Impartial Hearing Decision

THE UNIVERISTY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

IMPARTIAL HEARING OFFICER

In the Matter of /b/o: disabled child, Petitioner

DECISION OF IHO

- against —

-entral School District, Respondent.

PROCEDURAL BACKGROUND

This matter was brought on by a Due Process Complaint Notice dated July 22, 2015.

Petitioner’s Notice was submitted on behalf of disabled child, (-.”), born

The Parent invoked the Individuals with Disabilities Education Act, without citation.

Petitioner alleges that the Central School District (“District”) and the Parent are in disagreement on the needs of the student and that the District engaged in violations as follows:

That the District failed to properly evaluate _ in all areas of suspected disability (SD Ex

1);

That the Parent seeks a full Neuropsychological evaluation (SD Ex 1); That the Parent and District are in disagreement about evaluations, accommodations, programs, supports and services (SD Ex 1); That the District has failed to properly meet’ Assistive Technology Needs (SD Ex 1); That the District failed to supply and require appropriate educational instruction and related services during the 2014-2015 school year alleging that vas denied a free appropriate public education (“FAPE”) during that school year denying both special education and related services and also asserting that the 2013-2014 school year was not appropriate to address needs (SD Ex 1); e That needs are not met during regular school hours (SD Ex 1); e That the District did not offer and/or supply appropriate Parent counseling and training (SD Ex 1); e That the District is not meeting _ ; social and emotional needs (SD Ex 1); e That the District has failed to follow IEP (SD Ex 1); e That the District has used untrained and unqualified staff to instruct and teach (SD Ex 1); e That the IEP does not have appropriate levels of services and/or appropriate goals (SD Ex 1); e That. (needs are not being met (SD Ex 1); e That the IEP does not have appropriate | goals (SD Ex 1); e That’ \iJand §needs are not being met (SD Ex 1);

¢ That the IEP does not have appropriate [jand IM goals (SD Ex 1); e That needs services of a Behavioral Specialist (SD Ex 1).

In light of the alleged violations the Petitioner proposed the following: e Conduct all evaluations sought in the Complaint (SD Ex 1); e Supply .with digital notes and digital books (SD Ex 1); e Supply with a smart pen and smart board (SD Ex 1); e Supply witha keyboard, computer and laptop (SD Ex 1); e Provide with aM):1 five times per week (SD Ex 1); e Provide .witha 1:1 teacher assistant (SD Ex 1); e Place ina full day co-teacher model in another school district (SD Ex 1); e Provide. with door to door transportation to the out of school placement (SD Ex 1); e Furnish a Behaviorist to work 1:1 with five days per week (SD Ex 1); e Provide the Parent with training (SD Ex 1); and, e Supply . with compensatory services for all sessions missed. SD Ex 1 The Notice further demands that the District reimburse the Parent for summer camp program, pay for all costs associated with bringing the action including advocacy costs, document production cost, work time loss, damages and travel cost.

By letter dated July 31, 2015 counsel for the District, in a nutshell, denies each and every allegation contained in Petitioner’s Due Process Complaint Notice. SD Ex 2 The Impartial Hearing began on October 13, 2015 and continued for a total of four (4) consecutive days. In addition to the four (4) hearing dates there were two (2) post-hearing telephonic conferences. The resulting transcript is 1,173 pages long. Admitted into evidence were 36 District Exhibits and 2 Parent’s Exhibits.!

At the hearing Petitioner was represented by an educational advocate, allegedly the founder of an organization referred to as “ .”. TR4. At the first day of hearing upon being asked by the Impartial Hearing Officer (‘IHO”) whether there were any preliminary matters, stated that pendency was an issue. TR 5. also raised issues regarding the District’s alleged reluctance to provide copies of records to or! client. TR 5-

1 Citations are as follows: IHO Exhibits = IHO Ex __; Joint Exhibits =J Ex _, School District Exhibits = SD Ex __; Parent’s Exhibits = P Ex __; and Transcript= TR __.

10. Thereafter, persisted in claim that pendency was an issue and demanded a pendency ruling. TR 32, 38. It was pointed out that pendency was not raised in a pre-hearing conference or in the Due Process Complaint Notice. TR 41. Thereafter, » for four (4) consecutive days, was abusive, threatening, disrespectful, condescending and obstructive to the process including yelling at the IHO, yelling at opposing counsel, and berating and belittling the District’s witness as well as rising from his chair in a threatening manner.”

2 Notwithstanding that the record is full of | inappropriate disruptive and threatening acts the Decision herein will be solely based on the sworn testimony of witnesses and evidence appropriately entered into the record. The following is but a small sample of i inappropriate behaviors: berating the IHO. TR 44; Disrespectful yelling in the face of the IHO. TR 50; Raising his voice and yelling at the IHO, witnesses, and/or opposing counsel. TR 28, 52, 36, 495, 1022; Yelling and spouting profanities. TR 504; Stating untruths on the record regarding receipt of documents to circumvent the five (5) day rule. TR 503-504; Misrepresentation of documents. TR 504-505; Continuously interrupting the process. TR 896; Being rude and disruptive. TR 901; Being abusive and rude. TR 905; Being rude and condescending. TR 940, 983; Proffering numerous irrelevant objections so as not to allow _ client to answer questions on cross-examination. TR 933; Interfering with the testimony of —:lient. TR 959; Making nasty and untrue comments. TR 964; Obstructing the introduction of evidence. TR 999; Engaging in continuous gratuitous rudeness. TR 1005; Standing on several occasions to threaten the IHO. TR 1019. In a nutshell, was unprepared to go forward with this hearing as _—had not proffered any documents pursuant to the five (5) day rule nor requested District documents in a timely manner so as to effectively represent client or call any witnesses, aside from _ client, in support of any of the relief demanded. attempted to mask’ unpreparedness by otherwise obstructing the hearing process. Apparently, before production of a post hearing brief, was dismissed by Petitioner, and, in fact in a post-hearing telephone conversation Petitioner stated on the record “‘* | is an insane person, and | apologize, you know, for the impression, but that’s how I feel”. TR 1074. Notwithstanding that the pendency issue was not appropriately raised in this hearing, the District, relying on letters from _. physicians requesting homebound instruction, has provided same and represented that it would continue to do so through the issuance of this Decision. TR 1079.

STATEMENT OF FACTS

_ (“hereinafter referred to as ”) was born on’ .-SDEx1.° isadisabled student who had been enrolled in the “ ).

TR 699. On or about March 13, 2014, , who had, prior to attendance in the ' resided in --.-, Was reenrolled in the District. SD Ex 3. On or about March 12, 2014 mother dropped off a copy of the © Individualized Education Program (“IEP”) after which the District’s and — (“ ~”) created a “temporary IEP” for for 30 days. TR 85, 93, SD Ex 3. The temporary IEP included a copy of the JEP. TR 97, SD Ex 3.

The District’s | ‘testified that the temporary IEP was based on __. records and commensurate with the special education and services ~ received from the | Schools. TR

101-102. The temporary IEP proposed that _ be placed ina 15:1:1 class, receive po therapy 3 times per week, [M1 time per week, MM therapy (HP) 1 time per week and evaluate whether was in need of an 1:1 aide, a service which would not be provided through the temporary JEP. TR 102, 700, SD Ex 3.

The _IEP for dated March 3, 2014 placed in a 12:1:1 class, 9 times per week for Math, 8 times per week for English Language Arts (“ELA”), 6 times per week for Social Studies and 5 times per week for the Sciences. SD Ex 3. In the JEP was scheduled to receive EE service 1 time per week, 30 minutes per session; i Therapy 1 time per week, 40 minutes per session; EE thctapy in a small group 2 times per week, 30 minutes per session; and, TE therapy individually^[1] time per week, 30 minutes per session. SD Ex 3. Additionally, ~. was to receive the services of a full-time paraprofessional on an individual basis. SD Ex 3. The District’s temporary IEP did not place . in a 12:1:1 class as had the , because it had no such class, but, as explained by its 1 _ _ , placed ~. in its 15:1:1 class which allegedly had similarly based students with alternative assessments. TR 103, 108, 109, 119, SD Ex 3.

. alleged that had not seen the temporary IEP but was aware that was not receiving 1:1 aide service and also alleged that was not receiving EE hccapy and Eh <rapy services. TR 707, 710. The District took the position that needed to be evaluated for purposes of a 1:1 aide even though the’ TEP states that’ “needs 1:1 assistance to do any work”. TR 102, SD Ex 3.

The District’s Sub-Committee on Special Education (“Sub-CSE”) met on April 9, 2014 and adopted an IEP for for the remainder of the 2013-2014 school year. TR 104, SD Ex 4.

Apparently, at that meeting the Parent represented that there was some updated cognitive testing of. which — would provide the District. SD Ex 4. The District, based on evaluative information contained in the: evaluation provided it prior to entrance into its schools and anecdotal information since ~° reenrollment, proposed that be placed in a 15:1:1 self-contained class, receive J therapy in a small group 3 times per week, 30 minutes per session; {Jin a small group | time per week, 30 minutes per session; and, Fo services in a small group On or about June 12, 2014 the District’s Sub-CSE met for its annual review. TR 120, SD Ex 5. The District recommend that _ attend in its program in the Middle School for’ 7" grade year while receiving a 15:1:1 special class, EE therapy, Po and GEE therapy services as set forthin _ prior IEP. TR 120-131, SD Ex 5. _ was also to receive the services of a 1:1 aide for the 2014-2015 school year. TR 132. The District does not appear to have performed any additional formal testing of . prior to development of its 2014-2015

JEP. SD Ex 5.

. began attendance in the District’s Middle School during the 2014-2015 school year.

Petitioner alleges that problems began for in September or October, 2014. TR 714. The:

testified that had never had any behavioral issues prior to the beginning of the 2014-2015 school year. TR 712.

At the very beginning of the 2014-2015 school year the CSE amended the IEP, by written agreement without a meeting, allowing _ to be transported on a regular bus, not a mini bus, as the ‘had requested. TR 132-137, SD Ex 6. There was an additional IEP amendment, without a meeting, whereby (EEwas added to the IEP, at Parent request. TR 139, SD Ex 7. That IEP amendment was on or about October 15, 2014. SD Ex 6.

In September and October 2014 was experiencing increasing difficulties in school. TR

144. As such, the District performed a Functional Behavioral Assessment (“FBA”) in October and November 2014 and proposed the implementation of a Behavior Intervention Plan (“BIP”) on November 18, 2014. SD Exs 13, 14, TR 145, 148, 155. The: believed that - was being inappropriately punished at school and requested that the aide for be changed. TR 718, 721 and

723. The aide was switched and the .. thereafter alleged that the second aide was even worse and that that aide called the security guard to punish . TR 724, 736. \ was kept home for a number of days but sent back to school whereupon the claims = would receive calls from School Officials regarding” _ behavioral issues. TR 740.

There were multiple team meetings in October 2014 to discuss _— behavioral issues. TR

187. A CSE meeting was scheduled for December 2014 but cancelled by the Parent. TR 188.

Apparently there was also a CSE meeting scheduled for mid-January 2015, likewise cancelled by the Parent. TR 742, 188.

The Parent told the : that —- vould discontinue sending to school and, toward the end of January 2015, - stopped attending the Middle School. TR 190, SD Ex 30. At the time, the. — alleged that . was too scared to come to school. TR 750. . was told that in order to receive home instruction that: | would have to provide the District with a medical excuse for non-attendance. TR 190. On or about February 4, 2015, the District was in possession of the letter from 7 ' regarding stating that “ "reports high levels of anxiety about going back to school, and some nights of poor sleep. [~] is being evaluated, since some of the symptoms reported are new. also feels that: is not in the right school setting. . is requesting that [TT also be provided in a different setting then current school. Until school issues are sorted out, | ] would benefit from home tutoring.” SD Ex 10.

Home tutorial started on or about February 6, 2015 following a second letter from | . TR 754, 759, 192, 193, 194. __._.. _ second letter states that “continues to suffer with anxiety and impulsivity. would benefit from a 12:1:1 placement to address” academic needs. Please extend home tutoring until an appropriate school placement for __.” [sic.] SD Ex

11.

When was placed on homebound instruction” _, Parent was told to bring’ to the Middle School to receive _related services. TR 755. Although the tutoring began on or about February 6,2015,atthereceiptof ~ _letters, the Parentallegedthat never received’ pe services. TR 757. The home instruction tutorial provided was not CSE determined. TR 195.

The District’s CSE met on March 4, 2015 to recommend a program for the remainder of the 2014-2015 school year. TR 195, 775, SD Ex 8. The District’s IEP proposed that . be placed in a “4 site’. SD Ex 8. There does not appear to have been a !

representative at the CSE meeting or available by phone. SD Ex 8, TR 765, 776. The District’s CSE recommended an 8:1:1 setting, a more restrictive setting for” with which the Parent did not agree. TR 195, SD Ex 8. By letter dated March 16, 2015 the District’s . sught a _ placement for or the “2014-2015 school year”. SD Ex 24. ( oe “is the designated placement on the District’s IEP dated 3/4/2015 notwithstanding that a letter did not go to the] ee 4 the J until March 16, 2015. SD EX 8, 24). The Parent clearly stated at the March 4, 2015 meeting that’. would not send _ to an 8:1:1 program, only a 12:1:1. TR 196, 197. , Parent also requested that the CSE find another tutor for . TR 775.

Incidentally, the ! __.. testified that’ had been accepted into the ~ program yet there is no written evidence that supports that testimony nor did anyone from J testify. TR 196.

Several weeks after the CSE meeting, the CSE sent out packets of material regarding’ by letter dated March 27,2015 to the) | ._._-,~ --..--.—.... .TR 201, SD EX 21; by letter dated March 27, 2015 to the] ue... . TR205, SD Ex 22; and, by letter dated April 2, 2015 to the . TR 207, SD Ex 23. All these letters sought a 12:1:1 program notwithstanding the 8:1:1 designationon | March 4, 2015 IEP. See SD Exs 21-29. On or about June 22, 2015 the ~ ~~” * : reported that it did not have a program for . TR 210, SD Ex 31. Apparently, } 1et with representatives from the © t after which it reported that it was unable to provide services to _.. SD Ex 32.

During the time __ was to receive tutoring there were several tutors who stopped providing services. TR 772. There were times when _ refused to go to the library to accept tutorial and other times when the tutors cancelled. TR 813, 814. The initial tutor, one beginning on or about February 6, 2015, resigned after being spit on by .a number of times. TR 965, SD Ex 37. There were scheduling problems with several tutors but finally one who served until mid-May 2015 at which point the stopped those services. The testified that the provider, while was on home tutorial, also quit allegedly because of scheduling difficulties. There is nothing in the record that indicates the amount of related services, or for that matter tutorial, that . missed or received while on homebound instruction.

The District’s CSE reconvened on May 20, 2015. TR 244, SD Ex 9. Once again the District’s CSE recommended a’ ~~ 8:1:1 class for the remainder of the 2014-2015 school year, this time in the | : but no representative of J was present at the CSE meeting. TR 247, SD Ex 9.

Although the Parent implied that there were existing outside evaluations, the District repeatedly asked for copies of same but were never provided any by the Parent. TR 262, 263, 264.

Acopy ofa‘ | Update was provided to the District by the _ on or about March 25,2015 and ~ testifiedthat also provided scores from an outside evaluator but would not identify the outside agency. TR 908, 912, 916 and 917.

The PE pate was dated February 4, 2014 when _ was in 6" grade. SD Ex 12. According to that document the teacher reported to the Psychologist that _. learning environment at the time was not correctas _ had not yet mastered any of the subject areas of the

6" grade curriculum notwithstanding. _ was an alternate assessment student. SD Ex 12. It was also reported that _ had little or no understanding of the subject areas and that_ =—=—_—**? elt out of place. SD Ex 12. : , full scale IQ was reported to be [i in the GE deficient range and at the Wi percentile as reported by the Parent based upon the testing of an unidentified outside agency. SD Ex 12. Those scores comported with earlier testing by the ..SDEx12. While .wasina

12:1:1 program at the! _, the psychologist reported that “teachers all express concern that []

is not in the correct environment because: _ tends to be isolated both academically and socially due to _ significant delays which place: _ well below the functional level of all others in © classes”. SD Ex 12.

At the May 20, 2015 CSE meeting the CSE also reviewed a District completed

GD valuation dated January 16, 2015. TR 254, SD Ex 15. The [A BE ou that, . receptive and expressive language skills are considerably below age level. SD Ex 15. It was also reported that —_ reading skills were in the mid-2"TM to 3" grade level while was chronologically in the 8" grade. TR 400. But for reading services _: would receive in class, there are no explicit reading services set forth in any of’ T[EPs. TR 402, 403.

Both parties claim they wanted additional evaluations, Petitioner in Due Process Complaint Notice and the District in testimony stating it requested to perform a Pe Evaluation. Nevertheless, Parent never wrote the District requesting any evaluations and there is nothing in the record that indicates the District sought written consent to evaluate TR 409, 412, 416. It must be noted that the District only presented one witness, its . Likewise, the Petitioner only presented one witness, und that testimony lacks credibility as: concisely answered questions on direct but was evasive, combative and argumentative on cross.

DISCUSSION

Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students .

with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458

U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an JEP” (Walczak v Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student’s IEP and indicated that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 6947 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E] [ii]; 34 CFR

300.513[a]{2]; 8 NYCRR 200.5[j][4][ii]l Winkelman y. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep’t of Educ., 394 Fed. App’x

718, 720, 2010 WL 3242234 [2d Cir. Aug 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App’x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App’x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). The District herein engaged in extensive procedural inadequacies leaving the question of whether, in the aggregate,’ was denied FAPE in either of the school years at issue.

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][il. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walezak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2s Cir. 1989] [citations omitted]; see Grim. 346 F.3d at 379).

Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189. 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement” (Cerra, 427 F.3d at 195, quoting Walezak, 142 F.3d at 130 [citations omi8tted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008};

Perricelli, 2007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the LRE (20 U.S.C. § 1412[aj[5J[A]; 34 CFR 300.114[a][2][i], 200.116[a][2]; 8 NYCRR 200.1[cc], 200.6{a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2s Cir. 2007]; Walezak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F.

Supp. 2d 552, 573-80 [S.D.N.Y. 2010] aff'd, 486 Fed. App’x 954, 2012 WL 4946429 [2d Cir. Oct.

18, 2012]; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Herein, there was no firsthand testimony from any District witness knowledgeable about | in the classroom, in the building or during related services therapy sessions as to whether. : had benefitted whatsoever from the District’s program and placement during the 2013-2014 school year. There was some testimony from the Parent, whose credibility was questionable, asto _ struggles during the initial portion of the 2014-2015 school year and this testimony seems to have been confirmed by the District as it changed its recommended placement for during that school year.

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation of the student, as well as the “academic, developmental, and functional needs: of the student]), establishes annual goals designed to meet the student’s needs, resulting from the student’s disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a][2]fi], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep’t of Educ., Appeal No.

07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal

No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

A. Appropriateness of IEPs Under the IDEA, a CSE may be required to consider special factors in the development of a student’s IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414{d][3][B][i]; 34 CFR

300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 361 Fed. App’x 156, 160-61, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. E. Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. New York City Dep’t of Educ., 583 F. Supp. 2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027, at *8; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-50 [S.D.N.Y. 2006]). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]{al, [b][3]; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 (S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student’s IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K. v. Bedford

Cent. Sch. Dist., 569 F. Supp. 2d 371, 380 [S.D.N.Y. 2008]).

In New York State, policy guidance explains that “the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an intervention, accommodation or other program modification) to address [among other things, a student’s interfering behaviors,] in order for the student to receive a [FAPE]” (“Guide to Quality Individualized Education Program [IEP] Development and Implementation,” at pp. 22, Office of Special Educ. [Dec. 2010], available at http://www.p12-.nysed.gov/specialed/publications/ iepguidance/IEPguideDec2010.pdf). “The behavioral interventions and/or supports should be indicated under the applicable section of the IEP,” and if necessary, “the student’s need for a [BIP]

must be documented in the IEP” (id.). State procedures for considering the special factor of a student’s behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student (8 NYCRR 200.4[d][e] [il

200.22[a]-[b]). The District’s IEP for the 2013-2014 school year states that behaviors require strategies but not a BIP. SD Ex 4. The initial JEP for the 2014-2015 school year states the same.

SD Ex 5. The IEP resulting from the non-meeting of October 15, 2014 does state that’ is in need of a BIP. SD Ex 7. By the March 4, 2015 IEP there is a statement regarding the problematic behaviors and the goal of the BIP. SD Ex 8.

If the CSE determines that a BIP is necessary for a student “the [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors. . .; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]). Neither the IDEA nor its implementing regulations require that the elements of a student’s BIP be set forth in the student’s IEP (“Student Needs

Relative to Special Factors,” Office of Special Educ. (Apr. 2011], available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf). However, once a student’s BIP is developed and implemented, “such plan shall be reviewed at least annually by the CSE” (8 NYCRR 200.22[b][2]). Further, “[t]he implementation of a student’s [BIP] shall include regular progress monitoring of the frequency, duration and intensity of the behavioral interventions at scheduled intervals, as specified in the [BIP] and on the student’s IEP. The results of the progress monitoring shall be documented and reported to the student’s parents and to the CSE...

and shall be considered in any determination to review a student’s [BIP] or IEP” (8 NYCRR

200.22[b][5]).

The SRO recently held:

I find that the failure of the CSE to review the interventions actually used with the student or to develop a revised BIP that was designed to measure and monitor the student’s aggressive behaviors, as well as the student’s response to strategies implemented by the district, or otherwise note appropriate supplementary aids and services, in the JEP resulted in the denial of a FAPE (see R.K. v. New York City Dep’t of Educ., 2011 WL 1131492, at *18-19 [E.D.N.Y. Jan. 21, 2011); ef. A.C., 553 F.3d at 172, E.M. v. New York City Dep’t of Educ., 2011 WL 1044905, *9 [S.D.N.Y. Mar. 14, 2011]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1217, 1220-21 [3d Cir. 1993]). Accordingly, I find that the district’s failure to comply with State regulations resulted in a substantive deficiency in this instance and deprived the student of educational benefits by failing to sufficiently address the student’s behaviors which impeded his learning. In light of the above, I find that the district failed to implement the 2012-13 IEPs and, in this instance, it was a material deviation from the student’s IEPs that deprived the student of a FAPE for the 2012-13 school year (A.P., 370 Fed. App’x at 205; see Van Duyn, 502 F.3d at 822).

Application of a Student with a Disability, SRO Nos. 13-226 and 13-228.

The Regulations of the Commissioner of Education explicitly address programming for students with disabilities who transfer school districts. The Regulations read that where a transfer occurs within New York State, as is the case herein, that “[ijn the case of a student with a disability who had an JEP that was in effect in this State and who transfers from one Schoo! District and enrolls in a new School District within the same school year, the new School District shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the Parents, until such time as the school district adopts the previously held IEP or develops, adopts and implements a new JEP that is consistent with Federal and State law and regulations.” 8 NYCRR §200.4(e)(8). Additionally, the new school district “shall take reasonable steps to properly obtain the student’s records, including the IEP and supporting documents and any other records relating to the provision of special education services to the student from the previous school in which the student was enrolled....”

§200.4(e)(8)(i){iii).

2013-2014 SCHOOL YEAR

transferred from the into the District on or about March 13, 2014 during the 2013-2014 school year. When _ transferred into the District was provided a “temporary IEP for new entrant” indicating a CSE meeting of March 3, 2014. The temporary IEP includes an IEP adopted by the BOE to be implemented beginning on March 3, 2014. There is no indication of when the . CSE met or that the District’s CSE met prior to providing: with the “temporary

JEP”. Nevertheless, the IEP from the has in special class 12:1+1 for Math, ELA, Social Studies and Sciences. SD Ex 3. Additionally, it includes a paraprofessional providing individual services for the full school day. The | IEP states that “reading comprehension sub-test was attempted, but was not able to answer any questions correctly on a grade 1 passage...”. SD Ex 3. Notwithstanding the finding regarding _ reading comprehension, there were no goals and objectives in that IEP to address reading. SD Ex 3. Regardless of what the had provided , the District placed _ina15:1:1 class and did not provide’ 1:1 aide services stating that it needed to evaluate for such services. Further, there is nothing in the record that indicates that the District made any attempt, but for asking the Parent, for information from the , to conduct any formal evaluation of _In fact, it provided extensive non-specific testimony that the Parent was not cooperative in allowing to be evaluated and that: , the Parent, did not provide the District with a copy of the | ERE Update performed in February 2014 until the latter part of March 2015. SD Ex 12.

The District argued. that it placed in a 15:1:1 class as it did not have a 12:1:1 class, as recommended by! _, but that the class into which it placed had similarly situated students who were, like , alternate assessment students.

Even though it did not perform any new formal evaluations of | _ the District’s CSE met, for the first time, regarding _ on or about April 9, 2014 in which it continued to recommend a 15:1:1 class for. but approved a 1:1 aide for the remainder of the 2013-2014 school year. The minutes from that meeting state that is currently reading at a level G, the middle of first grade, yet the IEP adopted at the April 9, 2014 meeting does not contain any goals or objectives related to reading. I am not convinced that the District provided a comparable program.

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student’s parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in ail areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student’s IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1] [ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).

Herein, the District did not adequately perform its evaluative obligations. The District’s unilateral change from the 12:1:1 in the: —_. IEP to its 15:1:] class in both its temporary IEP and the IEP adopted on April 9, 2014 was done without any of the evaluations or assessments necessary to adequately understand the nature and scope of __ disabling conditions. Whereas the regulatory construct, both Federal and State, require a variety of assessment tools and strategies to gather all of the necessary information, the District herein performed no formal assessments or even anecdotal assessments. Most tellingly, the District did not even demonstrate that it contacted the , to getacopy of the} . most recent assessment of In this case, the District totally abrogated its responsibility to adequately evaluate and, as such, lacked the information upon which to appropriately construct an IEP.

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance (see 34 CFR

300.320fa][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation of the student, as well as the “academic, developmental, and functional needs: of the student]), establishes annual goals designed to meet the student’s needs, resulting from the student’s disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2]{i], [2]G][A]; 8 NYCRR

200.4[d][2][111]), and provides for the use of appropriate special education services (see 34 CFR

300.320fa][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal

No. 93-9).

On cross examination, the District’s Representative, on a number of occasions, stated that the Parent had been uncooperative and had not provided the District with a copy of the evaluation. In cross examination regarding an IEP developed on or about March ^[4], 2015, the testified that they did not have a copy of the , evaluation at that time. TR 460-473.

Notwithstanding ~~ testimony, at the District’s IEPs, beginning with the April 9, 2014 IEP, cite test results from evaluations allegedly performed on February 27, 2014. There is i evaluation in the record dated February 27, 2014. It appears that the insertions on District Exhibit

In light of the above, I find, based upon the District’s change of program to a 15:1:1 class, initial denial of aide, creation of an IEP which lacked reading goals and objectives and failure to pursue evaluative information, that: was denied FAPE for the 2013-2014 school year.

2014-2015 SCHOOL YEAR

But for a single page mi Progress Report”, the District did not put into evidence any progress reports from the 2013-2014 school year. SD Ex 17. The BE report it did put in evidence, in large measure, solely lists what was being worked on with .and what should work on in the future. It observes that is making slow progress with | Be oais but does not explicitly report on the J goals, as a progress report should. SD Ex 17. With very little progress information, on or about June 12, 2014, the District proffers an JEP for for the 2014-2015 school year. That IEP has related services remaining as offered during the prior school year. It also continues to recommend a 15:1:1 special class. SD Ex 5. In a nutshell, the District has, at that juncture, compounded its inappropriate approaches to special education. It still has no additional evaluative information and no progress reports from the prior year, but for the rudimentary progress report. Nevertheless the CSE continues to offer a special class different from that offered by the based primarily on the rationale that it is the class that it had available. Even though the District added what appears to be a reading comprehension goal, I find the IEP proffered by the District on June 12, 2014 to be inappropriate for The amendment to 2014-2015 IEP on or about September 8, 2014, by agreement address the inappropriate education provided! during the beginning of the 2014-2015 school year.

Another IEP amendment, without a meeting, occurred on October 15, 2014 to provide with adapted PE [sic.] and development of a BIP. Those amendments do not cure the overall inadequacies with 2014-2015 IEP.

Following the October 2014 IEP,: _ behaviors become increasingly problematic and attendance begins to deteriorate. Notwithstanding the deteriorating behaviors and attendance the District’s CSE does not meet regarding. until March 3, 2015. Apparently, the District attempted to schedule CSE meetings in December, 2014 and January, 2015, both cancelled by the Parent.

During the time in which | behaviors are deteriorating the District creates a “Functional Behavior Assessment” (“FBA”). However, the FBA it created is nothing more than a form to which it placed checkmarks. SD Ex 14. The District did not put in evidence any data charting antecedents, behaviors and consequences as would be necessary to construct an individualized BIP for The District’s BIP is a multi-step plan to address _—_— behaviors to which is appendeda data collection sheet regarding . However, no data was entered into evidence as a result of the data collection sheet and it appears that the “detailed plan to address behaviors” relies all too heavily on _ individual aide. There is no indication that the aide received appropriate training to address the complex behaviors of a developmentaily challenged student such as . Additionally, °

1 _. testified that the aide relied on a security guard as a step in the implementation of the BIP.

Although the - testimony, for the most part, is not credible the District did not refute this allegation. If true, but in rare cases regarding safety issues for the student or others, use of a security guard unless adequately trained and needed for therapeutic crisis intervention would be inappropriate. Use of the security guard here, when not mentioned in the BIP, was definitely inappropriate.

Even more telling about the efficacy of the District’s IEP is a review of the progress report it did put into evidence. See School District Ex 28. 2014-2015 IEP had 19 goals that were reported upon in that progress report. SD Ex 28. Because is an alternative assessment student each goal has objectives or benchmarks. The Progress report is as follows: none of the 3 reading objectives were achieved; none of the 3 writing objectives were achieved; 3 of the 4 math objectives were not achieved; none of the 3 §Mobjectives were achieved: the 2 social / emotional / behavioral objectives were not achieved; and, it appears that the 3 JJ skills objectives were not even introduced. In large measure, the lack of academic success must be placed on the Parent who began to keep home from school mid 2014-2015 and who did not allow the CSE to reconvene until the beginning of March 2015 despite increasingly problematic behaviors and academic failure.

Somewhere in January 2015 the Parent announced that wouldnotsend to school who was, thereafter, placed on homebound instruction by the District. TR 463. There is no IEP that reflects this determination as it was an administrative determination, not CSE, based upon letters submitted by . TR 464. While it is true that homebound instruction here was provided on the basis of! physicians’ demand, as opposed to a recommendation by the CSE, the District continued to have obligations toward and an obligation to change and modify the contents of IEP, if warranted. Knowing that was not attending school, the District’s CSE attempted to schedule 2 meetings which the Parent cancelled. Even though the District agreed to provide with homebound instruction and related services, * letter dated February 3, 2015 suggested that school issues should be sorted out. SD Ex 10. The District also appears to have received a prescription from suggesting that the District consider placement of’ ina 12:1 self-contained class. Despite these doctors’ letters, the CSE did not reconvene until

March 4, 2015.

At the March 4, 2015 CSE meeting, the District determined that its Middle School was no longer appropriate for and that it would, therefore, send | a packet seeking an 8:1:1 class with strong behavioral supports. SD Ex 8. Notably, no representative of the " was at that meeting to explain the appropriateness of the > placement. Nevertheless, the District’s IEP reads as if the 8:1:1 placement was a fait accompli. “A CSE cannot recommend a placement in a non-district facility prior to a decision by the facility to accept the student, and that any such recommendation by a CSE is by nature premature, and does not satisfy the District’s obligation to offer FAPE. Application of the Board of Education, Appeal No. 10-006. The waivered in! testimony about whether the CSE recommended the 8:1:1

__. or whether the CSE merely directed application be made to the placement. TR

461-462. Regardless, the District did make a formal application to the on March 16, 2015.

SD Ex 24. At Parental request, applications were also made to 12:1:1 programs in neighboring school districts.

The District’s Representative testified that the accepted _ that it provides intensive reading instruction and behavioral supports and that . reading issues would be addressed through a structural program at the | TR 529-533. However, there is no written acceptance of . by the in the record.

At a District CSE meeting on May 20, 2015, the CSE recommended a 8:1:1 placement for the remainder of the 2014-2015 school year.

SD Ex 9. There was no | representative at that CSE meeting. The Parent continued to disagree with the placement. Although by that time the Parent had provided the District the. EU piate, none of the test results reported in! .IEP changed from those in prior IEPs. In fact, the “academic achievement, functional performance and learning characteristics” portion of the May IEP is identical to that of the March 4, 2015 IEP. Most tellingly, however, is the goals and objectives, particularly those related to reading, proposed for .ina. _____. program are identical to those proffered earlier in that school year when the District was recommending a 15:1:1 class for Based on the facts that the District did not perform any additional evaluations of . (it neither sent written request for consent to evaluate nor did it demand Due Process in an effort to get an order to evaluate), it continued to provide . with a 15:1:1 class even in light of deteriorating behaviors and attendance, that it did not reconvene a CSE meeting after it was informed that " would not be attending its program (even recognizing the Parent’s cancellations), that it recommended a | program without a | Representative to explain such a program, that it did not provide evidence that was ever formally accepted into a’ rogram and that the goals and objectives were never altered in light of its ultimate recommendation to place’ ina

8:1:1 program, I find that the District did not provide with FAPE during the 2014-2015 school year.

REMEDIES

In light of the FAPE denials for the 2013-2014 and 2014-2015 school years, I must address the Parent’s proposed remedies. However, as stated above, the Parent’s testimony was not credible and Petitioner did not put on any witnesses, aside from in support of any proposed remedy.

Whereas the Parent, on direct examination, provided concise testimony regarding the chronology of events and educational deprivations allegedly suffered by oo was absolutely uncooperative with District’s Counsel on cross-examination, particularly when asked to provide more specificity regarding | demands. On numerous occasions would not provide answers to the questions posed by counsel. TR 916-917, 921, 927, 931, 941, 946, 988, 989, 992, 997, to cite but a few incidents. Frequently, Petitioner became argumentative with District’s Counsel. TR

955-956, 963, 994 to cite but a few incidents. Petitioner, on several occasions, would not even answer questions when directed by the IHO to directly answer questions. TR 949, 989, to cite but a few incidents. Whereas Petitioner had very precise memory of events during direct examination had frequent memory lapses on cross examination.

ORDERS

(a) Evaluations

Petitioner is correct in seeking evaluations as I have found that the District does not have adequate evaluative information upon which to develop an appropriate IEP for As such, I hereby ORDER that the District provide written notice to the Parent that it is seeking consent to perform evaluations in all areas of suspected disability including, but not limited to, a thorough

Po Evaluation, Po Evaluation, and Po Therapy Evaluation. The District did perform af Therapy Evaluation, albeit cursory. I hereby ORDER that the Parent provide the District consent to conduct those evaluations. All evaluations must thereafter be performed expeditiously so that the District is in possession of adequate information upon which to develop an appropriate IEP for’ who is still receiving homebound instruction. Upon completion of the evaluations I ORDER that the District’s CSE convene, at its earliest possible date, to review all evaluative information and propose an appropriate program for I ORDER that the Parent cooperate with the District in scheduling such CSE meeting. If the District upon its review of those evaluations, prior to a CSE meeting, is lead to believe that the more restrictive 8:1:1 placement in a _ may be appropriate it must arrange to have a representative of said | at the CSE or at least available to the CSE by teleconference so as to provide information regarding | / programming for ..

(b) Assistive Technology

Petitioner has demanded that the Student be provided digital notes and digital books, however, the Petitioner did not put on any evidence that needs same. As such, in addition to the evaluations ordered above, I ORDER that the District perform an Assistive Technology Evaluation so as to assess” _: needs for Assistive Technology Services. This evaluation should also address Petitioner’s demands for a smart pen, smart board, keyboard, computer, and laptop and should be reviewed at the above ordered CSE meeting.

iii

Petitioner did not provide any evidence that | . would benefit from additional i services. Nevertheless, in light of’ .. deteriorating behaviors 1 ORDER that the District utilize an in-house or contracted outside Behaviorist to review . FBA and BIP to ensure that they comply with all the regulatory requirements and updated those documents in light of any additional information regarding - (d) Teacher Assistant

Petitioner did not put on any evidence that was in need of a 1:1 teacher assistant as opposed to the aide services: received when in the District’s programs. Nevertheless, should a new BIP place emphasis on the aide’s rollin providing with positive behavioral interventions, I ORDER that such aide be appropriately trained to provide such services.

(e) Outside Placement in Another School District

Petitioner did not provide any evidence on the specifics or availability of placement in another district and, in fact, the District made application to other districts for a 12:1:1 program and were not successful in locating same for As such, I hereby deny the Parent’s demand to place in the Co-Teacher Model in another district but do not preclude the CSE from such placement if it deems that type of placement appropriate.

(f) Transportation

Petitioner did not provide any evidence that has ever been denied appropriate transportation during " time in the District and, in fact, obtained an IEP Amendment regarding transportation. Clearly, if the District’s CSE, through an IEP, places outside of the District it must provide appropriate transportation.

(g) Behaviorist

As stated above, I have ordered that the District provide a Behaviorist to work on an updated FBA and BIP for’ , but there is nothing in the record that indicates that said Behaviorist will need to work with ~ ona 1:1 basis 5 days per week. Thereby, I deny Petitioners request for same.

(h) Parent Training

In the regulatory construct, Parent Training is explicitly provided Parents of students with Autism. ~ is classified as a student with mM Although the Regulations do not automatically provide training to the Parents of students with in light of the significant impairments which _ possesses I agree with Petitioner and find that the Parent herein would benefit from such training and thereby ORDER same.

(i) Compensatory Services

An THO has broad authority to fashion an equitable remedy. P. v. Newington Bd. of Educ., 546 F3d at 123 [2TM Cir. 2008]. The central purpose of an award is to provide a remedy for a specific denial of FAPE. See Newington 546 F3d at 123. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a}[1][B]; Educ. Law §§ 3202[1][, 4401[1], 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7] [iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3) [ii]; Application of a Child with a Disability, Appeal No. 04-100. Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 N.2, 113 n.6 [2d Cir. 2008}; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]; Cosgrove c. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a_ Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education)).

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of FAPE (see Mr. and Mrs. P. v. Newington Bd. Ed., 546 F.3d 111, 123

{2d Cir. 2008] [stating that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and ... compensatory education is an available option under the Act to make up for denial of a [FAPE]”]; Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct.

30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-13 [S.D.N.Y. March 6, 2008]). Likewise, SROs have awarded compensatory “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student become ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4" Dep’t 2005] [finding it proper for an SRO to order a school district to provide “make-up services” to a student upon the school district’s failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding “make-up” counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a Disability, Appeal

08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054).

The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F. 3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate 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”]; Parents of Student W. v. Puvallup Sch. Dist., 31 F. 3d 1489, 1497 [9 Cir. 1994] [holding that “(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA”]; Application of the Dep’t of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to “appropriately address[] the problems with the IEP”]; S.A. v. New York City Dep’t of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education “serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE”] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11" Cir.

2008] [holding that “(c)ompensatory awards should place children in the position they would have been in but for the violation of the Act”); Bd. of Educ. V.L.M., 478 F.3d 307, 316 [6 Cir. 2007] [holding that “a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student’s] educational problems successfully”]; Reid, 401 F.3d at 518 [holding that compensatory education is a “replacement of educational services the child should have received in the first place” and that compensatory education awards “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA”); Puvallup, 31 F.3d at 1497 [finding “{t]here is no obligation to provide a dayfor-day compensation for time missed”]; Application of a Student with a Disability, Appeal No.

13-168; Application of the Dep’t of Educ., Appeal No. 12-135; Application of the Dep’t of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Petitioner herein makes a general demand for compensatory services but put on no proof as to the specificity or amount of services | . missed. Nevertheless, because the District accepted

_~; letters and determined that it was acceptable to provide. with homebound instruction it was thereby obligated to provide such instruction in accord with Regulations and! IEP. As such, it should have provided with 2 hours of tutorial per day and the related services stated in ‘JEP. Therefore, I hereby ORDER that the District calculate the total number of hours of tutorial. should have received between February 6, 2015 and the time at which the Parent declined further receipt of instruction for, sometime in May 2015 and the number of tutorial hours did receive. I likewise ORDER that the District perform similar calculations for the number of related services should have received during the aforementioned time period and those services did not receive. While recognizing that Parental scheduling and dissatisfaction with some of the providers impeded provisions of all the services, it appears that it was likewise true that the District had difficulty finding providers and the scheduling of services. Nevertheless, I ORDER that all missed tutorial and related services which should have been delivered between February 6, 2015 and the time at which the Parent demanded end to such services be provided as compensatory education.

(j) Monetary Reimbursement

Petitioner’s Due Process Complaint Notice demands reimbursement for costs associated with summer camp for as well as all costs associated with this action, including advocacy costs.

Petitioner did not put on a Burlington type case and, therefore, is hereby denied any summer camp reimbursement. Additionally, I do not have any authority to assess any costs related to this action.

I must state that advocacy costs are not available under the Act and observe that ,in my opinion, was an impediment to this process, and the Parent’s case.

CONCLUSION

In light of the above and that the District did not provide FAPE to to the 2013-2014 and 2014-2015 school years, I direct the District and Parent adhere to all of the above-cited ORDERS and that the Parent cooperate with the District in signing consent for evaluations, making available for said evaluations, participating in CSE meetings so as to allow. to benefit from the special educational opportunities afforded : Dated: February 4, 2016 SO ORDERED!

\:

Impartial Hearing Utticer —

NOTICE OF RIGHT TO APPEAL

Within 35 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 the Parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties’ petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR §279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/ part279home.html

EXHIBITS

PARENTS’ EXHIBITS

2. Enrollment & Attendance Records 4 pages DOE

3. State Education Department Finding on Complaints Filed by District (as Hearsay) School District Exhibits: 05/13/15 DOE

l. Due Process Complaint (DPC) 07/22/15 4 pages

2. Answer to DPC 07/31/15 2 pages DOE

3. TEP Document (Temporary IEP new Entrant with} TEP) 03/14 32 pages DOE

4. IEP Document with PWN (Request Review Transfer Student) 04/09/14 23 pages DOE

5. JEP Document with PWN (Annual Review) 06/12/14 23 pages DOE

SA. Attendance Sheet for CSE Meeting 06/12/14 1 page

6. IEP Document with PWN (Amendment) 09/08/14 21 pages DOE

7. TEP Document with PWN (Amendment) 10/15/14 22 pages DOE

8. TEP Document with PWN (Requested Review) 03/04/15 23 pages DOE

9. IEP Document with PWN (Requested Review) 05/20/15 21 pages DOE

10. Letter from on TT 02/03/15 1 page DOE

11. Letter from. Doe pe ee eee DS | 03/05/15 DOE

12. Update-. 1 02/04/14 4 pages DOE

13 11&12/14 BIP 5

14 10&11/14 FBA 3

15 01/16/15 _- s«Evaluation 2 16 06/15 GB Provider Log Notes 1 17 06/03/15 MBP rogram Report by 1 18 2014-2015 [i Annual Report for 2014-2015 5 19 06/12/14 ee ] 20 04/02/15 Letter from 1 21 03/27/15 Letter from ] 22 03/27/15 Letter from 1 23 04/02/15 Letter from ] 24 03/16/15 Letter from > l 25 02/15 Email Communication between District and Parent 2 28 2014-2015 Progress Report Information 8 30 Attendance Records 6 31 06/02/15 TM~ = **- > Letter to District 1 32 04/01/15 Emailexchange between —TM - 1 School District Exhibits: (cont.d) Exhibit Date Description Pages

33 02/24/15 Parent Letter to District Requesting Change in Classification 1 34 01/13/15 Prescription from l 35 01/21/15, 02/03/15, 02/04/15 Email exchange between Parent and po 2 36 2014-2015 Committee on Special Education Log 2 37 03/02/15 Letter from 2

Footnotes

[1] time per week, 30 minutes per session, and receive a 1:1 aide for 6 hours per day. SD Ex 4. The District claimed that the students in the 15:1:1 class were similarto .TR104. remained in that District’s proposed program from March through June 2014. TR 108.

[4] are from the: evaluation which it testified it did not have. However, the evaluator who found that delays, academically and socially, were significant placing ' well below the functional levels of all the others in class also cites that ] teacher “feels that needsa more restrictive environment in school to meet ieeds.” This statement was made when vas in a 12:1:1 class with a 1:1 aide. Notwithstanding that information, the District initially placed | in 15:1:1 class without an aide and only after April 9, 2014 provided a1:laidebutkept in the 15:1:1 class. The Commissioner’s Regulations require that students with management needs which interfere with the instructional process shall not exceed 12 students with one or more supplementary school personnel assigned to each class during periods of instruction. 8 NYCRR §200.6(h)(4)(i). Whether the District had the . evaluation or not, by April 9, 2014 it had enough experience with: to know that suffered significantly impaired cognitive abilities as without a meeting, allowing to ride on a regular bus rather than a minibus, does nothing to well as possessing deminimis academic and social skills.