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Special Education Law
DECISIONDistrict PrevailedSEL No. ih-2016-147

Impartial Hearing Decision

Date unknown·hearing date

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

FINDINGS OF FACT AND DECISION

Case #:

Student’s Name:

Date of Birth:

Hearing Requested by:

Date of Hearing:

Actual Record Close Date:

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING

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INTRODUCTION

On I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1), by the (“the District”) concerning a dispute involving the special education program of . (“”,

“” or “the student”) for the school year. is a year-old student who during the period covered in the due process complaint (“dpc” or “impartial hearing request”, Ex. IHO III) had been a student in the District and was about to start the 1. is classified as and classification is not at issue.[2] The asserts that the District has failed to provide with a free and appropriate public education (“FAPE”) for the school year in that the District recommended program,

(“”), was not the (“”) and that is not an appropriate program for . The District contends that was provided with FAPE and that the recommended program and services addressed unique needs.

FINDINGS OF FACT

1

The asserted during the hearing that the scope of the hearing included adjustment in (the current school year) and therefore testimony and evidence should be allowed to show that an in the was the appropriate placement. The District objected to expanding the scope of the hearing. The Parties submitted memorandums on this issue (Ex. I, II) and the IHO denied expanding the scope of the hearing to include the . (t. 565-66) was a student enrolled in (“”) during the school year. was in an (“”) and received related services of ( per week and per week); (“”) ( weekly minutes); (“”) ( weekly minutes). (t. 24, Ex. 3) The classroom had approximately students and had a teacher, a teacher for half the day and a teaching assistant under the direction of the teacher for the other half of the day. was a at during the school year and was assigned to . provided with and . testified that prior to working with in , reviewed , spoke to and and conducted a classroom observation.

observed that needed and to follow the classroom routine and also directly observed . (t. 24-25)

testified that was first called to assist with in the week of the school year. stated that were most difficult and it was an issue on a month. had an issue with (which at one point was and )

and both and the for for .[3] testified that did not want to use and had in . On would have to to go . In this to the point where and hallway , to the , or to office. This generally happened on the when to school. The other went to the before school and came on the . On those and would get , go to the and to . and on , was called by the supervising . was observed the and trying to the . This was clearly a because was trying to and from the . testified that was able to and that was to the office. They both spoke to for approximately a an. was and stated that did not want to be in and wanted to . was eventually able to and go back to . Both of were of the . went to the and spoke with . told was and wanted to but did not say why was .[4] (t. 25-30, 208, 746)

The next occurred on , again a , when from . (An is defined as when a student or without permission.) On that date ran out of the and into the , the , it and would go while laughing, with the other students who were also in the, throwing and trying to who were attempting to .

was called to the and the lasted approximately until was able to get back to his . After the , testified that was called to 2 or 3 times . The main goal was to keep and the and or the .

consisted of , giving strategies, reminding of plan and things could for and through . testified that other responsibilities were because when would to the or there was a would have to cancel with other or meetings with staff and any other work to attend to . (t. 31-34, 747)

On a team meeting was held to brainstorm ideas on how to keep safe as was continuing to from the , going in to the and refusing to . The meeting was attended by the principal of , , , and teachers. The team meeting discussed and the principal wanted to have an (“”) for to keep , reduce and prevent from the or the . The team also considered going back to the Committee on Special Education (“CSE”) and doing a (“”) and a (“”). It was during this time that the principal assigned a to be in the to assist in keeping from and to get out of the if necessary. In continued to and was on for an which occurred the day on . attempted to out of the several times throughout the day. A meeting was held on which was attended by, and, participated by phone. The purpose of a is to talk to the about the reason the student was. In the course of the the seriousness of the situation was stressed, that it was a issue and that the District was hiring a TA to be specifically assigned to. The role of the TA would be to shadow and safe. joined the meeting at the end so that the principal could talk to about safety issues. There continued to be s in, particularly on where persisted in from the to the. (T. 35-36, 205, 257-63, 403, 754)

On teacher reported that was able to enter classroom without and follow regular morning routine.

When received began to whine, refusing to do it teachers tried to redirect and support to no avail.

behaviors escalated and pushed book on the floor and destroyed paper. teacher gave a choice of completing work then or during recess began whining and got louder. was pushing and throwing items and then throwing pencils at and taking things out of desks and throwing them on the floor.

This resulted in teacher asking the to move away and they were ultimately removed from the classroom. asked what was wrong and how could help. At that point got louder and started throwing things. was called and went to the school in an attempt to the situation. When arrived saw flinging materials from desks on to the floor. tried to run out of the room but was blocked from leaving by the TA. was removed from the and taken office. ran from the office into the bathroom, staff was able to get out and back in to the office. Once inside again threw things that were on a table and screamed. (Ex. 12) is a who works with the District per week. On received a text from, to respond to a safety issue concerning. When arrived observed from outside the office and described as “tense in the face and red and crying and yelling that wanted to go to lunch. Immediately after that to engage in physical behaviors… was hitting staff, kicking, was engaging in property—was throwing the chairs around, pushing the tables. was throwing scissors and a stapler… tried to climb out a window.” testified that had to utilize crisis prevention training to restrain three times during this incident in order to keep safe, as well as the others in the room. testified that after arrived engaged in for a combined 35 to 40 minutes. Once was able to calm down was picked up by. (t. 264-69, 431-33, 442-49, Ex. 12) was for days as a result of the incident and a was held. (t. 271, 762)

As a result of the increase in in and in view of the level of the an Emergency Action Plan

(“EAP”) was developed by and. The EAP is a list of proactive and reactive strategies to be used by staff in conjunction with the existing BIP to keep until a new FBA and BIP could be developed. The strategies were based on behaviors that had been exhibiting such as from the.

The EAP was explained and modeled for all the staff that come in contact with, as well as the at the. They spoke with each and went over the strategies in the EAP (t. 38-40, 44, 176, 222-30, Ex’s. 1, E) reviewed the EAP with the staff and found that it was useful to staff a some of the time. There were times when they were unable to regulate and it caused a safety issue. (t. 462-64)

On the Committee on Special Education (“CSE”) met to conduct an annual review for and to determine the appropriate educational placement for the school year. Present at the CSE meeting was, teachers and, therapist, the principal, and, , and a. (t. 48, Ex. 3) Prior to that meeting, on had conducted a psychological reevaluation. At the CSE the reevaluation was reviewed.

observed during the testing that had difficulty remaining on task, did not want to complete any of the tasks and needed frequent breaks and rewards to attempt the tasks. scored in the with a full scale IQ of however noted that the testing did not reflect “..actual ability but rather is indicative of in the tasks presented with real effort. Previous testing at last triennial review () found overall IQ score to be in the (FSIQ=)….that seems to be a more accurate estimate of overall ability.”

In the course of CSE meeting explained that this was a significant of based on to participate and answer the questions. (t. 45-47, 282, Ex. 2)

The teachers than provided a summary of present level of performance. , the teacher, reported that even with major modifications to the curriculum, was having problems. were interfering with ability to access the curriculum as well as interfering with the other students and that sometimes had to from the classroom., the teacher, reported that was not making any more progress in which was identified as a big struggle for. While was a strength for was interfering with progress. further reported that had concerns about ability to benefit from the program. At the time of this meeting was at the level. described as “self-directed”. Self-directed is defined as doing what wanted to do rather than following the directions of the teacher, objecting and not participating. were described as challenging, in that if did not want to do something would refuse, have tantrums, whine, kick, engaging in significant negative behaviors. The therapist advised the CSE that had changed speech group to a group with some students as opposed to the students had previously worked with. The reason for this change was because with the, was unfocused, uncooperative and more self-directed. The therapist reported that did see some progress in articulation but that still saw phonological difficulties and that felt these difficulties could be interfering with ability to progress in. (t. 51-52, 275-79, 281) During the course of the meeting present levels of performance were reviewed and they went through each section, covering social, physical, academic and management needs had an opportunity to provide input. voiced concern that was not making progress in and that was still level and had difficulty with. The CSE agreed with that was not making progress. stated that saw some struggles in. The committee also discussed the impact. noted that would become frustrated when had problems with. There were also raised concerns regarding, and the negative impact that it was having on performance and learning. The consensus of the CSE was that were significantly impacting learning and that was having difficulties benefitting from the particularly in the areas of. (t. 50-57, 278-79)

The CSE discussed social and emotional development and it was noted that when was positive, could relate to. But that always had difficulty with, with playing with and in taking turns. In addition, when was angry or frustrated would, , and become towards his. did not always communicate and needed to learn and use coping skills. The goals were developed based on the discussion of social, physical, academic and management needs. The goals were reviewed and discussed by the CSE and again had the opportunity to provide input. The committee discussed placement options within the District which consisted of: which would be a small group pull out service; an; and an. The committee did not feel that the would be able to support . The committee believed that an placement should be explored, including a placement. were given an opportunity to provide input on placement and both agreed to explore placement. While exploring the options the was recommended as pendent placement for the school year. (t. 58-63, 284, 286, Ex. 3)

The CSE, on, also met as a and developed a second IEP which addressed the current school year

(). As a result of the, was, removing group ; the addition of; and the were added.

testified that recommended the change from to because felt that was more focused and engaged in the when it was. In a setting, found to be more self-directed. The purpose of the was to conduct an FBA and a new BIP and to consult with the staff and work with the TA’s to ensure that. The BIP that was in place addressed some that was displaying but not all of them. was becoming more, was and teachers and TA’s. were in agreement with these changes. (t. 63-66, 207, 280, 283-85, Ex. 4)

testified that following the CSE meeting increased significantly. On was advised by that was in with two TA’s and had taken balls and was throwing them at the staff and then from the , and going into next to went to the and saw running into the, refusing to come out, and then would run out, try to get past the staff and leave the building. was also screaming, crying, yelling and whining. The incident went on for approximately 20 to 30 minutes without calming down. was contacted and picked up at the end of the school day. (t. 67-69)

The next incident occurred on was called from a CSE meeting that because had again from classroom. had been brought in to the therapists room which was next door to the classroom. was in the room with the principal, two TA’s, and a social worker. had thrown items around, knocked over and pushed furniture. When had calmed down said was hungry.

“The staff gave some Goldfish crackers. then stuffed them in s mouth, chewed them up and spit them at staff members, spit them over the floor. spit a lot at staff members. e tried to from the classroom. tried to run over to the window and open the window and out the window.

grabbed Lysol spray from the office and tried to spray the teaching assistant. screamed ‘I hate you. I am going to kill you’ at staff members. ripped and tore papers, went under the table in the room, attempted to bite staff members.” They were unable to control the behaviors so the principal called to come and calm . The came to the school and initially appeared to calm down but ultimately did not calm down. then went over to the window and tried to get out of the room via the window with in the room. was called and came to the school to pick up and take home. The incident lasted approximately 90 minutes. An emergency CSE meeting was requested by the principal based on and was held on. (t. 69-73, 287-89)

A CSE meeting was held on as a. chaired the meeting, also present was the principal, teachers, ,

, and a.[5] The committee discussed and were looking for ways to address the problem. The IEP notes that “Student is displaying to avoid doing academic work.” testified that they discussed having a and. A would be a day and the committee felt that was overwhelmed with the demands placed on and this would ease that burden. did not agree to that as they and would not be able to deal with a day. was also discussed but that would have been a problem for reasons similar to a day. The committee was trying to develop ways to keep during a school day. They discussed the need for an area where could regroup on a regular basis. They did not have such a space and, according to, said did not care if they had to hire someone just make needs to be in school. The committee was not comfortable with the idea but as they were unable to employ a or they said that they would do what they could. The intent of what later became known as the was to give an opportunity to be successful at the beginning of the day. was having problems coming in to the building and transitioning in to the so would have a separate area where could unpack and get adjusted, give some work in the separate area and then transition in to the. testified that it was not discipline but rather a proactive strategy to get in school and then to transition in to the.

This was explained to and testified that the was used with the knowledge and consent and it was idea to create such a space.[6] The committee was trying to find an placement for the rest of the school year, as they were having the District. It was designed so that would start the school day in the with TA’s working. (t. 290-95, 336, Ex. 5) It was belief that understood what activities would be conducted in the. The staff did not like the idea because they did not want to but they acknowledged that was having trouble and trouble in the classroom and even with modifications and TA’s it was not a workable situation.[7] In the classroom, teacher had tried reducing or eliminating demands on but it was not successful. (t. 297-98, 775-77) The difference between the IEP’s and the IEP is that the recommendation to look placement for the school year was moved up and recommended for the remainder of the school year. (t. 79)

On again received a call to go to classroom. and the responded. was engaging. This was described as property destruction, tearing up papers, knocking over bins or shelves with work, throwing things on the floor, running around the classroom, trying to elope, trying to punch and kick staff and head butting a staff member. Many efforts were made to down but they were unable to do so. The incident last from, the other students had been removed from the classroom. was called to pick up by. When was being walked to the main office down the hallway and staff had to run after . stopped when saw took home.[8] (t. 80-85, Ex. 6)

was waiting with the TA’s for to enter the building. observed arrive and was whining, trying to run out of the building and did not want to separate from. tried separating from but then down the hallway. The TA’s, and followed down the hallway and tried to block any exits to keep from leaving the building. physically redirected in to the room where was located. testified “At that point engaged in numerous high-level behaviors with trying to run out of the room, kick , punch , spitting at, attempting to bite others, attempting to bite , cursing….there were teaching assistants who were present and myself… was trying to get to calm down, was trying to keep from hitting , kicking , and would not stop kicking, hitting, biting, cursing, trying to get out of the room, crying, whining for over 30 minutes….With these high level behaviors, , you know, over 30, engaged in these behaviors for over 30, is really distressing to the child. is sweating, is hot, and it is upsetting, so that is a long time for these high-level kicking, biting, punching, trying to run out of the room behaviors, so that is of significance.” Different strategies were attempted to down but none were effective. The principal called to come and pick up as there was no sign that the behavior was abating. came, calmed down and left with . This incident lasted for one hour. (t. 87-92, Ex. 7)

On were with during lunchtime. accidently knocked over a toy that had and believed it had become “tangled up”. immediately started screaming, began crying and whining and tried to elope from the room. behavior escalated to spitting, punching, kicking, biting, tearing up papers and knocking over chairs and trying to throw them. tried different strategies to calm but were unsuccessful. This incident lasted 45 minutes and as was unable to calm down was called to pick up. was as a result of this incident. (t. 93-96, 239, Ex. 8)

After the CSE meeting othere were always present (2:1 ratio) and working with to maintain safety because of the and that person could not manage behaviors. It was also at this time that began to use the.[9] In addition, the District placed on in order to maintain safety. The is a small room that had a table and chairs and some mats. There is a window which looks in to a, outside the room is a table where as well. The intent was to allow to come in, not be overwhelmed and have a quiet space to day. If was able to maintain and comply with directions, they would integrate back in to the setting. It was also a location where would receive individualized attention from the TA’s and if engaged in high level behaviors they would be able to react and keep well as others. teacher, worked with and tried to transition in to a small group in the which was close to the. This was unsuccessful as behavior started to escalate in. would also attempt to work with individually but behavior would escalate would refuse to engage in activities,. was in the calming room on and on each of those days was not able to integrate back in to the classroom, were made aware of this. would sometimes with in the. (t. 96-102, 215-18, 455-56)

From to the testified that behavior did not improve, rather the District “altered day significantly, drastically reduced the demands and changed all of the demands made in order to..in order to keep safe and proactively keep from having a high level behavioral episode where could feasibly get hurt or hurt someone else…” Despite the reduction in demands continued to engage in high level behaviors but none of these reached an episode of 30 minutes in duration. (t. 104-06, 232-33, 474-75)

observed in working with the TA’s while making a car or train out of a cardboard box. The TA’s reported to that is a willing participant when wants to do something but if does not want to do something or is denied a preferred activity would become very upset and would cry, scream and try to elope. (t. 302-03)

The District sought consent from both and to do an FBA. A consent was sent by the District and a signed consent was received. (Ex. 13) A consent was sent by the District to and a signed consent was received back from.[10] (Ex. 14) consents were needed prior to starting the FBA. The

FBA was not started during the school year as the District had not received consent from, leaving very few days left in the school year. testified that there was not enough time left in the school year to interview the staff, family and collect information on the student. It is the responsibility of the school to send the prior written notice with the consent to the. However, testified that had spoken and discussed the fact that it was being sent out and the need to sign the consent and return it as soon as possible and if had any questions to contact through the school. also spoke with and gave the same information. (t. 465-66)

The District was seeking an placement and testified that solicited information on a website that serves all special education directors to see if any district had a program which would be appropriate for a student with and. The only response received was from for.[11] had consent from both to send in an application, which did. An application was also sent to had suggested that they had a program which may be appropriate. A screening was set up for the program for.

(t. 286, 300-02) attended with. In the course of the screening, they met with a social worker who explained the academic and behavioral components of the school and the services that are provided and they toured the school. The school has a The students can earn points towards their goals throughout the day and use those points to purchase tangible rewards. . If a student was having difficulty or frustrated, there teacher assigned to the at all times. This is a proactive strategy. There is also a, which is similar to a and a student could be brought there if they were engaging in high level behaviors. The so that the student could not hurt themselves and could be monitored through a window and with a camera. The student would be in the room by themselves but they could request that a staff member sit with them in the room. Once a student was they could come out of the and transition to the where they would receive individual attention, work on understanding their behaviors and get back to academic work. They would then transition back to the classroom, which was. asked questions of the social worker particularly how their home school district. The social worker indicated that varied based on need but spoke about a program that assisted students in setting. (t. 114-21) CJ was accepted to on for the school year. (t. 309, Ex. 15)

testified that upon acceptance of in to, the District wanted to schedule a CSE meeting to discuss as a possible program. Invitations for the CSE meeting were sent out. In , informed the CSE, via a letter, that was not available because was going. The meeting was later held. The meeting was chaired by and in attendance were, the administrator (via phone), two attorneys for the District, , attorney for the and a parent advocate for the.[12] The purpose of the meeting was to discuss whether was an appropriate program for. had previously sent a letter advising the District that was not in agreement with the program. was asked to tell the committee about the letter. The declined and said that would let attorney speak for . The attorney for the advised that they felt that the was too. The educational advocate for suggested that have a in the district and that they reconvene after period. Prior to discussing the appropriateness of a in the district, the committee discussed goals and heard from the administrator about the program being considered. Each goal was discussed individually and their representatives had the opportunity to provide input. Both the educational advocate and the attorney, were active participants in changing the language and editing the goals. The staff who had worked with during the school year did not believe that a in district would be appropriate for . In the course of discussing present levels of performance each person that presented talked about . The consensus was that were continuing and that it was disruptive and possibly dangerous to the other students reported to the committee that was working with on a 1:1 basis in the and that when attempted to move in to the it was unsuccessful. When did work with, was only available for instruction approximately of the time. The teacher was trying to introduce new work and was unsuccessful.

No one from the staff reported any success in introducing new material to from the CSE meeting to the CSE meeting. The attorney for informed the committee that it was understanding that behavior had improved after had been. The staff expressed surprise as they felt that behaviors had continued through to the end of the school year. The consensus of the staff was that behaviors were being controlled through the program that had been but that there were still many challenges. The behaviors did not escalate to the point where they had in because of all the modifications that had been made for . (t. 122-29, 309-12, 320-22, 478, Ex. 10) administrator described the proposed program to the committee. It was class and the students are exposed to the common core curriculum. There is a school wide and classroom behavioral plan.

Each student has goals that they work on daily and every 30 minutes the student self-monitors to see if he has met those goal. There are students in the building and psychologists dedicated to the students and the program as well as TA’s andsocial workers. If a student is not successful with the classroom they would go to which is staffed with a TA and teacher for the student to regroup. If the student is in a crisis, a social worker would be there until the student’s counselor and a psychologist could get there. If those attempts were unsuccessful the child would be taken to the (also referred to as the ) The student could remain in the for a maximum. The student would then transition back to the and then in to the classroom. provided a class profile for the proposed class that would attend. testified would fit in to that class based on the profile noting that while IQ appeared much it was based on the most recent which was not believed to be a true indication of abilities. and the representatives had an opportunity to ask questions about the program. and the representatives did not ask any questions but made a statement regarding the fact that the was added under Management Needs on the IEP only required it and would not if it was not added. The Committee disagreed and felt that the use of the necessary if all other interventions failed. (t. 130-32 ,315-19, 326-28, Ex. 16)

testified that role at the meeting was to report on and discuss behaviors. detailed engaging in aggression, property destruction and other high level incidents and behaviors. had the opportunity to ask questions and they indicated that they did not see any of the behaviors described by the District staff while at home.[13] It was opinion that while she had not seen at home behavior in school impeded learning and was a safety issue to and others. did not believe that would be appropriate for in view of aggressive and high level behaviors. As of the CSE meeting reported formulating a hypothesis regarding the source of behavior. believed that it was motivated by frustration with academics and that used behaviors as an escape. Further, that is unable to tolerate being denied or delayed access to things that wants when wants them.

testified that behavior caused to be unavailable for academic instruction. believed that would be an appropriate placement because it would be effective in helping to reduce behavior. The program would be able to teach to follow the rules of the day without having to take away from the classroom. If did engage in high level behaviors would be removed from the class and placed in the . The theory of the is that it helps to decrease the amount of time that the behavior is occurring because no one is maintaining the behavior by interacting with the student, it is up to the student to self-regulate. (t. 479-88)

The committee discussed programs that are available in the District. The self-contained class for the is for students with autism. This was determined to be inappropriate for because it would not be cognitively appropriate, as was too high functioning for the class. A return to was discussed and the committee did not believe that this would be an appropriate placement. (t. 322-23, 332, 857)

At the end of the CSE meeting the committee recommended the as the appropriate program for the school year. The committee felt it was appropriate because it had levels of support built in to the program, with a smaller student to teacher ratio, higher psychologist to student ratio, behavioral supports, related services and the common core curriculum. (t. 129, 133, 319, 323,

329) objected to the recommendation of as the placement for the school year and filed the instant impartial hearing request later that same day. (Ex. III)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v.

Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). As noted by the State Review Office (“SRO”) in Application of a Student With A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010) In the case at hand, filed an impartial hearing request on which alleged that the CSE predetermined placement prior to the CSE meeting to discuss placement for the school year; denied an opportunity to meaningfully participate in the development of ’s IEP; denied the opportunity to meaningfully participate in the CSE meetings; failed to recommend an appropriate placement for the school year; and that the recommended placement is inappropriate. seeks a finding that the District, for the school year, failed to recommend FAPE in the least restrictive environment; that is not an appropriate placement; and that the CSE be ordered to recommend placement in an appropriate public school setting. The allegations of improper conduct and facts alleged all took place during theschool year and CSE meeting. There is no allegation in the impartial hearing request that was denied FAPE for school year. The impartial hearing request does not allege or reference anything that occurred during the school year. The scope of the hearing was delineated in the impartial hearing request and when, in the middle of the impartial hearing, the sought to expand the scope to include events that occurred after the filing of the impartial hearing request the District objected. The parties had the opportunity to submit memoranda and the question of expanding the scope was addressed on the record and testimony and evidence after the filing of the impartial hearing request was found to be outside the scope of the hearing. (see footnote 1)

I find that based on the evidence and testimony adduced at the hearing that the District has provided with FAPE for the school year in that the recommendation of the program was an appropriate recommendation, in the least restrictive environment, and was reasonably calculated to confer with an educational benefit.

The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The

SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School

Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act]

does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the “ ‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042.

the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583

(D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child’) An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep.

Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (internal citation omitted), cert.

denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential.

See Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially “everything that might by thought desirable by loving parents.” See Walczak, 142

F.3d at 132

The asserts that the was denied the opportunity to meaningfully participate in the CSE meetings and meaningfully participate in the development of IEP. There were CSE meetings at issue for the school year. The first held on was an annual review and the purpose was to determine the appropriate educational placement for the school year and develop an IEP for the upcoming school year. The attended the meeting with an educational advocate and was given an opportunity to give input on placement and at that time agreed to explore an placement. The next CSE meeting to determine placement for the school year was held on . The attended the meeting with an educational advocate and attorney. The record reflects that the and representatives had the opportunity to meaningfully participate. While the advised that would let attorney speak for , the attorney and the educational advocate were active participants in the meeting discussing goals, suggesting an interim placement and reacting to a proposed placement.

It is the contention that the root cause of behaviors during the school year were the result of a and that advised the District of the issue. The also testified that did not see the type of behaviors that was engaging in at school in the home. The testified that the. then told teachers, in, that was moving and did not have to do the work. (t. 700-03, 716-20) The argues that was “barred” by the District from discussing the however the record does not reflect that. (t. 727-28, 730-31,

755-56, Ex. VI) The record reflects that the District was aware of the and that such an issue can effect a child’s behavior but that they did not believe that to be the cause of negative behaviors.

The argues that CSE team continued to recommend the placement despite the objection to it.

The testified that had done research in to the program and spoken to a about the program. came to the conclusion that the program was inappropriate for because it was a program for students with which did not believe had. There was no testimony or documentation offered regarding

(identified only as a, and was involved in life for about..”) or the nature of the research in. (t.

732) There was no testimony regarding when had last seen or what, if any, knowledge regarding the behaviors being displayed in school during the school year.

The also relies heavily on the testimony of). testified extensively, as an expert, on behalf of thet. was first contacted by the at the end of and met for the only time at home and in the presence of for minutes on .[14] testified that prior to meeting and had reviewed the documentation provided to by the . Despite stating in report that “will be recommended..” did not contact and based that information solely on the report of . When asked why did not contact the or do a home visit with replied that it was because did not request to. In addition, notes that had been diagnosed with an though this is not supported by any of the documentation which lists in report as having been relied on. (t. 639, 1016-19, Ex. A) It is uncontested that did not perform any evaluations nor had spoken with anyone in the District regarding and the school year. (t. 1022-28) It is interesting to note that only incident reports which were prepared by District staff regarding behavioral incidents were referenced in report. In addition, testified that had attempted to contact the District to do an observation of and was told that would not be able to do so. testified that notified the in early that was not given permission to do an observation at the school and was not advised by the that had been offered access for to speak to the and for the school year. testified that if had known that had the option of talking to the and would have absolutely done so. Interestingly then testified that even if had known had the opportunity to speak to staff for the school year and done so it would not have changed opinion. (t. 662-64,

1024, 1067, 1069-70) While testified extensively and was generally informative on a number of subjects I decline to give testimony more than minimal weight. While testified about the flaws and failures of the District personnel regarding foundation for that opinion was sparse. The information relied on in preparing the report was based on the reports of the and a handful of documents, did no evaluations of , spent only minutes with on one occasion and all of that minutes was in the presence of the . The court in Sebastian M. v. King Philip Reg’l Sch. Dist.,

112 LRP 36759 (1st Cir. 2012) disregarded the testimony of the parent’s neuropsychologist, as she did not speak with the student’s teachers or review his schoolwork, and her opinion was based on two evaluations, a review of the student’s academic records, and a single observation of the student’s performance in his public school placement. In the case at hand relied on significantly less information regarding when forming opinion.

The IDEA requires that a students recommended program must be in the least restrictive environment (“LRE”) as set forth in 20 U.S.C. §1412 (a)(5)(A). A review of that section reveals that the state must ensure the LRE to the maximum extent possible but recognizing that this is not always possible, but preferable, and that a more restrictive environment may occur when the nature and severity of the disability cannot be met in a less restrictive environment. “Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent to the student’s needs..” TM ex rel AM v. Cornwall Cent. School Dist., 752 F.3d 145 (2d Cir. 2014) There is no question that the District has the obligation to consider the request to keep the student in a District placement but they were not obligated to do so if the programs and services available would not be adequate to provide FAPE. The Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. P. v. Newington Bd. Of Educ., 546 F.3d 111, 119-20 (2d Cir. 2008) citing Oberti v. Clementon, 995 F.2d 1204, 1217-18 (3rd Cir. 1993) The record is clear that the District made many efforts to keep in classroom despite deteriorating behaviors. A TA was hired with the express purpose of keeping safe by shadowing . A was added to IEP in order to work with and the staff as well as to do a new FBA and BIP. In addition, changes were made to mandate removing the group session and replacing it with an individual session. While, ultimately the new FBA and BIP were not done by the end of the school year the record reflects that the District took many proactive steps to address negative behaviors and to keep safe and those around safe. Further, the District was reliant on receiving consents to perform the FBA back from the . The consent of was received by mid- but the consent of the was not received until mid-. Even with the issue of the received the consent form and by own testimony usually received such mail in in which case would have received the consent by mid- and yet it was not signed and mailed back until . (t. 710-15, 1112-18, Ex.

13, 14) It is clear that by the that was not making any academic progress and that behaviors were interfering with ability to learn. The was, in the absence of any other immediate alternative, an effort by the District to as well as those around . The District attempted to transition back in to or in to a small group but were unable to so due to behaviors. By the latter part of was essentially in program as behaviors did not allow back into the and the presence of

TA’s was required to keep safe as well as those around . The is the LRE for as it addresses behavioral needs as well as academic needs.

The had agreed to explore placements at the CSE meeting. It was the consensus of the committee that negative behaviors were too intense for and that needed a more restrictive placement for the school year. In was accepted in to the program. At the CSE meeting held on the CSE met to discuss the program, consider the concerns, and consider whether to recommend that attend the placement after reviewing progress, needs and behaviors over the school year.

In P.K. ex rel. P.K. v. Bedford Cent. School Dist., 569 F. Supp. 2d 371 (2008) the court found that “The fact that the District staff ultimately disagreed with the opinions of plaintiffs and their outside professionals does not mean that the plaintiffs were denied the opportunity to participate in the development of the IEP’s, or that the outcomes of the CSE meetings were ‘predetermined.’

A professional disagreement is not an IDEA violation.” The Sixth Circuit in Deal ex rel. Deal v

Hamilton County Bd. Of Educ., 392 F.3d 840 (6th Cir.2004) cert. denied, 546 U.S. 936, 126 S.Ct

422, 163 L.Ed2d 321 (2005) held that the plaintiffs were denied meaningful participation in the IEP process because the school district “never even treated a one-on-one ABA program as a viable option.” Id. At 858. The Second Circuit has expressly distinguished Deal, holding that “the school district [in Deal] had consistently rejected parent requests for intensive ABA and told the parents that ‘the powers that be’ were not implementing such programs.” T.P. ex rel.

S.P v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247 (2d Cir. 2009) at 253 (quoting Deal, 392 F.3d at 855-56). The Second Circuit revisited the issue of predetermination, finding that the proper inquiry was whether a school district categorically refused to consider various programs or settings. M.H. v. New York City Dept. of Educ., 685 F.3d 217, 256-257 (2012)

In the instant case the record reflects that the District and and their representatives had each fully participated in the CSE meetings and the fact that they did not agree as to what the most appropriate program was not, as noted above, a violation of the IDEA. The CSE discussed the options available in the District and agreed to explore out-of-district placement. Both parties had the opportunity to discuss what they felt was the best placement for and the reasons behind it.

The consensus of the CSE was the was the appropriate placement.

I find that the testimony of the Districts witnesses is credible. I found the testimony of to be clear, concise and convincing. I also credit the testimony of . In addition, the vast majority of the testimony of the Districts witnesses has not been contradicted, rebutted or refuted. The District witnesses showed a clear understanding of performance and what programs and services that required and that the recommendation of was a consensus of school professionals based on the information available to them at the time of the CSE meeting . The presented no witness that contradicted the testimony of the Districts witnesses. The asserts that the chose to present only administrative staff, rather than the teachers and TA’s that actually worked with because the administration wanted out of the District. I am not persuaded by this argument nor is it supported in the record. I find the testimony of the Districts witnesses revealed a thorough knowledge of needs and were witness to many of behavioral incidents. In addition, it is not clear that could be considered “administration”.

The testified extensively and was clear that it was view that the source behaviors was the ongoing. And that was encouraging bad behavior by giving In view the goal of was to and the District did not take in to account the was having on . (t. 716-20, 729, 742-43,

872) also seemed to believe that the District was by sending, when they should have maintained school. (t. 914-15) It is also clear in his testimony that felt that the District was inflating the high level of behavior that was engaging in. At one point it appeared that believed that the District was untruthful about behavior. (t. 865-67) The was unable to recall an incident which occurred on in which presented with high level behaviors, lasted for one hour in which was present for the entire one-hour period. (t. 891-92) In addition, the was advised, via email (copied to attorney), that the District staff would be made available to speak with was not advised of this. (t.

1104-05, Ex. 19) While I do not have any doubt that the wants the best for I find that testimony was unclear or unreliable for the most part. The appears unable or unwilling to believe that the source of behavior issues might be something wholly apart from the custody issue. That view is not supported by the record.

In view of the foregoing I find that the District has provide FAPE for the student for the 2015-2016 school year in that the recommendation of the BOCES program was an appropriate recommendation, in the least restrictive environment, and was reasonably calculated to confer with an educational benefit.

Therefore, it is hereby ordered that the Parent’s Impartial Hearing Request is dismissed.

Dated:

___________________________________

, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be 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. The petition for review shall be served upon the school district 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.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

1. District

2. District

3. District

4. District

5. District

6. District

7. District

8. District

9. District

10. District

DOCUMENTATION ENTERED INTO THE RECORD ON

11. FOR IDENTIFICATION ONLY District

12. District

13. District

14. District

15. District

16. District

DOCUMENTATION ENTERED INTO THE RECORD ON

A. Parent

I. IHO

II. IHO

III. IHO

IV. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON

B. Parent

C. FOR IDENTIFICATION ONLY Parent

D. FOR IDENTIFICATION ONLY Parent

E. Parent

F. Parent

G. Parent

H. Parent

17. FOR IDENTIFICATION ONLY District

DOCUMENTATION ENTERED INTO THE RECORD ON

C. Parent

D. Parent

I. Parent

17. Parent

18. District

19. District

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

V. IHO

VI. IHO

VII. IHO

Footnotes

[2] On a CSE meeting was held as a and on the Individualized Education Program (“IEP”) is classified as “”. (Ex. 4) In the other IEP’s (including CSE meetings held on and ) entered in to evidence (Ex. 3, 5, and 10) is classified as and this was not an issue at the hearing.

[3] were and in a regarding during the school year. The had of and the had . The obtained (t. 700, 715-17, 797) The staff at the school was aware of the acknowledged that it could have an . (t. 147-49, 359)

[4] The testified that had been the day before and were still up from . The makes an assumption that wanted to to . This assumption is not supported in the record. (t. 745-46)

[5] The IEP indicates as being present at the CSE meeting. testified that this is an error and was not present at that meeting. (t. 74, Ex. 5)

[6] Though was not present at the CSE meeting testified that, spoke to after the meeting to explain how the would be used and that neither objected. (t. 101)

[7] TA’s were hired specifically to work with under the supervision of. is certified as both a teacher. is a teacher who was working towards certification as a teacher. TA’s are instructional personnel and while they cannot introduce a new topic they can re-teach and pre-teach. (t. 299, 1097-98)

[8] testified that would be called if the behavior lasted longer than 30minutes. (t. 183) called to pick up was dependent on who had on a particular day. (t. 73)

[9] The is not a Time Out Room as defined in Commissioner’s Regulation §200.22(c) as “…an area for a student to safely deescalate, regain control and prepare to meet expectations to return to his or her education program..” testified that a time out room is a padded room that is part of a strict behavioral procedure and going to the time out room is the consequence of behavior. If a student engages in aggressive behavior they go in to a time out room and don’t come out until they are calm and quiet. No one talks to them they just regulate themselves. (t. 476-78)

[10] There was a great deal of testimony by regarding. testified that he had and notified the District in. testified that He testified that he told the District. The consent for an FBA was. (t. 710-715, 1112-18, Ex. F) the District, testified that an Districts records until all necessary paperwork is received and in the case of. (t. 1079-82, Ex. 18)

[11] Hereinafter refers to the program at the .

[12] The left halfway through the CSE meeting and barely spoke while was present. (t. 1102)

[13] It is unclear if saw the type of behaviors at home that was showing in school. It was testified that the said virtually nothing at the CSE meeting and left halfway through. (t. 1102)

[14] It should be noted that by the time Dr. met with and his father there had been 4 impartial hearing dates.