Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

{REDACTED},

Petitioner,

Hearing Officer: Michael Lazan

v.

Case # 573584

[REDACTED] SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

A Due Process Complaint (“Complaint”) was received by [REDACTED] School District (“Respondent” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) in regard to the Student. The Complaint was filed on June 2, 2022. Respondent filed a motion to dismiss on January 23, 2023. The motion was denied by an order dated March 30, 2023. Testimony and evidence were then presented at the following dates: September 15, 2022; September 21, 2022; October 7, 2022; October 19, 2022; October 21, 2022; October 28, 2022; December 9, 2022; December 16, 2022; December 22, 2022; January 13, 2023, March 22, 2023; March 31, 2023; April 28, 2023; June 12, 2023; July 28, 2023; August 16, 2023; and then September 22, 2023. The parties provided briefs thereafter. IHO Exhs. 1, 2. Because of the extensiveness of the testimony and issues in this case, to allow the parties to write briefs and to allow this IHO to write this decision, timelines extensions were granted. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). IHO Exh. 3.

FINDINGS OF FACT

The Student is a [REDACTED]-year-old who is eligible for services as a student with other health impairment. The Student has had significant behavioral issues in school despite his age. A speech evaluation was conducted by an independent agency on March 20, 2019. The Student scored in the average range but the Student had some articulation issues. Exh. 27. A psychological evaluation was conducted by an independent agency on April 8, 2019, when the Student was four years old. The evaluation found that, on the Wechsler Preschool and Primary Scale of Intelligence—Fourth Edition (“WPPSE-IV”), the Student’s full-scale score was 102. On the Achenbach Child Behavior Checklist for Ages 1.5-5, completed by the mother, the Student’s scores were in the “clinical range,” the most severe range, in most subtests and in total score. [REDACTED].

[REDACTED] is an Integrated co-teaching (“ICT”) classroom at [REDACTED] for the 2020-2021 school year. The school year was affected by the COVID-19 pandemic. There were months of remote instruction, and students ended up with a smaller class size. Another FBA was written for the Student on October 22, 2020. This FBA found that a function of the Student’s behavior was mostly escape and avoidance, though there were some non-compliant behaviors with respect to gaining a tangible item. Exh. 32. A Behavior Intervention Plan (“BIP”) was written for the Student on October 22, 2020. [REDACTED].

The Student nevertheless had difficulties with behavior during the 2020-2021 school year. When the Student was not interested in something, he might engage in behavioral issues which might require him to get space. [REDACTED] said the Student’s behaviors changed in October-November 2020 and peaked beginning in December, carrying on through the end of the year. Curriculum-based demands were significantly reduced. [REDACTED].

A CSE meeting was held on May 4, 2021. At the meeting, District staff expressed concern that the ICT-based program may not be appropriate for the Student, noting additional concern about the welfare of the rest of the class. Tr. 421-423, 437-438. [REDACTED] were so involved in providing the Student with daily prompts, re-direction and breaks that “it was like a tag team effort” and “it took a lot more effort on our part than with any other student that we had had.” Tr. 422. School staff also felt that “it was really hard to sustain keeping up with maintaining the integrity of instruction for the rest of the class” with the Student. Id.

Though the Student had significant behavioral issues during the 2020-2021 school year, the Student’s issues at school were helped to an extent by the smaller class size that resulted from the pandemic. Id. At the time, the school staff felt that, for the following school year, which was the 2021-2022 school year, there were going to be more demands because class size would go back to “normal.” The school staff felt that the Student was “academically sound and capable” but that they were unsure about the “emotional, social-emotional piece.” Id.

Nevertheless, the CSE did recommend an ICT-based program for the Student, anticipating a 1:1 aide. Counseling was mandated for once weekly, in group and 1:1, for thirty minute sessions, and parent counseling and training were also recommended at the rate of once monthly for an hour. This IEP indicated that the Student’s reading was at the “end of kindergarten” level, and that the Student gets overwhelmed with writing tasks. A BIP was recommended. Goals were written to address the Student’s social emotional and behavioral issues, and for writing. Exh. 1.

During the 2021-2022 school year, [REDACTED]. Staff engaged in interventions such as parallel teaching, station teaching, and small group and individual instruction. Though the Student was able to come to school and complete most tasks and assignments, Tr. 971, 979, 1265, the Student’s behavioral decline continued during the 2021-2022 school year. By November, 2021, the Student’s inability to self-regulate interfered with his learning and brought his progress to a halt. [REDACTED].

On February 9, 2022, [REDACTED].

On February 15, 2022, the CSE convened to review the Student’s program. The team discussed the Student’s recent behavioral issues, indicating that the Student transitioned nicely into first grade, but then started to engage in behavioral episodes that required modifications to the classroom and the program, including reducing the number of items that the Student was required to repeat, and allowing the Student to submit oral responses instead of writing. The CSE continued to recommend the Student in [REDACTED].

Another FBA was written for the Student on February 21, 2022. Again, the FBA indicated that the Student’s noncompliance was a form of escape, access to items, attention from peers, and that the Student requires (as secondarily motivated) sensory stimulation. Exh. 35. The CSE reconvened on February 28, 2022, to review the Student’s behavior in anticipation of an FBA and BIP, but those documents were not completed by this time. The team generally discussed the Student’s behavioral issues and expressed concern that the behaviors would worsen. Petitioner indicated that she felt that the Student needed more immediate reinforcers during the day instead of waiting to get home to cash in coins that he earned. Teachers expressed that the placement was not appropriate since, even with a 1:1 behaviorist and aide, the Student continued to engage in behaviors. Exh. 4.

Another BIP was written for the Student on March 17, 2022 and May 23, 2022. The plans identified “precursor behavior” including [REDACTED]. Strategies included preferential seating, specific language describing transitions, with a timer, working with the Student on non-preferred tasks, using high rates of praise, check-ins throughout the day, a visual schedule paired with a board, contingent reinforcement paired with a behavior chart, use of fidgets, access to a doodle notebook, coping visuals, a token economy system with reinforcement provided after each activity, embedded reinforcement through DOJO, ignoring minor behavior issues, praising the Student’s peers for engaging appropriately, and related interventions. Exh. 35.

At about this time, the Student was refusing to leave the classroom to attend his counseling sessions. A push-in model had been implemented in response. Also about this time, Petitioner asked if the Student could go home early if he was having a bad day. She was told that the school would encourage this, and the Student used this approach “often if not on a regular basis for the remainder of the school year.” The Student would often go home early, usually by 1 o'clock. Tr. 812-813. This has an impact on the Student’s learning. Exh. 40, 45, 47; Tr. 1280-1282. Sometimes, he would enjoy math and then when it was reading time, he would ask us to call his mom to go home because he did not want to do the reading. Tr. 1281.

The CSE again met on March 16, 2022. The most recent FBA and BIP were reviewed, and the parent reported that she wanted some changes to the BIP that were adopted. The CSE recommended that screening packets be sent to public and approved private placements to find a “therapeutic placement” for the Student. Ex. 5. The parent felt that with more flexibility and support the Student could manage the ICT setting. The BCBA was assigned to the Student throughout the day until the next weekend.

Another IEP meeting was held on May 20, 2022. The team discussed a psychiatric evaluation for the Student (to be set up by the parent) and it was indicated that the Student was functioning on grade level in reading and math, though he struggled to comply with Fountas and Pinnell reading comprehension questions. The team discussed the use of a scribe, which was being trialed. Definitions in the existing BIP were reviewed. The Student’s “BIS” provider offered that the Student was making progress in his instruction at home. The parent asked for an Independent Educational Evaluation (“IEE”), which was approved. The parties also discussed the possible private placement for the Student. The District felt that [REDACTED] was an appropriate placement, but the parent did not agree. Exh. P-6.

A psychological evaluation was conducted for the Student, by an independent provider, in May and June, 2022. The report, dated July 18, 2022, indicated that the Student’s intellectual functioning ranged from below average to extremely high. Academic testing found the Student to be in the average range in two reading subtests, average to very high on math subtests, and a written composite at the 82^nd percentile. When asked to quickly generate target sentences, however, the Student was found to be functioning in the very poor range. Social and emotional testing indicated a wide range of very elevated concerns indicating both [REDACTED].

The CSE met on May 20, 2022 and considered whether the [REDACTED] was appropriate for the Student. The CSE noted that it would conduct a further review of the BIP, that the Student would trial a scribe to reduce the Student’s frustration with writing, and that the Student should attend the [REDACTED] considering the Student’s behaviors from March 2022 to present, including thirty-two occurrences of aggression even in a truncated day. The CSE recommended the [REDACTED] to begin June 1, 2022 along with counseling, parent training, and extended school year services.

[REDACTED] is housed within a public school building and is aimed at addressing behaviors as well as academics, with a building-wide behavior management system, a counseling component, a crisis team, composed of special education teachers trained to respond to crisis, a behavior intervention room, and an alternative learning center. There are eight students, one special education teacher, one teaching assistant, and three paraprofessionals. There are three psychologists and twelve social workers for support. The program includes first and second graders. In the proposed class, the lowest IQ was seventy-three, in the borderline range. Ex. 49; Tr. at 822, 1206-1207.

CONCLUSIONS OF LAW

Based upon the arguments in the brief, the above Findings of Fact, as well as this Hearing Officer’s own legal research, the Conclusions of Law of this Hearing Officer are as follows:

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The central purpose of the IDEA is to ensure that all children with disabilities have available to them special education and related services designed to meet their unique needs and provided in conformance with a written IEP (i.e., free and appropriate public education, or “FAPE”). 20 U.S.C. Sects. 1400(d)(1(A), 1401(9)(D), 1414(d); 34 C.F.R. Sects. 300.17(d), 300.320; Shaffer v. Weast, 546 U.S. 49, 51 (2005). Pursuant to the Supreme Court's decision in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, (1982), the standard in determining whether a child is receiving a FAPE, or the “basic floor of opportunity,” is whether the child has “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Rowley, 458 U.S. at 201. The IDEA, according to Rowley, imposes “no additional requirement that the services so provided be sufficient to maximize each child's potential commensurate with the opportunity provided other children.” Id. at 198.

The IEP must be evaluated prospectively as of the time of its drafting and therefore hold that retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered. Further, parents who end up placing their children in public school cannot later use evidence that their child did not make progress under the IEP in order to show that it was deficient from the outset. Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time, the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the IEP creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)

Mootness.

A dispute must “persist” throughout the litigation, and if for some reason that dispute should “dissolve” due to a change in circumstances, the case becomes moot. Russman v. Board of Educ. of Enlarged City School Dist. of City of Watervliet, 260 F.3d 114, 118-19 (2d Cir. 2001). The Supreme Court has recognized an exception, however, where the dispute is “capable of repetition, yet evading review.” The capable-of-repetition principle applies only “where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Spencer v. Kemna, 523 U.S. 1, 17 (1998).

In Honig v. Doe, 484 U.S. 305 (1988), the Supreme Court addressed the mootness exception where a child had behavior problems. In Honig, a child was indefinitely suspended from school after a pattern of behavior including stealing, extorting, and making lewd sexual comments. Though the child no longer even resided within the school district at the time of the Supreme Court appeal, the court heard the childs claims over objections about mootness, stating:

In the absence of any suggestions that (the student) has overcome his earlier difficulties, it is certainly reasonable to expect, based on his prior history of behavioral problems, that he will again engage in classroom misconduct.

484 U.S. at 320.

In applying the mootness exception, the Court stressed that the key inquiry was whether the events in question were capable of repetition, not more probable than not to be repeated. 484 U.S. at 320 n. 6.

Here, the parents are seeking compensatory education as a result of the alleged FAPE violations. As a result, even without any consideration of whether this case is capable of repetition and avoiding review, it cannot be deemed moot because the Student could, and is, receiving additional services as a result of this decision. Maine School Administrative District No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 18 (1st Cir.2003); Independent Sch. Dist. No. 284 v. A.C., 258 F.3d 769, 774 (8th Cir.2001); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 890 (9th Cir. 1995).

Respondent pointed out that, since the filing of this complaint, the District has convened the CSE and developed a number of subsequent IEPs, but this does not mean that the Student is not entitled to compensatory services if those services are due him as a result of FAPE denial.

Credentials of Aide

Petitioner contended that the Student’s aide was not properly credentialled, contending that a word search of Respondent’s evidence packet reveals one mention of aide training that was to occur sometime in or after August 2022, after the school year at issue here. Petitioner also contended that the aide did not have adequate attendance, and that the District failed to prove it performed immediate trainings or briefed or retrained personnel on BIP target behavior definition changes and management.

Petitioner presents no authority in support of a FAPE denial claim premised on a lack of proper training of staff. To the contrary, the IDEA provisions for training, located at 34 U.S.C. Sect. 1412(a)(14), include this language:

Notwithstanding any other individual right of action that a parent or student may maintain under this subchapter, nothing in this paragraph shall be construed to create a right of action on behalf of an individual student for the failure of a particular State educational agency or local educational agency staff person to meet the applicable requirements described in this paragraph, or to prevent a parent from filing a complaint about staff qualifications with the State educational agency as provided for under this subchapter.

34 U.S.C. Sect. 1412(a)(14)(E).

Moreover, there is nothing in the record to indicate that any of the providers lacked credentials. And notwithstanding Petitioner’s contentions regarding the inability of staff to implement the Student’s BIP, there is no real proof in the record that any failure to train staff had any impact on the Student’s performance. Difficulties were largely a function of the Student’s behavioral challenges, not the lack of training. This claim must be dismissed.

Writing Issues

[REDACTED] testified that the Student’s writing fluency was at the second percentile and that the Student’s and that the Student “needed explicit instruction in writing” and particularly in terms of sentence organization. [REDACTED] testified that “Handwriting without Tears” and “The Writing Revolution” were two scientific or research-based writing programs that would help the Student and that the recommended frequency and duration was at least two to three times a week for 30 minutes. Petitioner pointed out that the 2021-2022 IEPs in effect contained only one insufficient writing goal, which the Student failed to achieve, and that the Student needed a scribe. Petitioner also contended that the Student needed occupational therapy to address handwriting concerns.

The Student actually scored 114 on the written expression composite on the WIAT-II, at the 82^nd percentile, and the Student scored in the high average range in alphabet writing fluency. Moreover, a scribe was trialed in the spring of 2022, and there is nothing in the record to suggest that the scribe was requested earlier by Petitioner. I am also not convinced of [REDACTED]’s claim that the goals did not reflect where the Student was at the time. The writing goal indicated that [REDACTED] would write a narrative, which includes a closing statement, using three details to describe the event. This goal is consistent with addressing the Student’s issues with sentence completion. Finally, the record does not indicate that the Student had significant handwriting issues that would require occupational therapy. This claim must be dismissed.

Failure to Implement IEPs

“Failure to implement” claims are actionable if the school district cannot materially implement an IEP. A party alleging such a claim must show more than a de minimis failure and must show substantial or significant portions of the IEP could not be implemented.

Savoy v. District of Columbia, 844 F. Supp.2d 23 (D.D.C. 2012) (holding no failure to implement where District’s school setting provided ten minutes less of specialized instruction per day that was on the IEP); Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 502 F.3d 811 (9th Cir. 2007).

Petitioner first contended that, following the events of February 9, 2022, the Student was suspended for a week during which the District failed to provide instruction for five days. But Petitioner’s argument that a five-day suspension can deny a Student a FAPE because no alternate services were provided is not supported by caselaw or the applicable regulations, which provides protections to students if they are suspended for ten or more days. 34 C.F.R. Sect. 300.530(b)-(d). Petitioner also contended that Respondent failed to follow the Student’s BIP during the February 9, 2022 incident but submits no authority to establish that failure to implement claims should focus on one event, especially where, as here, staff were doing the best they could in managing a crisis. Failure to implement claims should relate to a significant portion of the entire school year.

Petitioner also contended that Respondent failed to implement IEP-mandated counseling since the Student was entitled to receive at least three weekly counseling sessions under his various IEPs to be delivered in flexible settings. Petitioner contended that the counselor admitted she would simply push-in to class and “observe” the Student after February 9, 2022. Petitioner is correct. The Student missed counseling services during the second half of the 2021-2022 school year, even though the Student was certainly in need of counseling given the disruption that was a consequence of his actions. While one can understand the District’s position here, since the Student was effectively refusing the services, in this situation the District is obliged to convene an IEP meeting and revise the IEP so that different behavioral support services should be offered. It is noted that impossibility is not considered a defense to IEP implementation claims. For instance, in White v. District of Columbia, 80 IDELR 284 (D.D.C. March 31, 2018), a student’s IEP called for one hour of occupational therapy per month. However, that student was unavailable for services. The Hearing Officer ruled that there was no FAPE denial because that student was offered the services. The court disagreed and reversed, remarking that an IEP is “not a form,” that it is constructed only after careful consideration of a child’s present levels of achievement, disability, and potential for growth, and that it is not enough merely to “offer” the services provided by an IEP. Instead, the court decided that the school district must “ensure” that the child actually receives those services.

Additionally, the record indicated that Petitioner did not receive her mandated parent counseling and training services in the fall of 2021. Petitioner said that she missed eight and a half hours or parent training and counseling during this time. There was no clear rebuttal of this testimony in the record. Finally, Petitioner contended that the Student was mandated to receive home-based behavior support services and that these services were not provided for about a month during the school year. Again, there was no clear rebuttal of this testimony in the record. Indeed, the District did not clearly and directly address these issues in its brief except to point out that Petitioners offered no proof of deprivation of educational benefit. But harm is ordinarily not a requirement when determining whether a failure to implement claim should result in a finding of FAPE denial. Rather, the focus is on the percentage of services delivered. Wilson, 770 F. Supp. 2d at 275. (D.D.C.2011). Petitioner has shown that Respondent denied the Student a FAPE by failing to provide counseling, behavior services and parent training during the 2021-2022 school year.

Failure to Evaluate

Pursuant to 34 C.F.R. Sect. 300.303 (a) and (b), a public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with 34 C.F.R.

Sect. 300.304 through 34 C.F.R Sect. 300.311 at least once every three years. The reevaluation should involve assessments in “all areas of suspected disability.” 20 U.S.C. Sects. 1414(b)(3)(B)

and (c)(1); 34 C.F.R. Sect. 300.304(c)(4). The child’s reevaluation must consist of two steps. First, the child’s evaluators must “review existing evaluation data on the child,” including any evaluations and information provided by the child’s parents, current assessments and classroom-based observations, and observations by teachers and other service providers. 34 C.F.R. Sect. 300.305(a)(1). Based on their review of that existing data, the evaluators must “identify what additional data, if any, are needed” to assess whether the child has a qualifying disability and, if so, “administer such assessments and other evaluation measures as may be needed.” Sect. 300.305(a)(2), (c). The school district is required to “[u]se a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent.” Sect. 300.304(b). All the methods and materials used must be “valid and reliable” and “administered by trained and knowledgeable personnel.” Sect. 300.304(c)(1).

Petitioner argued that the District failed to evaluate the Student in the areas of assistive technology, occupational therapy, and speech-language in the face of obvious and pervasive needs in writing skills and functional communication. Petitioner’s expert provided testimony in support of this claim insofar as occupational therapy is concerned, and there is an occupational therapy in the evaluation in the record that supports this claim. Tr. 1836.; Exh. T (private occupational therapy evaluation of Student). The evaluation shows that the Student did exhibit sensory deficits, which District witnesses themselves linked to the Student’s behavioral concerns. Exh. U. The District argued that the independent occupational therapy evaluation came after the school year ended, but the deficits exposed by the evaluation almost certainly also existed at the time that the parent wanted the evaluation.

It is noted that the Student’s performance with respect to speech-language therapy was mainly in the average range, and there is little evidence in the record about any assistive technology that might possibly have benefited the Student. But I agree with Petitioner that the Student should have been evaluated for occupational therapy concerns after the February 9, 2023 incident, and that Respondent accordingly denied the Student a FAPE.

Predetermination

The IDEA guarantees parents the opportunity “to participate in meetings with respect to the identification, evaluation and educational placement of the child.” 20 U.S.C. § 1415(b)(1); Rowley, 458 U.S. at 206. Predetermination of a student's IEP amounts to a procedural violation of the IDEA “if it deprives the student's parents of meaningful participation in the IEP process.” B.K. v. New York City Dep't of Educ., 12 F. Supp. 3d 343, 358 (E.D.N.Y. 2014) (collecting cases). Mere parental disagreement with a school district's IEP and placement recommendation does not amount to a denial of meaningful participation. B.K., 12 F. Supp. 3d at 359.

Petitioner’s claim is that the District engaged in a methodical, inequitable, and concerted effort that extended all the way into the 2022-2023 school year to remove this student from his in-district ICT LRE no matter what the available data or resources were. The record instead shows a school district trying to manage a difficult situation in good faith through a wide variety of interventions, with the parent getting an opportunity to participate in the IEP meetings pertinent to this case. The record indicates that IEP revisions were made as a result of the parent’s input. Petitioner argued that there were discussions in the District without her, but school districts are allowed to have internal discussion about student placement. These claims are without merit.

[REDACTED]: LRE and Appropriateness

School districts are responsible for ensuring that students with a disability are educated, to the maximum extent appropriate, in the least restrictive environment (“LRE”). 20 U.S.C. Sect. 1412(a)(5)(A); 34 C.F.R. Sects. 300.114-120; 8 N.Y.C.R.R. Sect. 200.1(cc). As such, the school district must ensure that students with disabilities are not placed in special classes, separate schools, or otherwise removed from the regular education environment unless the “nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. Sect. 1412(a)(5)(A); 34 C.F.R. Sects. 300.114-120; 8 N.Y.C.R.R. Sect. 200.1(cc). Supplementary aids and services refer to aids, services and other supports that are provided in regular education classes or other education-related settings to enable students with disabilities to be educated with their non-disabled peers, to the maximum extent appropriate, in accordance with the LRE requirements. 20 U.S.C. Sect.1401(33); 34 C.F.R. Sects. 300.42, 300.107, 300.117; 8 N.Y.C.R.R. Sect. 200.1(bbb).

However, courts have determined that, ‘” [w]hile mainstreaming is an important objective, we are mindful that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to disabled students. Under the [IDEA], where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate.’” P. ex. Rel. Mr. and Mrs. P. v

Newington Bd of Ed, 546 F3d 111, 119 (2nd Cir 2008), citing Briggs v. Bd. of Educ. of Conn., 882 F.2d 688, 692 (2d Cir.1989) (citations omitted); Lachman v. Ill. State Bd. of Educ., 852 F.2d

290, 295 (7th Cir.1988)).

In Newington, the Second Circuit Court of Appeals joined others circuit courts in adopting the two-prong test found in Oberti v. Board of Educ. of the Borough of Clementon Sch.

Dist., 995 F.3d 1204 (3d Cir. 1993), to review placements on the LRE continuum. First, the court should consider efforts to accommodate the student in the regular education classroom, the educational benefits to the student in a regular education classroom as compared to the benefits in a special education class, and the possible negative effects on the other students if the student is included in the regular education class on the other students. Then, if it is determined that the student may not be appropriately educated full time in a regular education class, there must be a determination whether the school has included the student in school programs with non-disabled children to the maximum extent appropriate.

The contention here relates to the May 20, 2022 IEP, which assigned the Student to [REDACTED]. The first criteria in Newington asks whether the school district has made reasonable efforts to accommodate the child in a regular classroom. I agree with the District that it did make reasonable efforts to accommodate the child in a regular classroom. The District provided the Student with a 1:1 aide, a 1:1 BCBA, preferential seating, refocusing and redirection, breaks, behavior intervention plans, functional behavior assessments, and the like. Moreover, on the third criteria in Newington, clearly there were negative effects to other students in the classroom because of the Student’s sometimes threatening behavior, which took up valuable class time. However, on the second criteria, i.e., the educational benefits to the Student in a regular education classroom as compared to the benefits in a special education class, the evidence indicates that the Student’s academic levels do not sync with the levels in the proposed BOCES classroom, which contained students who are functioning well below grade level. Petitioner is rightly concerned that putting the Student in such an environment would worsen the Student’s behavioral issues and that the answer should have been something other than BOCES 8:1:1 +3 placement. As Petitioner pointed out, even [REDACTED], the former District BCBA assigned to the Student, said the BOCES placement was not right for the Student, whose behaviors were beginning to improve by this time of the year. In fact, the BOCES placement was especially restrictive even for BOCES since it was an 8:1:1+3, not a less restrictive 15:1 or 12:1 program. There was testimony about nonverbal students in the class, and how few children in the class could even have a conversation with the Student, who is largely functioning at grade level. [REDACTED] at BOCES herself expressed surprise that the Student would be placed at BOCES before revising her opinion. Respondent pointed out that BOCES had interventions such as a crisis response team and special education teachers in the classroom, but there is no reason why these kind of interventions could have been implemented in an inclusive general education setting. I agree with Petitioner that Respondent did not offer the Student a FAPE in the LRE at the IEP meeting in May, 2022.

RELIEF

Petitioner seeks compensatory education as relief. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir.1988); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of an award of compensatory services is to provide an appropriate remedy for a denial of a FAPE. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); Newington, 546 F.3d at 123 (holding that compensatory education is a remedy designed to make up for a denial of a FAPE); Reid v. District of Columbia, 401 F.3d 516, 521-23 (D.C. Cir. 2005). The award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F.3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a “qualitative, fact-intensive” inquiry used to craft an award “tailored to the unique needs of the disabled student”). A petitioner need not “have a perfect case” to be entitled to a compensatory education award. Stanton v. District of Columbia, 680 F. Supp. 201 (D.D.C. 2011).

Petitioner premised her request for relief on the failure by the District to (1) adequately assess and address his areas of need; (2) implement the BIP; (3) perform a compliant FBA and create an appropriate new BIP; (4) accurately track and utilize behavioral progress data; (5) properly train staff; (6) recommend an appropriate program and class setting; and (7) provide multiple mandated services. As relief, Petitioner is seeking an order directing: (1) that an independent FBA and BIP be conducted by a qualified BCBA of the parent’s sole choosing, at the District’s scheduled rate for such, and scheduled no later than April 2024 for possible use during the current school year and to inform the Student’s annual review for the 2024-2025 school year; (2) the District to fund at least fifty-four hours of 1:1 compensatory writing tutoring services including use of Handwriting Without Tears or a similar research-based writing curriculum, to be provided by a qualified provider of the parent’s sole choosing, at a reasonable market rate not to exceed $150 per hour, and scheduled at the parent’s discretion and good until used; (3) that the District fund at least ten hours of 1:1 compensatory general educational tutoring services to be provided by a licensed teacher of the parent’s choosing, at a reasonable market rate not to exceed $150 per hour, and scheduled at the parent’s discretion and good until used; (4) that the District fund at least thirty hours of group and thirty-five hours of individual counseling to be provided by a qualified licensed psychologist or mental health counselor of the parent’s choosing, at a reasonable market rate not to exceed $90 per hour, and scheduled at the parents’ discretion and good until used; and (5) that the District to provide Petitioner with at least 8.5 hours parent counseling and training to be provided and scheduled at the Petitioner and provider’s mutual discretion and convenience.

The finding of FAPE denial for the 2021-2022 school year, is based in part on the failure to implement the IEPs requirements with respect to behavior support services, and parent training. As a result, I agree with Petitioner’s requests for counseling and parent training. Insofar as the other requests for relief are concerned, Respondent argued that the parent has failed to establish any deprivation that would entitle her to an award of compensatory education because the IEPs formulated by the CSE for the period at issue were reasonably calculated, but I find that the lack of related services had an impact on the Student’s performance overall. Related services such as counseling are supposed to help a student function during the school day. Without appropriate counseling, this Student could not function during at least some of the time in question. I will also order that the Student receive fifty-four hours of compensatory writing services but will deny the request for general education compensatory services and the request for the FBA and BIP since I did not find that Respondent denied the Student a FAPE because of issues associated with the FBA and BIP.

RELIEF

1. The District shall fund at least fifty-four hours of 1:1 compensatory writing tutoring services including use of Handwriting Without Tears or a similar research-based writing curriculum, to be provided by a qualified provider of the parent’s choosing, at a reasonable market rate not to exceed $150 per hour, and scheduled at the parent’s discretion and good until used;

2. The District shall fund at least thirty hours of group and thirty-five hours of individual counseling to be provided by a qualified licensed psychologist or mental health counselor of the parent’s choosing, at a reasonable market rate not to exceed $90 per hour, and scheduled at the parent’s discretion and good until used;

3. The District shall fund at least 8.5 hours parent counseling and training to be provided and scheduled at the Petitioner and provider’s mutual discretion and convenience;

4. All other requests for relief are denied.

Dated: Brooklyn, N.Y.

February 7, 2024

Michael Lazan

MICHAEL LAZAN IHO

Notice of 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 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.