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1 In the Matter of
[REDACTED] City School District and
[REDACTED] and [REDACTED] concerning
[REDACTED]
SED#574384
DECISION AND ORDER
The Due Process Complaint was received by District on June 20, 2022. A Prehearing Conference was conducted on August 1, 2022. Hearing was held on August 16, 17 and 25 by ZOOM. The parties jointly requested an extension of the Compliance Date on August 23rd. The request was granted, and the Compliance Date was reset to September 30, 2022. The record was closed on August 16, 2022, upon the IHO’s (Impartial Hearing Officer’s) receipt of closing briefs/memoranda of law from each side.
FACTS: The Student is in third grade, is classified as a student with a disability under Other Health Impairment and is severely disabled. Ex. 36; TR 10-11, 20-23, 72-78. Student has both physical and cognitive developmental delays, including very low cognitive ability, being nonverbal, difficulty ambulating, gross and fine motor needs, fatigue, and inability to feed or toilet self. TR 20-23, 89, 133-140; Exs. 21-26, 33-36. Student’s cognitive ability is at a very low level. A physician with specialty in neurodevelopmental disabilities testified on behalf of Parents that Student’s cognitive ability is that of an 18–24-month-old and has not increased since 2019. 8/25TR 40-42. The physician testified that receptive language and social abilities are also at the 18–24-month-old level. 8/25TR 42, 44-45. Student’s 2021-22 teacher testified at length about Student’s low levels and a growing gap between
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Student’s levels and the levels of the other students in Student’s 12:1:1 class in a District building in 2021-2022. TR 95-112.
Student uses an augmentative communication device but only to a very limited degree and inconsistently. TR 70-72, 76, 89-90, 100, 104, 136-140. Even so, Student’s use is only to make a choice from a field of two pictures of two possible concepts Student wishes to express. TR 70. In the past year, Student has regressed somewhat in even that use. TR 80. Student’s only “academic goal” is to choose a picture about needs or wants or a single word. Exs. 36 and 33. For both 2021-2022 and 2022-2023, the other IEP (Individualized Education Program) goals address basic living skills such as feeding and balance. Exs. 36 and 33. Student does not have even a kindergarten level of understanding. TR 90.
For the 2021-2022 school year, Student attended a 12:1:1 special class in a District elementary school building (but not in that which would be Student’s District home school building). TR 27; Exs. 33 and 36. The class was grades 2-3. TR 25. Student was the lowest functioning student in the class. TR 125. The other students in the class were much higher cognitively and functionally and were working on the regular second grade curriculum but on a “prioritized” basis (TR 46, 99-100, 108-109 and 122), including working on reading, writing, CVC (consonant vowel consonant) words, sight words and simple addition and subtraction. TR 46, 99-100, 108-109. Student was unable to work on any academic task with the other students due to Student’s low abilities. TR 105. Student made no academic classroom progress, but only possibly some motor gains. TR 107. Student cannot recognize Student’s own name in a field of two choices. TR 90. Student has no recognition of letters or numbers. TR 22. Student’s regression was addressed both in December of 2021 and May of 2022. TR 28-30, 39-44, 144-145.
District proposes to essentially repeat the IEP in 2022-2023 with program being in a 12:1:1 class, 1:1 aide, and nearly identical related services and goals, but for placement to be in the local
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BOCES (Board of Cooperative Educational Services) in a 12:1:1 class located in a school district elementary building in a school district adjoining Student’s District. Ex. 36; TR 34-36. The students in the proposed class are much lower functioning than those in the District 12:1:1 class Student would attend if Student stayed in the District 12:1:1. The proposed BOCES class is K-3. TR 36, 39, 83, 113. Some students in the proposed class are lower functioning than Student and some higher functioning and some at the same level. TR 36-37, 114. All the students in the proposed class are preacademic and have cognitive, motor and speech disabilities as is and does Student. 8/25TR 7-9, 11. They are at a 2–3-year-old level. TR 11. Their goals are similar to Student’s. 8/25TR 11-13, 17, TR 23.
Both the in-District class and the BOCES class provide for opportunities to go into general education classes of nondisabled peers for activities and specials such as art and music and also to be with nondisabled peers in assemblies, lunch and recess. TR 38-40, 59-62, 109-110, 124-125, 8/25TR 9-11, 16.
Parents contest the proposed move and want Student to remain in the 12:1:1 in the District building Student has attended for kindergarten, first and second grades. Parents do not otherwise contest the terms of the IEP proposed by District for 2022-2023. Parents’ Post-Hearing Brief at par. 59.
ISSUES: Parents seem to focus only on objection to the proposed change of location of physical placement for implementing the IEP: opposition to the proposed change of placement from an elementary building in Student’s own school District to a BOCES (Board of Cooperative Educational Services) placement located in an elementary building in a school district adjoining Student’s District. However, this case actually involves two issues.
The first issue is whether or not for 2022-2023 the proposed BOCES 12:1:1 class, in a BOCES program located in an elementary building in an adjoining school district, is reasonably calculated to 4 provide an appropriate education for Student given Student’s abilities and needs.[1] Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017) (“reasonably calculated to enable a child to make progress in light of the child’s circumstances”). Since the class does meet that standard, a second issue arises.
The second issue is whether or not provision of that 12:1:1 program at the elementary building in the adjoining school district satisfies the least restrictive environment (LRE) requirement of State law, NY Education Law Section 4402 and Commissioner of Education Regulations at 8 NYCRR Sections 200.1 and 200.4, and the IDEA (Individuals with Disabilities Education Act, 20 USC Sections 1400 et seq.).
DECISION: Initially, it is important to note that the burden of proof per NY Education Law Section 4404(1)(c) is on District. That burden is to prove that the 2022-2023 IEP recommended 12:1:1 class program and placement at the public school in the adjoining school district provide a FAPE (Free Appropriate Public Education) within the meaning of applicable State law and regulation and the IDEA and its regulations. NY Education Law Article 89 and 8 NYCRR Part 200 and 20 USC Sections 1400 et seq. and 34 CFR Part 300.
While District has entered into evidence its proposed 2022-2023 IEP and Parents have not contested any provision except for placement in the BOCES class, which necessarily involves not just the BOCES placement location but the particular BOCES 12:1:1 class, District should have provided more evidence of the appropriateness of the other IEP terms. At hearing, relatively little was presented, and what was presented was rather perfunctory in terms of addressing how the goals and education, services and accommodations addressing the goals meet the FAPE standard. For example, Student’s special education teacher for 2021-22 was simply asked if the BOCES class would meet Student’s
5 needs and simply responded in the affirmative. TR 118-119. The BOCES coordinator was asked whether Student’s needs and goals could be provided for in the BOCES 12:1:1 and replied in the affirmative. 8/25TR 23-24. There was no elucidation as to how or why the goals and education, services and accommodations fit with Student’s needs based on Student’s present levels and past attempts to assist Student in meeting those goals. Perhaps District felt it was not necessary to address these in detail since Parents seem to be concerned only that placement remain at the current District school building and did not otherwise contest the IEP terms. However, just as a contest about such placement location necessarily involves the issue of the appropriateness of the particular BOCES 12:1:1 class, including of course whether that class constitutes a grouping based on the similarity of needs as required by Sections 200.6 and 200.1 of the Commissioner’s Regulations,[2] so too showing the provision of FAPE requires that the terms of the IEP meet the FAPE standard with respect to present levels, needs and services and education. In Parents’ Post-Hearing Brief at par. 59, Parents concede that the programming proposed remains the same as for 2021-22 and that they “agree” with the 12:1:1 program. They assert in effect that they agree with the IEP except that they want a different 12:1:1 class and location.
Based on the concession and evidence in the Exhibits, including the IEP and various progress reports, meeting minutes, and evaluations, Exs. 19, 21-30, 33, 36, and 38-39, and the testimony, albeit limited, of Student’s 2021-2022 teacher and the BOCES coordinator and District’s director of special education, the record here supports holding that the IEP meets the Endrew F. standard with respect to present levels, needs, goals and education and services, leaving the issues for this hearing to be those set forth above: namely, whether providing the IEP in the BOCES class 12:1:1 grouping is reasonably calculated to meet the Endrew F. standard, including whether that class satisfies the New York requirement for grouping based on the similarity of needs of the students, and, if so, whether placement
6 in the BOCES location in the elementary building of the adjoining school district satisfies the least restrictive environment (LRE) requirement.[3]
THE BOCES 12:1:1 CLASS
District proposes program to be a 12:1:1 class. Parents do not contest this. Thus, the question is whether or not the particular BOCES 12:1:1 class is appropriate. Endrew F. implicitly demands that class groupings be appropriate for the provision of an IEP in groupings that allow for the provision of FAPE. Since the staffing configuration is not in issue, the question is whether or not the student grouping in the BOCES 12:1:1 is appropriate. Federal law and regulations leave to the States the authority to determine how “special classes,” classes comprised of students with disabilities, are to be set up and staffed. See SRO No. 22-092 and 34 CFR Part 300. Thus, the matter of analyzing the appropriateness of the District’s proposed BOCES 12:1:1 lies most particularly with NY law and especially Sections 200.1 and 200.6 of the Regulations of the Commissioner of Education. Those Sections require students be grouped in special classes based on similarity of needs. The BOCES 12:1:1 meets the standards.
Under best practice and proof, District would provide a class profile of the proposed BOCES class, addressing academic/functional levels, social development, physical development and management needs. See 8 NYCRR Sections 200.1 and 200.6(h). It is less than ideal that District has not done so here. However, both the State Review Officer and the United States Court of Appeals for the Second Circuit, which has jurisdiction over New York special education cases, establish that providing a class profile is not required--at least where evidence of similarity of needs is otherwise provided. SRO No. 22-092 and Cerra v. Pawling, 427 F.3d 186, 44 IDELR 89 (2d Cir. 2005). Where, as here, testimony about the proposed class is presented, that is sufficient to show the similarity of needs of grouping the students together in a class.
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Here that evidence consists of testimony from District’s director of special education, Student’s 2021-2022 teacher, and the BOCES education coordinator. TR 34-37, 113-118, 8/25TR8-20, 23, 29. While the detail presented is somewhat sparser than what would make a truly comprehensive record, it is sufficient to establish the similarity of needs of the other students with this Student’s needs. See SRO No. 22-092; Cerra v. Pawling, supra. Furthermore, Parents do not contest the testimony or the similarity of needs but only prefer that Student be grouped with other students far above Student’s levels and needs in the hope that Student will learn from their higher dissimilar abilities and needs. Affidavit of Parents’ physician at pars. 18-19; Parents’ Post-hearing Brief at par. 63; 8/25TR 47, 61-63.[4]
District’s director of special education testified that in the proposed BOCES 12:1:1 some students are below, some above and some at the same level as Student. TR 36-37. Student’s 2021-2022 teacher testified that some of the students were higher than Student and some lower and how therapy groups at BOCES and other aspects at BOCES would be more motivating for Student. TR 114, 118. The BOCES coordinator testified that Student’s present levels and needs were “[v]ery similar” to the other students in the BOCES 12:1:1. 8/25TR 23. While the testimonies of all three were fairly general, they were consistent in their appraisals as supporting the BOCES class grouping as similar in levels and needs. The students are all preacademic and have cognitive, motor, and speech/language needs and are at least 2-3 years below chronological age functioning and cognitive levels. 8/25TR 7-13, 17, 23.
Furthermore, Parents concede that the BOCES class students are more similar to Student than those in the District’s 12:1:1. In fact, the testimony of the only professional testifying for Parents, a physician with a background in neurodevelopmental disabilities, was that the BOCES class was at
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Student’s developmental level as compared to the students in the District 12:1:1. 8/25TR 61-62 and Affidavit at par. 19. The physician mostly simply opined that Parents’ preference that Student be with higher functioning students rather than similarly functioning students was a parental choice that should be respected. 8/25TR 47, 58-60 and Affidavit at pars. 18-19. The physician’s view rests on a misunderstanding of the applicable rules for the grouping of students and is blatantly inconsistent with Section 200.6 of the Commissioner’s Regulations.
While District would have made a far better record and more convincing case by presenting a class profile of the BOCES 12:1:1 and by eliciting more detailed information from District’s witnesses, District has presented enough to show the grouping in the BOCES 12:1:1 as meeting the similarity of needs grouping requirement in the Commissioner’s Regulations.[5] In their Post-Hearing Brief, Parents do not argue that placement in the BOCES class would be with students with dissimilar levels and needs. Rather, they essentially argue only that under the LRE preference, Student should be kept in the placement within District. But, as above, the first question here is of the appropriateness of the groupings of students in the BOCES 12:1:1.[6] Having found the BOCES 12:1:1 to be in accord with grouping based on the similarity of needs and levels, the LRE question is addressed below.
LEAST RESTRICTIVE ENVIRONMENT
Having determined that the BOCES 12:1:1 class could implement the IEP and the class grouping meets the similarity of needs grouping requirement, it is necessary to address whether or not the provision of the IEP in the elementary building of the adjacent school district is consistent with the least restrictive environment requirement. Commissioner of Education Regulation Sections 200.1(cc) and 200.4(d)(4)(ii). The LRE rules require first that “the special education needed by the student” is
9 provided. 8 NYCRR Section 200.1(cc)(1). In addition, the education is to be provided with nondisabled students to the maximum extent appropriate. 8 NYCRR Section 200.1(cc)(2). Finally, the education is to be delivered as close to the student’s home as possible. 8 NYCRR Section 200.1(cc)(3). See also Section 200.4(d)(4)(ii).
Parents argue in favor of placement in the District elementary school building and against placement in the elementary building in the adjoining school district. They do so through an exceedingly strained analysis of the mainstreaming preference in the IDEA (and NY law and regulation) for education in a regular education (general education) classroom. Parents’ Post-hearing Brief at pars. 45-65. The argument fails. While Parents try to make an issue about general education setting and opportunities to participate with nondisabled peers in classes or events by asserting that there are significant differences between the opportunities in the two buildings, there is virtually no difference in those opportunities between the District’s building and the building in the adjacent district that BOCES uses for its 12:1:1.
First, and fatal to Parents’ argument, is that placement could not be in District’s building because its 12:1:1 is clearly not an appropriate grouping of students[7], and Student cannot be provided with the special education instruction Student needs in that class. Therefore, Parents’ position flunks the first prong of the LRE requirement.
Second, both buildings are general education elementary school buildings. Thus, the opportunities to interact with nondisabled peers are significant and identical. So too the opportunities for lunch, recess and assemblies. TR 102, 109, 8/25TR 9. So too the opportunities for mainstreaming in specials such as music and art. TR 25, 109-110, 38, 8/25TR 10. Nevertheless, Parents in effect argue that since the same opportunities for interaction with nondisabled peers exist in the District
10 building, Student must be placed in the District building.[8] This argument is fatally flawed. The argument fails to take into account the first and most important and determinative matter: that Student is appropriately grouped and educated in the BOCES class (and that the 12:1:1 in the District is not in any sense appropriate for this Student; neither Student’s needs nor abilities are in any way similar to those of the other students[9]). Furthermore, the BOCES placement does provide ample opportunities with nondisabled peers. Parents fail the second prong of LRE The distance to the school in the adjoining school district is not inconsistent with LRE. The distance from Student’s home to that school is only 6.1 miles and a 12-minute drive according to google search of which this IHO (Impartial Hearing Officer) takes administrative/judicial notice. In that part of upstate New York, that is a rather modest distance. Furthermore, Parents do not even assert that the distance to the adjoining district’s building is problematical in any way. Thus, the third prong of Regulation Section 200.1(cc) is not violated.
Parents simply express a strong personal preference that Student stay at the District building. That preference does not justify having Student in a 12:1:1 class with students who have dissimilar needs and abilities and in which Student cannot effectively even participate to any extent except to show some social interest in others. Parents no doubt want their child to excel, but they are unrealistic, and it is likely that Student would have been served better in prior years and have progressed more had Student been in an appropriate class in those earlier years.
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Testimony from Parents’ physician adds nothing to their argument. The physician pretty much simply professes the physician’s belief that parents should be able to choose whatever they prefer. Affidavit at pars. 18-19; 8/25TR 47, 60. Moreover, the physician has never observed Student in any school setting, whether in District or in BOCES, nor has ever even spoken with anyone from either program. 8/25TR 54-55, 45-48, 64. Thus, the physician’s testimony neither has a sufficient basis nor is it in accord with the requirements in the applicable law and regulations. The testimony does not provide any legal support for Parents’ position.
Here program in the BOCES 12:1:1 provides an appropriate education, and placement in the BOCES classroom in an elementary building of the adjoining school district satisfies the LRE requirements.
A NOTE ON ALTERNATE ASSESSMENT
In their opening statement, Parents asserted objection to District’s putting Student under the New York State Alternate Assessment[10] rather than the general assessments for students even though that issue was not raised in the Due Process Complaint. TR 14; Ex. 1. District objected. TR 14. This IHO determined that the matter of whether the issue would be included or excluded would be addressed during the hearing when the issue arose. TR 15. Subsequently, however, District waived its objection by introducing testimony on the issue. TR 40-48, 53, 8/25TR 11. The record also contains District Exhibit 26, which is a District review and determination that Student be assessed under the Alternate Assessment. Thus, District supported the determination that Student be tested under the New York
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State Alternate Assessment. Parents presented no countering evidence on the issue. District's determination that Student be tested under the New York State Alternate Assessment is upheld.
ORDER
IT IS ORDERED THAT
1. Student shall be placed in and attend the BOCES 12:1:1 K-3 class located in the elementary school building of the adjacent school district and educated in accordance with the IEP for 2022-2023 in Exhibit 36.
2. Student shall be assessed under the New York State Alternate Assessment.
__________________________________September 28, 2022
David W. Oakes, IHO Date
APPEAL RIGHTS
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 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
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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.
[REDACTED] 2022.docx
Footnotes
[1] Whether or not the 12:1:1 class in District could also be appropriate is not the issue. Even if one would be able to find that the District 12:1:1 would be appropriate or even better than the BOCES 12:1:1, that would be irrelevant. See Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998). In any case, the District 12:1:1 is not appropriate.
[2] Section 200.1(ww) defining special education specifies that student needs are to be considered in four areas: academic, social, physical and management.
[3] Of course, if the BOCES 12:1:1 were found to be inappropriate, then analysis of other 12;1:1 classes would be necessary.
[4] While supporting Parents’ preference, the physician inconsistently testified both that Student could not do even first or second grade work and that it would not be appropriate for Student to be taught the general education third grade curriculum (which curriculum would be taught in District’s 12:1:1). 8/25TR 50, 53.
[5] This is also indirectly supported by the unequivocal evidence in the record that in District’s 12:1:1, Student was far below the levels of the other students, in fact so much so that Student achieved virtually no progress in academics, was not even attempting any academics, and was unable to participate with the other students due to Student’s low levels and dissimilar needs. TR 105, 107.
[6] Parents agree that 12:1:1 is the appropriate program. Parents’ Post-Hearing brief at par. 59.
[7] In no event could Student in any way be deemed to receive an appropriate education in any sense since Student is unable to participate in any of the instruction in the District class.
[8] Parents misrepresent the opportunities at the two schools asserting that they would be lesser at the elementary school in the adjoining district on the argument that the 12:1:1 class in the District’s building should be analyzed by considering the students there on the same basis as nondisabled students because they are less disabled than the students in the BOCES class. Parents’ Post-Hearing Brief at par. 63. This is an unsupportable premise. The analysis and argument by Parents that the LRE issue should be based on disregarding the fact that the District class is of students with disabilities is hugely misdirected. It is telling that Parents never address the first issue in this case--whether the BOCES 12:1:1 is grouped on the basis of similarity of needs. In fact, Parents admit that Student's levels and needs are far below those of the other students in the District class and are instead similar to those in the BOCES class. But since Parents prefer the District location and for Student to be with students with dissimilar levels and needs, they resort to an inapposite argument.
[9] District concedes that placement in the District’s class in prior years was not appropriate and apparently was only agreed to in an effort to placate Parents’ wishes. TR 27-28, 96-97.
[10] At hearing, reference was sometimes made to “alternative” rather than “alternate” assessment, but clearly the references were meant to be to the New York State Alternate Assessment.