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In the Matter of the Impartial Hearing of [Student], by [Parent], his parent, IHRS Case
ID. No. 93378
Petitioner,
-against-
[REDACTED] [REDACTED] CENTRAL SCHOOL DISTRICT,
Respondent.
A Hearing Under the Individuals with Disabilities Education Improvement Act, 20 United States Code Section 1415, and New York State Education Law, Article 89, Section 4404 X
FINDINGS OF FACT AND DECISION
Mindy G. Wolman,
Impartial Hearing Officer
Law Office of Mindy Wolman
221-59 59th Avenue, Second Floor
Bayside, New York 11364
(718) 279-3142
Record Close Date: July 5, 2016
Decision Issued: July 22, 2016
Decision Corrected/Amend: July 27, 2016 Matter of [Student] v. [REDACTED] [REDACTED] Central School District
On October 21, 2015, [Parent], the parent (the “Parent”) of [Student] ( the “Student”), filed a filed a due process complaint (the “Due Process Complaint,” DPC,” or “Complaint”) ( IHO Exh. I), against the [REDACTED] [REDACTED] Central School District (“ [REDACTED] [REDACTED] ” or “District”) under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §1415 and§ 4404 of the New York State Education Law. I was appointed as Impartial Hearing Office (“IHO”) on October 27, 2015 (IHO Ex. II). The District responded to the due process complaint on October 29, 2015 (IHO Ex. III). The DPC was amended by an email and attachment sent by the Parent on November 3, 2015 (IHO Ex. VII).
On November 2, 2015, the District filed a motion to dismiss the complaint (the “Dismissal Motion”) (IHO Exh. IV). The Parent filed a reply to the Dismissal Motion on December 2, 2015 (IHO Ex. V). The District’s motion to dismiss was denied on January 4, 2016 (IHO Ex. IX). A pre-hearing conference in this case was held on January 13, 2016. Substantive hearings went forward on March 16, 2016, March 21, 2016, March 28, 2016, March 30, 2016, and April 6, 2016.
At the time that the Complaint was filed, another due process complaint regarding the Student was pending, before IHO [REDACTED] against the New York City Department of Education. IHO [REDACTED]
dismissed that case and the Parent appealed the matter to the State Review Officer (“SRO”). In a decision issued on March 18, 2016, the SRO modified IHO [REDACTED]’s decision and reversed it in part (IHO Ex. XIII). Since the case in the [REDACTED] [REDACTED] Central School District was still pending before me, the SRO remanded the matter to me, with the provision that if I were either unavailable or declined to hear the matter upon remand, the matter would be remanded to IHO [REDACTED] (IHO Ex. XIII at 22). The SRO directed that I would be “accorded the discretion to determine whether to hear this matter [the remanded action] in parallel with the other proceeding [the [REDACTED] [REDACTED] CSD case], to conduct a joint hearing with separate timelines on each due process complaint notice, or to consolidate this matter into the [REDACTED] [REDACTED] proceeding and issue a single decision (IHO Ex. XIII at 21). In an interim order issued on April 7, 2016, I found that consolidation or joint hearings would not be appropriate and directed that the two actions proceed as separate proceedings with separate hearings and separate decisions (IHO Ex. XVI). I further ruled that “[t]he decision in each case will be based solely on the Hearing Record in each individual case” (IHO Ex. XVI at 4).
Lists of the persons who appeared at the hearings held in this proceeding and the documentary evidence submitted are appended to this decision and order. Both parties submitted post-hearing briefs in this proceeding Matter of [Student] v. [REDACTED] [REDACTED] Central School District (IHO Exs. XVIII and XIX). The compliance date for issuing a decision in this case has been extended (IHO Exs. X, XI, XV, AND XVII).
BACKGROUND AND POSITIONS OF THE PARTIES
[Student] is a twenty year-old male student who is classified as a student with a disability having [REDACTED] (District Exs. 4 and 22). The Student was previously classified as a student with a disability having an [REDACTED] (District Ex. 7) and as a student with a disability having an [REDACTED] (“[REDACTED]”) (District Ex. 6). His eligibility for classification as a student with a disability and his eligibility for special education supports and services are not in dispute. There is, however, a dispute about which disability category is appropriate for the Student. His emotional, educational, functional, and custodial history is long and complex, and has been the subject of much contention in this proceeding. Although I need not issue any rulings on events that occurred prior to the Student’s enrollment in the District, his history is important for an understanding of his more recent functioning and special education needs.
Although the Student was born in the United States, he moved to Israel with his mother at the age of three. According to the Student’s mother and Dr. [REDACTED] (a [REDACTED] from Israel), both of whom testified at the hearing, the Student was developmentally normal and had age-appropriate communication, social skills, behavior, and academic function until the age of twelve or later. He was reportedly doing well in school and making progress until that time. According to his mother, the Student expressed an interest in Tibetan Buddhism and meditation at the age of twelve. The Parent took him to Tibet in order to learn to speak Tibetan and to study meditation. The Student engaged in intensive meditation in Tibet and developed a condition known as [REDACTED], which, according to the Parent, is a “trance state following intense meditation” (Tr. 1331). The condition was diagnosed by two doctors and Tibet, and the Parent followed their instructions regarding treatment (“it’s primarily treated through play and social interaction in an environment that’s nourishing for the emotions”) (Tr. 1331-1332).
According to the Parent, Tibet was closed to foreigners in February of 2009. The Parent took the Student back to Israel which she thought would be ideal in terms of treating [REDACTED] (Tr. 1332). A neurologist and pediatrician in Israel recommended that the Parent take the Student to a [REDACTED] emergency room (Tr. 1334). The Parent consented to the Student’s admission to the [REDACTED] hospital (Tr. 1335), however he was retained in the hospital substantially longer than the Parent agreed to. He had an adverse reaction to the [REDACTED] medications he was given, and developed [REDACTED] syndrome (Tr. 1335).
Dr. [REDACTED], who examined the Student in the hospital in 2009, hospital, diagnosed him as Matter of [Student] v. [REDACTED] [REDACTED] Central School District having [REDACTED] syndrome, which is an extreme form of [REDACTED] (Tr. 1050-1052; 1055). Dr.
[REDACTED] testified that at the time of his 2009 examination, the Student was “almost entirely noncommunicative” (Tr. 1053). “[Student] was in extraordinary pain, because he was suffering from muscle spasms in most of the central part of his body, and that was the result of some medications that were changed in a way that was harmful” (Tr. 1053).
The first hospitalization in Israel lasted four months, and was followed by a series of other involuntary placements. The Parent testified about four different institutionalizations in Israel (this was also addressed in various documents introduced into evidence in this proceeding). In addition, the Student was [REDACTED][REDACTED][REDACTED][REDACTED][REDACTED] in Israel.
In January of 2012, the Parent brought the Student back to the United States (Tr. 1343). The Student had another [REDACTED] hospitalization, starting on June 2, 2012 (Tr. 1344). The
[REDACTED][REDACTED][REDACTED][REDACTED][REDACTED][REDACTED][REDACTED][REDACTED][REDACTED][REDACTED][REDAC
TED][REDACTED][REDACTED] (“[REDACTED]”) on or about June 20, 2012 (Tr. 1344). The Student was released from the hospital over [REDACTED]’s objections on March 5, 2013, at which time he was placed in an emergency [REDACTED][REDACTED] in Manhattan (Tr. 1345). The Student remained in the emergency
[REDACTED][REDACTED] until January of 2014, at which time [REDACTED] placed him at the [REDACTED]
Family of Services (“[REDACTED]”) [REDACTED] Children’s Center (“[REDACTED] ”) in [REDACTED], New York. The [REDACTED] is variously referred to by the parties as
[REDACTED]/[REDACTED], the [REDACTED], the [REDACTED] [REDACTED], the [REDACTED]
[REDACTED] (“[REDACTED]” being the acronym for [REDACTED][REDACTED][REDACTED] or
[REDACTED][REDACTED]. Children who are placed at [REDACTED] usually attend the [REDACTED]
Learning Center (“[REDACTED]”), a NYS approved nonpublic school (“NPS”) on the grounds of [REDACTED], unless they cannot be placed at [REDACTED] (the school is inappropriate for them) or they would benefit from placement in the local school district. [REDACTED] and [REDACTED] are geographically located within the [REDACTED] [REDACTED] CSD. The [REDACTED] placement was a residential, not educational, placement.
And this brings us to the time period and events that are at issue in this proceeding. The Student was enrolled in the District (by his [REDACTED] caseworker) on February 6, 2014 (District Exs. 1 and 2), but the Parent was not advised of the enrollment until February 10, 2014 (Tr. 1369). Prior to enrollment in the District, the Student was enrolled in the New York City (“NYC”) Department of Education Matter of [Student] v. [REDACTED] [REDACTED] Central School District
(“DOE”). The NYC DOE’s Committee on Special Education had classified the Student as a student with a disability having an “[REDACTED]” and recommended that the Student be placed in a New York State Education Department (“NYSED”) approved nonpublic school (“NPS”) day program (District Exh. 6). [1] The DOE’s Central Based Support Team (“CBST”) submitted an application for the Student’s admission to the [REDACTED] School (“[REDACTED]”). Prior to the Student’s enrollment in the District, the Parent had obtained the [REDACTED]’s permission to bring the Student to [REDACTED] as part of the application process. The Student was driven to [REDACTED], along with the Parent, a social worker and a child care worker, on February 7, 2014 (Tr. 1366-67). The Student was accepted at [REDACTED] on February 7, 2014 (IHO Ex. I at 4). As noted above, the Student’s enrollment in the District had been effective as of February 6, 2014, which was the day before the [REDACTED] visit and the Student’s acceptance at the school.
The Student could not be educationally placed at [REDACTED] because the NYC CSE had changed his classification to [REDACTED], and [REDACTED] is not approved for students with that classification. The issues that I am called upon to rule on pertain to the involvement of the [REDACTED]
[REDACTED] Central School District, starting from his February 6, 2014 enrollment in the District.
The District began to provide the Student with home instruction shortly after his enrollment in the District. The District’s Committee on Special Education (“CSE”) convened a CSE meeting on March 6, 2014 and prepared an Individualized Education Program (“IEP”) that classified the Student as a student with a disability having [REDACTED] and recommended that he be placed in a [REDACTED] special class at [REDACTED], with individual and group [REDACTED] therapy and group [REDACTED] as related services (District Ex. 4). The District submitted an application for placement to [REDACTED] on March 17, 2014 (District Ex. 19 at 1), and [REDACTED] rejected the Student on April 15, 2014 (District Ex.[20] at 3). The District submitted applications to [REDACTED] of Nassau County (“[REDACTED]”) and to the [REDACTED] Center for Children’s Services/[REDACTED] (“[REDACTED]”) on April 9, 2014
(District Exs 19 at 2 and 3). [REDACTED] and [REDACTED] also rejected the Student (see District Ex. Matter of [Student] v. [REDACTED] [REDACTED] Central School District for that placement remain a source of contention (with disputed facts) between the parties. The District contends that its involvement and responsibility for the Student ended when he began to attend [REDACTED] (May 15, 2014). On July 21, 2014, the [REDACTED] CSE prepared a new IEP for the Student (District Ex. 22). As of the filing of the due process complaint in this proceeding, the Student was still enrolled in and attending [REDACTED].
The Parent contends that the District retains responsibility for the Student and requests, inter alia, that the District be directed to place the Student at the [REDACTED] Children’s School (“[REDACTED]”). The Parent rejects the District’s contention that it has no more responsibility for the Student and that it has no authority to convene a CSE meeting, prepare and IEP, and arrange for an appropriate placement.
The DPC (IHO Ex. I), as amended by the submission of additional documentation (see IHO Exs. VII and VIII), asserts that the Student has no history of a developmental disability, that he is currently placed in a school that “does not fit” his prior NYC IEPs, that the District should have placed the Student at [REDACTED] in 2014, that his current placement at [REDACTED] is inappropriate, and that the Student is incorrectly classified as having [REDACTED] (IHO Ex. I at 2). The due process complaint requests that the Student be immediately placed at [REDACTED], that the placement be for a two year period (until the Student reaches the age of 22, and that “in accordance with U.N. October 10, 2015 Special Rapporteurs Statement, non-consensual placement should end” (IHO Ex. I at 2). A copy of the special rapporteurs’s statement was annexed to the due process complaint (IHO Ex. I at 42-44). In her post-hearing brief, the Parent disputes the [REDACTED] classification, argues that the Student does not have [REDACTED] [REDACTED] or any form of [REDACTED] [REDACTED] , and asserts that she has standing in this proceeding. The Parent makes a wide variety of allegations about the manner in which the District handled the Student’s educational program and placement. She maintains that the District continues to have educational responsibility for the Student and takes the position that the Student should continue to be considered a [REDACTED] [REDACTED] school district student. She also argues that [REDACTED] is not a child care institution (“CCI”), but is instead a residential treatment center (“[REDACTED]”) or an agency or group home.
The District challenges my jurisdiction in this proceeding and argues that it does not have the authority to place the Student at [REDACTED]. It asserts that its educational responsibility to offer the Student a FAPE ceased once he was placed at [REDACTED]. It also argues that its CSE appropriately classified the Student as a student with a disability under the [REDACTED] category and that its CSE appropriately rejected the [REDACTED] placement based on distance, the least restrictive environment Matter of [Student] v. [REDACTED] [REDACTED] Central School District
(“LRE”), and the lack of a [REDACTED] on staff at [REDACTED].
The parties’ respective arguments, testimony, and documentary evidence will be addressed more fully below.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE (8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)). Since this proceeding does not involve a tuition reimbursement claim, the District has the burden of proof on all IDEA issues. Standing
As a preliminary matter, I find that the Parent has standing to bring this action. Despite the fact that the Student was [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]
[REDACTED] [REDACTED] [REDACTED] [REDACTED] of the [REDACTED] of
[REDACTED], the Parent maintained parental rights (see District Ex. 1). There is nothing in any of the [REDACTED] documents that would suggest that parental rights had been terminated or that the Parent’s right to participate in educational decision-making had been taken away or limited (see District Exs. 3 and 29). In fact, the Parent continued to have [REDACTED] with the Student and the [REDACTED] had [REDACTED] a “ [REDACTED] of [REDACTED] to [REDACTED] ” (District Ex. 3). The appointment of a [REDACTED] Guardian Ad Litem (District Ex. 29) did not negate the Parent’s rights under the IDEA. The NYS regulations provide that “[a] parent or school district may file a due process complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability . . . or the provision of a free appropriate public education to such student” (8 NYCRR 200.5(i)(1). This proceeding clearly relates to the identification (the Parent contests the Student’s disability category), the evaluation (the Parent disagrees with certain evaluation results and the interpretation of and Matter of [Student] v. [REDACTED] [REDACTED] Central School District weight given to the evaluations by the CSE) and the educational placement (the Parent requests that the Student be placed at [REDACTED]) of [Student], who is undisputably a student with a disability. And it relates to the provision of a FAPE to the Student.
The Commissioner’s Regulations also provide an extensive and detailed definition of the term “parent”:
(ii) (1) Parent means a birth or adoptive parent, a legally appointed guardian generally authorized to act as the child’s parent or authorized to make educational decisions for the child; a person in parental relationship to the child as defined in Education Law, section 3212; an individual designated as a person in parental relation pursuant to title 15-A of the General Obligations
Law including an individual so designated who is acting in the place of a birth or adoptive parent (including a grandparent, stepparent, or other relative with whom the child resides); or a surrogate parent who has been appointed in accordance with section 200.5(n) of this Part. The term does not include the State if the student is a ward of the State.
(2) A foster parent may act as a parent unless State law, regulations or contractual obligations with a State or local entity prohibit the foster parent from acting as a parent.
(3) Except as provided in paragraph (4) of this subdivision, when one or more than one party is qualified under paragraph (1) of this subdivision to act as a parent, the birth or adoptive parent must be presumed to be the parent unless the birth or adoptive parent does not have legal authority to make educational decisions for the student.
(4) If a judicial decree or order identifies a specific person or persons to act as the parent or make educational decisions on behalf of the student, then such person or persons shall be determined to be the parent for purposes of this Part, except that a public agency that provides education or care for the student, or a private agency that contracts with a public agency for such purposes, shall not act as the parent. 200.1(ii).
There has been no judicial decree or order that identified any specific person or persons to act as the parent or make educational decisions on behalf of the Student. It is also clear, from the plain language of the Regulation, that neither a public agency that provides care for the Student (such as [REDACTED]) nor the State, if the Student were deemed to be a ward of the State, would qualify as a “parent” for the purposes of filing an IDEA due process complaint. Thus, even after [REDACTED] [REDACTED] [REDACTED] [REDACTED] and the appointment of GAL in [REDACTED], the Parent continued to fall within the category of individuals who may file a due process complaint under the IDEA and Article 89 of the New York State Education Law (“Article 89"). The Parent therefore has the standing to bring this proceeding. Matter of [Student] v. [REDACTED] [REDACTED] Central School District
I further note that even if the Student’s [REDACTED] GAL, or another individual, had been appointed as a GAL in this proceeding, the Parent would have continued to have all due process rights (including standing) in this proceeding (8 NYCRR §200.5(j)(3)(ix)). The Parent, who is the Student’s birth parent, therefore continues to have all due process rights afforded to parents under the IDEA and Article 89, including the right to file a due process complaint. IHO Jurisdiction
In its post-hearing brief, the District asserts that “the Impartial Hearing Officer lacks jurisdiction to grant the relief requested by the parent” (IHO Ex. XVIII at 1). However, the basis of that assertion was not elaborated upon in the District’s post-hearing brief. The major thrust of the arguments set forth in the brief was that the Parent wasn’t entitled to the relief requested and that the District did not have the obligation to offer a FAPE at any time after the Student was placed at [REDACTED].
The District had previously sought dismissal of the DPC based upon the Parent’s failure to serve the DPC upon the [REDACTED] chief executive officer, and based upon the assertion that the District had no authority (jurisdiction) to make any placement decisions for the Student for the 2014-2015 and 2015-2016 school years (IHO Ex. IV). The motion did not include a specific challenge to my jurisdiction in this proceeding, nor did it deny the District’s authority and responsibilities during the 2013-2014 school year (the Student was enrolled in the District as of the middle of that school year).
In denying the motion to dismiss (IHO Ex. IX), I noted that many of the allegations contained therein involved the resolution of factual issues that could not be resolved in the context of a motion to dismiss. The crux of the disputed issues of fact in the motion to dismiss (and the Parent’s opposition thereto) went to whether the Student was residing in a CCI and whether or not the provisions of 8 NYCRR section 200.11(c) applied (see IHO Exs. IV, V, VI, and IX). The CCI and Regulation 200.11(c) issues were not raised in the District’s post-hearing brief, and are therefore, presumably, waived. Instead, the District’s post-hearing brief primarily addressed the District’s actions during the time period that covered the Student’s enrollment in the District and the Student’s May 15, 2014 enrollment at [REDACTED], together with its assertions that the District had no obligation to make any placement recommendations for the 2014-2015 and 2015-2016 school years and that there are, in fact, no District recommendations for me to review for those two school years.
As such, there is no jurisdictional dispute for me to address in this decision. Instead, I will focus on the substantive aspects of each of the parties’ claims. Matter of [Student] v. [REDACTED] [REDACTED] Central School District
Even if the CCI/Section 200.11(c) issues were not deemed to have been waived, the issues would not warrant a finding that I have no jurisdiction (or that the Parent has no standing). This proceeding raises FAPE issues and relates to the identification, evaluation and educational placement of the Student, and the DPC was filed by an individual who falls within the regulatory definition of “parent.” These factors are sufficient to confer jurisdiction upon me and standing upon the Parent. The Parent did not follow the Section 200.11(c) procedures because the District failed in its obligation to notify her of those procedures.
Since the prior written notice sent to the Parent on March 6, 2014 referred to having provided the Parent with a copy of the mandated “Procedural Safeguards Notice” (District Ex. 5), I will assume that the notice was in fact provided. However, the Procedural Safeguards Notice form mandated by the regulations does not include any reference to the Section 200.11(c) requirements.[2] Instead, it refers to the requirements that were followed by the Parent (filing the DPC with the District). The notice that districts are required to give under 200.11(c) goes above and beyond the requirements of a district’s obligation to provide parents with the Procedural Safeguards Notice.
The District should not be permitted to utilize the provisions of 200.11(c) to avoid liability in this proceeding (by challenging jurisdiction or parental standing) because the Parent’s lack of knowledge about the procedures was due to the Parent’s apparent reliance on the procedures set forth in the Procedural Safeguards Notice sent by the District and due to the District’s failure to provide the Parent with the additional notice that it was required to provide her with pursuant to 200.11(c). I note that the District has cited no federal IDEA statute or regulation which would have deprived the IHO of jurisdiction or the Parent of standing in this proceeding. [3] The 2013-2014 School Year The Parent raises a wide variety of issues regarding the manner in which the District handled the Matter of [Student] v. [REDACTED] [REDACTED] Central School District
Student’s enrollment in the District, about the March 6, 2014 CSE meeting, about the recommendations made by the CSE (including the Student’s classification), about the actions taken after the CSE meeting, and about what she asserts was the District’s referral of the Student to [REDACTED].
As noted above, the District has the burden of establishing that it provided the Student with a FAPE. In order to provide FAPE, a CSE must develop an IEP which reflects the results of current evaluations and which is reasonably calculated to allow a student to receive meaningful educational benefits. In developing a student’s IEP, the CSE “must consider the results of the [student’s] initial or most recent evaluations” (8 NYCRR 200.4(d)(2)). A school district is obligated to perform an evaluation that is “sufficiently comprehensive to identify all of the student's special education needs” (8 NYCRR 200.4(b)(6)(ix). It must utilize “technically sound instruments” to “assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors” (8 NYCRR 200.4(b)(6)(x). The purpose of the comprehensive evaluation is to “provide relevant information that directly assists persons in determining the educational needs of the student” (8 NYCRR 200.4(b)(6)(xi). An evaluation must include a physical examination, a psychological evaluation, and educational evaluation, a social history, a classroom observation and “other appropriate assessments or evaluations” (8 NYCRR 200.4(b)(1).
Since the DPC did not address the scope and comprehensiveness of the District’s evaluations, the only issues I need address regarding the Student’s evaluations are whether the CSE adequately considered the Student’s initial or most recent evaluations and whether or not the CSE’s recommendations were in fact based on those evaluations. I must also determine whether the CSE’s recommendations (program, classification, and placement) were appropriate and reasonably calculated to enable the Student to make meaningful education progress.
When the Student was initially enrolled in the District on February 6, 2014, the District initiated home instruction for the Student because it determined that there were no in-district programs that would be appropriate for the Student. There is no dispute about the fact that the Student requires an intense level of special education support and that his needs cannot be met in any of the programs available within the District.
As such, placing the Student on home instruction was reasonable and appropriate. The Student required
Matter of [Student] v. [REDACTED] [REDACTED] Central School District special education instruction, and home instruction was an appropriate means of providing him with that instruction pending further review by the CSE.
I note that the Parent maintains that another placement was available (instead of home instruction) because [REDACTED] had accepted the Student on the day after he was enrolled in the District. However, even assuming, arguendo, that the District knew of the [REDACTED] acceptance letter as of the time that it initiated home instruction, the decision to initially provide home instruction rather than place the Student at [REDACTED] was reasonable and appropriate under the circumstances. At that point in time, the District had limited information about [REDACTED]. Moreover, its CSE had not yet had the opportunity to review the Student’s evaluations or convene a CSE meeting as part of the program development and placement process. Not only would the District have been remiss to immediately place the Student at [REDACTED], it would have been a violation the procedures set forth in the IDEA and Article 89 (and of the federal and state regulations) to have placed him at the school without going through the CSE review process. As such, I find no fault in the District having placed the Student on home instruction upon his enrollment in the District.
On March 6, 2014, the District’s CSE changed the Student’s disability classification from “[REDACTED]” to “[REDACTED].” The [REDACTED] classification was based on the CSE determining that the Student could be classified under both the [REDACTED] disability category and the [REDACTED] [REDACTED] category. The Parent maintains that the [REDACTED] classification was inappropriate because the Student does not have an [REDACTED] [REDACTED] , and because the change in classification was for the sole purpose of placing the Student at [REDACTED] (although [REDACTED] cannot accept a student with an [REDACTED] classification, it can accept a student with a [REDACTED] classification). The Parent contends that the Student was appropriately classified as having an [REDACTED]. However, she doesn’t identify the precise nature of the Student’s specific [REDACTED].
The District maintains that the [REDACTED] classification was appropriate (and that it is, in fact, the only appropriate classification for the Student). It asserts that the Student cannot be classified as having an [REDACTED].
I find no evidence to support the Parent’s contention that the CSE changed the Student’s classification to [REDACTED] for the sole purpose of placing him at [REDACTED]. After the March 2014 CSE meeting, the CSE filed a placement application with [REDACTED] (on March 17, 2014) and, several weeks later, with [REDACTED] and [REDACTED] (on April 9, 2014) (District Ex. 19). The [REDACTED] and [REDACTED] Matter of [Student] v. [REDACTED] [REDACTED] Central School District applications were made promptly after the Student’s [REDACTED] rejection (District Ex. 20). The District’s suggestion that placement at [REDACTED] be reconsidered was not made until May 13, 2014 (District Ex. 21), which was a few weeks after [REDACTED] and [REDACTED] rejected the Student. If the sole purpose of changing the Student’s classification to [REDACTED] had been to refer the Student back to the [REDACTED] [REDACTED] for placement at [REDACTED], the District would have made that referral shortly after the CSE meeting rather than taking the time and effort to seek other placements. The District’s applications to [REDACTED], [REDACTED], and [REDACTED] therefore negate the Parent’s assertion regarding the District’s motive/intent in changing the Student’s disability category. Under the circumstances I find that the CSE’s decision to change the Student’s classification to [REDACTED] was based on its determination that the classification was appropriate, as opposed to being based on an intent to send the Student to [REDACTED]. The issue never-the-less remains as to whether the [REDACTED] classification is appropriate.
The relevant definitions are as follows:
[REDACTED] means concomitant impairments (such as [REDACTED]
[REDACTED] -blindness, [REDACTED] [REDACTED] -orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. 8 NYCRR Section 200.1(zz)(8)
[REDACTED] means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an
[REDACTED]. 8 NYCRR Section 200.1(zz)(4)
[REDACTED] [REDACTED] means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR Section
200.1(zz)(7)
Other health-impairment means having limited strength, vitality or Matter of [Student] v. [REDACTED] [REDACTED] Central School District alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance. 8 NYCRR Section 200.1(zz)(10)
In order to qualify for classification under the [REDACTED] category, a student must have two or more impairments, and the combination of the impairments must “cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments.” In this instance, the District maintains that the Student has two impairments: [REDACTED] and [REDACTED] [REDACTED] . The District also maintains that the combination of the two impairments cannot be accommodated in a special education program designed just for one of the impairments.
Although the Parent maintains that the Student should be classified as having an [REDACTED], there does not appear to be a major dispute as to whether he would appropriately classified as having an [REDACTED] (even though the Parent disagrees with several of the actual [REDACTED] and DSM diagnoses). District witnesses testified that the Student exhibits characteristics one, two, and three of the [REDACTED] definition (Tr. 164, 183-84, 506, and 723). His evaluations list several different [REDACTED] disorders (District Exs. 13, 14, 16), and it is apparent that he has exhibited these characteristics over a long period of time (starting after he returned to Israel from Tibet) and to a marked degree, and that these issues adversely affect his educational performance.
The District’s contention that the Student qualifies for an [REDACTED] classification under subparagraph (i) (“an inability to learn that cannot be explained by intellectual, sensory, or health factors”) is inconsistent with its assertion that he also has an [REDACTED] [REDACTED] , because an [REDACTED] [REDACTED] would mean that he has an inability to learn that can be explained by intellectual factors. The Student does, however, meet the criteria under subparagraphs (ii) and (iii) (“an inability to build or maintain satisfactory interpersonal relationships with peers and teachers” and “inappropriate types of behavior or feelings under normal circumstances”). As such, [REDACTED] is an appropriate disability category for the Student.
The Parent maintains that the Student cannot be classified as having an [REDACTED] [REDACTED] because he did not exhibit [REDACTED] [REDACTED] or low [REDACTED] [REDACTED] during the developmental period. She maintains that he was a normal, bright child until the Matter of [Student] v. [REDACTED] [REDACTED] Central School District difficulties that developed after the intensive meditation at the age of twelve and as a result of the inappropriate medications and forced hospitalizations after that time. The Parent also maintains that the existence of an [REDACTED] [REDACTED] is not supported by either cognitive testing or measures of adaptive functioning. The District asserts that the Parent did not prove that the Student had normal development, and that the only evidence of normal development is the Parent’s testimony (which the District apparently feels should be disregarded). The Parent also defines the developmental period as early childhood development (prior to the age of twelve, or even younger), while the District maintains that the developmental period continues until the age of eighteen.
The first problem with the District’s argument is that it is seeking to inappropriately place the burden of proof on the Parent to prove normal development. It is the District, not the Parent, who has the burden of proof in this proceeding. Thus, the Parent need not prove typical, normal development or average cognitive functioning and adaptive functioning. Instead, it is the District that must prove significantly subaverage general intellectual functioning and deficits in adaptive behavior. I seen no reason to doubt the Parent’s testimony about the Student’s development prior to the age of twelve. Moreover, it is supported by Dr. [REDACTED]’s report and testimony, which was based, in part, on visits to his school in Israel and conversations with his teachers (IHO Ex. I at 7, Tr. 1062). The testimony is also supported by the February 2011 [REDACTED] Diagnostic Center Report (District Ex. 11 at 4-6). In that report, the Diagnostic Committee concluded that the Student “functions on a level that is not [REDACTED] [REDACTED]” (District 11 at 6 and 7). Although the Diagnostic Committee may have been working with different diagnostic criteria and definitions, it none-the-less supports the contention that the Student did not have significantly subaverage [REDACTED] functioning as of February 2011.
That being said, the District is correct in its contention that its CSE must look at the Student’s [REDACTED] functioning as of the time that the CSE met in March of 2014. Moreover, based on the testimony of the District witnesses it is clear that the developmental period (for the purposes of DSM diagnoses and educational disability classification) continues until the age of 18. The issues that now plague the Student (whether they be deemed to be emotional, intellectual, or related to a physical/health condition) began to manifest themselves well before the age of 18. The question none-the-less remains as to whether the District has met its burden of proving that the Student actually has significantly subaverage [REDACTED] functioning and [REDACTED] functioning deficits. The problem is that most of the Student’s evaluations reflect that the evaluators were not able to assess his [REDACTED] functioning due to the Student’s lack of cooperation (District Ex. 11 at 5: “Due to lack of cooperation, it is not possible to examine [Student]’s cognitive functioning and his critical thinking process”) (District Ex. 13 at 7: Matter of [Student] v. [REDACTED] [REDACTED] Central School District
“[Student] handed the test material back to the examiner and testing was suspended”). Since the evaluations had to be discontinued, they cannot be used to objectively and conclusively establish the level of the Student’s cognitive functioning.
One of the Student’s evaluations listed an actual score report for the administration of the Stanford Binet Intelligence Scales, Fifth Edition (“SBIS-V”), even though the evaluator reported that “[Student] could not respond when most verbal responses were required of him” and “If the task was easy and [Student] could respond nonverbally then he would answer/respond in a reasonable period of time. If the task was too challenging or required more verbal communication than one word [Student] would repetitively say ‘later, later’.” (District Ex. 14 at 5 and 6). The Student’s lack of cooperation and the Student’s apparent refusal/inability to respond verbally to many of the questions causes me to call into question the reliability and validity of the SBIS-V administration results. I agree with the NYC CSE’s conclusion that the results of the November 2013 neuropsychological assessment (which included the aforementioned SBIS-V assessment) “should be interpreted with ‘EXTREME CAUTION’ as [Student] was not responsive to the testing, yet scores were reported nonetheless by the examiners with regards to intellectual functioning” (District Ex. 6 at 1).
The other problem with the November 2013 [REDACTED] evaluation (and with the July 10, 2013 [REDACTED] /[REDACTED] evaluation) (both of which were performed by the [REDACTED] [REDACTED] [REDACTED] Clinic) 5 was that the adaptive functioning assessment results (the Vineland Adaptive Behavior Scales - II) were based only on the responses given by the Student’s child protective specialist (District Ex. 13 at 7). When she thought that she didn’t know the answer, she asked his child care worker. The child care worker, who had daily contact with the Student, was not the primary respondent. The Parent, who probably had a better sense of the Student’s overall adaptive functioning than the child protective specialist, was not asked to respond to the Vineland. Once again, I am not convinced of the reliability/validity of an assessment relied upon by the CSE. While I have no doubt that the Student has adaptive behavior deficits at this point (certainly in the areas of communication and socialization), the better practice would have been to rely exclusively on the responses of someone who has a substantial amount of daily contact with the Student (which did not include his Child Protective Specialist).
Having reviewed the assessments of the Student’s cognitive functioning, I find that the conclusions contained in the reports were based more upon speculations and “impressions” rather than objective
The parties referred to these two reports as the “ [REDACTED] Reports.” Matter of [Student] v. [REDACTED] [REDACTED] Central School District standardized testing. As such, even though it may well be the case (and probably is) that the Student has cognitive delays, the CSE’s determination that the Student meets the classification criteria for having an [REDACTED] [REDACTED] were not based upon the type of reliable and objective standardized testing contemplated by the IDEA and Article 89. As such, the District did not meet its burden of proving that the Student should be classified as having [REDACTED] based on dual qualification of [REDACTED] and intellectual disabilty.
I turn now to the Parent’s contention that [REDACTED] is the appropriate disability classification for the Student. As noted above, the [REDACTED] classification requires “limited strength, vitality or alertness . . . that is due to chronic or acute health problems . . . which adversely affects a student's educational performance” 8 NYCRR Section 200.1(zz)(10). The Student cannot be classified as having an [REDACTED] because he has no underlying chronic or acute health problem.
Having rejected the Parent’s contention that the Student meets the criteria for [REDACTED] classification and the District’s contention that the Student meets the criteria for [REDACTED] [REDACTED] , I find that the appropriate disability category for the Student (as of the March 6, 2014 CSE meeting) is [REDACTED].
The Parent has challenged the CSE’s rejection of the [REDACTED] placement and the placement of the Student at [REDACTED]. The District contends that it properly rejected the [REDACTED] placement based on the distance from the District and because the [REDACTED] program did not have a full-time [REDACTED] on staff. It also argues that the distance the Student would need to travel to [REDACTED] rendered the placement inappropriate based on least restrictive environment (“LRE”) requirements and that it did not “refer” the Student to [REDACTED] for placement.
When the District’s CSE met on March 6, 2014, it recommended that the Student be classified as a student with a disability having [REDACTED] (which I already indicated was not an appropriate
6 classification based upon the information available to the CSE at that time), and recommended that he be placed in a [REDACTED] special class at [REDACTED] with individual and group [REDACTED] therapy and group [REDACTED] (District Ex. 4). The IEP had a March 16, 2014 implementation date, and the CSE recommended the continuation of home instruction services pending a [REDACTED] placement. As noted
6 I make no findings as to whether classification under the [REDACTED] category would be appropriate at the present time, based upon whatever information and evaluations are currently available regarding the Student. Matter of [Student] v. [REDACTED] [REDACTED] Central School District above, after [REDACTED] rejected the Student, the District applied to [REDACTED] and [REDACTED]. Both of those programs rejected the Student as well. In rejecting the Student, Nassau [REDACTED] suggested placement at Suffolk [REDACTED] (District Ex.[20] at 3), however the District did not pursue that option (there was no testimony at the hearing as to why that option was not explored). Instead of seeking other possible placements or considering the [REDACTED] placement after the [REDACTED], [REDACTED] and [REDACTED] rejections, the District wrote to the [REDACTED] [REDACTED] and requested that it reconsider placing the Student at [REDACTED] in light of the fact that the disability classification had been changed from [REDACTED] (which had precluded placement at [REDACTED]) to [REDACTED] (which would have allowed placement at [REDACTED]) (District Ex. 21).
There is no dispute about the CSE’s recommendation for a [REDACTED] special class or the recommended type and level of related services. The primary dispute centers around the Parent’s request for placement at [REDACTED] and the CSE’s refusal to place the Student at [REDACTED]. The CSE’s initial decision to seek placement at a school that was geographically closer to the District was understandable. It made sense to look for a placement that was geographically closer to the District, as long as the attempt to find a more local placement did not unduly delay placement. However, when it became clear that the local placements that the District had identified would not accept the Student, the District should have immediately considered the [REDACTED] placement. It did not do so.
The District now argues that the CSE rejected [REDACTED] because it was not in the LRE for the Student. It appears to argue that the distance from the District made it too restrictive. In so doing, the District confuses the LRE concept with the possible impact that transportation time might have on a student.
The IDEA mandates that students with disabilities be educated in the least restrictive environment (“LRE”):
[t]o the maximum extent appropriate, children with disabilities . . . [shall be] educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Matter of [Student] v. [REDACTED] [REDACTED] Central School District
“whether a student can be satisfactorily educated in the regular classroom with the benefit of supplemental aids and services;” and (2) if the school district was justified in removing the student from mainstream classes, “whether the school has included the child in school programs with nondisabled children to the maximum extent possible.” P. ex. rel. Mr. and Mrs. . v. Newington Bd. of Educ., 546 F.3d 111, 120-21 (2d Cir. 2008). In considering the first prong, courts need to consider whether “reasonable efforts [were made] to accommodate the child in a regular classroom,” “the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class”, and the potential “negative effects . . . on the education of the other students in the class.” Id., 546 F3d at 120.
It is thus clear that LRE requirements did not constitute a valid basis for rejecting the requested [REDACTED] placement. The LRE inquiry described above does not list transportation time as an aspect of the LRE analysis.
I also reject the District’s assertion that its CSE initially rejected the [REDACTED] placement because the program did not have a full-time [REDACTED] on staff. This issue was raised in the District’s arguments and was mentioned in District witness’ testimony. However, there were conflicts in the testimony of the District’s witnesses, and some of the testimony was inconsistent with the documentary evidence in this proceeding.
The Student’s IEP (District Ex. 4) does not mention the need for an on-site [REDACTED] .. The IEP explicitly states that the CSE refused to recommend placement at [REDACTED] because “[t]his school is approximately 60 miles away from where [Student] is currently residing, and the District will seek placement in a school at a reasonable distance from home” (District Ex. 4 at 2). The lack of a [REDACTED] was not mentioned at all. I therefore find that it was not a consideration of the CSE. The CSE did not consider the issue of an school-based or onsite [REDACTED] at the March 6, 2014 CSE meeting or rely on the lack of a full-time onsite [REDACTED] at [REDACTED] in its rejection of the placement. Moreover, even if it had relied on [REDACTED]’s lack of a [REDACTED] in rejecting the school, it would not have been an appropriate ground for rejecting the placement. Since the availability of a school-based [REDACTED] was not a necessary component of the Student’s special education program, the rejection of a potential placement (e.g., [REDACTED]) due to the lack of a [REDACTED] would not have been reasonable or inappropriate.
My conclusion that the CSE’s rejection of [REDACTED] was not based on the school’s lack of a [REDACTED] is further supported by witness testimony. Dr.[REDACTED], one of the District’s witnesses at the hearing, is a District psychologist who functions as the psychologist for out-of district Matter of [Student] v. [REDACTED] [REDACTED] Central School District students (Tr. 706) and is involved in the out of district placement for students and for observations of students at those placements (Tr. 709). He testified that the [REDACTED] [REDACTED] School (Nassau [REDACTED]) does not have a [REDACTED] on staff, that [REDACTED] Nassau has a [REDACTED] on staff, and that a [REDACTED] student who “needs an evaluation” can be walked over to a [REDACTED] at the [REDACTED] [REDACTED] [REDACTED] Center (which is on the same grounds as [REDACTED]) (Tr. 763-764). However, [REDACTED] does not have an on-site staff [REDACTED] as part of its program. The CSE recommended placement at Nassau [REDACTED] at the March 6, 2014 CSE meeting. Since it does not have a [REDACTED] on staff, and since one of the two alternate placements pursued by the CSE did not have a [REDACTED] on staff, it is clear that having a [REDACTED] on staff was not a concern of the CSE at the time that it made its placement recommendations and rejected the [REDACTED] placement. And it was not a concern of the District when it declined to reconsider [REDACTED] after the local schools had rejected the Student.
I note that Mr. [REDACTED]’s testimony was not consistent with Dr.[REDACTED]’s testimony. Mr. [REDACTED], who is the District’s Director of Special Education, testified that all three schools ( [REDACTED] [REDACTED]/Nassau [REDACTED], [REDACTED] of Nassau, and [REDACTED] Children’s Center) have [REDACTED] s on staff. Since Dr.[REDACTED] appears to have more direct contact with and information about out-of-district placements than Mr. [REDACTED] has, I give more weight to Dr.[REDACTED]’s testimony. Moreover, the fact that the District witness testimony was inconsistent on the issue of the availability of [REDACTED] s further buttresses my conclusion that it was not really an issue that was considered by the CSE. If it had in fact been discussed and considered, Mr. [REDACTED] would have had the same information that Dr.[REDACTED] had, and their testimony would have been consistent.
In light of the contents of the IEP (which does not include the need for a [REDACTED] and which indicated that the [REDACTED] program was rejected due to its distance from the District) and in light of Dr.[REDACTED]’s testimony about the lack of an on-site/staff [REDACTED] at [REDACTED] and [REDACTED], it appears that [REDACTED]’s lack of a [REDACTED] on staff was a justification for the CSE’s rejection of the school that was proffered after the fact (e.g., after the CSE meeting, and perhaps for the purposes of this proceeding) rather than a reason that was actually relied on at the CSE meeting. Moreover, in addition, even if [REDACTED] had been rejected due the lack of a [REDACTED] , it would not have been an appropriate basis for rejecting the school since the Student’s IEP did not set forth any need for a [REDACTED] to be available at the Student’s school or to otherwise have any role in his special education program. Matter of [Student] v. [REDACTED] [REDACTED] Central School District
After the [REDACTED], [REDACTED], and [REDACTED] rejected the Student, the CSE should have pursued the [REDACTED] placement since the lack of a [REDACTED] did not render the program inappropriate. Moreover, the potential difficulties that the Student might have with the transportation time to and from [REDACTED] were speculative, at best. The District’s testimony about the potential problems of lengthy transportation went to general problems that could come up with lengthy transportation. There were no specific concerns about problems that it would cause for this particular student. In fact, the evidence suggested that the Student would not have a problem with the transportation. He had no problem with the travel time to and from [REDACTED] when he visited the school in February, even though his travel time that day was substantially extended by the fact that the driver got lost on the way to the school that day (Tr. Testimony of [REDACTED] and [Parent]).
When the Student was rejected by [REDACTED], [REDACTED], and [REDACTED], the District had two basic options. It could either pursue placement at [REDACTED] or look for another, more local school. It did neither. The better approach would have been to pursue placement at [REDACTED] since the school had already accepted the Student and because the Student was still awaiting placement over two months after he was enrolled in the District and referred to the CSE.
Placing the Student at [REDACTED] was not an option for the District and should not even have been considered. Students can only be placed at [REDACTED] by the [REDACTED]. School districts cannot place students at the school. It is thus not clear as to why the District pursued the option (in its correspondence with [REDACTED] staff) of sending the Student to [REDACTED] instead pursuing other placement options.
Although the District contended, both in its legal arguments and in witness testimony, that it did not “refer” the Student to [REDACTED], this is not consistent with a statement made in its response to the DPC, wherein counsel for the District wrote as follows: “The issue of educational placement for [Student] was then referred back to [REDACTED]” (IHO Ex. R at 2-3) (emphasis added). This is in direct contradiction to a statement made in the District’s post-hearing brief: “ [REDACTED] [REDACTED] never referred [Student] to [REDACTED]” (IHO Ex. XVIII at 18) (emphasis added).
The Hearing Record is lacking information about the actual mechanics and procedures that resulted in the Student being placed at [REDACTED]. The only thing that is clear is that there were some emails between the District and the [REDACTED] on April 30, 2014 and May 1, 2014 regarding the change in classification and possible placement in [REDACTED] [including the possible rescission of the Student’s prior enrollment in the District (District Ex. 34), a May 13, 2014 letter from Mr. [REDACTED] Matter of [Student] v. [REDACTED] [REDACTED] Central School District to the [REDACTED] to “request that placement for [Student] at the [REDACTED] Learning Center be reconsidered at this time” (District Ex. 21), and a May 15, 2014 email from the [REDACTED] to Mr. [REDACTED] indicating that the Student was starting at [REDACTED] that day (District Ex. 35)]. There was also some April 8, 2014 correspondence from Mr. [REDACTED] (prior to the [REDACTED] and [REDACTED] rejections) about the CSE reverting from the District back to the [REDACTED] (District Ex. 33). The District forwarded a new occupational therapy evaluation to the [REDACTED] on May 15, 2014 (District Ex. 17 and Ex. 34 at 1). The District performed a physical therapy evaluation on July 1, 2014 (District Ex. 18). That evaluation was performed six weeks after the Student began to attend [REDACTED].
There was no documentation or written notice regarding the change in placement from home instruction to [REDACTED]. There was a series of general email discussions (which the Parent was not privy to), and then the Student suddenly began attending [REDACTED].
I find that the District failed to provide the Student with a FAPE during a portion of the 2013-2014 school year. It should have pursued placement at [REDACTED] when it became clear, in April of 2014, that the local NYSED-approved schools had rejected the Student. At that point, the Student had been on home instruction for an extended period of time and an actual school placement was required. Over two months had passed since the Student had been enrolled in the District. [REDACTED], which is a NYSED-approved school, had accepted the Student and he could have began to attend the school pretty much immediately. The two reasons cited by the District for rejecting the [REDACTED] placement were not appropriate grounds for rejection. There was no reason to believe that the distance from the school would cause a problem for the Student. Moreover, the lack of a [REDACTED] on-site was not relevant because the Student’s IEP did not require an on-site or school-based [REDACTED] as part of his special education program.
In addition, I find that the placement at [REDACTED] was not appropriately processed and was effected in violation of the Parent’s due process rights. The Student was still enrolled in the District at the time of the [REDACTED] placement. IDEA procedures were not followed . The Parent was not provided with prior written notice of the proposed [REDACTED] placement or with a procedural safeguards notice or any other notice about her right to challenge the placement. Instead, the Student was enrolled in the District and then from one day to the next, was suddenly enrolled at [REDACTED]. It may have been the [REDACTED] that physically effected the placement change (because the Student was physically residing at the [REDACTED] at the time of the placement), but the District had previously abandoned all placement efforts and had suggested and encouraged the [REDACTED] placement (District Exs. 33 and Matter of [Student] v. [REDACTED] [REDACTED] Central School District
34). Moreover, the District had actually referred the Student to the [REDACTED] and [REDACTED] (District Ex. 21; IHO Ex. III at 2-3 and Ex. IV at 4). The 2014-2015 School Year The District maintains that it had no jurisdiction or obligations regarding the Student’s 2014-2015 placement. It also asserts that there is no District program/placement recommendation for that school year that can be reviewed in this proceeding. The Parent asserts that the Student continued to be enrolled in the District and that the District was obligated to make program and placement recommendations for the 2014-2015 school year. The Parent further contends that the Student should have been placed at [REDACTED] for that school year.
The Student continued to be listed in District records as being enrolled in the District during the 2014-2015 school year, although there is documentary evidence (emails) (District Ex. 32) and testimony (Tr. Testimony of [REDACTED], 4/6/16) to support the District’s contention that the Student’s continued status as a student enrolled in the District was a clerical error). Although I am prepared to accept the District’s assertion that the Student was no longer enrolled in the District as of the day that he started attending [REDACTED] (because a student can either be enrolled in the District, or in [REDACTED], but probably not in both simultaneously), the fact that the District obtained a physical therapy evaluation (District Ex. 18) six weeks after the Student was purportedly no longer a District student calls the District’s assertion into question. The evaluation was performed on July 1, 2014 (which was during the 2014-2015 school year). This certainly gives rise to the appearance that the Student was still the enrolled in and the responsibility of the District as of the beginning of the 2014-2015 school year. The [REDACTED] CSE subsequently relied on that physical therapy evaluation in determining that physical therapy was not necessary as of [REDACTED]’s July 21, 2014 CSE meeting (District Ex. 22).
As of the July 21, 2014 [REDACTED] CSE meeting, any role or responsibility that the District might have had for the Student was completely extinguished. It had no authority to convene a CSE meeting or make any program or placement recommendations for the Student. Even though the July 1, 2014 physical therapy evaluation supports the contention that the District had some role regarding the Student that continued into the beginning of the 2014-2015 school year, it is hard to define what that role actually was because the District’s CSE could not have convened a CSE meeting or have made any program or placement recommendations (since the Student was already enrolled in and attending [REDACTED]). As such, I decline to find that the District’s CSE had any obligation to provide the Student with a FAPE during the 2014-2015 school year. Even if it did have a role, that role would have ceased as of the July 21, 2014 IEP (District Ex. 22), and any FAPE deprivation during the 2014-2015 Matter of [Student] v. [REDACTED] [REDACTED] Central School District school year would have been de minimis. The 2015-2016 School Year The District maintains that it had no jurisdiction or obligations regarding the Student’s 2015-2016 placement. It also asserts that there is no District program/placement recommendation for that school year that can be reviewed in this proceeding. The Parent asserts that the Student continued to be enrolled in the District and that the District was obligated to make program and placement recommendations for the 2015-2016 school year. The Parent further contends that the Student should have been placed at [REDACTED].
As of the beginning of the 2015-2016 school year, the Student had been enrolled in and attending [REDACTED] for over a year. The District’s CSE had no obligation, and certainly no authority, to make program and placement recommendations for that school year. There is thus no basis for finding that the District failed to provide the Student with a FAPE for the 2015-2016 school year. In the absence of an obligation to provide a FAPE, there can be no liability for the failure to provide a FAPE. Request for Relief
The due process complaint (IHO Ex. I, as amended by IHO Ex. VII) sets forth the nature of the problem as follows; [Student] has no history of developmental disability. [Student] is now placed in a school that does not fit either of 2 IEPs done by NYC DOE CSE - ED
(Apr 2013), [REDACTED] (Dec 2013). [Student] was accepted to [REDACTED] [REDACTED] Children’s School on Feb 7, 2014. The first [REDACTED] [REDACTED] School District IEP was developed in March 2014 (less than a year from 2 IEPs) and [Student] placed at [REDACTED] on May 14, 2014 with MD - IEP claims [Student ] is developmentally disabled. (IHO Ex. I at 2)
The due process complaint states the “proposed solution” as follows:
-[Student] should immediately be placed at the [REDACTED]
[REDACTED] Children’s School
- The placement should be for 2 years, to age 22
- [REDACTED] [REDACTED] Children’s School should reevaluate
[Student]
- In accordance with U.N. Oct 10, 2015 Special Rapporteurs Statement, non-consensual placement should end. (IHO Ex. I at 2)
A substantial part of the relief requested is beyond the scope of what I can consider or grant in this Matter of [Student] v. [REDACTED] [REDACTED] Central School District proceeding. I have no jurisdiction over the U.N. statement re non-consensual placement. Moreover, to the extent that the Student was placed at the [REDACTED] by the NYC [REDACTED], I have no jurisdiction or authority over that placement. I cannot direct that the Student be immediately placed at [REDACTED] or be evaluated by [REDACTED] because I have no jurisdiction over the school. I cannot direct that the District place the Student at [REDACTED] or fund a [REDACTED] evaluation because the District no longer has any authority or jurisdiction over the Student’s evaluation, program, or placement. I also note that a [REDACTED] evaluation would be a form of an independent educational evaluation (“IEE”) which is an issue that is beyond the scope of the due process complaint and is therefore beyond the scope of the issues that I can address herein.
The request for a two year placement (until the age of 22) is a request for compensatory education or compensatory services, which I can address (as it is within the scope of the type of relief that I can order for a
FAPE deprivation). The fact that the District does not have the authority to effect a current placement change does not deprive the Parent of the right to seek District funding for compensatory education for the District’s 2013-2014 FAPE deprivation.
Compensatory education and services are equitable remedies. Compensatory education is the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation. It is available as an equitable remedy where “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. [Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071(2d Cir. 1988)].
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440,[E.D.N.Y.Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. (See Application of a Child with a Disability, Appeal No. 07-109; Application of a Child with a Disability, Appeal No. 08-054). An award of additional services should aim to place a student in the position he or she would
Matter of [Student] v. [REDACTED] [REDACTED] Central School District have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)).
Turning to the case at hand, the Student was enrolled in the District on February 6, 2014 and began to receive home instruction services shortly thereafter. The home instruction services continued to be provided to the Student after the CSE met on March 6, 2014 and continued while the Student was awaiting placement in the [REDACTED] special class mandated by the IEP that was created as a result of that meeting. The home instruction services consisted solely of services provided by a special education teacher. The District did not provide any related services as part of the Student’s interim home instruction program. The Parent raised the inadequacy of the home instruction services during the course of the hearing. However, that issue was not raised in the DPC and is therefore beyond the scope this proceeding. As such, a compensatory education award cannot be based on the alleged inadequacies of the Student’s home instruction services.
Per the findings set forth above, the District should have placed the Student at [REDACTED] after [REDACTED], [REDACTED], and [REDACTED] rejected him. The last of these rejections was received by the District at some point in April. Instead of placing the Student at [REDACTED] (or applying to any other possible placement), the District ceased all efforts to place the Student in a NYSED-approved nonpublic school. It subsequently and referred him back to the [REDACTED] with the suggestion that placement in [REDACTED] be considered (District Ex. 21; see also IHO Ex. III at 2-3 and IHO Ex. IV at 4). The Student was subsequently placed at [REDACTED].
Although the District maintains that the [REDACTED] [REDACTED] was a child care institution (“CCI”), as defined in section 4001 of the NYS Education Law, and that its actions were governed by 8 NYCRR Section 200.11(b) and (c), it did not follow the significant aspects of the procedures set forth therein. The Regulations provide as follows:
(b) Students residing in child care institutions shall be identified, evaluated and provided with suitable special education services in accordance with section 4005 of the Education Law.
(1) The committee on special education of a child care institution having its own school shall recommend to the school district in which the facility is located, that those students determined by the facility committee to be able to benefit from instruction in a public school program be admitted to the schools of such district.
(2) The school district committee on special education shall review the recommendation of the facility's committee, and all relevant supporting information and data, to determine whether the school district has an Matter of [Student] v. [REDACTED] [REDACTED] Central School District educational program appropriate to the needs of each student so recommended.
(i) If the committee on special education determines that the school district has an appropriate program for such a student, such committee shall recommend to the board of education that the student be admitted to such program.
(ii) In the event that the committee on special education determines that there is no program appropriate to the needs of such a student in the schools of the district, such committee shall report its findings to the board of education.
(c) If a board of education determines that there is no program appropriate to the needs of a student in the schools of the district, or at a board of cooperative educational services or another school district, the board of education shall give notice of such determination to the parent, if the identity of the parent is available to the board, and to the chief administrator of the facility or child care institution in which the student resides. Such notice shall also inform the recipients that either the parent or the chief administrator of the facility may obtain review of the determination made by the board of education by a hearing officer appointed by the chief administrator of the facility or child care institution in accordance with the provisions of section 200.5 of this Part. . . . .
(1) A parent who desires such a hearing shall so inform the chief administrator of the facility or the child care institution in writing. Written notice of the hearing shall be given by the chief administrator of the facility or the child care institution to the parent and to the board of education whose decision is sought to be reviewed. Such board of education shall be a necessary party to the hearing and shall bear the burden of proof with respect to the unavailability of an appropriate program for the student in the school district or at a [REDACTED] or another school district. . . . 8 NYCRR
Section 200.11
The issue of whether or not the [REDACTED] [REDACTED] was actually a CCI was one of the key issues in dispute in this proceeding. Assuming, arguendo, that it was a CCI, I am compelled to find that the District did not follow appropriate procedures. When the CSE determined that there was no appropriate program for the Student in the District’s schools, it was required to give notice of that determination to the board of education (8 NYCRR Section 200.11(b)(b)(2)(ii)). It did not do so. If the District’s board of education then determines “that there is no program appropriate to the needs of a student in the schools of the district, or at a board of cooperative educational services or another school district, the board of education shall give notice of such determination to the parent . . . and to the chief administrator of the . . . child care Matter of [Student] v. [REDACTED] [REDACTED] Central School District institution in which the student resides [and] [s]uch notice shall also inform the recipients that either the parent or the chief administrator of the facility may obtain review of the determination made by the board of education by a hearing officer appointed by the chief administrator of the facility or child care institution in accordance with the provisions of section 200.5 of this Part” (8 NYCRR Section 200.11(c).).
The District’s board of education did not take this step, and no such notice was provided to the Parent and [REDACTED] [REDACTED] chief administrator. Instead, the CSE engaged in correspondence about the possible rescission of the Student’s enrollment in the District (District Exs. 33 and 34) and referred the Student back to the [REDACTED] [REDACTED] for placement at [REDACTED] (District Ex. 21). It was at this point (between April 8, 2014 and May 21, 2014) that the District and CSE became derelict in their duties. I note that even if the District board of education had determined that there was no appropriate program for Student, it would have been an erroneous determination because the [REDACTED] program was both appropriate and
available.
The District’s failure to provide a FAPE thus started with its refusal to consider placement at [REDACTED] after [REDACTED] rejected the Student, continued after [REDACTED] and [REDACTED] rejected him, and further continued with the District’s failure to follow the Section 200.11 requirements at that point. Any compensatory education award must address the District’s failure to offer a FAPE from its refusal to consider the [REDACTED] placement after [REDACTED] rejected the Student, continuing to the end of the 2013-2014 school year (had the District placed the Student at [REDACTED] in April of 2014, the placement would have continued to the end of the school year).
I also note that the District took the position that its referral back to the [REDACTED] was for the 2014-2015 school year (IHO Ex. IV at 4), not for the 2013-2014 school year. After the May 13, 2014 referral (District Ex. 21), the District arranged for a July 1, 2014 physical therapy evaluation (District Ex. 18). These factors lead me to the conclusion that the District continued to have responsibility for the Student through the 9 end of the 2013-2014 school year. There was thus a three month denial of appropriate services (April, May, Matter of [Student] v. [REDACTED] [REDACTED] Central School District and June of 2014) that needs to be addressed in a compensatory education award. The hearing record provides limited information regarding the impact of the deprivation of instruction and the nature and extent of the additional services that are necessary to remedy the deprivation of instruction.
There was no showing as to why it took a full month to even convene a CSE meeting after the Student’s February 6, 2014 enrollment in the District, as the CSE performed no evaluations prior to the meeting. In light of the Student’s intense needs, it was clear that there could be no in-district placement for him (which was why the District initiated home instruction). The CSE meeting should therefore have been held earlier. Moreover, once [REDACTED] rejected the Student, the District should have immediately considered the [REDACTED] placement and made prompt efforts to place the Student at [REDACTED]. Although [REDACTED]’ written rejection of the Student was contained in an April 15, 2014 letter (District Ex. 20 at 3), the District was clearly aware of the rejection prior to receiving the written notification. The District suggested that responsibility for the Student revert from [REDACTED] [REDACTED] to the [REDACTED] on April 8, 2014 (District Ex. 22) and the applications to [REDACTED] and [REDACTED] were made on April 9, 2014 (District Ex. 19 at 2-3). This means that the District was aware of the [REDACTED] rejections prior to April 9, 2014. It was at that point that the District should have pursued the [REDACTED] placement, as by that point in time, the Student had been enrolled in the District for over two months and was still awaiting placement. Since the District knew that [REDACTED] had accepted the Student, it should have made every effort possible to enroll him at [REDACTED] rather than to take more time to look for other possible placements. The Student, who needed to be placed in a supportive, therapeutic setting as soon as possible, should not have had to continue receiving only home instruction services without any related services (thus remaining in a highly restrictive home instruction setting), while the District looked for another placement. He could have been immediately placed at [REDACTED]. The Student’s FAPE deprivation began in early April of 2014, when the District found out that [REDACTED] would not be accepting the Student.
The Parent has requested a two year placement at [REDACTED]. A compensatory education award “should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA” (P. V.
Newington). Although some level of compensatory education is an appropriate remedy for the Spring 2014 FAPE deprivation, the hearing record does not support a finding that two years of additional services are necessary to The District was not responsible for the Student for those years and there can be no compensatory education award for that period of time. Matter of [Student] v. [REDACTED] [REDACTED] Central School District compensate for the three month denial of appropriate services (the denial of services could be considered to be more than three months if one factors in the delay in convening a CSE meeting after the Student was enrolled in the District). A compensatory education award should not be based upon a strict numerical analysis (which would provide a student with a day of compensatory education or services for every day of services missed). It should be based, instead, on whatever services are necessary to remedy the deprivation of instruction for that particular student, based on the particular student’s unique needs and abilities.
In some cases, a lengthy period of deprivation can be remedied by a shorter period of intense instruction or extra services. In others, the time needed to recoup the educational progress that was lost may take much longer than the period of time during which a student was deprived of services. This is particularly the case in situations involving students who receive twelve-month school year services. Students are provided with services on a twelve-month school year basis when it is necessary to “prevent substantial regression" (8 NYCRR 200.6[k][1]). Substantial regression is "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]; see also 34 CFR 300.106).
The Student is a twelve-month student, which means that he would have experienced substantial regression during any period of FAPE deprivation. Moreover, based on the testimony about the Student (from both the District and the Parent witnesses) it is clear that this is a student who does not adapt well to changes and new situations/people. He would need a substantial amount of time in a new educational setting in order to adapt to the setting and begin to benefit from instruction. His needs are also such that it would take staff at any new educational setting a substantial amount of time to acclimate the Student into the program and to be able to understand his unique needs and determine how to “break through” the severe emotional issues that are impacting his ability to function in an educational setting. A three-month compensatory education award (which would be based on a three-month FAPE deprivation) would not be sufficient. A compensatory education award for this student would need to provide the time necessary for the Student to acclimate and adapt to the new instructional environment and new staff (he would not be able to benefit from instruction until he was comfortable with his teachers and services providers, as he would not be receptive to instruction until that point), to recoup any regression that he experienced, and then to receive the instruction necessary to make the educational progress that he could have made had he received a FAPE during the Spring of 2014. Under the Matter of [Student] v. [REDACTED] [REDACTED] Central School District circumstances, a one year compensatory education award would be appropriate.
Based on the testimony at the hearing, I find that [REDACTED] would be an appropriate setting for the Student’s compensatory education. Although the Student had been accepted at [REDACTED] in February of 2014 (991-952; Parent Ex. IHO I at 4), the Student was not accepted at [REDACTED] for the 2015-2016 school year (Tr. 1014 ). Mr. [REDACTED] testified that, as of the final hearing date, [REDACTED] still had a seat available for the Student, and would be able to accept him pending updated assessments and a visit to the school (Tr. 994). Since the District no longer has any authority to evaluate or place the Student, and since the District does not have any current evaluation material for the Student, I cannot direct the District to send an application package to [REDACTED]. The Student is in [REDACTED] [REDACTED] , and I cannot direct [REDACTED] or the [REDACTED] [REDACTED] of [REDACTED] [REDACTED] to produce the Student or send him to [REDACTED] for a new intake screening. It will thus be incumbent upon the Parent to send copies of the Student’s most recent evaluations and reports to [REDACTED] and to seek whatever approval she needs to bring the Student to [REDACTED] for an intake screening. If [REDACTED] is willing and able to accept the Student, the District will be required to fund a one year placement at the school as and for compensatory education.
I note that if the Parent had made the [REDACTED] a party to this proceeding either in her initial filing or in the filing of an amended complaint, I could have directed the [REDACTED] to re-enroll the Student in the District and then directed the District to enroll the Student at [REDACTED]. However, since the [REDACTED] is not a party to this action, I cannot issue such an order. As such, if [REDACTED] cannot (or will not) enroll the Student without an actual District referral or placement, it might not be possible for the Parent to obtain the compensatory education sought and awarded in this proceeding. Other Issues
The Parent raised a variety of other issues in her post-hearing memorandum, and it is appropriate to briefly address those issues. The Parent makes a variety of arguments based on the SRO’s decision in the related case filed in NYC. However, the findings in that case are binding only on the Parent and the NYC Department of Education. The findings cannot be used against the District in this proceeding. The Parent also raises a “conflict of interest” argument based upon Mr. [REDACTED]’s involvement in meditation (IHO Ex. XIX at 27-29). I find the Parent’s description of the extent and impact of Mr. [REDACTED]’s involvement in meditation to be greatly exaggerated and her statements about his conflict of interest (both in the post-hearing Matter of [Student] v. [REDACTED] [REDACTED] Central School District memorandum and in the many statements that the Parent made on the Record at the hearing) to be wholly without merit. Mr. [REDACTED] did not “aid and abet” the laundry list of entities listed on page 29 of the Parent’s post-hearing submission.
ORDER
IT IS HEREBY
ORDERED that the [REDACTED] [REDACTED] Central School District is directed to fund a one year placement at the [REDACTED] [REDACTED] Children’s School, after the Student reaches the age of twenty-one, as and for compensatory education for the Spring 2014 FAPE deprivation (the District’s obligation to fund the placement being contingent on the school’s willingness and ability to accept the Student); and it is further
ORDERED that in all other respects the Parent’s requests for relief are denied.
Dated: July 22, 2016 Amended/Corrected: July 27, 2016
MINDY G. WOLMAN
Impartial Hearing Officer
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)) Matter of [Student] v. [REDACTED] [REDACTED] Central School District 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. Matter of [Student] v. [REDACTED] [REDACTED] Central School District
DOCUMENTS ENTERED INTO THE RECORD
Impartial Hearing Officer Exhibits
I. Due Process Complaint (and attachments), 10/15/15, 44 pp.
II. Notice of IHO Appointment, 10/27/15, 1 p.
III. District’s Answer to Due Process Complaint, 10/29/15, 3 pp.
IV. District’s Motion to Dismiss (and attachment), 11/2/15, 50 pp.
V. Parent’s Reply to Motion to Dismiss (including attachments and affidavit of service),
12/2/15, 198 pp.
VI. Parent’s “Errata” Email re correction to Motion to Dismiss, 12/9/15, 1 p.
VII. Email from Parent and attachment (amending Due Process Complaint), 11/3/15, 4 pp.
VIII. Email from IHO re amendment of Due Process Complaint, 1/3/16, 1 p.
IX. Decision and Order Denying School District’s Motion to Dismiss, 1/4/16, 9 pp.
X. Memo from IHO re IHRS data, 1/14/16, 1 p.
XI. Memo from IHO re IHRS data, 1/21/16, 1 p.
XII. Subpoena, 3/25/16, 1 pp.
XIII. SRO Decision, Case No. 15-119, 3/18/16, and cover letter from the Office of State
Review, 3/18/16, 23 pp.
XIV. Email from IHO, 12/7/15, 1 p.
XV. Memos from IHO re Compliance Date Extensions and other IHRS data, 30/20/16 and
3/29/16, 2 pp.
XVI. Interim Order Issued Upon Remand of SRO Case 15-119, 4/7/16, 9 pp.
XVII. Memoranda from IHO re Compliance Date Extensions, 4/19/16 and 6/16/16, 2 pp.
XVIII. Post Hearing Memorandum of Law Submitted on Behalf of [REDACTED]
[REDACTED] Central School District, 6/27/16, together with 6/27/16 Affidavit of
Service, 25 pp.
XIX. Summary Brief, submitted by Parent, 6/27/16, 34 pp.
District Exhibits
1. [REDACTED] Family Services Guardian/Foster Parent Checklist [REDACTED]
[REDACTED] Census Form, 2/6/14, 2 pp.
2. NYS Office of Children and Family Services School District Notification of Foster Child
Placed in a Foster Family, Agency Boarding, or Group Home & [REDACTED]
[REDACTED] Registration Forms, 2/6/14, 3 pp.
3. NYS [REDACTED] [REDACTED] Hearing Order and [REDACTED] Order, 2/24/14 and
6/2/12, 5 pp.
4. 2013-2014 [REDACTED] [REDACTED] IEP with Attendance Sheet, 3/6/14, 12 pp.
5. Prior Written Notices to [REDACTED] and Parents, 3/6/14, 12 pp.
6. NYC DOE IEP, 12/5/13, printed 1/2/14, 13 pp.
7. NYC DOE IEP, 4/7/13, printed 11/14/13, 15 pp.
8. Email from [REDACTED] to [REDACTED], 3/7/14, 5 pp.
9. [Parent] Response to Request for Consent for Evaluations, 3/10/14, 1 p.
10. [REDACTED] Consent Form, 2/17/14 and 3/3/14, 2 pp.
11. [REDACTED] Diagnostic Center Report, 2/20/11, 7 pp.
Matter of [Student] v. [REDACTED] [REDACTED] Central School District
12. Letter from Alan J. [REDACTED], MD, 12/13/12, 3 pp.
13. Fragile X Analysis and Psychological/ [REDACTED] Evaluation, 7/1/13, 13 pp.
14. Neuropsychological Evaluation, 11/7/13, 8 opp.
15. Social History Update, 1/16/13, 5 pp.
16. [REDACTED] Assessment, [REDACTED] Family of Services, 1/16/14, 1 p.
17. [REDACTED] Occupational Therapy Initial Evaluation Report, 5/1/14, 2 pp.
18. [REDACTED] Physical Therapy Evaluation, Extraordinary Pediatrics, 7/1/14, 3 pp.
19. Requests for Out-of-District Placements, 3/17/14 and 4/9/14, 3 pp.
20. Out-of-District Placement Rejection Letters sent to [REDACTED] with Fax Cover and
Transmission Verification, 4/25/14, 4/15/14, and 4/14/14, pp.
21. Letter from [REDACTED] to [REDACTED], 5/13/14, 1 p.
22. [REDACTED] [REDACTED] Learning Center IEP, 7/21/14, 21 pp.
23. Letter from [REDACTED] to [REDACTED], 4/30/14, 1 p.
24. [REDACTED] email to IHO, 12/4/15, 1 p.
25. REMOVED FROM EVIDENCE
26. Excerpt from Regulations of the Commissioner - Disability Definitions, July 2015, 4 pp.
27. Excerpt from Educational Responsibilities for School-Age Children in Residential Care -
Definitions, February 1996, 6 pp.
28. Excerpt from Educational Responsibilities for School-Age Children in Residential Care -
Child Care Institution Charts, February 1996, 3 pp.
29. Order on Motion (provided by the Parent), 8/27/13, pp.
30. Power School Computer Screen Printouts, 3/28/16, 10 pp.
31. PD Data System October Snapshots, 2014-2015 and 2015-2016 school years, 4 pp.
32. Emails between [REDACTED] and [REDACTED] [REDACTED] ,various dates in 2014
and 2015, 7 pp.
33. Emails between [REDACTED] and [REDACTED] [REDACTED] ,4/18/14 and 4/2/14, 1
p.
34. Emails between [REDACTED] and [REDACTED] [REDACTED] ,5/1/14 and 4/30/14, 2
pp.
35. Emails between [REDACTED] and [REDACTED] [REDACTED] ,5/15/14, 2 pp.
Parent Exhibits
A. Email from Parent, 3/11/16, and various CSE documents with various dates, 46 pp.
B. Email from NYSED, 3/15/16, 2 pp.
C. Foster Care Operating Certificate, 3/1/16, 1 p.
D. Email from Parent, 3/7/16, 1 p.
E. [REDACTED] [REDACTED] [REDACTED] [REDACTED] Operating Certificate,
1/25/13, 1 p.
F. Email from Parent, 3/1/16, 1 p.
G. Email from [REDACTED] [REDACTED] ,12/17/15, 2 pp.
H. Email from Parent, 3/7/16, 1 p.
I. Excerpt from 10/16/13 Social History Update, 1 p.
J. Guardian/Foster Parent Checklists, stamped received 2/6/14, 2 pp.
K. Power School Entry Checklist, 2013-2014, 1 p. Matter of [Student] v. [REDACTED] [REDACTED] Central School District
L. MARKED FOR IDENTIFICATION ONLY
M. Affidavit of Accuracy, 2/20/14, with attached resume, 2 pp.
N. Parent’s resume, undated, 2 pp.
O. Parent’s Curriculum Vitae, undated, 9 pp.
P. MARKED FOR IDENTIFICATION ONLY
Q. MARKED FOR IDENTIFICATION ONLY
R. MARKED FOR IDENTIFICATION ONLY
S. MARKED FOR IDENTIFICATION ONLY
T. IEP signature page, 12/5/13, 1 p.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2016
Dr. [Parent] Mother — Parents
[REDACTED], Esq. Attorney — District
[REDACTED] Director of Special Education — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2016
Dr. [Parent] Mother — Parents
[REDACTED], Esq. Attorney — District
[REDACTED]* Director of Special Education — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2016
Dr. [Parent] Mother — Parents
[REDACTED], Esq. Attorney — District
[REDACTED] Director of Special Education — District
[REDACTED], Ph.D.* School Psychologist — District
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2016
— Parents
Matter of [Student] v. [REDACTED] [REDACTED] Central School District Dr. [Parent] Mother
For the District
[REDACTED], Esq. Attorney
[REDACTED] Director of Special Education
[REDACTED], Ph.D.* Psychologist
* Testified at Hearing
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2016
Dr. [Parent] Mother — Parents
[REDACTED]* Social Worker, [REDACTED] [REDACTED] Children’s — Parents
School — Parents
[REDACTED], M..D.* [REDACTED]
(Electronic Appearance via SKYPE)
For the District
[REDACTED], Esq. Attorney
[REDACTED] Director of Special Education
[REDACTED] Assistant Director of Special Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 6, 2016
Dr. [Parent]* Mother — Parents
[REDACTED], Esq. Attorney — District
[REDACTED]* Director of Special Education — District
— District
Matter of [Student] v. [REDACTED] [REDACTED] Central School District
* Testified at Hearing
Footnotes
[20] at 4 and Tr. testimony of [REDACTED]). The Student was subsequently placed at [REDACTED], although the procedures and mechanisms
[1] Prior to the December 5, 2013 NYC Individualized Education Program (“IEP”), which had classified the Student under the [REDACTED] disability category (District Ex. 6), the DOE’s Committee on Special Education (“CSE”) had prepared an IEP classifying the Student under the [REDACTED] disability category. That IEP, which was prepared as a result of a meeting held on April 13, 2013, had also recommended placement in a NYSED NPS day school program (District Ex. 7).
[2] The mandated Procedural Safeguards Notice is readily available at the NYSED website, and I am therefore taking judicial notice of the contents of that document. The notice that was in effect on March 6, 2014 is available at http://www.p12.nysed.gov/specialed/formsnotices/psgn/PSGN-July2013.doc and the notice that was in effect when the District referred the Student back to the [REDACTED] [REDACTED] is available at http://www.p12.nysed.gov/specialed/formsnotices/psgn/psgn414.htm. The form was updated and changed pursuant to an April 2014 Special Education Field Advisory memorandum (http://www.p12.nysed.gov/specialed/formsnotices/psgn-cover414.htm ).
[3] I note that I have made no specific findings herein as to whether or not the [REDACTED] [REDACTED] is, in fact, a CCI. In light of my findings regarding standing and jurisdiction (which assumes arguendo that it is a CCI), there is not need to determine whether it is in fact a CCI (even if I determine that it is a CCI, it would not change the outcome of this proceeding).
[4] Even if the provisions of 8 NYCR Section 200.11(c) apply, the District still has the burden of proof in this proceeding (see 8 NYCRR Section 200.11(c)(1)).
[20] U.S.C. § 1412(a)(5)(A) The appropriate inquiry in determining whether an IEP meets the LRE requirement is two-fold: (1)
[7] For the sake of simplicity, I will refer to compensatory education and compensatory services jointly as “compensatory education.”
[8] Since I have found that the District’s only challenges to the [REDACTED] program (distance and lack of a [REDACTED] ) did not render the program inappropriate and since the sole reason that the CSE actually rejected the [REDACTED] program was based on distance, I must assume that the [REDACTED] program was, in all other respects, appropriate. There were no other inadequacies cited by the District, and the appropriateness of the program was also substantiated and supported by the hearing testimony of [REDACTED]. As noted above, I have found that there was no FAPE deprivation during the 2014-2015 and 2015-2016 school years.