisions for STUDENT. (Tr. 1760). PARENT testified that she had filed a state complaint challenging the manner in which the District responded to records requests. (Tr. 1763).
There is confusion as to how DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION responded to PARENT’s request for records. It appears as if DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION responded piecemeal and only providing what she believed would be relevant to a decision regarding an out of district placement for STUDENT. While PARENT’s request for records was directed to DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, she responded with only what she maintained in the student’s file held in the special education office. (Tr. 191). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION surmised what would have been sent home to PARENT would be “IEPs, any evaluations or reports, any data that we had through special ed in the CSE office.” (Tr. 191).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that other records parents have access to are accessed through the school website, such as student discipline, health records, any grades, progress, those types of things.” (Tr. 191). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was not concerned with providing those records to the parent. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION did not intentionally withhold records from the parent, but she was non-responsive to the parents requests for “all” records. (Tr. 197). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the parent was also sent the student’s IEP goals progress report on June 24, 2021. (Tr. 193; D-36). The parent was sent a copy of the student’s Grade 3 Report Card, which was also placed into evidence. (Tr. 195; D-37).
The request for records was not limited to only the student’s special education records. There were records maintained at the building level, including disciplinary or incident referrals, and at the District level, which included registration material. As a result of this impartial hearing, it is clear that there were documents which were not sent to the parent or made available for her to review prior to the end of the 2020/2021 school year. All requests for records made thereafter, were for the purpose of educational planning for the following school year.
Thereafter, the parent through her attorney began to request the records via a freedom of information law (“FOIL”) request. (P-16). By July 9, 2021, the District provided an electronic file of educational records that were requested and a link to access the drop box of records. (P-20). The District indicated that they would continue to review records and provide records responsive to the request. (P-20). The parent received hundreds of pages of documents including documents which may not be considered “educational records,” such as emails or anecdotal notes made by the provider of services.
The District violated the parents right to access the student’s school records in a timely fashion. Based upon the volume of records entered into the record at the hearing, many of the documents were not provided to PARENT when she asked. There are behavior referrals and teacher notes which were not provided until the parent requested records pursuant to FOIL or responded to a subpoena. The District should review its practice to respond to a parent’s request for records to determine if such requests are being fully responded to, including locating the various departments which may have student records. Parents can be invited to review the records in person, which was not offered to the parent when she asked for “all” records.
- Whether the parent can withhold consent for evaluations requested by the District, pending a dispute as to whether the District has provided all records demanded by the parent?
There is no obligation that a parent consent to having the District evaluate a student. If a parent does not consent to an evaluation, however, he or she will be hard pressed to argue that the District failed in its obligation to identify an appropriate program. Under the circumstances here, it was reasonable for the parent to withhold consent for an evaluation until she had received her child’s records. Particularly here, where there is evidence to support a finding that the student had been observed by a behavior specialist, without the knowledge of the parent. The observation summary was not included in the records provided to the parent. The parent’s obstruction to allowing the District to conduct its evaluation is one factor to be considered.
- What, if any, are the consequences of the parent’s withholding consent for evaluations pending a dispute regarding a request for school records, if the allegation is sustained?
At this time, the student was provided with the requested IEE and a comprehensive evaluation conducted by the District has been completed. The records requested by the parent have been provided. Any request for relief regarding this issue is moot.
- Whether the District provided the parent with the required procedural safeguards notice?
The evidence in the record supports a finding that the District did provide to the parent a copy of the Procedural Safeguards Notice. The District routinely sends home a “half sheet” of the notice which includes the internet address to get the notice and directions for how to have a copy of the notice mailed, if so desired. The “half-sheet” is sent home with every meeting notice. (D-47). The record reveals that a hard copy of the Procedural Safeguards Notice was provided to the District’s Registrar, DISTRICT REGISTRAR, as part of the “CSE Packet.” (D-48). DISTRICT REGISTRAR sends out the Safeguards Notice to parents who are registering their children in the District and have indicated they will be pursuing an IEP. (D-48). DISTRICT REGISTRAR sent the CSE packet to the parent on or about July 13, 2020. (D-48).
In addition to when the procedural safeguards notice was sent with the registration information, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that when the parent requested an IEE, in April 2021, the parent was sent a hard copy of the procedural safeguards notice. (Tr. 188) The parent confirmed that she did receive a procedural-safeguards notice in April 2021. (Tr. 1329). The parent denies receiving a hard copy of the notice prior to April 2021. Each of the Prior Written Notices sent to the parents include a statement that the parent has received a copy of their procedural safeguards notice and if they want another copy directions to contact the CSE office. (Tr. 188; D-41).
- What is the District’s obligation to provide the required procedural safeguards notice?
- What, if any, are the consequences of failure to provide the procedural safeguards notice if the allegation is sustained?
The District is obligated to provide the Procedural Safeguards Notice to the parents. In this case, there is no evidence to support a finding that the District failed to provide the parent with the required notice.
- Whether the District’s April 1, 2021, CSE meeting was properly composed?
- Was the BOCES representative obligated to be present at the April 1, 2021, CSE meeting, and if so, was she or he present?
- What, if any, are the consequences of failure to have a BOCES representative present at the April 1, 2021, CSE meeting, if the allegation is sustained?
There was no obligation upon the District to invite the BOCES representative to the April 1, 2021 CSE meeting. The April 1st meeting was initially scheduled for a manifestation determination related to a disciplinary suspension. At that time, the student had been suspended out of school for a period of five days. As such, it did not meet the threshold of a “change in placement” which would have required the manifestation determination. There is nothing in the record to find that the parent was unaware that the purpose of the meeting was to be changed to a “requested review” to address STUDENT’s behaviors.
The IEP reflects the student’s present level of performance at the time of the meeting. (D-5). The areas of the IEP listed under reading, writing and mathematics is a word for word replicas of the PRIOR DISTRICT IEP from the prior school year. (see D-2; D-3; and D-5). There is a supplemental narrative in the IEP dated “April 2021.” (D-5). That section states the following:
[STUDENT]’s progress in all areas has been impacted by emotional and behavioral issues that interfere with his ability to participate in instruction. When monitored and cooperative, [STUDENT] is a capable student. However, he often has his own agenda and has a hard time complying with the day’s schedule of activities. [STUDENT] does not like to challenge himself and is more likely to participate in academic routines that he has experienced success in the past.
(D-4). The narrative describes the student’s struggles with emotional regulation and impatience. While the student can be “occasionally redirected,” he often interrupts learning. The narrative suggests that STUDENT needs a high level of support to help him attend to tasks and directions, follow routines, and effectively utilize coping strategies. (D-4). Under social development, the IEP reports that STUDENT wants to make friends but has difficulty forming relationships with his peers. The IEP reflets that the student needs a highly structured environment with consistent expectations and consequences. (D-4).
The CSE meeting was properly composed with the following individuals in attendance: DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , the Director of Special Education; STUDENT’s teacher, DISTRICT CLASSROOM TEACHER; DISTRICT SCHOOL PSYCHOLOGIST, the school psychologist; ELEMENTARY SCHOOL 1 PRINCIPAL, 2, the school principal; DISTRICT OCCUPATIONAL THERAPIST, the Occupational therapist; DISTRICT REGULAR EDUCATION TEACHER, a general education teacher and the parent. The CSE reviewed the FBA conducted in February and discussed the BIP. There was no discussion of the Questar program reflected in this IEP. There was no obligation to invite the Questar representative to this meeting.
- Whether the District included the parent in the decision to seek an out-of-district placement?[5]
There is evidence in the record to support a finding that District personnel was considering an out of district placement prior to communicating this to the parent. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION had suggested the out of district placement prior to the start of the school year. When the student’s behavior deteriorated, there was increasing conversations about a change in placement. Prior to any recommendation for an out of district placement, however, the parent was informed. The parent participated in the intake with BOCES/QUESTAR on March 10, 2021 and voiced no objection to the placement at the March 11, 2021 CSE meeting.
- Was it appropriate for the District to seek an out of district placement?
The evidence supports a finding that it was appropriate to seek an out of district placement for the student. The program provided to the student for the 2020/2021 school year was not appropriate to meet his needs and taking steps to consider different options was not inappropriate. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , the classroom teacher and the school psychologist all agreed that the student’s needs could be met in a more structured and supportive environment. The student needed a therapeutic setting which was not available within the District. The issue of whether it was appropriate to seek an out of district placement is a bit misguided
- Under what circumstances is it appropriate to seek an out of District placement for the student?
When a student’s program is not sufficiently meeting the student’s needs, it is appropriate to pursue alternate options for programming.
- When did the District begin the process to seek an out of district placement for the student?
The evidence supports a finding that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION began to inquire about an out of district placement when she sent Questar an email exploring the availability of a spot for STUDENT on February 8, 2021. (P-83).
- What is the District’s obligation to the parent when initiating a process to find an out of district placement?
The obligation of the District, when seeking an out of district placement, is to include the parent in the process, and get the parent’s consent to send out packets to the proposed placements. The evidence suggests that the District personnel had harbored doubts about maintaining the student in district, and very quickly began to reconsider the decision to have him in his community school. The school staff were sharing the numerous incidents of STUDENT’s challenging behaviors without actually telling the parent that they thought he should be educated out of district. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION communicated to PARENT that she did not believe the district had an appropriate program to meet STUDENT’s needs before the school year began, but it is less clear whether she revisited the topic of a change in STUDENT’s placement before March 2021. Nevertheless, PARENT testified that she had provided consent to the District to send packets to out of district placement. There is no evidence in the record to find that PARENT objected to exploring an alternative placement for STUDENT in March 2021.
- Did the District unilaterally seek an out of district placement for the student?
There is no evidence in the record to support a finding that the District unilaterally sought an out of district placement for the student. The parent acknowledged that she had provided consent to the District to send out packets. The parent attended an intake meeting at BOCES/QUESTAR. The parent spoke with DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION about a different placement. The parent participated in the March 11, 2021, CSE meeting where BOCES/QUESTAR was discussed as a placement for the following school year.
- Did the District include the parent in participating in the decision to seek an out of District placement?
The evidence reveals that DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION and school personnel were discussing the need to consider an out of district program for the student before the topic was broached with the parent. It is unclear when the parent first became aware that school staff thought STUDENT may need a change of placement. No change of placement occurred during the 2020/2021 school year. The parent clearly participated in the decision to seek the out of district placement as she consented to the packets being sent out and participated in the intake interview on March 10, 2021. The parent was aware that the recommendation for the 2021/2022 school year was for BOCES/QUESTAR and voiced no objection at the time of the CSE meeting. The parent also participated in the decision that for the 2020/2021 school year, the student should be educated within his community district.
- Did the District violate its obligation to educate the student in the least restrictive environment by seeking an out of district placement?
Consideration of a placement, which may ultimately be deemed not to be the least restrictive placement, does not violate the District’s obligation to educate the student in the least restrictive environment. As there was no recommendation for an out of district placement for the 2021/2021 school year, there is no need to assess whether an out of district placement complied with the District’s LRE obligations.
- What, if any, are the consequences of failure to include the parent in the decision to seek an out of district placement if the allegations are sustained?
There is no evidence to support a finding that the parent was excluded from the decision to seek an out of district placement for the student.
- Whether the District properly requested informed consent to conduct a timely FBA and develop a BIP?
- What is the District’s obligation to seek consent for an FBA and BIP to be conducted?
- Did the District properly seek consent to conduct the FBA and BIP?
- Did the parent timely return the consent form for the FBA and BIP?
- Did the District reasonably delay conducting the FBA and BIP because there was no informed consent by the parent?
The District properly requested informed consent to conduct the FBA and develop a BIP. Request for consent was sent to the parent in October 2020. While the District made an attempt to have the consent for the FBA returned, it was not returned until January 5, 2021. Even after the consent was returned, there was no FBA until The our months from the date upon which the need for the FBA was determined is not timely.
- Upon receipt of the consent, did the District conduct an appropriate FBA and BIP?
As determined in the prior hearing, the FBA and BIP were not appropriate. The evidence reveals that the process upon which the FBA was supposed to be conducted was not followed. The District essentially adopted the FBA from the prior school district.
- When did the parent provide consent for the FBA and BIP?
Consent for the FBA was signed on January 5, 2021, and received by the District on January 7, 2021.
- Did the District collect data for an FBA after a holiday break in January 2021 and was the FBA completed by February 10, 2021?
The evidence suggests that there was not a completion of data collection for the FBA and instead, the District largely adopted the FBA from PRIOR DISTRICT. The FBA was hastily completed by the school psychologist in order that it could be included with the application to Questar.
- What, if any, are the consequences of failure to obtain informed consent from the parent and to conduct an appropriate and timely FBA and BIP if the allegations are sustained?
The consequence for failure to conduct an appropriate and timely FBA and BIP are that the student had interfering behaviors which made it impossible to access his education without a sufficient support. The parent claims that she submitted the consent earlier in the school year. The FBA was delayed. The District was ordered to conduct a comprehensive FBA in a prior decision.
- Whether the District properly requested informed consent for a BCBA to observe STUDENT during lunch, recess, and group activity and whether the BCBA improperly observed the student?[6]
The evidence supports a finding that the District did not properly seek or obtain informed consent for the District’s consultant BCBA, PARENT WITNESS BCBA, to observe STUDENT on March 2, and 4, 2021. It is apparent that the District arranged for an observation of the student by the behavior specialist without having the consent of the parent. In an email between DISTRICT CLASSROOM TEACHER 1 and DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION, dated March 4, 2021, DISTRICT CLASSROOM TEACHER 1 states the following: “I wanted to touch base on the observation with PARENT WITNESS BCBA as you had mentioned that perhaps she did not come at a good time.” (P-67). PARENT WITNESS BCBA observed STUDENT during lunch and recess which is a difficult time, and she observed problematic behaviors. According to DISTRICT CLASSROOM TEACHER 1, any group activity is the most troublesome. DISTRICT CLASSROOM TEACHER 1 replied that she will create a schedule with him where he works 1:1 with her and then then takes breaks and earns computer time. PARENT WITNESS BCBA’s “observational notes” and recommendations are included in the email. (P-67).
In the email, PARENT WITNESS BCBA suggested that STUDENT needs more sensory breaks which require supervision. DISTRICT CLASSROOM TEACHER 1 indicates that she is “interested in reading her report and getting her feedback, but I do feel that she saw him through his most difficult period.” DISTRICT CLASSROOM TEACHER 1 suggests using PARENT WITNESS BCBA for the bus and getting the student acclimated to a 1:1. PARENT WITNESS BCBA includes her suggestions in her email and says “I know a 1:1 is coming on and out of district is in the future.” (P-63). It appears as if the consent for Ms. [REDACTED]’s involvement was sent to the parent on March 23, 2021, and returned to the District on April 30, 2021. (D-43).
PARENT WITNESS BCBA testified at the hearing that during the 2020/2021 school year she would often consult with the District. PARENT WITNESS BCBA’s Agreement with the District was entered into evidence. (D-44). PARENT WITNESS BCBA stated that on certain days, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION would ask her to observe certain students and DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION requested that she observe STUDENT. PARENT WITNESS BCBA observed STUDENT on March 2, 2021. (Tr. 1424) PARENT WITNESS BCBA testified that she saw STUDENT during lunch and recess for a forty-five-minute period. PARENT WITNESS BCBA stated that she observed STUDENT engage in some behaviors such as walking along the windowsill, jumping off the windowsill, and kicking some items. According to PARENT WITNESS BCBA, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION called PARENT WITNESS BCBA and asked for her to return and conduct another observation of STUDENT (Tr. 1425). PARENT WITNESS BCBA returned on March 4, 2021, and observed STUDENT again. DISTRICT CLASSROOM TEACHER 1 informed PARENT WITNESS BCBA that any direct work the behavior specialist would have with STUDENT was going to be placed on hold because the student would be getting a 1:1 aide. (Tr. 1425). DISTRICT CLASSROOM TEACHER 1 did communicate with PARENT WITNESS BCBA about her recommendations and a change to the point system being used with STUDENT (Tr. 1426).
- What is the obligation to obtain consent before a consultant (in this case the BCBA) can observe a student?
The District is obligated to obtain informed consent before a consultant can conduct an observation of the child.
- What consent was the District seeking during the 2020/2021 school year for various evaluations, including in November 2020?
The consent sought by the District in November 2020 was for the District to conduct its own FBA and BIP.
- Did the parent provide consent for the BCBA to observe the student?
The parent provided consent for the BCBA to review records, which was received by the District on April 30, 2021. (D-43) It does not appear from the record that the District had the parent’s consent to observe the student. In any case, even if the consent obtained by the District included an observation, PARENT WITNESS BCBA’s observation of the student occurred on March 2, and 4, 2021, before the consent was returned on April 30, 2021. (D-43).
- Did the parent tell the District she would send back the consent form on November 2, 2020?
The only evidence concerning the return of the consent for the FBA and BIP is an email communication and the testimony of the parent. PARENT testified that she returned the consent forms in November 2020. PARENT testified that she had several conversations with the secretary, DISTRICT SECRETARY TO DIRECTOR SPECIAL EDUCATION, who did not testify. Given a concern as to the parent’s credibility, I cannot find with certainty that the consent for the FBA was returned in November. I find that the consent was returned on January 7, 2021.
- Did the parent send back the consent form?
The parent testified that she returned the consent form for the FBA and BIP in November. The consent form in evidence was returned on January 7, 2021. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s secretary, who communicated with PARENT did not testify.
- Did the BCBA conduct an observation of the student without consent?
Yes, PARENT WITNESS BCBA observed the student without the parent’s consent.
- Was an observation conducted of the student by the BCBA in class a “formal observation” which required consent of the parent?
PARENT WITNESS BCBA observed the student on two occasions. She took notes and created recommendations which she shared with DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION and DISTRICT CLASSROOM TEACHER 1. This observation required the consent of the parent.
- What, if any, are the consequences of the BCBA conducting an observation of the student without the parent’s consent, if the allegations are sustained?
The District failed to obtain informed consent from the parent to arrange for PARENT WITNESS BCBA’s observation of the student in school. The consequence is to deny the parent the participation in decisions about the evaluation of the student. The District should review its practice to ensure that prior to evaluation or observation of a student, the parent is notified and consent is provided.
- Whether STUDENT was impermissibly removed from art and music because of interfering behaviors and if so, was it an impermissible change in placement?
- What is the obligation of the District for maintaining the student in “specials” such as art and music?
- Did the District inappropriately remove the student from his specials?
- What, if any, are the consequences of removal from “specials” such as art and music, if the allegation is sustained?
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that she became aware of a conversation between PARENT and STUDENT’s teacher, DISTRICT CLASSROOM TEACHER 1, regarding STUDENT’s attendance in specials such as art and music. (Tr. 197). STUDENT was struggling with regulating his behavior so it was decided that STUDENT could decide himself whether he wanted to go to specials or not. (Tr. 197). When DISTRICT CLASSROOM TEACHER 1 was speaking about STUDENT in March of 2021 at the CSE meetings, she brought up the issue of STUDENT’s attendance at specials. (Tr. 198) DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that PARENT was present for the discussion, and she recalled no reaction from PARENT DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that PARENT had never raised the issue of specials with her. (Tr. 198). During the periods when STUDENT was not present in specials, he would be able to regulate his mood with de-escalation strategies and other activities within the classroom. (Tr. 199).
Communication between DISTRICT CLASSROOM TEACHER 1 and the parent, in the form of “DoJo Notes,” a system of electronic communication, was entered into the record. (P-43). On September 30, 2020, DISTRICT CLASSROOM TEACHER 1 raised the issue of attendance in the specials of art and music. DISTRICT CLASSROOM TEACHER 1 stated, “it was an art day and we are working on getting him to special area classes.” (P-43). DISTRICT CLASSROOM TEACHER 1 goes on to say, “art and music days are the trickiest.”(P-43). On November 6, 2020, DISTRICT CLASSROOM TEACHER 1 asked PARENT if they could meet to speak about specials. DISTRICT CLASSROOM TEACHER 1 stated” I have been trying to re-think how to help with special area classes and transitions.” (P-43). It appears as if DISTRICT CLASSROOM TEACHER 1 was providing STUDENT with an option to choose his own special. On November 13, 2020, DISTRICT CLASSROOM TEACHER 1 told PARENT that “STUDENT chose PE for his special for the end of the week.” (P-43). On December 4, 2020, DISTRICT CLASSROOM TEACHER 1 reported to PARENT that STUDENT “has been choosing two specials each week, and this week was a double PE week, so that is what he chose.” (P-43). There are no other references to specials in the dojo conversations. If missing art or music was a concern of the parent, she did not include it in her correspondence with DISTRICT CLASSROOM TEACHER 1.
The parent testified that she was unaware of the amount of specials the student missed until she received a document placed into evidence which details the sessions missed during the 2020/2021 school year. (Tr. 1356; D-57). PARENT acknowledged that DISTRICT CLASSROOM TEACHER 1 suggested allowing STUDENT to pick his own specials. (Tr. 1708). PARENT agreed with this strategy because she felt that it was a good idea to let STUDENT feel like he had some options and was not being forced to do things that were triggers for him.
There is insufficient support in the record to conclude that STUDENT was impermissibly removed from specials. The evidence supports a finding that STUDENT was having difficulty on the days when he was scheduled for art or music. STUDENT preferred going to PE. DISTRICT CLASSROOM TEACHER 1 arranged, with PARENT’s approval, to allow STUDENT to pick his own specials. PARENT was aware that at least on one of the referenced weeks, STUDENT chose to go to PE twice. The change in STUDENT’s schedule was an attempt to support him in an educational environment, which was a challenge for him to function.
- Whether STUDENT was removed from the bus for a bus referral until November 2, 2020, and if so, was it appropriate?
- What are the circumstances under which a student can be appropriately removed from a bus?
- What, if any, are the consequences of removal of the student from the bus if the allegation is sustained?
There is insufficient support in the record to find that the District impermissibly removed STUDENT from the bus. It is undisputed that STUDENT’s behavior on the bus caused unsafe conditions for himself and other passengers. The evidence reveals that two weeks into the school year, the student began to exhibit behavioral issues. The behaviors were initially seen on the bus, then escalated to include swearing, threatening staff and physical aggression. (Tr. 145). Initially there was a meeting in October 2020 with the parent, the school principal, DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION and DISTRICT TRANPSORTATION DIRECOTOR, the Director of Transportation for the District to address STUDENT’s bus behaviors. (Tr. 146). The purpose of the meeting was to discuss ways to support STUDENT on the bus and to make sure the parent was provided with the reports of bus behavior. (Tr. 147). The parent had stated that she was not getting information in a timely manner about STUDENT’s bus behavior. (Tr. 148). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was not aware that there was a delay in reporting bus incidents. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that incidents on the bus were memorialized in a “bus referral” and then sent to the building principal, who would follow up with the family. (Tr. 150).
DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that other topics in the meeting included strategies which could be used to address the student’s behavior. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION spoke with the DISTRICT ELEMENTARY SCHOOL 1 Elementary School (“DISTRICT ELEMENTARY SCHOOL 1”) school psychologist, DISTRICT SCHOOL PSYCHOLOGIST, who would work with STUDENT on appropriate bus behaviors. (Tr. 150). The District provided the student with weighted blankets for some sensory input to see if it would help with behavior. In addition, the student was provided with an electronic game and a headset to help support him on the bus. (Tr. 151). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that there came a time when STUDENT was suspended from riding the bus on a couple of occasions. The parent had agreed to drive STUDENT back and forth while they worked on the student’s bus behaviors. (Tr. 152). DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION was not aware of any occasion when the student missed school due to being suspended from taking the bus. (Tr. 154). The parent testified that the student never missed school as a result of being suspended from the bus. (Tr. 1568). The parent acknowledged that the student was engaging in challenging behaviors on the bus, including refusing to buckle his seatbelt, refusal to follow instructions, verbal aggression, and physical aggression. (Tr. 1566).
The parent anticipated issues on the bus when, before the school year began, she told STUDENT’s teacher that she would drive STUDENT if necessary because he had exhibited difficulty on the bus in prior school years. (P-44). The parent’s testimony that she was surprised by the difficulty the student was having on the bus is not credible. (Tr. 1568). The district was engaged in a concerted effort to assist STUDENT with his bus behavior. The District provided the student with a weighted blanket, had the student practice bus behavior with the school psychologist, gave the student a Gameboy devise and headsets. Often times, the parent herself opted to drive the student to school rather than have him take the bus. Ultimately, an aide was placed on the bus to assist STUDENT. The District acted appropriately in its efforts to accommodate STUDENT’s difficulty on the bus. The parent anticipated the problem and informed the student’s teacher that she would gladly drive the student to school, which she frequently did.
- Whether the parent should have been notified of STUDENT’s “suicidal ideations” and other information concerning STUDENT?
The evidence suggests that there was a robust communication between the District and the parent about STUDENT’s functioning in school. In addition to progress reports, report cards and email communication, the parent had frequent communication with STUDENT’s teacher through the dojo communication system. The parent testified that she often felt concern and anticipated being called about STUDENT’s behavior which leads to a conclusion that the District was not withholding information about the student’s functioning in school.
There is one reference in the record concerning “suicidal ideation.” The principal mentions in one of her emails, that the student had stated to her that he wanted to “jump off the roof.” In an email summarizing the events of that particular day, DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL, the principal, states that she spoke to the parent. Whether she mentioned the comment made by the student is not clear. DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL did not testify. PARENT did not specifically testify about any comment made by STUDENT referring to suicide or jumping off the roof when she testified. I find no support in the record that the District withheld information about STUDENT’s emotional behaviors during the 2020/2021 school year, including the comment he made about jumping off the roof. When the student was hospitalized in May 2021, the parent reported that she had concerns that the student would make comments about hurting himself or others.
- What information is the District obligated to provide to the parent concerning the student’s school day?
There is no affirmative obligation to provide a parent with a summary or other specific information concerning a student’s school day.
- Did the District impermissibly withhold information about the student’s behavior to the parent?
There is no support in the record to find that the District impermissibly withheld information about the student’s behavior.
- Did the student express “suicidal ideation?”
There is insufficient evidence in the record to make a finding that the student expressed “suicidal ideation.” The only evidence is a reference to the comment being made to DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL. DISTRICT ELEMENTARY SCHOOL 1 PRINCIPAL did not testify at the hearing.
- Was the parent properly informed about the student’s behavior and what was happening during the school day?
The evidence supports a finding that the parent was informed about what was happening in school concerning the student’s behavior. The parent testified that she began to expect daily phone calls concerning the student’s behavior in school, suggesting that she was kept apprised of the student’s behavior.
The parents entered into the record a print-out of the text message exchanges between the parent and STUDENT’s teacher which demonstrated that throughout the year, the parent was being kept apprised of the students behavior in school. A sample of the communication includes the following:
10/5/20 – DISTRICT CLASSROOM TEACHER 1 requests a chance to speak to parent; it appears as if the student is going straight for breakfast or lunch and PARENT does not want him to get school lunch or breakfast – the parent states she knows STUDENT can be a handful when in an uproar;
10/6/20 (emergency intervention report, P-83) STUDENT had an outburst which necessitated a hold. The student was screaming, yelling and climbing the teacher’s chair. A hold was initiated for safety reasons to get the student off of the chair.
10/7/20 – The parent tells DISTRICT CLASSROOM TEACHER 1 that “when STUDENT was in [REDACTED] he was put in holds multiply (sic) times daily.” She goes on to explain that the student hated the school because he hated the holds and the teacher could not manage him – regarding holds PARENT states, “I truly understand the necessity, I have done it before.”
There is a reference to implementation of a behavior plan – which includes the student earning “Points” (page 8).
10/22/20 (page 12) STUDENT was reported to not be himself today – doing bus practice and having him speak to the driver;
Appears to have been sent home with COVID symptoms;
10/26/20 – In order to return to school, the student needs paperwork to show negative covid test;
DISTRICT CLASSROOM TEACHER 1 notifies the parent that they are scheduled for parent-teacher conference on November 17, 2020;
10/27/20 – (page 14) teeth are hurting STUDENT (page 14).
11/1/20 indicates that STUDENT returns to riding the bus – use of a weighted blanket to help calm him;
11/5/20 - (page 22) text conversation includes a reference by the parent stating she is tired of being the biggest frustration trigger; the parent notes STUDENT is getting sleep, and it may be his medication – parent states she will speak to doctor; teacher says he is calmer after using weighted blanket and resting;
Teacher writes – trying to think how to help with special area classes – student has difficulty with transitions;
11/16/20 (page 23) the student is provided a chrome book for work at home;
Appears to be a period of remote instruction –
12/8/20 – (page 27) STUDENT reported to be having a hard day – parent says may be tired, was at her mothers and did not get into bed until late – may need a nap. Went to OT session and used sensory activities in the class; the student was not able to get any classwork done –
12/12/20 – (page 29) Parent writes to teacher sharing that ”the progress he has made has been huge and it truly is a lot to do with the education system.” Teacher appreciates messages and glad parent has seen so much progress.
12/18/20 – (page 30) remote learning instituted for the following week is reported to be “asynchronous”.
1/7/20 – (page 32) DISTRICT CLASSROOM TEACHER 1 reports that STUDENT was having trouble getting back into school routine does not want to do “work” and had a conflict with another student;
1/11/21 – reference that the students are going back to remote learning;
1/21/21 – (page 35) DISTRICT CLASSROOM TEACHER 1 reports that there was a write up on bus in the am – told parent;
1/22/21 – (page 36) missing lunch box; sneakers and snow pants not in locker as parent thought.
1/25/21 – (page 37) DISTRICT CLASSROOM TEACHER 1 reports STUDENT had a “soso day,” student is having a difficult time getting back to routine after school closure; teacher says he needs a lot of break time and support to get work done;
1/28/21 – DISTRICT CLASSROOM TEACHER 1 reports that STUDENT had a better day got his work done independently.
2/22/21 – (page 40) DISTRICT CLASSROOM TEACHER 1 reports student had a good day but had a nose bleed;
2/23/21 DISTRICT CLASSROOM TEACHER 1 reports that student had trouble at recess;
2/24/21 DISTRICT CLASSROOM TEACHER 1 reports student had trouble at recess;
3/1/21 – (page 41) DISTRICT CLASSROOM TEACHER 1 reports that the student had a lot of energy that day. And difficulty at recess;
3/1/21 (page 41) parent is trying to identify a child who is on the student’s bus – but is not in his class;
3/5/21 (page 42) DISTRICT CLASSROOM TEACHER 1 reports “a quick blow up this am; “ DISTRICT CLASSROOM TEACHER 1 states she sent an email; teacher is going to be out for two days, and Mr. [REDACTED] is going to be covering the class;
3/18/21 (page 43) Parent is reporting that the student out waiting for rapid test
3/19/21 – DISTRICT CLASSROOM TEACHER 1 reports a couple of outbursts in the am. “out of the blue”
3/21/21 – DISTRICT CLASSROOM TEACHER 1 messages parent that she is thinking a lot about recess, and she has some ideas for parent
3/22/21 (page 44) This is the day of STUDENT’s out of school suspension; PARENT asks, “what precipitated today?” student was suspended. Mother wants teacher’s input as to what happened. Needs chrome book and teacher sends assignments home.
In response to Ms. [REDACTED]’s request for information DISTRICT CLASSROOM TEACHER 1 states the following: “[STUDENT] has been much more volatile when upset in the past few days, and more physical. When we talk, he mentions maybe being annoyed by classmates or by something I have asked him to do, but the difference has been that he has not been able to settle for more than a few minutes at a time, even when engaging in activities that he enjoys. . . . I have been giving him a lot of 1:1 opportunities to work and play in a quiet space and trying to build in more motivators, but even when settled and participating successfully he has turned quickly.”
PARENT asks about “1:1 aide difficulty” – someone STUDENT knows; DISTRICT CLASSROOM TEACHER 1 states that there has been added support in class previous week while aide was being hired.
PARENT states that student likes “Poppis and the Overactive Amadalia” a book about his diagnosis
3/31/21 (page 49). DISTRICT CLASSROOM TEACHER 1 reports that STUDENT had a rough patch that morning; “down initially” which led to angry outbursts.
4/1/21 good day overall and the next week will be off for vacation.
4/13/21 – (page 49) DISTRICT CLASSROOM TEACHER 1 reports that STUDENT was “awesome through lunch, one verbal outburst and back on track.”
4/15/21 – DISTRICT CLASSROOM TEACHER 1 reports that STUDENT did a good job completing assignments;
4/16/21 – (page 50) DISTRICT CLASSROOM TEACHER 1 reports another good day calm and quiet.
DISTRICT CLASSROOM TEACHER 1 states she has not forgotten about the data the parent asked for – “I have to take the page out of my sheets and copy onto a document for you. I will attach by email this weekend.
4/18/21 – DISTRICT CLASSROOM TEACHER 1 give information about ELA and math state tests. Parents asks if she has the option to opt out? (3rd grade tests).
4/19/21 ( page 51) Ms. [REDACTED] reports another very calm day.
4/20/21 (page 52) DISTRICT CLASSROOM TEACHER 1 reports a good day – “a little moody” in the morning; but did a little reading in the am and math and caught up on other work;
4/21/21 DISTRICT CLASSROOM TEACHER 1 reports “super day”
4/22/21 ( page 53) DISTRICT CLASSROOM TEACHER 1 reports another good day;
4/23/21 –DISTRICT CLASSROOM TEACHER 1 reports STUDENT is a little upset after coming in from outside; short outburst and climbing on chairs trying to get something; active but happy and engaged in activities;
4/23/21 mom reports “[STUDENT] meds were off this morning 100% my doing. I did not realize the error until now. I am so sorry but I’m glad it wasn’t totally hard.”
4/26/21 ( page 54) DISTRICT CLASSROOM TEACHER 1 reports good day here; STUDENT worked very hard.
4/27/21 DISTRICT CLASSROOM TEACHER 1 reports calm and quiet day in class.
4/28/21 ( page 55) DISTRICT CLASSROOM TEACHER 1 reports a pretty good day; got some work done with teacher; had some extra break time; was calm and cooperative;
4/29/21 DISTRICT CLASSROOM TEACHER 1 reports a rougher day;
5/3/21 (page 56) DISTRICT CLASSROOM TEACHER 1 reports a smooth day; teacher will be out.
A bump in the road mid-day – earned 500 points.
5/3/21 (page 57) DISTRICT CLASSROOM TEACHER 1 reports student reluctant to do schoolwork with anyone other than teacher;
5/5/21 – parent messages teacher “heads up” STUDENT is angry at parent. “my actions were his trigger. I shut his computer” because they were running late.
5/6/21 (page 58) DISTRICT CLASSROOM TEACHER 1 reports a “really good day.”
5/10/21 (page 59) PARENT writes STUDENT will be out multiple days, but does not say why
.
5/11/21 PARENT reports STUDENT will be out rest of the week but does not say why. He had been hospitalized.
5/14/21 PARENT reports that STUDENT will be out of school for a bit of time, and she will contact school with more specific information.
5/28/21 (page 60) PARENT reports that the student may be back in school on June 7, 2021. Student “comes home tomorrow”. There is a new principal and parent does not want STUDENT to go back to school without DISTRICT CLASSROOM TEACHER 1, but she is having a family emergency.
6/2/21 (page 61) parent tells DISTRICT CLASSROOM TEACHER 1 that student wanted to go back to school but she was trying to get him into [REDACTED] – from hospital.
6/6/21 (page 62) parent writes to teacher that STUDENT is “1000% changed – different than when he left. “all for the good right now.” It is apparently due to a change in medication
6/7/21 (page 64) DISTRICT CLASSROOM TEACHER 1 reports that STUDENT in school going well; delayed taking medication and he has an outburst.
6/8/21 (page 65) DISTRICT CLASSROOM TEACHER 1 reports that STUDENT started to get restless and moody late in the afternoon; also, did not have his glasses.
6/9/21 (page 66) Parent reports that glasses were on him when he came in; Heat may affect the student; Parent says student gets Risperidone at noon and 3 for irritability – wondering if they should add on an am dose.
6/10/21 (page 67) DISTRICT CLASSROOM TEACHER 1 reports STUDENT is off today – “some ups and downs but nothing major – got agitated late in the am and asked to go to nurse to take meds; aide said she could see change come over STUDENT after taking his medication.”
6/10/21 (Page 68) PARENT reports that she has called doctor will be adding Risperidone in the am.
6/11/21 ( page 69) DISTRICT CLASSROOM TEACHER 1 reports that student is having a very good day – she states am medication dose seems to have helped.
- What, if any, are the consequences of failure to inform the parent of the student’s behavior and what was happening in school, if the allegation is sustained?
The allegation that the District withheld information about the student’s behavior in school from the parent is not sustained.
- Whether the District impermissibly considered and/or “pushed” a more restrictive placement without evaluating the student and without providing meaningful supports and services?
- Did the District impose a more restrictive placement upon the parent?
- Did the District attempt to maintain the student in the community school with meaningful supports and services prior to seeking a more restrictive setting?
- What, if any, are the consequences of seeking a more restrictive educational setting and failure to maintain the student in the community school with supports and services, if the allegations are sustained?
For the 2020/2021 school year, the student was maintained within his community school. I do not find that the District impermissibly “pushed” a more restrictive program on the parent. In fact, if there was any abrogation of the District’s responsibility to provide an appropriate program, it is the decision to succumb to the parent’s wish to maintain STUDENT in an inappropriate placement. As the parent testified, she was unaware of the difference between different class programs. In addition, the District did not appropriately provide meaningful supports and services in the DISTRICT ELEMENTARY SCHOOL 1 school on a timely fashion. The FBA, BIP and individual aide should have been conducted earlier in the school year.
- Whether the District provided accurate information in the Questar Application?
- What information is the District obligated to provide to an out of district placement?
- What information did the District provide to Questar BOCES and was it accurate?
- What, if any, are the consequences of providing inaccurate information in an out of district placement application if the allegation is sustained?
For the 2020/2021 school year, the student’s placement was not at Questar BOCES. I find that the information provided to Questar was for the application concerning the 2021/2022 school year which is not before me. To the extent that the District personnel believed Questar would have been a “better fit” for STUDENT for the remainder of the 2020/2021 school year, the placement never actually was recommended. As indicated in the earlier decision, the District should have conducted a more comprehensive evaluation of the student which should have been shared with Questar.
- Whether the District impermissibly disciplined STUDENT?
- Did the District comply with its obligation when disciplining the student?
- What is the District’s obligation concerning discipline of the student?
- Was the student disciplined?
- What were the circumstances of the student’s suspension in March 2021?
- Did the District properly follow procedures for determination of whether the conduct for which the student was being disciplined was a manifestation of the student’s disability?
- Was the student disciplined for conduct which was a manifestation of his disability?
- What, if any, are the consequences of the manner in which the student was disciplined, if the allegations are sustained?
There is nothing in the record to find that STUDENT was impermissibly disciplined. There is only one documented incident which occurred during the 2020/2021 school year, which resulted in an out of school suspension. (D-39) The principal suspended STUDENT after a series of rule infractions on the bus. On March 22, 2021, the student was screaming at the bus attendant to get off the bus and was swearing at the attendant. The student kicked the bus attendant in the stomach twice. The student then kicked staff members while entering the building. STUDENT was working with his aide in the principal’s office conference room and started kicking and hitting the copy machine. The student then kicked the principal. STUDENT was suspended out of school for a period of five days.
There are two letters from the principal, one providing notice to the parents of her intention to suspend STUDENT and the other providing notice that she had determined to suspend the student. Both letters comply with the notice requirements for out of school suspensions pursuant to Section 3214 of the New York State Education Law. While the documents are in evidence, there was no testimony presented on the disciplinary event, other than the fact that STUDENT was suspended. (D-39). A manifestation determination CSE meeting was scheduled but with the parent’s consent changed to a program review. As the suspension was for a period of less than ten days, it was not considered a change of placement and the manifestation determination was not required. A CSE meeting was ultimately held on April 1, 2021, where the student’s behavior was discussed.
In the record are also seven “incident reports” which document occurrences when an emergency intervention (such as a restraint) was necessary to contain the student’s behavior. (P83; D-39). It does not appear as if any of these incidents resulted in disciplinary action against the student. The incident reports reflect that for each incident, the parent was notified. The parent testified that on numerous occasions she was asked to come to school to pick up STUDENT, but it was not established by the evidence that this was something that occurred on a consistent or unreasonable basis.
- Appropriate Instruction and Qualified Personnel Duty
- Whether school personnel were properly trained on how to use restraints?
- What is the District’s obligation for training staff on use of restraints and crisis intervention protocols?
- Under what circumstances may District staff use restraints and/or crisis intervention protocols?
- What, if any, are the consequences of failure to properly train staff on the use of restraints or crisis intervention protocols if the allegations are sustained?
There was no substantive evidence presented at the hearing that the staff was trained in the proper use of restraints. The use of restraints is documented in the Emergency Intervention reports entered into the record, but none of the incidents were described or explained by any staff member involved, as none of those persons testified. There is no evidence that those staff members were properly trained in Crisis Prevention Intervention (“CPI”) training. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION ’s statement about inquiring to see if the staff at Questar conducts CPI training indicates that the staff did need training. The District should review its staff training protocols and arrange for the proper training of CPI training for staff.
Under the circumstances of this matter, based upon the incident reports, the use of a restraint is documented. In each instance, the restraint was used to deescalate the student’s out of control behavior and prevent the student from harming himself or other. There is reference to one hold for which there is no corresponding incident report. Each incident of a hold should be documented.
- Whether the school personnel’s use of physical restraint or crisis intervention was appropriate?
There is insufficient evidence in the record on the use of restraints to determine whether the hold was appropriate. None of those who were involved in the holds testified at the hearing. It appears as if for each incident, based on the reports, staff engaged in the use of holds due to the student’s “outbursts.” Since it is unclear whether the staff had been properly trained in the use of holds, I find that staff should be properly trained.
- What are the appropriate protocols for use of physical restraints and crisis intervention protocols upon a student?
- Did the District staff use physical restraints or crisis intervention procedures with the student, and if so, was it appropriate?
- What, if any, are the consequences, of the improper use of restraints or crisis intervention protocols upon the student, if the allegations are sustained?
While I find that the use of the holds and lack of evidence concerning the circumstances and training of staff, I cannot find the use of holds appropriate. I do not find, however, that the student’s hospitalization or difficulty in school was a result of being placed in holds.
- Whether the District hired a Board-Certified-Behavior-Analyst (“BCBA”) to address STUDENT’s interfering behaviors and if not, should it have hired a BCBA?
The District did hire PARENT WITNESS BCBA, a BCBA to observe STUDENT and review his records. PARENT WITNESS BCBA did not do any work with the student. In the prior decision, I found that the District should have engaged a behavior specialist to address the student’s interfering behaviors and ordered compensatory education to address such deficiency.
- Whether the IEP ensured specially designed instruction and properly trained staff to meet the student’s needs, including social skills training?
The IEP did not ensure that the student was provided with specially designed instruction and staff to meet the student’s needs. The IEP for most of the year was based upon an IEP from the prior school district. The student’s placement in the special class with an inappropriate composition of students who did not have similar needs was inappropriate. As a result, the District staff were ill prepared to manage STUDENT’s explosive behavior. The student was taken out of the room and placed in a quiet area or relieved from doing schoolwork.
- Special Education Duty
- Whether the Individual Education Programs developed for STUDENT during the 2020/2021 school year, at CSE meetings held on September 11, 2020, March 11, 2021, and April 1, 2021 were appropriate to meet the student’s needs?[7]
I find that the District failed to sustain its burden to show that the IEPS for the 2020/2021 school year were appropriate to meet the student’s needs.
- Whether STUDENT made progress in his recommended programs for the 2020/2021 school year?[8]
Based upon statements made by the parent to DISTRICT CLASSROOM TEACHER 1 that she saw progress in STUDENT, it looks as if there was progress made. It is clear from the evidence, however, that the student’s behaviors interfered with his ability to access his education. Furthermore, the student was in a cohort of students who were alternately assessed and did not have similar needs. The student also was removed when he had outbursts which meant he was losing educational opportunities. As a result, the student is entitled to compensatory education tutoring to make up for the lost instruction throughout the 2020/2021 school year.
- Whether STUDENT had a clear need for one-to-one support which should have been placed on STUDENT’s IEP?
- What are the circumstances under which a student should be provided with one-to-one support?
- Did the student require one-to-one support and, if so, when?
- Was the student provided timely and sufficient one-to-one support during the 2020/21 school year?
- Did the District provided STUDENT with appropriate supports and services to address his behaviors, including a BIP?
- What, if any, are the consequences, of the failure to provide timely one-to-one support and/or an appropriate BIP to the student if the allegations are sustained?
The student was in need of an individual aide for his behavior. The student was furthermore in need of a timely BIP, which did not occur until April 2021. The student’s placement was not appropriate and as such additional supports and scaffolding should have been in place for the student. As a result of the lack of the appropriate supports, the student missed instruction throughout the school year.
- Whether STUDENT’s IEPs should have been modified upon receipt of a reference by the School Nurse that STUDENT “is a special education student with autism?”
- Under what circumstances should an IEP be modified?
- Was STUDENT a special education student with autism?
- Should STUDENT’s IEP be modified upon receipt of the nurses note?
- What, if any, are the consequences of the failure to modify the IEP upon receipt of the nurses note, if the allegation is sustained?
As previously noted, there is no support in the record to find that STUDENT was a student with autism at the time that he arrived in the District. The student had been evaluated on two separate occasions for the purpose of exploring a suspicion that the student was autistic. Both evaluation reports were entered into evidence and neither evaluator concluded that STUDENT was autistic. Prior to the initiation of this impartial hearing, the parent informed the physicians at the [REDACTED] Hospital that autism had been ruled out. She stated that there was one psychologist early on who had suggested that autism be explored. The student was evaluated, and autism was ruled out. It is disingenuous to claim that the District missed an autism diagnosis when the parent had informed physicians that it had been ruled out. I find that the student’s IEP did not require modification and there are no consequences for the District’s failure to identify STUDENT as a student with autism, when the parent herself, did not identify STUDENT as a student with autism.
In the earlier decision, I issued a decision requiring the District to conduct an autism assessment by a BCBA to address the parent’s request to consider her concern that the student had autism. At the time of that decision, the [REDACTED] hospital records were not part of the record. Those records reveal that the parent did not maintain a concern that the student was autistic.
- Whether the District should have provided extended school year services to STUDENT during the Summer 2020?
- What is the District’s obligation to provide extended school year services to the student, who was transferring into the District, during the Summer 2020?
- What, if any, are the consequences, of the failure to provide extended school year services to the student if the allegations are sustained?
There is no support in the record to find that the District was obligated to provide the student with extended school year services in the Summer of 2020. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that students who are recommended for summer services generally receive those services between July 1st and August 14th. I have found that STUDENT’s family was not registered in the District until August 20, 2020, after the summer session was concluded. There is no evidence that the parent sought to have summer services implemented by the District or PRIOR DISTRICT. The District is not obligated to provide services to a student who is not registered to attend school upon proof of residency.
- Whether STUDENT should have been placed in a 12:1:3 special class in September 2020 when he transferred into the District, instead of the 12:1:1 class which was available in the District?
- What is the District’s obligation to a student previously deemed eligible for special education services, transferring into its District?
- Did the District comply with its obligations to the student transferring into the District?
- Was the District obligated to provide the same class size to the student as provided the previous year by a previous school district?
- Can the District compel an out of district placement for a student transferring into the District?
- Was the parent included in the decision regarding the student’s placement when he transferred into the District?
- What, if any, are the consequences, of the failure to recommend the same class size to the student transferring into the District, if the allegations are sustained?
The recommendation for STUDENT for the 2020/2021 school year in the special class for alternately assessed students was not appropriate to meet the student’s needs. The District personnel acquiesced to the parent’s strong position to place the student in the special class, but the parent failed to understand that the class was not appropriate. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION , however, was aware that this was not an appropriate placement for the student. As such, the District cannot defend its decision to place the student in the special class on the basis of what the parent requested, instead of what the student needed. The CSE should have been making recommendations made upon the needs of the student. If that led to a placement out of District, it may have been challenged by the parent, but the District could more readily defend its decision.
It was unrealistically optimistic to believe that the special class would be suitable for STUDENT The District would have been in a better position to defend its decision to maintain the student in the special class at DISTRICT ELEMENTARY SCHOOL 1 had there been sufficient support and services in the class. It took entirely too long for the District to arrange for an individual aide for the student. The District did not meet its obligation in conducting the FBA and BIP for the student, where the BIP was in place after seven months of the student’s interfering behaviors. Had the District provided more support in the class, it most likely could not overcome the inappropriate composition of the class for the student.
- Whether the delay in receipt of OT services until October 5, 2020, denied the student FAPE?
- What is the District’s obligation to provide occupational therapy (“OT”) services to a student who has not provided a prescription from a physician?
- Did the student provide a prescription for OT services from his physician?
- When were the student’s OT services supposed to begin?
- When did the student’s OT services begin?
- Was there a delay in the start of OT services for the student and if so, was the District responsible for the delay?
- What, if any, are the consequences, of the delay in the start of OT services for the student?
The District is responsible for providing the student with make-up services for missed OT services. The District has offered to provide the student with any missed sessions.
- Whether the school psychologist removed STUDENT from his online group counseling citing interfering behaviors, and if so, was it appropriate?[9]
- Under what circumstances may a student be removed from participation in a mandated service?
- Was the student inappropriately removed from his group counseling services?
- What, if any, are the consequences, of the removal of the student from group counseling, if the allegation is sustained?
The evidence reveals that on one occasion, the school psychologist, DISTRICT SCHOOL PSYCHOLOGIST, removed STUDENT from an on-line counseling session during the period of remote instruction. There is nothing in the record to find that DISTRICT SCHOOL PSYCHOLOGIST acted inappropriately under the circumstances. According to DISTRICT SCHOOL PSYCHOLOGIST, STUDENT was disrupting the session and had been warned several times to stop the behavior. DISTRICT SCHOOL PSYCHOLOGIST indicated in her email communication to the teacher, that there was no parent present during the session. Had a parent been present, STUDENT’s behaviors may have been addressed at home. In order to avoid the disruption to the other students, DISTRICT SCHOOL PSYCHOLOGIST took the unusual step of exiting STUDENT Under the circumstances, it was not unacceptable to take the action.
- Monitoring Duty
- Whether the student exhibited interfering behaviors across all settings, including on the bus, from the beginning of the school year and if so, whether the District appropriately addressed those behaviors?
- What information did the staff have about the student’s behaviors, including the allegations concerning a bus behavior plan; the teachers’ comments about punitive measures and principal’s statements about the student stating he was going to jump off a building?
- What behavior modifications and plans were used to address the student’s behavior?
- Were the District’s behavior plans effective?
- What, if any, are the consequences, of the District’s failure to address interfering behaviors if the allegations are sustained?
As previously noted, the District did not have sufficient behavioral supports in place for STUDENT during the 2020/2021 school year. As a result, STUDENT was removed from instruction, allowed to take breaks from academics and taken out of his class to a quiet area. While these actions may have been necessary for the safety of STUDENT and others, it was occurring due to STUDENT’s inappropriate placement. The student missed instruction and should be provided with make-up tutoring hours as relief for the inappropriate placement.
- Whether the parent expressed concern about the lack of communication from the bus garage, and if so, whether the District responded appropriately?
The evidence reveals that on at least one occasion, the parent expressed concern to the school principal, that she felt she was not being provided with timely notice of any issues concerning STUDENT’s bus behavior. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION testified that the parent had a meeting with school personnel which included staff from the transportation department. DISTRICT WITNESS DIRECTOR SPECIAL EDUCATION stated that it was decided that bus referrals would be sent to the school principal and forwarded to the parent at the time of each occurrence. There is nothing in the record to suggest that this continued throughout the school year. The evidence shows that there was communication between school staff and the parent concerning the student’s behavior throughout the school year.
- Evaluation Duty (DPC -III)
- Whether the parent is entitled to funding to update the August 16, 2021, IEE, specifically to include an independent classroom observation; review of allegedly withheld student records; and participation in a CSE meeting to review the updated IEE.
- Whether the District’s refusals to grant the parents request for an IEE and delayed production of records, after the evaluation was completed, impeded the evaluators’ ability to conduct a thorough review of the student’s records and observe STUDENT in his then current class placement?
There is nothing in the record to suggest a need for an updated IEE. The District agreed to the IEE of the parent’s preferred provider. In the prior hearing, the IEE evaluation was reviewed and found to be used for the purpose of litigation. As such, there is nothing in the record before me to suggest that the District should be required to supplement the IEE in any way. In addition, the District has previously been ordered to conduct a comprehensive evaluation of the student. Any disagreement with the District evaluation is not an issue before me in this hearing.
ORDER
- The District has not sustained its burden to prove that it provided a free appropriate public education for the student for the 2020/2021 school year;
- As a consequence, the student’s interfering behaviors, impeded the student’s ability to access his education;
- The student’s behavior resulted in missed instructional opportunities which should be remediated through a bank of tutoring hours for the student to access;
- While the evidence reveals that despite the inappropriate program, the student made some progress, I find that academic tutoring services should be provided as relief for the missed instruction;
- The District shall arrange for a bank of one hundred hours of individual tutoring by a licensed special education teacher, to be accessed by the student on or before September 1, 2024;
- In a prior decision, the student was awarded behavior support as a result of the failure to properly assess the student’s behavioral deficits and no further remedial services need to be awarded at this time to address the student’s behavior;
- To the extent it has not been done so already, the District shall provide for any missed OT sessions from the 2020/2021 school year, limited to those that were missed as a result of the provider’s absences or from the start of the school year, prior to receipt of the OT prescription, sessions missed as a result of the student’s absence will not be included;
- The District shall review its policies for responding to record requests to make sure that parents are provided with school records in a timely fashion;
- The District shall review its crisis intervention protocols to determine (1) whether instructional and support staff, including individual aides, should be further trained in crisis intervention training; and (2) whether documentation of crisis intervention incidents are being properly kept;
- All other requests for relief are denied.
Dated: December 11, 2022
Leah L. Murphy
IHO Leah L. Murphy, Esq.
STUDENT v. [REDACTED] Central School District Case No. 555617
DPC II – EXHIBIT LIST
IHO EXHIBITS
# Date Description # pages In Evid/ID
I 8/16/21 DPC II 118 pages 11/11/21
II 8/31/21 Response to DPC II 19 pages 11/21/21
III 9/10/21 DPC III 19 pages 11/11/21
IV 9/27/21 Response to DPC III 1 page 11/11/21
V 10/11/21 District Motion to Dismiss 13 pages 11/11/21
VI 10/25/21 Parent Response to MTD 9 pages 11/11/21
VII 11/4/21 Order on MTD 13 pages 11/11/21
VIII 11/10/21 Parent Objections to Issues 16 pages 11/11/21
IX 11/10/21 District Objections to Issues 7 pages 11/11/21
X 11/12/21 Correspondence IHO to [REDACTED] 15 pages 12/13/21
DISTRICT EXHIBITS
# Date Description # pages In Evid/ID
1. OMIT
2 5/15/20 PRIOR DISTRICT IEP 13 ID ONLY
3 9/11/20 IEP 12 12/13/20
4 3/11/21 IEP 12 12/13/21
5 4/1/21 IEP 13 12/13/21
6 9/3/21 IEP 14 ID ONLY
7 10/7/21 IEP 15 ID ONLY
8 3/7/19 EVALUATION ADHD & AUTISM 4 ID ONLY
9 5/11/20 [REDACTED] FBA 4 ID ONLY
10 2/10/21 FBA 9 12/13/21
11 3/18/21 BIP 4 12/13/21
12 10/10/21 BEHAVIOR REPORT & RECOM. 5 ID ONLY
13 10/12/21 OCCUPATIONAL THERAPY EVAL 15 ID ONLY
14 10/14/21 BEHAVIOR OBSERVATION REPORT 5 ID ONLY
15 11/2/21 PHYSICAL THERAPY EVAL 3 ID ONLY
16 11/6/21 BEHAVIOR OBSERV REPORT 5 ID ONLY
17 11/13/21 MULTI-DISC EVALUATION 10 ID ONLY
18 2021 DRAFT CRISIS PREVENTION 3 ID ONLY
19 11/24/21 DRAFT BIP 17 ID ONLY
20 11/24/21 DRAFT FBA 26 ID ONLY
21 20/21 BEHAVIOR INCIDENT LIST 14 1/20/22
22 21/22 BEHAVIOR INCIDENT LIST 64 ID ONLY
23 10/19/21 INCIDENT DOCUMENTATION 4 ID ONLY
24 10/26/21 INCIDENT DOCUMENTATION 5 ID ONLY
25 11/2/21 INCIDENT DOCUMENTATION 5 ID ONLY
26 11/15/21 INCIDENT DOCUMENTATION 6 ID ONLY
27 11/16/21 INCIDENT DOCUMENTATION 10 ID ONLY
28 11/19/21 INCIDENT DOCUMENTATION 3 ID ONLY
29 11/22/21 INCIDENT DOCUMENTATION 4 ID ONLY
30 Various [REDACTED] HOSPITAL RECORDS 267 12/13/21
31 Undated [REDACTED] CV 4 ID ONLY
32 Undated REQUEST FOR FBA DOCUMENTS 5 12/13/21
33 5/22/18 PSYCHOLOGICAL EVAL 15 ID ONLY
34 8/14/20 REGISTRATION DOCUMENTS 50 12/13/21
35 Undated REGISTRATION INFO 13 ID ONLY
36 20/21 IEP PROGRESS REPORT 8 12/13/21
37 20/21 REPORT CARD 2 12/13/21
38 20/21 ATTENDANCE REPORT 1 12/13/21
39 20/21 DISCIPLINARY RECORDS 12 12/13/21
40 20/21 BUS REFERRAL FORMS 4 ID ONLY
41 20/21 PRIOR WRITTEN NOTICE 12 12/13/21
42 Various QUESTAR ACCEPTANCE EMAILS 42 12/13/21
43 3/23/21 [REDACTED] CONSENT 3 12/13/21
44 1/25/21 [REDACTED] CONTRACT 2 12/13/21
45 6/8/2020 Email [REDACTED to L [REDACTED] 2 4/11/22
46 8/14/20 Registration Information for Student 1 4/11/22
47 12/11/21 Email C. [REDACTED] to L [REDACTED] 2 4/11/22
48 12/13/21 Email from C. [REDACTED] to Attry re:
Registration information 56 4/11/22
49 20/21 SY Registration Information/Check List 26 ID ONLY
50 4/27/21 Email C. [REDACTED] to S. [REDACTED]
Re: Record Request 1 4/11/22
51 20/21 SY Progress Report for Goals and Objectives w/handwritten note 20/21 SY 39 4/11/22
52 5/14/21 Certified Return Receipt Label 1 4/11/22
53 1/6/21 Email L. [REDACTED] to C [REDACTED] 2 ID ONLY
(4/11/22)
54 2/10/21 Email L. [REDACTED] to N. [REDACTED] Re:
Application to Questar 52 4/11/22
55 Undated Data Collection Sheet 3 ID ONLY
(4/11/22) Parents offered as P-270
56 Undated Behavior Chart 3 ID ONLY
(4/11/22)
57 20/21 SY School Year Schedule 1 4/11/22
PARENT EXHIBITS
# Date Description # pages In Evid/ID
- 6/17/21 DPC-I 13 Withdrawn
- 6/25/21 Answer to DPC 3 Withdrawn
- 8/16/21 [REDACTED] Psychoeducational Eval. 14 1/20/22
- 9/16/21 [REDACTED] Compensatory Educ. Report 7 1/20/22 (ID ONLY)
- 2/10/21 FBA 3 4/11/22
- 2/10/21 FBA 3 6/10/22 (ID ONLY)
- 3/15/21 Emails K. [REDACTED]/K. [REDACTED] 2 Withdrawn
- 3/15/21 Emails C. [REDACTED]/L. [REDACTED] 3 Withdrawn
- 3/11/21 IEP 12 Withdrawn
- 3/11/21 IEP (21/22 School Year) 12 1/20/22
- 4/1/21 IEP 13 Withdrawn
- 3/23/21 Email C [REDACTED] to S. [REDACTED] 2 1/20/22
- 3/30/21 Email C. [REDACTED] to S. [REDACTED] 2 1/20/22
- 4/26/21 Email C. [REDACTED] to S. [REDACTED] 2 1/20/22
- 6/6/21 Email C. [REDACTED] to S. [REDACTED] 1 1/20/22
- 6/9/21 Letter [REDACTED] to Records Access Off. 8 1/20/22
- 6/11/21 Letter [REDACTED] to Records Access Off. 8 1/20/22
- 6/11/21 Email [REDACTED] to [REDACTED] 8 1/20/22
- 6/23/21 Email S. [REDACTED] to L. [REDACTED] 2 1/20/22
- 7/9/21 Letter M. [REDACTED] to [REDACTED] 2 1/20/21
- 7/20/21 Letter [REDACTED] to M. [REDACTED] 2 1/20/22 (ID ONLY)
- 7/22/21 Email [REDACTED] to [REDACTED] 2 1/20/22 (ID ONLY)
- 8/4/21 Letter [REDACTED] to J. [REDACTED] 15 1/20/22 (ID ONLY)
- 8/6/21 Subpoena Duces Tecum 62 1/20/22
- 8/16/21 Letter [REDACTED] to [REDACTED] 2 1/20/22 (ID ONLY)
- 8/6/21 Email S.[REDACTED] to L. [REDACTED] 1 1/20/22
- 3/24/21 1st IEE Request 1 Withdrawn
- 4/1/21 Email S. [REDACTED] to C. [REDACTED] 1 6/10/22
- 6/12/21 Email S [REDACTED] to C. [REDACTED] 1 6/10/22 (ID ONLY)
- 6/14/21 Email C. [REDACTED] to S. [REDACTED] 1 6/10/22 (ID ONLY)
- 8/9/21 Offer to Pay for IEE 5 Withdrawn
- 3/22/21 Suspension Notice 1 Withdrawn
- 6/25/21 Email C [REDACTED] to S.[REDACTED] 1 6/10/22 (ID ONLY)
Resolution Meeting
- 7/8/21 Proposed Settlement Agreement 4 Withdrawn
- 3/22/21 Manifestation Mtg Notice 3 4/11/22
- 3/16/21 Emergency Intervention Report 1 Withdrawn
- 5/11/20 PRIOR DISTRICT FBA 4 Withdrawn
- 5/15/20 PRIOR DISTRICT IEP 12 Withdrawn
- 6/2020 [REDACTED] Final Report 1 4/11/22 (ID ONLY)
- 8/25/20 Email L. [REDACTED] to C. [REDACTED]3 1/20/22
- 8/14/20 Social History (D-34) 5 1/20/22 (ID ONLY)
- 8/30/20 Email d. [REDACTED] to D [REDACTED] [REDACTED] Tchr 3 6/10/22
- 8/30/20 Class Dojo Messages 70 6/10/22
- 8/31/20 E-mail [REDACTED] to D [REDACTED] 6 6/10/22
- 9/17/20 Email R. [REDACTED] to W. [REDACTED] 2 1/20/22
- 10/6/20 Email J. [REDACTED] to L. [REDACTED] 4 1/20/22
- 9/17/2- E-mail C [REDACTED] to D [REDACTED] 2 4/11/22
- 9/24/20 Email C. [REDACTED] to M. [REDACTED] 2 1/20/22
- 10/29/20 Email L. [REDACTED] to C. [REDACTED] 3 1/20/22
- 11/2/20 E-mail J. [REDACTED] to D [REDACTED]2 6/10/22
- 11/4/20 Behavior Referral Form 2 1/20/22
- 11/4/20 Email D. [REDACTED] to C. [REDACTED] 1 1/20/22
- 11/4/20 Email L. [REDACTED] to C. [REDACTED] 1 1/20/22
- 12/10/20 E-mail S. [REDACTED] to L [REDACTED] 1 6/10/22
- 1/13/21 E-mail K [REDACTED] to D [REDACTED] 1 6/10/22
- 1/27/21 Email D. [REDACTED] to K. [REDACTED] 2 1/20/22
- 1/27/21 Handwritten Notes 3 1/20/22 (ID ONLY)
- 1/27/21 Email D. [REDACTED] to K [REDACTED] 1 1/20/22
- 1/28/21 E-mail Exc [REDACTED] 1 Withdrawn
- 2/2/21 Email D. [REDACTED] to K. [REDACTED] 2 1/20/22
- 2/4/21 Email S. [REDACTED] to D [REDACTED] Re: Bus 2 6/10/22
- 2/8/21 Math Skills Report 1 6/10/22
- 2/9/21 Email C. [REDACTED] to L. [REDACTED]2 1/20/22
- 2/9/21 School Summary of STUDENT 1 1/20/22
- 2/10/21 Email L [REDACTED] to K [REDACTED] 2 6/10/22
- 3/2/21 Email D [REDACTED] to K. [REDACTED], re:FBA 2 6/10/22
- 3/4/21 Email C [REDACTED] to D [REDACTED] 3 4/11/22
- 3/10/21 Questar Intake Summary 2 4/11/22
- 3/11/21 CSE Meeting Agenda 1 Withdrawn
- 3/11/21 Handwritten Notes 3 1/20/22 (ID ONLY)
- 3/15/21 Emergency Intervention Report 1 Withdrawn
- 3/15/21 Email D [REDACTED] to K. [REDACTED] re: BIP 1 6/10/22
- 3/15/21 Email S. [REDACTED] to D. [REDACTED] 1 1/20/22
- 3/15/21 Email K. [REDACTED] to C. [REDACTED] 2 1/20/22
- 3/15/21 Email C [REDACTED] to L [REDACTED] 3 4/11/22
- OMITTED
- OMITTED
- 3/16/21 Email S. [REDACTED] to D [REDACTED] 2 6/10/22
- 3/18/21 BIP 4 Withdrawn
- 3/19/21 Email K [REDACTED] to D [REDACTED] BIP 1 6/10/22
- 3/20/21 School Tool Attendance 2 4/11/22 (ID ONLY)
- 3/22/21 Handwritten Note 1 1/20/22 (ID ONLY)
- 10/6/20 Emergency Intervention Reports 10 1/20/22
- 5/17/21 [REDACTED] Intake Form 3 6/10/22
- 6/4/21 [REDACTED] Final Educ Evaluation 2 Withdrawn
- 9/8/20 OT Session Notes 14 1/20/22
- 6/14/21 Progress Report on IEP Goals 4 Withdrawn
- 9/20/20 OT Goal Data Sheet 2 Withdrawn
- 9/14/20 Observation for Study Skills Forms 8 6/10/22 (ID ONLY)
- Undated Handwritten Counseling Notes 20 6/10/22
(1/20/22 ID)
- 7/1/21 IEP Progress Report on Goals 7 4/11/22
- 20/21 3rd Grade Report Card 2 4/11/22
- 9/17/21 Script for OT 2 Withdrawn
- 10/20/20 Email S [REDACTED] to L [REDACTED] re: consent 1 6/10/22
- 9/23/21 Revised OT Prescription 1 Withdrawn
- 9/28/21 E-mail Exc [REDACTED] 1 Withdrawn
- 9/28/21 CSE Mtg Invite 3 Withdrawn
- 9/29/21 E-mail Exc [REDACTED] 1 Withdrawn
- 10/1/21 E-mail [REDACTED] 2 Withdrawn
- 10/7/21 Dr. [REDACTED] CV 6 Withdrawn
- 10/6/21 CSE Mtg Invite 3 Withdrawn
- 8/3/19 PRIOR DISTRICT Health Form 2 1/20/22
- 10/12/21 E-mail Exc [REDACTED] 22 Withdrawn
- 2/10/21 Student Intake Questar 14 6/10/22
1/20/22 ID
- 2/25/21 [REDACTED] cty Dept MenHealRel1 4/11/22 (ID ONLY)
- 6/2020 [redacted] CSD Report Card 1 6/10/22 (ID ONLY)
- 12/8/20 Bus Behavior Referral Form 1 1/20/22
- 8/16/21 E-mail Letter [REDACTED] 2 Withdrawn
- 4/15/21 NYSED.gov Occupational Therapy 1 6/10/22
- 8/6/21 E-mail Exc [REDACTED] 1 Withdrawn
- 6/21/21 E-mail Exc [REDACTED] 2 Withdrawn
- 4/11/21 Email C [REDACTED] to D [REDACTED] 2 6/10/22
- 3/23/21 Email L [REDACTED] to C [REDACTED] 1 4/11/22
- Undated Handwritten Notes re: conf room 1 6/10/22 (ID ONLY)
- 5/4/21 Records 44 Withdrawn
- 6/4/21 Attendance Report 1 Withdrawn
- 10/2/20 Prescription for OT 1 1/20/22
- 10/29/21 PDD F-84 Codes 1 Withdrawn
- 9/28/21 Letter [REDACTED] 1 Withdrawn
- 2/5/21 Email S [REDACTED] to D [REDACTED] 4 6/20/22 4/11/22 ID
- 11/2/20 IEP Direct Contact Log Item 1 Withdrawn
- 9/9/20 Bus Behavior Referral Forms 16 1/20/22
- Undated FBA Baseline Data 1 6/10/22
- Undated FBA Baseline Data 1 6/10/22
- 3/17/21 E-mail Exc [REDACTED] 1 Withdrawn
- 2/24/21 Email C [REDACTED] to L [REDACTED] 2 4/11/22
- 3/22/21 Student Referral Form 3 4/11/2
- Undated Notebook Handwritten Notes 2 4/11/22 (ID ONLY)
- 10/5/21 E-mail [REDACTED] 1 Withdrawn
- 11/9/21 E-mail [REDACTED] 1 Withdrawn
- 11/19/20 Email from S [REDACTED] to D [REDACTED]2 6/10/22
- 6/22/21 DPC (R-1) 13 Withdrawn
- 5/15/21 EG CSD 20-21 IEP (R-2) 13 Withdrawn
- 9/11/21 IEP (R-3) 12 Withdrawn
- 3/11/21 IEP (R-4) 12 Withdrawn
- 4/1/21 IEP (R-5) 14 Withdrawn
- 3/11/21 IEP 21/22 School Year (R-6) 12 Withdrawn
- 5/30/18 Psych Eval EVALUATION CENTER (R-7) 15 Withdrawn
- 3/7/19 Neurodevelopmental Eval (R-8) 4 Withdrawn
- 3/24/21 Emails from S. [REDACTED] (R-9) 7 Withdrawn
- 20/21 Student Attendance Report (R-10) 1 Withdrawn
- 20/21 District Calendar 2020/21 (R-11) 1 Withdrawn
- 6/30/21 Summary of Daily OT Notes (R-12) 8 Withdrawn
- 20/21 Counseling Notes (R-13) 20 Withdrawn
- 5/17/21 [REDACTED] Corre (R-14) 3 Withdrawn
- 5/18/21 District Resp to [REDACTED] (R-15) 1 Withdrawn
- 6/4/21 [REDACTED] Educational Eval (R-16) 2 Withdrawn
- 6/2/21 E-mail [REDACTED] (R-17) 1 Withdrawn
- 3/21/21 E-mail (R-18) 2 Withdrawn
- 4/30/21 BCBA Consent (R-19) 1 Withdrawn
- 8/16/21 [REDACTED] Report (R-20) 1 Withdrawn
- 8/16/21 [REDACTED] Invoice (R-21) 1 Withdrawn
- 6/4/21 Prior Written Notice (R-22) 3 Withdrawn
- 1/13/20 E-mails [REDACTED] (R-23) 3 Withdrawn
- 8/4/21 PHC I Transcript 50 Withdrawn
- 8/26/21 PHC III IHO Murphy 49 Withdrawn
- 9/10/21 DPC III 19 Withdrawn
- 9/12/21 E-mail [REDACTED] 1 Withdrawn
- 9/15/21 [redacted] Comp Ed Report 7 Withdrawn
- 9/15/21 OT Script 1 Withdrawn
- 9/15/21 Questar Response to FOIL Req 63 Withdrawn
- 9/17/21 E-mail [REDACTED] Script 1 Withdrawn
- 9/17/21 Proposed OT Script 1 Withdrawn
- 9/20/21 OT Initial Proposed Script 1 Withdrawn
- 9/20/21 E-mail Exchange [REDACTED 3 Withdrawn
- 9/24/21 DPC I Hearing I Transcript 398 Withdrawn
- 9/28/21 E-mail [REDACTED] 1 Withdrawn
- 9/28/21 Letter [REDACTED] 1 Withdrawn
- 9/29/21 E-mail Exchange [REDACTED] 1 Withdrawn
- 10/2/21 E-mail [REDACTED] CSE 2 Withdrawn
- 10/5/21 E-mail [REDACTED] 1 Withdrawn
- 10/6/21 Letter [REDACTED] 4 Withdrawn
- 10/6/21 NYS OT 1 Withdrawn
- 10/7/21 IEP 18 Withdrawn
- 10/8/21 [REDACTED] Report 5 Withdrawn
- 10/12/21 OT Script 1 Withdrawn
- 10/14/21 Letter [REDACTED] 2 Withdrawn
- 10/14/21 [REDACTED] Report 5 Withdrawn
- 10/14/21 Social and Dev. History 4 Withdrawn
- 10/15/21 Letter [REDACTED] Parents 1 Withdrawn
- 10/15/21 E-mail [REDACTED] 1 Withdrawn
- 10/15/21 E-mail Exchange [REDACTED] 2 Withdrawn
- 10/19/21 DPC I 2nd Hearing Transcript 300 Withdrawn
- 10/21/21 E-mail Exchange [REDACTED] 1 Withdrawn
- 10/21/21 E-mail Exchange [REDACTED] 6 Withdrawn
- 10/24/21 E-mail Exchange [REDACTED] 1 Withdrawn
- 10/30/21 E-mail [REDACTED] 2 Withdrawn
- 11/1/21 [REDACTED] FBA Observation 5 Withdrawn
- 11/1/21 NYSED letter [REDACTED] 9 Withdrawn
- 11/2/21 [REDACTED] letter NYSED 2 Withdrawn
- 11/2/21 [REDACTED] letter [REDACTED] 2 Withdrawn
- 11/3/21 [REDACTED] letter [REDACTED] 2 Withdrawn
- 11/3/21 E-mail Exchange [REDACTED] 1 Withdrawn
- 11/4/21 E-mail Exchange [REDACTED] 2 Withdrawn
- 11/4/21 E-mail Exchange [REDACTED] [REDACTED] 1 Withdrawn
- 11/4/21 E-mail Exchange [REDACTED] 2 Withdrawn
- 11/8/21 E-mail Exchange [REDACTED] 2 Withdrawn
- 11/9/21 E-mail Exchange [REDACTED] 1 Withdrawn
- 11/9/21 E-mail [REDACTEDD] 7 Withdrawn
- 11/9/21 E-mail Exchange [REDACTED] 1 Withdrawn
- 9/7/21 Pendency Order 5 Withdrawn
- 2017 [REDACTED] Production 91 Withdrawn
- 11/14/21 9 of 1874 ANS.11-8-21 IAES DPC 9 Withdrawn
- 11/15/21 E-mail [REDACTED] 1 Withdrawn
- 11/17/21 E-mail [REDACTED] 2 Withdrawn
- OMITTED
- 11/15/21 Letters [REDACTED] 7 Withdrawn
- 11/18/21 E-mail Exchange [REDACTED] 3 Withdrawn
- 7/20/21 [REDACTED] Incident Reports 104 Withdrawn
- 11/18/21 Questar III Production 1 76 Withdrawn
- 11/18/21 Questar III Production 2 114 Withdrawn
- 11/18/21 Questar III Production 3 129 Withdrawn
- 11/18/21 Questar III Production 4 145 Withdrawn
- 11/18/21 Questar III Production 5 40 Withdrawn
- 11/18/21 Questar III Production 6 14 Withdrawn
- 11/18/21 Questar III Production 7 25 Withdrawn
- 11/4/21 E-mail Exchange [REDACTED] 2 Withdrawn
- 5/10/19 [REDACTED] DPC 3 Withdrawn
- 6/8/20 Email T [REDACTED] to L [REDACTED] 37 6/10/22
w/ East [REDACTED] Records
- 11/10/21 E-mail [REDACTED] 7 Withdrawn
- OMITTED
- 3/18/21 BIP 5 Withdrawn
- 11/15/21 Answer to 11-8-21 IAES DPC 1,874 Withdrawn
- Undated School Tool Screenshot 1 1/20/22 (ID ONLY)
- 6/15/21 Speech Evaluation 2 4/11/22
- 8/16/21 [REDACTED] 16 Withdrawn
- 12/10/21 NYSED Decision OT 5 4/11/22
- 12/28/21 NYSED Decision [REDACTED] 5 4/11/22
- 12/4/21 [REDACTED] ex [REDACTED] 2p 2 Withdrawn
- 11/10/21 [REDACTED] Conditional Consent 5 Withdrawn
- 4/26/21 [REDACTED] Signed Consent 6. 4/11/22
- 5/4/21 Progress Reports Various Docs 45 6/10/22
w/env (4/11/22 ID)
- 9/17/20 Email from J. [REDACTED] to C. [REDACTED] 7 4/11/22
- 12/10/20 Email from L. [REDACTED] to S. [REDACTED] 64/11/22
- 3/24/21 Email J. [REDACTED] to C [REDACTED] 1 4/11/22
- 6/30/21 Email from L. [REDACTED] to J. [REDACTED] 1Withdrawn
- 6/30/21 Student Health Record 3 Withdrawn
- 6/15/21 Email L [REDACTED] to C [REDACTED] 1 6/10/22 (ID ONLY)
- 8/11/21 CSE Meeting Invitation List 1 6/10/22
- Undated Transportation Feedback Form 1 6/10/22
- 10/15/20 Email S. [REDACTED] to L. [REDACTED] Re: Bus1 6/10/22
- 7/10/20 Student Health Record 1 6/10/22
- 10/3/20 Email D. [REDACTED] to K [REDACTED]1 6/10/22 (ID ONLY)
- 3/12/21 Email J [REDACTED] to C [REDACTED] 1 6/10/22
- Undated Curriculum Vita 11 6/10/22
- 3/10/22 Email D [REDACTED] to S [REDACTED] 1 Withdrawn
- 3/30/21 Email R [REDACTED] to C [REDACTED] 2 6/10/22
- 4/18/22 Email K [REDACTED] to S. [REDACTED] etal 7 Withdrawn
- 4/1/21 IEP (First Page) 1 Withdrawn
- BASC Protocol 82 Withdrawn
- Undated Bus Expectation Notice 1 Withdrawn
- Undated Social Emotional Data Collection 3 6/10/22 (ID ONLY)
- 4/14/15 Board Policy 5315 Emer Interv 2 6/10/22
- 6/7/21 Bus Suspension Summary 1 6/10/22 (ID ONLY)
- 3/22/21 Summary of Restraints 2 Withdrawn
- 6/9/21 Missed Counseling Summary 1 Withdrawn
- Various Incident Summary 10 Withdrawn
- Various Autism Indicator Summary 2 Withdrawn
- 5/31/22 Greene Evaluation Report 4 6/10/22 (ID ONLY)
- Various Missed OT Summary 4 Withdrawn
- 6/1/22 NYSED Findings 15 Withdrawn
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
- Omitted
Undated Data Collection Sheets 3 6/10/22 (ID ONLY)
In the Matter of the Application of
STUDENT, a Child with a Disability, by the
student’s parents, for a Due Process
Impartial Hearing,
Petitioners, FINDINGS OF FACT
AND DECISION
-against-
[REDACTED] CENTRAL SCHOOL
DISTRICT,
Respondent.
________________________________________________________________________
NOTICE OF APPEAL TO STATE REVIEW 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 the 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] Exhibits will be referenced as follows: Impartial Hearing Officer exhibits will be referred to as “IHO -___,” Joint exhibits will be referred to as “J-__,” District or Respondents exhibits will be referred to as “R-__,” and Parent exhibits will be referred to as “P-__.” References to the record will be cited as “Tr.-__,” followed by the page number.
[2] There is an error in the numbered paragraphs in DPC II. After the paragraph numbered 159, the next paragraph is numbered 141 and the paragraphs ascend numerically from there.
[3] The psychological evaluation, which was entered into evidence at the hearing, was conducted by [REDACTED] (“AAPSA”) and was not an “evaluation” conducted by PRIOR DISTRICT.
[4] The issue concerning the evaluations, including the FBA was part of the prior hearing and need not be renewed here.
[5] The specific allegation is that the BCBA was told the student was accepted to an out of district placement without the parent’s knowledge or participation in the decision.
[6] The allegation is that the BCBA conducted an observation of the student without the consent of the parents.
[7] The appropriateness of the IEPs from the three CSE meetings held during the 2020/2021 school year are in issue.
[8] The allegation is that due to the inappropriate actions of the District, the student failed to make progress. The issue of the student’s progress during the 2020/2021 school year is relevant to the remedy if the allegations are sustained.
[9] The allegation is that the student was inappropriately removed from receipt of his mandated services.