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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 573583

Impartial Hearing Decision

January 19, 2023·Dora M. Lassinger

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number: 573583

Student's Name: REDACTED

School District: REDACTED

Scho Hearing Requested By: Parent

Record Closed Date: January 10, 2023

Hearing Officer: Dora M. Lassinger

Procedural Background The student’s parent requested an impartial hearing on June 2, 2022, alleging a denial of a Free Appropriate Public Education (“FAPE”) for the 2020-2021 and the 2021-2022 school years, and requesting various forms of relief including compensatory education. (IHO. Ex. II). I was designated to hear this matter on June 3, 2022.

An amended impartial hearing request was filed, on August 8, 2022; adding a claim for a denial of FAPE during the 2019/2020 school year, and seeking compensatory education, including transition services. (IHO Ex. III).

A hearing on the merits was held on October 12, 18, 2022, November 3 and December 2 2022. The compliance date was extended for trial preparation, and due to extensive testimony/issues, with a final compliance date of January 20, 2023. (IHO Ex. IV).

Parents’ Position The parents argue that for the three school years in question, the school district denied the student a FAPE, due to its failure to address the student’s academic and social skills deficits, and to provide transition services.[1] The parents argue that pursuant to Senate Bill 7866, the student, who turned twenty-one during the 2021/2022 school year, remains eligible for compensatory services (not extended eligibility). Finally, the parents claim that as the due process complaint was filed before the student graduated, the student remains eligible for an award of compensatory education, and that the “gross violation” standard is not applicable here.

The parents are requesting an award of compensatory education consisting of the following:

  • • 224 hours of 1:1 academic tutoring in English and Math;
  • • 1 hour of 1:1 Speech/Language Therapy (“SLT”)
  • • 6.5 hours of 1:1 Occupational Therapy (“OT”)
  • • An Independent Transition Consultant of the parent’s choosing at a rate ranging from $90.00 to $165.00 per hour, to provide a transition plan, an employability profile, social skills training, job-site development in the student’s area of interests and job coaching. (IHO Ex. VI).[2]

School District’s Position The school district requests an order denying all of the relief requested, arguing that relief is not available to a student who has reached the age of 21 and has obtained a high school diploma, unless there is proof of a gross violation of the IDEA, which is absent here. The school district argues that Senate Bill 7866-A, which allows a school district to extend eligibility to a student who turned twenty-one years old during the 2021/2022 school year is discretionary; and does not create any obligation for the school district to provide additional services. The school district also argues that the two year Statute of Limitations precludes relief for any actions which occurred more than two year preceding the filing of the initial due process complaint. (IHO Ex. V).

  • • Evidence at Hearing
  • • The student, who is [REDACTED] years of age, graduated from the school district’s high school in June 2022, with a Regents diploma. (Par. Ex. J; District. Ex. 7; Tr. pp. 224-225). Throughout the time period which is the subject of these proceedings, he was classified with Autism.
  • • During his high school years (2015-2016; 2016-2017; 2017-2018 and 2018-2019), he participated in a life skills program. (Tr. p. 27). He was mainstreamed for art, physical education and lunch. He took numerous art classes, including animation video, computer graphic, studio art, drawing and painting 1 and 2; and earned high grades in those classes. In his academic classes, his grades ranged from 65 (for algebra 1B) to 89, for Life Skills English. (Dist. Ex. 27; Tr. pp. 106-107). For the 2020/2021 school year, his program was changed from Life Skills to a Regents program, as the parents indicated a strong desire for him to graduate with a high school diploma. (Tr. pp. 27, 58).
  • • The student is interested in graphic design, science and architecture. (Tr. p. 211). He creates elaborate and colorful artwork with various media; and conducts a REDACTED Program, where he teaches how to draw various characters. (Tr. p. 212; Par. Ex. V). He exhibits and sells his artwork. (Dist. Ex. 41; Tr. p. 212). The school district’s staff was aware of the student’s interest and ability in art. (Tr. pp. 27, 219). The student’s mother testified that up until eighth grade, the student was happy at school, socialized with other students, and was invited to parties. She testified that since entering the school district’s high school in 2015, he has not made any friends. (Tr. p. 294).
  • • The school district’s supervisor of special education (hereinafter “the supervisor”), who has chaired the student’s IEP meetings; described him as a complex student with some academic strengths and talents; but with striking social issues. (Tr. pp. 25-27).
  • • On May 10, 2019, the student was suspended from school for 5 days, on charges of disruptive and violent conduct and endangering the safety, physical or mental health or welfare of others. (Par. Ex. A).[3] On May 16, 2019, the parent was informed that manifestation was found. It was recommended that the student receive Home Training, pending a new program to be determined at a CSE meeting, as his current placement was deemed inappropriate. A Level III Vocational Evaluation was approved; however, it was never completed. (Par. Ex. B; S.D. Ex. 28 at 3).
  • • The student was permitted to return to school with REDACTED a registered behavior technician who also has a Master’s Degree in education (hereinafter “the BIS provider”). The student’s mother testified that the BIS provider informed her that the Life Skills program at the school district was inappropriate for the student, and that she should explore other options, including other placements and home instruction. The parent removed him from the high school, school two weeks into the 2019/2020 school year, and determined that she would not return him to the school. (Tr. pp. 174, 225, 235) Placements were explored in at least three other school districts; however, the student was not accepted to those programs. (Tr. pp. 227, 230).

2019/2020 School Year

  • • An IEP meeting was held on July 3, 2019 and the supervisor served as chairperson. The student was then working toward a Skills and Achievement Commencement Credential (“SACC”), a graduation credential for students who are not believed to be capable of earning a high school diploma. (Tr pp. 31-32).[4]
  • • Evaluations available at the time of the July 2019 IEP meeting indicated that the student performed better on tests requiring basic skills in math, reading and spelling; and with more difficulty with applied tasks. Teachers reported that the student’s management needs were significant; and that he enjoyed drawing, working in the PAES Lab, and spending time with peers at the REDACTED Club (a social experience which paired disabled students with typical peers). (DOE Ex. 2, p. 2, Tr. p. 39). On testing performed in 2017, the student functioned in the borderline range for reading and math; and at the low average range for written language. His scores on oral and written language indicated significant impairment in comprehension. His scores on the Vineland Adaptive Behavior Scales II were in the deficient range. (DOE Ex. 2 at 3; Tr. p. 40).
  • • The student was recommended for a program consisting of special classes (12:1+3) for science, reading and math; and two additional special classes; with related services of parent counseling and training (“PCAT”), and various program modifications and supports including psychological consultation as needed, a one-to-one aide for mainstreamed classes, Physical Education, and Behavioral Intervention Consultation for Team, as needed. For the summer months, it was recommended that the student participate in vocational training, in a small group, 4 hours per day. (Dist. Ex. 2) The 12:1+3 classes focused on functional academics and vocational training. (Tr. pp. 33-34). The additional two special classes provided vocational services. One of those classes was a prevocational education program (the PAES lab); and the other was job coaching within the building. The PAES lab is a simulated work site, which provides students with the experience of following directions from a supervisor, for tasks which include assembly and filing. Job coaching within the building included work in the cafeteria. (Tr. pp. 34-35). Within the community, the student participated in job coaching opportunities. (Tr. pp. 36-37).[5]
  • • During the Summer of 2019, the student participated in a vocational training program at a graphic design organization; however, the tasks assigned to him included folding laundry, labeling and organizing. (Tr. p. 108).
  • • The IEP included a coordinate set of transition activities including skills instruction (aligned with the IEP goals leading to the SACC); related services of working with a psychologist, community experiences of participating in a school run activity, such as Ambassadors club, participation in job coached experience at a work experience site, Acquisition of Daily Living Skills (“ADL’s”) and a Functional Vocational Assessment (Job coach reports). (Dist. Ex. 2).
  • • An Amended IEP was developed on September 3, 2019, without a meeting, to continue special education services and BIS (5 times per week for 4 hours), while seeking outside placement for the student. (DOE Ex. 1 at 3; Par. Ex. F). BIS services were increased to five days per week for 7 hours on September 10, 2019. (DOE Ex. 1 at 3). Transition Activities continued unchanged from the July 2019 IEP. (Par. Ex. F10-11). The parent denied that the student received psychological services, participation in the REDACTED club, or job coaching. It is undisputed that he did not receive a vocational assessment or job coach reports. (Tr. p. 259).
  • • On September 10, 2019, it was agreed that the student’s IEP would be amended to increased BIS from 5 x week for 4 hours to 5 x week for 7 hours. (DOE Ex. 3 at 3; Tr. p. 47). A Manifestation Determination Meeting was held on October 25, 2019; and manifestation was found. It was determined that the student would be placed on home instruction with behavioral support; and that the school district would look for a program outside the district, as the student required a higher level of service. The parents agreed with the recommendation. (Tr. pp. 48-49; Dist. Ex. 1 at 3). [6]
  • • On December 5, 2019, the CSE added SLT and OT to the student’s program. (Tr. p. 49).
  • • The student’s mother testified that it was months into the 2019-2020 school year before the student was provided with books, for use for home instruction. The BIS provider used her own materials to provide academic instruction. (Tr. p. 238). The parent sent letters to the district, complaining about the lack of assignments and teachers. (Par. Ex. CC, DD). She testified that teachers came to provide tutoring, but only infrequently. (Tr. pp. 245-246).
  • • The student’s report card for the 2019-2020 school year initially reflected failing grades (except for Health), and incompletes. (Par. Ex. H). The student’s mother testified that his grades were later adjusted, due to the delay in his receipt of assignments and instruction; and based upon his performance in the subsequent semester. (Tr. pp. 339-340). His final transcript for the same school year reflects grades in the 80’s. (Dist. Ex. 27).
  • • The student was re-evaluated in December 2019. He received a full-scale IQ score of 84 with relative strength in fluid reasoning and working memory (average range) and weakness in quantitative reasoning (Borderline range). On academic testing, he scored in the average range for reading (letter-word identification), word attack, and a written language; and in the low average range for oral reading, passage comprehension, and calculation. He scored in the low range for academic applications, and in the very low range for applied problems. His score for basic reading skills was in the Average Range. (Dist. Ex. 7). The CSE continued to recommend a SACC program, as opposed to a Regents Diploma, due to concerns that the student would be unable to meet the requirements for a Regents Diploma; and due to his anticipated difficulty in securing employment, in light of his social skills. (Tr. p. 52).
  • • Aa of January 30, 2020, the student was receiving tutoring; however, the parent complained about the tutors, and lack of appropriate materials. She wrote that the student had “wasted months” with the Living Environment teacher, and complained that the student was receiving mediocre grades despite his hard work. (Par. Ex. EE). On March 12, 2020, the parent wrote a letter to the school district complaining about a failing grade. (Par. Ex. HH). The parent testified that, with the help of the BIS provider, her son would perform work at home, and submit it to school; but that the work was lost and not graded. (Tr. pp. 250-251). Eventually, however, the school’s principal acknowledged receipt of the work. (Tr. p. 251). Ultimately, the issue of lack of instruction was resolved with an award of make -up hours, assignment of an official teacher of record and summer services. (Par. Ex. II; Tr. pp. 255-256).
  • • An IEP meeting was held on April 21, 2020. The CSE continued to recommend home instruction, with BIS 20 hours per week; and an increase of PCAT to one hour per week. (DOE Ex. 1 at 2).
  • • Another meeting was held on June 4, 2020, to review the student’s Extended School Year services. The student was recommended for 10 hours per week of specialized home instruction. BIS were increased to two additional hours per day, and OT and SLT were continued. (Id. at 2). The supervisor testified that due to the difficulty of finding providers during the pandemic, 15 hours of make-up services were available. (Id. At 2; Tr. p. 53).
  • • According to the parent, starting in 2019, there was discussion about REDACTED, (hereinafter the “BOCES program”) a graphic design program, which also offered architectural engineering. The student did not wind up attending the BOCES program due to COVID closure, because his attendance there could not be coordinated with his academic program at the district’s program; and because once he turned 21 he could not be accepted. (Tr. pp. 262-263, 316). The school district offered virtual vocational training during the Summers of 2020 and 2021. (Tr. pp. 110-111).
  • • The BIS provider testified that she worked with the student from 2018 until June 2022. (Tr. pp. 176-177). During the Summer of 2019, she provided life skills training (chores within the home), behavior intervention and parent training. At the start of the 2019/2020 school year, she accompanied the student to the school district’s high school for a period of time. Afterward, she provided home instruction (academic), ten hours per week; until the school district determined that its own personnel should provide the academic instruction. (Tr. pp. 179, 182, 192-193, 198).
  • • The BIS provider worked with the student on resumes. She also arranged for the student to work for three months in early 2020, in an REDACTED, cleaning tanks, under her supervision. (Tr. pp. 194, 200, 260). [7] She testified that most of her work with the student was in person; and that virtual instruction did not work well for him; as he would become frustrated with the camera, and leave. (Tr p. 199).

Prior to the COVID closures, the student attended a Saturday morning program at REDACTED, an arts program in the community of the school district, which included children from other areas. The student was given different art projects, and had the opportunity to learn computers. During the pandemic, the classes were offered online; and the students tried to socialize online. (Tr. pp. 292-294). The student finished the 2019-2020 school year with grades in the 80’s and earned five credits. (Par. Ex. J).

2020/2021 School Year

  • • Another IEP meeting was held on July 30, 2020 to plan for the 2020/2021 school year. It was recommended that the student receive BIS four times per week for five hours per day (five times per week for seven hours per day during the summer), specialized instruction, two hours per day, and related services of OT, PCAT and SLT, once per week. Extended school year services were recommended. (DOE Ex. 4). The transition plan was amended to indicate that the student would receive instruction leading to a New York State High School Diploma. It was also noted in the IEP that the student will participate in a Level III Functional Vocational Assessment. (DOE Ex. 4 at 13 of 14; Tr. p. 58). The supervisor testified that a Level III assessment is typically performed at a job site; and that due to the pandemic, job sites were not allowing students, and the assessment could not be performed. (Tr. p. 59).
  • • According to the supervisor, it was at this meeting that the parents requested, and the CSE agreed, that the student should have the opportunity to earn a high school diploma. (DOE Ex. 4 at page 5 of 14; Tr. p. 57). The student’s mother requested that her son receive a Regents Diploma because she knew this would be a requirement for him to enter one of the better art or graphic design schools. (Tr. p. 233).
  • • Another IEP meeting was held on October 13, 2020 to add the REDACTED program (hereinafter “the alternative program”) to the student’s IEP.[8] This program was provided at the school district’s office, in small groups of three to four students, and served disabled and non-disabled students in a mainstream setting; with a special education teacher available to consult. (Tr. pp. 60, 115). [9]It was felt that the program would benefit the student, as it was minimally distracting and provided small group and visual support. (Tr. p. 61). On the IEP, the program is described as an integrated co-teaching service (“ICT”), to be provided seven times per week for two-hour sessions. The IEP continued to provide BIS 4 times per week for 5-hour sessions, to be provided at school and at home. The IEP also provided for specialized instruction five times per week for two hours. Counseling (twice per month), PCAT OT and SLT were also recommended. (DOE Ex. 6 at 1; Tr. p. 63-65). The parents agreed with the new program. The student’s mother acknowledged that it was during the 2020/2021 school year, that achievement of a Regents Diploma became more of a focus. (Tr. p. 307).
  • • The BIS provider accompanied the student to the alternative program, to redirect him to remain on task and communicate with his teachers. (Tr. p. 63). The supervisor testified that this was an appropriate program for the student, in light of his goal of achieving a high school diploma. (Tr. pp. 62-63).
  • • The Transition Activities set forth in the October 13, 2020, were continued from the prior IEP’s. The IEP stated that the student was expected to receive a SACC; but also made reference to a High School Diploma, within the Transition Activities. (Dist. Ex. 6 at 1, 12-13 of 14). The student’s mother denied that the student received any of the services described in the transition activities. (Tr. p. 267).
  • • Another IEP meeting was held on December 21, 2020 to add additional sessions of OT and SLT; and to increase BIS to five times per week for 5 hours. (Dist. Ex. 9; Tr. p. 67). On March 4, 2021, the student’s IEP was amended to add four hours per week of resource room services, individually, for the purpose of reteaching or reviewing concepts presented in the classroom, in order to maximize the student’s chances of passing the Regents exams (Dist. Ex. 11; Tr. p. 69).
  • • An annual review was held on June 2, 2021. Summer services were increased, to assist the student in completing some outstanding work for classes he was taking. Otherwise, his services remained the same. (Dist. Ex. 13 at 1; Tr. p. 72). The IEP noted the student’s strengths, including his artistic ability. (Tr. p. 73). The Coordinated Set of Transition Activities continued as before, listing the SACC, which was no longer applicable to the student, and Job Coach Reports and a Level III Functional Vocational Assessment, which was never performed. (Dist. Es. 13 at 11 of 12). The supervisor testified that this was due to the unavailability of a job site. (Tr. p. 75).
  • • Like other students throughout the state, the student was excused from taking Regents Exams for English, US. History, Earth Science and Algebra, during the 2020-2021 school year. He achieved final grades ranging from 65 for Algebra to 82 in History. (Tr. pp. 69-71; 79-80; Dist. Ex. 14).
  • • During the 2020/2021 school year, the BIS provider continued to work with the student on chores within the home. She would also take the student for walks into the community and have him order food and count change. (Tr. pp. 182-183, 187). She also provided support at the alternative program. This included working to reduce the amount of time it took the student to go to the bathroom and return to work, as he used these trips to remain outside of class. She testified that he performed well in the alternative program, with her support. (Tr. pp. 184-186).

2021-2022 School Year

  • • A Social History Update was performed on August 26, 2021. The parent reported that the student had made some academic progress receiving 1:1 instruction, and that he does not like to be in a classroom setting with other disabled students. The parent’s particular concern regarding his ability to function independently was his need for assistance with activities of daily living. (Par. Ex. T).
  • • The IEP was subsequently revised, on September 14, 2021, to add thirteen hours per week of specialized instruction (9/1/2021 to 6/24/2022), in order to provide the student with additional support and remediation of basic academic skills, for reading, writing and math. (Tr. p. 76). Nevertheless, the school district was not always able to provide the specialized at home instruction, in-person, which the parent was requesting. The supervisor acknowledged that remote instruction had been attempted with the student, and was not successful. The supervisor gave the parent the option for remote instruction; and testified that the district would have been able to provide the instruction virtually. (Dist. Ex. 20; Tr. p. 83).
  • • Another IEP meeting was held on December 21, 2021 to discuss the parents’ request for a BOCES vocational program (starting second semester) and extended eligibility. (Dist. Ex. 17, Tr. p. 77). Both requests were denied. The supervisor testified that at this point, participation in the BOCES program would prevent the student from earning his Regents Diploma. In addition, the request to commence the program mid-year did not align with the requested program, which runs a full year. With respect to the request for extended eligibility; it was hoped that the student would pass the Regents exam. (Tr. p. 78).
  • • While the request for extended eligibility was denied, the CSE later (on March 4, 2022) agreed with the parent’s request to decrease behavioral services, and increase specialized instruction, from 13 hours to 18 hours per week. (Dist. Ex. 1 at 1). Arranging the extra hours to take place in person, however, proved to be challenging. (Dist. Ex. 20). On April 11, 2022, the CSE also agreed to add an additional hour of speech services to the student’s IEP. (Dist. Ex. 1 at 1).
  • • A testing accommodation was added on May 13, 2022, to allow the student to take Regents exam over multiple days, in order to maximize his success. (Dist. Ex. 25; Tr. p. 99). During the 2021 -2022 school year, the student passed all of his classes, with final grades ranging from 75 for Global History to 83 for Government. He achieved a grade of 75 on the Global Regents Exam. (Dist. Ex. 26).
  • • The BIS provider continued to accompany the student to the alternative program, and testified that he performed well in the program. (Tr. p. 189). She testified that the Global Teacher worked well with the student. (Tr. p. 191).
  • • During the 2021-2022 school year, the student took English 12, Global History 2, Government, and Physical Education at the alternative site. He received credit for a Community Service program which the parent arranged. (Tr. p. 270; Par. Ex. J). He also continued to receive home instruction. The student’s mother testified that there was missed instruction, during the period from January to June 2022. (Tr. pp. 271-272). She presented into evidence emails she sent to the district regarding missed BIS and instruction. (Par. Ex. Z, AA, BB, JJ). She was particularly concerned about her son’s ability to pass the Global Regents; and requested an accommodation of allotting extra days to spread out the test. (Par. Ex. AA; Tr. p. 274).
  • • The student’s mother calculated that the student missed 108 hours of instruction from the period from January to June 2022; based upon 13 hours per week (18 hours from March). Her calculation runs until the end of June, one week after the time period indicated in the IEP. (Par. Ex. MM1). [10] She also claims that he is owed the difference between the 14 hours of ICT services designated in the student’s IEP, and the 10 hours per week of ICT actually provided at the alternative program. In total, she claims he is owed 116 hours for missed ICT instruction, including 28 hours on account of a period in January 2022, when the student was asked not to return to school, because the mother had been ill, with flu or COVID. (Par. Ex. MM2; Tr. pp. 276-277, 284, 321). She testified that (with rare exceptions, with remarkable teachers) the student did not benefit from virtual learning. (Tr. p. 278). She claims that the student was also owed 1 hour of SLT and 6.5 hours of OT. (Par. Ex. PP).
  • • She also denied that the student received any of the transition services recommended in the May 13, 2022 IEP (Dist. Ex. 25 at 11).[11] She verified with the BIS provider and the student, that he was pulled out of class to speak with someone for approximately half an hour, but denied that he received psychological services, as she was never notified that these were being provided. (Tr. pp. 286-287). She acknowledged that she was contacted by the school district’s transition coordinator in December of 2021 and a meeting was held in January. The parent was provided with information regarding various services, including busing, and Access-VR. She testified that she had already applied for these services independently, and that Access-VR could not offer her son any services, because he is too high functioning. (Tr. pp. 289, 485).
  • • The school district’s Transition and Vocational Specialist (hereinafter “the TVS”) testified that she began working for the School District in September 2021. She oversees job coaching experiences for students in the Life Skills Department; and assists families in accessing community resources. (Tr. pp. 151-152). Her first contact with the student’s family was on December 6, 2021. (Dist. Ex. 30; Tr. p. 152). The TVS met with the student and his mother in January 2022. The mother stated that the student was mostly interested in graphic design. Specifically, she inquired about the BOCES program. The TVS testified that the BOCES program provides vocational training for adults; but that it did not appear that the adult programs offered at the BOCES were of interest to the mother and student. (Tr. pp. 154- 156, 169).
  • • She also provided information about services which were available in the community; including social skills programs. (Tr. pp. 157-158). Prior to the meeting with the TVS, the student was already accepted to for Office for People with Developmental Disabilities (“OPWDD”), which provides various vocational and community services. (Tr. pp. 158-159, 486).
  • • The TVS also provided information about Access-VR, a State Agency which assists in employment of individuals with disabilities. (Tr. p. 159). The TVS testified that Access -VR offers vocational services, including job coaching; and that this was discussed with the parent and student in January. (Tr. p. 171).
  • • A meeting was arranged with a liaison from Access- VR; and the TVS participated by phone. (Tr. p. 162). Job coaching was also discussed at this meeting, (Tr. p. 172). The TVS also shared information about recreational activities, adult continuing education and a transition program for students exiting high school. (Tr. p. 163). The parent was offered the opportunity to participate in virtual workshops, with representatives from various post-secondary transition programs, to be held on May 10, 2022. (Dist. Ex. 36, 37).
  • • Following the student’s graduation, the TVS had additional correspondence with the parent, to assist her in re-submitting her application to Access-VR; as the student’s case had been closed because he was no longer working with the counselor there. (Tr. p. 166). She also provided information regarding college scholarships. (Dist. Ex. 39).
  • • The parent testified that her son was not provided with opportunities for social interactions during the 2021-2022 school year. She testified that the PAES lab was a “nightmare” and a “torture chamber” for her son; as he was placed with students with severe disabilities who screamed; and that he did not benefit socially from the program. (Tr. p. 292). She did not consider the student’s participation at REDACTED or REDACTED as job training; as it was not in the student’s area of interest and because the tasks he performed would not be relevant for a job. (Tr. pp. 313-314).
  • • She testified that throughout the numerous IEP meetings held from September 2019 through June 2022, no transition assessment of the student was conducted, and the student’s transition plan was never discussed. Nor was she informed that consideration of his vocational needs was an option. (Tr. pp. 469-471). She did not consider her meeting with the TVS to be transition planning. (Tr. p. 484).
  • • She testified that the vocational sites in which the student participated were not individualized to his interests; but were provided to his entire class. She visited one of the sites; and testified that the environment was filthy and that the students were cleaning. (Tr. p. 472). She testified that the student was never provided with opportunities to work on job interviewing skills or workplace rules. (Tr. pp. 474-475).
  • • She testified that during the Summer of 2019, when the student was assigned to a Graphic Design site, he was supposed to be learning computer graphic design and silk screening. Instead, he was assigned to wrap soap and cookies, and do laundry. The teacher assigned to the program explained that this was due to the fact that the other students participating in the program were too low functioning to perform the tasks which the student was supposed to do. (Tr. pp. 473-474).
  • • The parent would like for her son to receive a “person centered” transition plan and job placement and coaching opportunities, as well as social skills training. Most important to her, however, is that he receive missed educational services, so that he can be instructed in math and writing skills, which she believes will be a prerequisite for admission to a college. (Tr. pp. 480-481). She testified that the family is looking into a college that provide supports for students with disabilities, but no applications have been filed. (Tr. pp. 490-493)
  • • One of the student’s teachers for the 2021/2022 school year for (Economics and Global), (hereinafter “the Global Teacher) testified that, the student would focus, and ask questions, when he was interested. (Tr. p. 134). For Economics, he was one of five students. (Tr. p. 135). For Global, he was permitted to present information in drawings, and in Power Point. Regents preparation included documents and writing. The student was accompanied by the BIS provider. (Tr. p. 136). During gym, the student would show the other children his drawings, and ask them to watch his REDACTED. (Tr. p. 139). During academic instruction, the student preferred to work on his own. (Tr. p. 148).
  • • One of the student’s tutors testified that he provided tutoring services, from March until June 2022. Instruction was provided in life skills, government, English and Global, which was important, due to the upcoming Regents exam. He testified that the student lacked information in connection with the Global Regents, and had difficulty remembering information that was taught. (Tr. pp. 371, 375). He also struggled with penmanship and sentence structure. (Tr. p. 372). Nevertheless, the student made significant progress during their sessions. (Tr. p. 373). They practiced for the Regents, including essay writing, and worked on paragraphs. (Tr. pp. 375-376, 385). In his notes regarding tutoring sessions, the tutor wrote that the student was able to write brief, but full paragraphs. He was able to add and record coins in common use, up to eight dollars. (Dist. Ex. 40). He was at times distracted, and struggled to remember information from previous sessions. (Dist. Ex. 40, 41).
  • • The student testified that he plans to be an architect, and this is the course he wishes to pursue in college. (Tr pp. 391-392). He understands that this involves years of study; but he has not looked at any school for architecture, any college, or any other post-secondary program. (Tr. pp. 399-400).
  • • The student described the PAES lab at the high school as “awful, abusive and evil”. (Tr. p. 394). He described his work at REDACTED, which consisted of taking food in and out of the ovens, labeling, and placing it in plastic. (Tr. p. 396). At another job location, he organized clothes. (Tr. p. 397).
  • • The parent presented testimony from the Assistant Director (hereinafter “the consultant”) of REDACTED (hereinafter “the Agency”). The consultant has worked in the field of vocational services for 16 years. (Tr. p. 409). The Agency consults with school districts in the development of transition service planning for students with disabilities, including age-appropriate transition assessments, decision-making and collaboration with OPWDD or Access-VR, in setting up adult services. (Tr. pp. 410-411).
  • • The Agency identifies places in the community where students can work, that align with their plans, and provides job coaching; which entails supporting students in learning skills needed to become employable. This includes hard work skills and soft skills, such as hygiene, communication, working with others, following directions and travel training. (Tr. p. 415).
  • • The consultant reviewed various documents in the record, and testified that based upon the student’s low score on the Vineland (63), he could receive services from OPWDD. She has never met the student or his family. She described the Career Development and Occupational Studies Credential (“CDOS”), which is a pathway to graduation, that requires 22 credits toward a Regents diploma. It involves performing 216 hours of work-based learning in the community. (Tr. p. 420). The Agency uses person centered planning in its evaluations; which is a strength-based approach to life planning for a disabled student. (Tr. pp. 421-422, 440, 449). This type of assessment exceeds a Level II vocational assessment. (Tr. p. 423). The consultant then considers what outside agencies are needed, to assure the student achieves his goals. These agencies include Access-VR and OPWDD. (Tr. p. 424).
  • • She testified that a Level 1 assessment is a questionnaire to assess the student’s interests, which should be performed biannually, starting in middle school. She noted that the student’s interests in computer and art had been identified. A Level 2 vocational assessment takes into account the student’s skills and the type of environment the student prefers. A Level 3 vocational assessment is not mandated, but can be helpful where a clear direction is not determined by existing assessments. It typically involves assessing the student at a site where he has been an intern, and is usually not appropriate for a student who has not had a lot of vocational experience. (Tr. pp. 427-429). An employability profile grades the student on skills relevant in the workplace, including attendance, punctuality, appearance, quality of work, communications, solving problems, cooperating and resolving conflicts; and solving problems using math, health and safety and technology. (Tr. p. 429). A job coach would work with the student on social skills, soft skills and behavior. (Tr. p. 435).
  • • The consultant testified that a PAES lab is a vocational lab in the school, which is like a sheltered workshop. It will have different sections, including office skills and food service, and is a source of data on a student’s strengths. Students should then progress to jobs in the community and more of a specialization, as they approach exit age. (Tr. pp. 451-452).
  • • She testified that as a first work experience, it is not inappropriate for a student to have been placed at locations, where he folded clothes and labeled items. (Tr. pp. 436-437). She explained that this type of placement can teach the student to follow directions and acclimate to a work environment. She testified, however, that these types of placements should be followed by other placements, more aligned with his interests. (Tr. pp. 437-438).
  • • The consultant acknowledged that during the period of COVID closure, it was challenging to have effective coaching experiences. She testified that her agency tried to provide these experiences virtually. She mentioned the REDACTED Art Center, as a location which provides opportunities in art and computers. (Tr. p. 445). She acknowledged that for a student with a specialized interest, such as computers and art, it could be difficult to identify a placement. She testified that it would not be unusual for a work site in a student’s area of interest (such as art) to first give a student menial job, such as folding or filing; but testified that her agency would work so that the student progressed toward performing skills they are interested in doing. (Tr. p. 454). [12]

In order to achieve a CDOS, the first step would be to create a person-centered plan. The agency would charge $165.00 per hour, for a minimum of 12 hours, and a range of 12 to 20 hours. The next step (development contract) would range from 10 to 30 hours, at a rate of $135.00 per hour. Job coaching would then be performed at a rate of $90 to $100 per hour, for 216 hours. The plan would also require one hour per week of oversight, at the rate of $165 per hour. The duration of the program would depend upon how much work the student could tolerate: and could range from six to twenty hours per week. (Tr. pp. 456-458).

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002.

Eligibility

As the student has graduated with a Regents Diploma, and is now 22 years old, he is no longer eligible for the benefits of the IDEA. Somoza v. New York City Dept. of Educ., 538 F 3d 106 (2d Cir. 2008). Compensatory education may be awarded to students who are no longer eligible for services under the IDEA by reason of age or graduation, if the district committed a gross violation of the IDEA, which resulted in exclusion from educational services for a substantial period of time Mrs. C. v. Wheaton, 916 F. 2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F. 2d 1071 (2d Cir. 1988). [13] It is a rare case where a student will graduate with a high school diploma and still qualify for an award of compensatory educational services. (Kirk v. New York City Dept of Educ. 78 IDELR 25 (NY Supreme Court, NY County 2020), Id.

Senate Bill 7866 (A8610), passed in the 2021-2022 legislative session, authorizes school districts to continue to provide students with services in the their IEP’s, until the services are completed, up until the age of 23. Nothing in the language of the new legislation, however, mandates that a school district must complete the services in an IEP after the student has graduated. The only authority regarding the interpretation of this law supports the school district’s position that the language is discretionary. See Application of the New York City Department of Education, Appeal No. 21-127 at n. 20.

Transition Planning and Assessments

New York State regulations require that an IEP, to be in effect when the student is age 15 must include the following:

“1) under the student's present levels of performance, a statement of the student's needs, taking into account the student's strengths, preferences and interests, as they relate to transition from school to post-school activities as defined in section 200.1(fff) [14] of this Part;

(2) appropriate measurable postsecondary goals based upon age-appropriate transition assessments relating to training, education, employment and, where appropriate, independent living skills;

(3) a statement of the transition service needs of the student that focuses on the student's courses of study, such as participation in advanced-placement courses or a vocational education program;

(4) needed activities to facilitate the student's movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation; and

(5) a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of such services and activities that promote movement from school to postschool opportunities, or both, before the student leaves the school setting”. 8 NYCRR 200.4(d)(2)(ix).

While failure to conduct a transition assessment in itself does not constitute a denial of FAPE; a failure to discuss the student’s transition needs and provide related goals and transition activities could constitute a denial of FAPE. cf. R.B. v. New York City Dept of Educ, 67 IDELR 241 (S.D.N.Y. 2016); aff’d 689 F. App’x 48, 69 IDELR 263 (2d Cir. 2017).

Statute of Limitations

An IDEA claim accrues on the date that a plaintiff or his parent “knew or should have known about the alleged action that forms the basis of the complaint. Somoza v. New York City Dept. of Educ., supra, citing 20 U.S.C. Sec. 1415(b)(6)(B).

2019-2020 School Year The parents concede that an award for missed educational instruction is not warranted for the period preceding the two years prior to the filing of the due process complaint (June 4, 2020); but argue that the claims for failure to provide transition services, social skills training and fundamental academic instruction should survive. (IHO Ex. VI). I find that any deficits in the student’s academic instruction and social skills training should have been readily apparent to the parents, at the time they occurred; as he was being instructed in their home. Therefore, claims regarding the student’s academic instruction and lack of social skills instruction are barred, for the period preceding June 4, 2020, which is two years prior to the filing of the due process complaint.

I agree with the parents that claims related to transition services did not become apparent to the parents until later on, when certain options were foreclosed to the student’s age and academic programming. In addition, I credit the parent that there was confusion regarding the type of diploma the student was working toward, as he was receiving both a Life Skills Program some level of Regents academic work. Therefore, I find that the parents may present claims regarding lack of transition planning for the entire 2019-2020 school year.

The record indicates that when the student transitioned from a school based program to a home-based program, delays occurred in provision of books and assignments; and that the student missed out on social interactions. Nevertheless, under the circumstances of this case, I do not find (and the parents do not claim) that there was a gross denial of FAPE during the 2019-2020 school year. The delay in instruction, and lack of coordination between school and home, occurred more than two years before the original due process complaint was filed.

The student was provided with a vocational program during the Summer of 2019 at a graphic design organization. In addition, the BIS provider incorporated some vocational skills into her work with the student, by working on resume writing, and arranging for him for to assist in a local store. The parents’ decision, that the student should not participate at all at the high school, limited options for social interactions; however, he was provided with opportunities for social interactions, on Saturdays, within a local Arts organization.

The BIS, who holds a Master’s Degree in Education, provided the student with academic instruction, and instruction in daily skills, which was a priority for the parent. The lack of coordination between home and school in provision and grading of assignments was ultimately resolved, and make-up services were awarded. The student finished the 2019-2020 school year with grades in the 80’s and earned five credits. (Par. Ex. J).

2020-2021 School Year The record indicates that, during the 2020/2021 school year, the student experienced academic success, earning passing grades in all subjects. He had exposure to other students at the alternative program; where he was instructed within a very small group, with the assistance of the BIS. The record also indicates that the student continued to receive instruction in Daily Living Skills and home instruction, to support academics. The student was also provided with related services of OT and SLT.

I find that the lack of transition planning during the 2020-2021 school year rose to the level of a denial of FAPE. cf. R.B. v. New York City Dept of Educ, supra. Even though a significant change was made in the plan for the student’s academic programming, from working toward a SACC, to working towards a Regents Diploma, the SACC continued to appear in his IEP; and there is no evidence that there was any other discussion of the student’s transition needs. Nor was any other change made to his transition plan.

I do not find, and the parents do not claim, that these deficits rose to the level of a gross denial of FAPE. While the IEP makes reference to a Level III Assessment and Job Coach Reports; these services would have been difficult to coordinate with a full academic program (and home instruction) leading to a Regents Diploma. Nor was the school district required to complete a Level III Assessment. The Consultant explained that this type of assessment is applicable to a student who has had a lot of vocational experience. During the 2020/2021 school year, the priority for the student was to pursue a full academic program, leading to a Regents Diploma. The student continued to receive instruction in Daily Living Skills from the BIS provider; including interactions within the community, and vocational training was offered virtually during the Summer of 2020.

2021-2022 School Year The record indicates that during the 2021-2022 school year, the student continued to experience academic access at the alternative program, with the support of the BIS provider, and large amounts of home instruction; and that he achieved the goal of earning a Regents Diploma. While some home instruction (approximately 85% of the recommended amount) could not be provided by the school district, the student succeeded in passing the Global Regents Exam, with accommodations. He also worked with the tutor on basic academic skills including writing and functional math skills, and received related services of Counseling, OT, SLT, and transition services. When requested by the parents, the school district decreased BIS and increased home instruction.

Taken in the context of his entire educational program, I do not find that the school district’s failure to implement the entire home instruction mandate was a material failure, rising to the level of a denial of FAPE. See A.P. v. Woodstock Board of Education., 370 F. App’x 20, 55 IDELR 61 (2d Cir. 2010); Van Duyn v. Baker School Dist., 502 F. 3d 811 (9th Cir. 2007). Nor do I find that the discrepancy between the amount of ICT service recommended (14 hours) and the amount actually provided (10 hours) warrants relief; as the purpose of the program was achieved.

The student was provided with vocational services by the TVS, who provided coordination with Access-VR and information about the OPWDD. These are the very organizations referred to in the testimony of the Consultant. The student was given the opportunity to socialize with other students, within the alternative program.

For the foregoing reasons, I find that the student was provided a FAPE during the 2021/2022 school year.

ORDER

As the student is no longer eligible for the benefits of the IDEA, and there has been no showing of a gross denial of FAPE for any of the three school years in question, it is hereby ordered that all of the relief requested by the parents is denied.

January 19, 2023

  • • Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

  • • Impartial Hearing Officer Exhibits
  • • Subpoenas, 10-3-22, 5 pp.

II. Due Process Complaint, 6-2-22, 29 pp.

III. Amended Due Process Complaint, 8-8-22, 36 pp.

IV. Pre-hearing conference summaries and extension orders, various dates, 9 pp.

V. District’s Closing Brief, 1-6-23, 19 pp.

VI. Parents’ Closing Brief, 1-6-23, pp.

School District Exhibits

REDACTED

Parents’ Exhibits

REDACTED

Footnotes

[1] The claim for missed educational instruction is limited to the period from January to June 2022. The claim for lack of transition services and services to address the student’s fundamental academic skills and social skills deficits, is for the entire 2019/2020 school year, which began more than two years before the due process complaint was filed. (IHO Ex. VI).

[2] The claim for a compensatory award of money, to be held in escrow for use towards college classes, was withdrawn. (Tr. p. 406).

[3] The suspension was subsequently expunged. (Par. Ex. D).

[4] Although the student’s IEP indicated that he was working toward a SACC, his transcript reflects that he was receiving regents level classes during the 2019-2020 school year (Algebra, English 9R, Envron Studies, Living Environment, Health). (Par. Ex. J). This was also the parent’s understanding. (Tr. p. 235).

[5] Although the student participated in job coaching experiences at REDACTED and REDACTED, his parents wanted to change to something more aligned with his interests. (Tr. p. 42). The student also participated in a program at REDACTED, a local art organization; although it is disputed whether this entailed a job. (Tr. pp. 36-37, 293-294).

[6] There is no other information in the record about the circumstances of the October 25, 2019 meeting.

[7] The student’s mother testified that while the student loves going into this REDACTED; she did not consider what he did there to be a job; and what the BIS provider did for him there as job coaching. She testified that during his time there he would point out fish that were sick, clean and sketch the fish. (Tr. pp. 260-261).

[8] The student had actually been placed in the alternative program prior to the October 13, 2020 IEP meeting, and it was reported that he was making good progress. (Tr. p. 66; Dist. 6 at 1).

[9] The total number of students (both classified and unclassified) at the alternative site was between 15 to 20, and the student had the opportunity to interact with those students. (Tr. p. 117).

[10] Based upon my calculations, the student should have received approximately 600 hours of home instruction during the school year (13 x 40 weeks plus an additional 20 hours per month from March to June 2022). I find, based upon the parents’ calculation, that the district failed to provide 90 (85%) of those hours. The IEP mandate ended on June 24, 2022; however, the parent continued to calculate 18 hours owed for the week of June 26th and 7 hours were actually provided during that week, after services were supposed to have ended. I therefore deducted 18 hours from the parent’s calculation of missed instruction.

[11] The transition activities were updated to include instruction toward a high school diploma and a Level III vocational assessment. In its closing brief, the District acknowledges that it was remiss in failing to update the coordinated set of transition activites to remove the reference to the SACC; and that the REDACTED Club should have been removed from the IEP, once the student was moved to the alternative program, where it was not available. (IHO Ex. V at 16).

[12] The student’s mother testified, however, that as the student is high functioning; there would be no reason to assign him menial jobs at a potential work site, because it would be a waste of his time to perform tasks he has already mastered. (Tr. pp. 497-498).

[13] The parents argue that the gross violation standard does not apply here, as the original DPC was filed before the student graduated from high school, and cite Burr v. Ambach, supra, in support of that argument. (IHO Ex. VI at 25). That case, however, involved a gross violation of the IDEA which resulted in the exclusion of the student from school for a substantial period of time, and does not support the parents’ argument that it is the date of filing which controls, where the student has already graduated with a diploma, and reached the age of 21 during his final year of attendance.

[14] NYCRR 200.1(fff) defines transition services as “a coordinated set of activities for a student with a disability, designed with a result-oriented process.” These activities must be based upon the student’s strengths, preferences and interests.”