Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the PARENTS and GUARDIANS of [REDACTED],

Petitioners, v.

Hearing Officer: Michael Lazan

Case No: 579411

[REDACTED] CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving a student who has been determined to be eligible for services as a student with Other Health Impairment. A due process complaint (“Complaint”) was received by [REDACTED] Central School District (“Respondent” or “REDACTED” or “the school district”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on September 2, 2022 in regard to the Student. The matter proceeded to hearing on: December 14, 2022 and December 15, 2022. The names of witnesses and a description of the documents in evidence are referenced in the transcript. Because of the extensiveness of the testimony and issues in this case, because of witness availability, to allow the parties to write briefs (IHO Exhs. 1, 2) and to allow this IHO to write this decision, multiple timelines extensions were granted here. 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).

FACTS

The Student is currently [REDACTED]. The Student is classified as Other Health Impaired. Respondent is a school district that is comprised of 980 students, encompassing grades pre-kindergarten through grade twelve. It contracts with the [REDACTED] for special education classes that it is unable to offer due to its small student population.

The Student has been in 8:1+1 special education classes since kindergarten. Exh. 7 p.3 The [REDACTED] is a special education class for students with emotional and behavioral needs, including the regular involvement of both a counselor and behavioral consultant, who would work with the students on their emotional needs through group time, including morning meetings and group counseling. Students in the 8:1+1 special education class at [REDACTED] may attend general education classes with support from the 8:1+1 class and may return to the 8:1+1 class when the general education class is overwhelming.

The Student attended an 8:1+1 special classroom at the [REDACTED] during the 2019-20 school year, in his [REDACTED]. The Student attended the same program for the 2020-21 school year, in eighth grade. The 2020-2021 school year was the first full school year following the COVID-19 pandemic. [REDACTED] students accordingly attended school on an alternating “A” and “B” schedule. Each general education class was divided in two, with half of the students assigned to the “A” schedule and the other half assigned to the “B” schedule. Half of the class attended in-person instruction for two days on the “A” schedule; the other half of the class attended in-person for two days on the “B” schedule. On Wednesdays, no students attended while the building was disinfected between the student groups. For the half of the class not attending in person, on-line or “asynchronous” instruction was provided. As a result, when general education classes were in the school building, the classes were half their regular size. However, all students attending the [REDACTED] attended in person for a full five-day school week schedule (because they were determined to have greater needs). Also, when mainstreamed into general education classes, the [REDACTED] students could attend in-person instruction during both “A” and “B” days.

During the 2020-2021 school year, the Student received direct special education instruction in English language arts and math within the [REDACTED] special education classroom and instruction in “half-sized” general education science and social studies classes with Potsdam students, with the support of a 1:1 teaching assistant. Study halls were built into his schedule. An individualized behavior intervention plan was in place. Exh. 8. In January 2021, while in grade eight, the Student earned i-Ready scores at grade two level for math and at a grade four level for reading.

On February 23, 2021 the Committee on Special Education (“CSE”) for the Student met to develop the Student’s IEP for the remainder of the 2020-21 school year, as well as for the 2021-22 school year. The CSE determined that the Student continued to need an 8:1+1 special education class, with mainstreaming in the grade nine general education science and social studies classes. The IEP indicated that the Student’s needed [REDACTED]. Individual counseling was decreased for the 2021-2022 school year and group counseling was added. Behavioral consultant services were included, including forty hours per year of support for school personnel. A 1:1 teaching assistant was determined to be necessary for the full school day. However, the Student was still recommended for the 8:1+1 classes in math and English language arts.

In June 2021, the Student’s Behavior Intervention Plan was updated, and it noted that the Student’s aggressive behaviors had decreased in the past year (although refusals, mild occasional head-banging and “rare” elopement were still observed).

In September 2021, the Student was reevaluated. A psychological reevaluation report noted that the Student needed “constant redirection” to maintain focus and appropriate behavior and was unable to complete assignments without assistance or independently on a consistent basis. The report indicated that the Student’s full score IQ on the WISC-V measure was within the Very Low range, with four percent of other students scoring at or below his level. Still, his total reading scores on the WIAT-III were in the average range, writing scores were in the low average range, and math scores were in the low range. Exh. 16.

On September 27, 2021, the CSE met for a reevaluation review. The Student’s parent indicated her desire that the Student be fully “mainstreamed.” The CSE continued to believe that the Student required the intense instruction in English language arts and math. The CSE continued to recommend that the Student attend the [REDACTED] for English language arts and math, with general education classes (including a teaching assistant) for science and social studies. The Student’s program also included counseling, individual, once per six-day cycle for thirty minutes, counseling, small group, once per six-day cycle for thirty minutes, together with aids and accommodations including refocus and redirection, breaks, use of multiplication tables, copy of class notes, modified curriculum, and a 1:1 teaching assistant for six hours each day in both [REDACTED] and the middle school mainstream settings. The Student’s program also included behavioral consultation and testing accommodations.

The Student attended the [REDACTED] during the 2021-22 school year, which was ninth grade. The 8:1+1 classes were staffed by a special education teacher, a teaching assistant, a separate teaching assistant for the Student, and a teaching assistant for another student in the program. The Student received re-teaching in the general education classes and help with study skills and homework. The Student spent the first period of the day in the 8:1+1 room for “study hall”, to prepare for the day and, on one day in a six-day cycle, to participate in a group counseling session. The Student also had the services of a behavioral consultant, who prescribed a behavioral plan for the Student, but the Student continued to have issues with impulsivity, distractibility, compliance and stamina to complete classroom work. Tr. 34.

In January, 2022, the special education teacher assigned to the [REDACTED] resigned. A retired special education teacher became available to teach the class for the remainder of the 2021-2022 school year. At the end of the 2021-2022 school year, the 8:1+1 class operated by [REDACTED] ceased to operate. No replacement has been hired.

On February 15, 2022, the CSE convened for the annual review of the Student’s IEP. The CSE reviewed reports of behavior by the Student during the school year and noted that the Student’s behaviors had decreased. Exh. 24. The IEP was amended so that the requirement of “modified curriculum” applied only within the 8:1+1 classroom for English language arts and math. The CSE added the use of a graphic organizer in the general education classroom and the 8:1+1 classroom, as well as modified homework assignments for English language arts and math.

During the 2021-2022 school year, the Student earned numerous disciplinary referrals for behavioral offenses, including [REDACTED]. Still, during the 2021-22 school year, the Student made progress towards all of his goals, including achieving several of them, and the Student achieved passing marks in all of his courses.

On June 8, 2022, the CSE met to develop the Student’s 2022-23 IEP. The CSE continued to recommend that the Student be placed in 8:1+1 classes in a public-school building for English language arts and math, but changed the location of services to [REDACTED]. Petitioners disagreed with continuing the Student’s placement in a [REDACTED] as well as the Student attending [REDACTED], which is far from the Student’s home. Therefore, Petitioners have not sent the Student to public school at all during this current school year, and rather have enrolled the Student in [REDACTED].

In New York State, the burden of persuasion in special education cases is on the school district except for the second criterion in cases for tuition reimbursement or payment. NY Ed. L. 4404(1).

The parents argue that the Student is being recommended for an unduly restrictive 8:1+1 educational placement for the 2022-2023 school year, and that the Student is improperly placed at [REDACTED] for the 2022-2023 school year. 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 handicapped 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. This fact-specific test generally requires courts to consider: 1) whether the student can be satisfactorily educated in the general education environment with the use of supplemental aids and services; and, if not, 2) whether the student was mainstreamed to the maximum extent appropriate. A school district is not necessarily required to “try out” a less restrictive placement for a student with disabilities before putting the student in a special education class. A.K v. Westhampton Beach Sch. Dist., No. 17CV0866GRBSIL, 2021 WL 621236, at *16 (E.D.N.Y. Jan. 6, 2021), report and recommendation adopted sub nom. Killoran v. Westhampton Beach Sch. Dist., No. 2:17-CV-

00866, 2021 WL 665277 (E.D.N.Y. Jan. 25, 2021)(rejecting argument that school district must make a “good faith attempt” to implement a student’s educational goals in-district). However, an IEP team must fairly and reasonably consider1 whether the Student can be kept in general education classes with supplemental aids and services before placing the Student in a more restrictive setting. Warton, 217 F. Supp.2d at 275; Oberti, 995 F.2d at 1216.

In this matter, Respondent was faced with a student with academic delays and severe behavioral issues who would not stay in general education classes for the whole period. The Student’s disability-related behavioral and academic issues caused him to travel back and forth from general education classroom to special education classroom, and throughout the school, during the school day. The school district therefore designed a hybrid program2 for the Student, consisting of academic instruction in both special education classes, in English language arts and math, and general education classes, in science and social studies. The record indicates that the classes in this program were designed to work in a complementary fashion and that the Student needed both general education and special education classes in order to be successfully placed in any general education classes at all. There was undisputed testimony that the Student [REDACTED] went to the 8:1+1 class for any independent work. He apparently needed the 8:1+1 special education class as a kind of “home base.” Moreover, there is undisputed testimony from [REDACTED] that the Student is not on a high enough academic level to benefit from general education English language arts and math classes. The Student’s ninth grade special education teacher accordingly said that sending the Student to attend general education English language arts and math classes would be “almost cruel.” The student’s parents in Newington had similar objections to the program that has been proposed by Brasher Falls. The parents in Newington stated that they wanted their son to be in a general education classroom for eighty of the time during the upcoming school year, and they pointed out that their child did not disturb others in the classroom.3 The IEP provided that the student will be in the general education for 74% of the school day. The parents argued that the school district violated LRE requirements, but the circuit court affirmed the conclusions of the district court and found that the Student could not be educated in the regular classroom full-time6 and that the school had made significant efforts to integrate the Student to the maximum extent possible through a variety of supplemental aids.

Here, as well, the school district has used supplemental aids to try to integrate the student in the general education environment. This is reflected by the extensive list of management needs in the IEPs, which [REDACTED]. The school has added a full-time 1:1 professional to assist the Student throughout the entire school day. And most importantly, the school district devised a hybrid program in order for the Student to have a “home base” and also be able to participate in general education.

It is true that the record contains psychological testing from September, 2021 indicating that the Student tested at the average range in reading. However, in testing in January 2021, while in grade eight, the Student earned i-Ready scores at grade four level for reading. An administrator and former reading teacher accordingly testified without rebuttal that the Student’s reading levels are at the early to middle elementary school level, well below grade level. The parent’s own testimony indicated that the Student was much better in science and social studies than he is in math and English language arts when discussing the Student’s home program:

Q: Do you sit with him all the time that he is taking the courses, or are you just there?

A: Just certain courses he needs help with because he doesn't understand necessarily the question, which is usually math and English. Social and science he is excellent at. Those are his favorite courses.

12/15/22 Tr. At 22.

Petitioners’ concerns are in part due to their desire to keep the Student’s location of services near his home. One has to be sympathetic to the parents in these circumstances, given the drive that is required to take the Student to [REDACTED], and the principle that placement options must be as close as possible to the student’s home. 34 C.F.R. Sects. 300.114(a)(2)(i), 300.115, 300.116(b); 8 NYCRR §200.1(cc). However, IDEA expressly authorizes school districts to utilize regional day schools such as [REDACTED]. Flour Bluff Independent School District v. Katherine M., 91 F.3d 689, 694 (5th Cir. 1996); Board of Education of the East Islip Union Free School District, Appeal No. 06-115 (NY SRO 2006). Moreover, courts have upheld faraway district placements for special education students if no other alternative can be found. M.A. v. Voorhees Township Bd. of Educ., 217 F. Supp. 261 (D. N.J. 2002), aff’d, 65 Fed. Appx. 404, 2003 U.S. App. LEXIS 11255 (3d. Cir. 2003)(autistic student directed to be instructed at out-of- district placement).

Under the circumstances, I have to agree with the school district that its recommended program passes muster under the IDEA. The evidence strongly suggests that the [REDACTED] with a counselor and behavioral consultant and access to general education classes and activities. The Student did reasonably well in this program during the 2021-2022 school year, and I believe [REDACTED] have shown that the Student needed this kind of integrated program in order for the Student to receive the required amount of support during the school day during the 2022-2023 school year. The claims in this case must therefore be denied.

ORDER

As a result of the foregoing, this case is dismissed.

Dated: March 23, 2023

ACRD: March 23, 2023

Michael Lazan

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 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.

District Exhibits

Exhibit 1 Due process complaint with exhibits, 9/2/22, 38 pages.

Exhibit 2 Response to due process complaint, 9/13/22, 2 pages.

Exhibit 3 Psychoeducational reevaluation, 3/12/19, 4 pages.

Exhibit 4 Spreadsheet, 62 pages.

Exhibit 5 Discipline referrals, 79 pages.

Exhibit 6 BIP, 10/15/19, 11 pages.

Exhibit 7, FBA and BIP consent and report, 11/15/19, 25 pages.

Exhibit 8 Monthly team meeting notes, 10/29/20, 2 pages.

Exhibit 9 Updated BIP, 10/29/20, 6 pages.

Exhibit 10 Monthly meeting notes, 11/20/20, 2 pages.

Exhibit 12 Behavioral Consultation Update, 2/22/21, 3 pages.

Exhibit 11 Monthly team meeting notes, 1/21/21, 2 pages.

Exhibit 12 Annual review behavioral consultation update, 2/22/21, 3 pages.

Exhibit 13 Progress report, 20-21, BOCES, 6 pages.

Exhibit 14 IEP, 2/23/21, 13 pages.

Exhibit 15 Updated Behavior Intervention Plan, 6/22/20, 6 pages.

Exhibit 16 Psychoeducational reevaluation, 9/21, 7 pages.

Exhibit 17 IEP, 9/27/21, 13 pages.

Exhibit 18 Discipline referrals, 73 pages.

Exhibit 19 PWN, 11/3/21, 3 pages.

Exhibit 20 Progress report, 11/30/21, 6 pages.

Exhibit 21 E-mail, 1/22, 2 pages.

Exhibit 22 IEP, 2/15/22, 14 pages.

Exhibit 23 PWN, 2/15/22, 2 pages.

Exhibit 24 Annual review summary, 2/15/22, 5 pages.

Exhibit 26 IEP, 6/8/22, 14 pages.

Exhibit 27 PWN, 6/8/22, 2 pages.

Exhibit 28 Progress report, 6/24/22, 5 pages.

Exhibit 29 PWN, 6/8/22, 16 pages.

Exhibit 30 IEP, 6/5/20, 14 pages.

Exhibit 31 PWN, 9/17/20, 2 pages.

Exhibit 32 IEP, 9/17/20, 12 pages.

Exhibit 33 PWN, 10/29/20, 2 pages.

Exhibit 34 IEP, 11/6/20, 12 pages.

Parent Exhibits

Exhibit A, 21-2021 8th grade report card, one page.

Exhibit B PWN, 8/3/21, 2 pages.

Exhibit C 9th grade fall schedule, one page.

Exhibit D 9th grade report card, one page.

Exhibit E State complaint written decision,4/25/22, 5 pages.

Exhibit F State complaint findings, 8/5/20, 13 pages.

IHO Exhibits

Exhibit 1 Parent’s brief, 2/7/23, 13 pages.

Exhibit 2 District’s brief, 2/7/23, 13 pages.

Exhibit 3 Timelines notices, 5 pages.