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STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
x In the Matter of the Impartial Hearing brought by XXXX, Parent of XXXX,
v. NYSED Case No. 93438
XXXX Central School District. x
FINDINGS OF FACT AND DECISION
Lana S. Flame, Esq. Impartial Hearing Officer Date: April 28, 2016 Findings of Fact and Decision XXXX, by XXXX v. XXXX Central School District
Background
The Parent requested an impartial hearing on behalf of her son (“the student”) in a complaint dated October 19, 2015 and received by the District on October 22, 2015. Parent Ex.
A1. I was appointed as the impartial hearing officer on October 23, 2015. The Parent filed a second due process complaint dated November 3, 2015 that was received by the District on November 4, 2015 1. Parent Ex. A2. The District filed a combined Response and Motion to Dismiss to the first complaint, dated October 30, 2015, and a Response to the second complaint, dated November 13, 2015. IHO Ex. XLII and XLV. The Parent’s two complaints were consolidated by an Order to Consolidate, dated November 17, 2015. IHO Ex. LVII. The District was represented by an attorney, XXXX M. XXXX, Hancock Estabrook, LLC. The parent was represented by an advocate, Ms. XXXX XXXX.
The Parent alleged numerous procedural and substantive violations of the IDEA and its supporting regulations as well as New York State Education Law and the Commissioner’s Regulations for multiple school years beginning in December 2012. Parent Ex. A1-4. The procedural violations included allegations of a denial of a free and appropriate public education (“FAPE”) because the district impeded the parent’s ability to participate meaningfully in the educational decisions for her son by: developing goals without the participation of the Parent and independent evaluators; requiring Board of Education approval of the Individualized Educational Program (“IEP”) that was created for the student subsequent to the May 11, 2015 Committee on Special Education (“CSE”) meeting before the student could have an effective IEP or begin to receive services, thereby impermissibly delaying providing the student with services; failing to consider the Parent’s private evaluations (XXXX, XXXX therapy); including a contracted XXXX therapist to review the student’s private XXXX therapy evaluation at the May 11, 2015 CSE meeting who did not have consent from the Parent to review the student’s evaluation prior to the meeting, and who had no previous knowledge of the student; accepting the predetermination to reject the parent’s private XXXX therapy evaluation because it was not
1 In her second due process complaint, the Parent requested that Case No. 93940 proceed separately. However, subsequently the parent expressed that she had no objection to consolidation of the two cases. See Tr. 50. conducted in the school setting especially when the District failed to conduct its own XXXX therapy evaluation and never informed the Parent that the District criteria required the evaluation to be done in the school setting; including the District’s attorney at both the May 11 and the August 10, 2015 CSE meetings who the Parent alleged was present only to intimidate her; holding the August 10, 2015 meeting without the Parent and failing to reschedule another CSE meeting when the Parent requested another date so that the therapist who conducted the XXXX evaluation could attend and the Parent would have more than 72 hours to review the evaluations that were to be reviewed as well as have individuals attend who the Parent wanted to participate. Parent Ex. A1.
The Parent alleged that the District also committed substantive violations of the IDEA and New York law, resulting in a deprivation of educational benefits to her son and denying him a FAPE by: failing to include the information from the private evaluations in any sections of the student’s IEP except in the list of accommodations; failing to provide the student with XXXX therapy services on his IEP; failing to provide the student with XXXX and XXXX therapy by a XXXX pathologist, as a related service; failing to recommend XXXX for the student after conducting an evaluation, and instead recommending on the IEP a trial of XXXX to collect data, preceded by one week of no trial to determine a baseline, in order to determine the appropriate XXXX for the student; failing to recommend any academic services; failing to recommend a special education program or placement; providing Response to Intervention (“RTI”) services to the student in lieu of offering academic special education services or referring the student to the Committee on Special Education (“CSE”); failing to provide special transportation, and failing to provide goals that were sufficient to address all of the student’s deficits. Parent Ex. A1.
The Parent alleged that a May 12, 2015 settlement agreement between the parties was signed by the Parent based upon misrepresentations made by the District, and therefore the agreement is null and void, providing a basis on which to vacate the Order to Terminate issued in the previously filed impartial hearing request. The Parent requested the IHO consider allegations outside of the two-year statute of limitations for the District’s failure to provide the Parent with her procedural safeguards to appeal their decision until June of 2014. Parent Ex. A1. The parent alleged that the District denied the student a FAPE by refusing to provide the agreed upon XXXX related services without the parent first providing a prescription for the related service and consenting to release the student’s educational records to the contracting provider agency as well as provide consent for the agency to evaluate the student. The Parent alleged a denial of FAPE based on the District’s refusal to provide the student with the services on the May 27, 2015 IEP without the Parent signing an unqualified consent to the initial provision of services, especially because the Parent signed consent for the initial provision of services in December 2012 when the District first created an IEP for the student and the Parent never revoked that consent to IEP services even though the District deemed the student ineligible for special education services in June 2013, without the Parent’s agreement. Parent Ex. A1.
The Parent also alleged that the District improperly refused the parent an IEE in reading after the parent disagreed with the district’s use of the DRA2 to determine the student’s eligibility to receive special education services. Parent Ex. A1-34. The parent requested an IEE for XXXX as she did not previously exercise her right when offered by the District. The parent requested a XXXX diagnostic evaluation on the basis that the district has known that the student poses a danger to himself or others and failed to evaluate the student in this suspected area of disability. The parent requested an Interim Alternative Educational Setting for the student’s safety on the basis that he is a danger to himself or others. Parent Ex. A2
As remedies, the Parent is seeking findings with respect to the district’s provision of FAPE and whether the student is entitled to compensatory services. Parent Ex. A1. The Parent is seeking an order that requires the District to hold a CSE meeting with specifically identified individuals to develop an appropriate IEP, including placement, “comparable to her proposed IEP, which will be based solely upon the current evaluation reports and will exclude the DRA-2, or similar screenings and/or referral forms as well as any outdated testing, during its development.” Parent Ex A1 . The Parent requested that the IHO retain jurisdiction of the case to determine whether the IEP developed subsequent to such a CSE meeting provides the student a FAPE. Id. The Parent requested an order requiring the District to amend their special education program plan to ensure a continuum of services is provided to the student. Id. The Parent also requested an order awarding all of the Parent’s requested IEEs at public expense with the evaluators of the Parent’s choosing. The Parent requested an order requiring the district to notify the Parent in writing prior to the administration of any “screening” informing her of its purpose and the date for which it is scheduled. The Parent requested “any and all documentation that exists for the DRA-2, or any other screening, that her son filled out, was generated on his behalf, or was filled out by his scribe.” Parent Ex. A1. The Parent is seeking reimbursement for transportation from the start of the 2015-2016 school year. Id.
Additionally the Parent is seeking orders requiring: that the District create written policies with respect to the District’s attorney participation in CSE meetings; that the “District issue a memorandum to all District staff, including the contracted agents of the District, that parental consent to access personal health insurance or public benefits is voluntary, and a prescription is not required before related services on an IEP can be delivered to any student….”; The Parent also is seeking an order requiring District training in a number of areas including the need for parental consent for the use of public benefits or insurance and obtaining parental consent in order to obtain a prescription for the student or release educational records; an order that the District “take measureable steps to recruit, hire, train and retain highly qualified personnel to provide special education and related services” to the student rather than rely on outside contracted providers; an order requiring the District to provide an updated list to the Parent of all of the IEE providers in the geographical area “whom are not contracted agents of the District” and to post this information on their website to the public; an order that the District amend and provide the Parent with consent forms consistent with the requirements of the IDEA and its implementing regulations related to informed consent; an order requiring the district to provide to the Parent a complete copy of the District’s signed IDEA assurances that they provided to the NYSED in order to receive federal special education funds in the district, “and not just the application”; Impartial Hearing Officer action based on a finding of District failure to comply with the District’s eligibility under Part B of the IDEA; an order that the District receive training in the proper implementation of an RTI process as it relates to their child find obligations; an order for monetary damages to the Parent or student for pain and suffering caused by the District’s failure to provide the student a FAPE, “deliberate discrimination against the student, and continuous retaliation, harassment coercion and intimidation of the Parent….” (Parent Ex. A1); and an order that the Board of Education be dismantled with respect to its role in the IEP approval process; an order for District-wide training in the process of determining a student’s eligibility for special education services, the development of an IEP and implementation of the IEP without Board approval (with copies of all related information and materials provided to the Parent).
A decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
Procedural History
The parties filed multiple pleadings and motions. On October 29th, 2015 the Parent filed Parent’s Motion for Relief from Judgment of Order for Hearing Case No. 87975. IHO Ex. XLI. On October 30, 2015 the District filed District’s Response to Due Process Complaint dated October 19, 2015. IHO Ex. XLII. On October 30, 2015 the Parent filed: Parent’s Cross Motion in Opposition to the District’s Motion for Particularity (IHO Ex. XLIII); Parent’s Cross Motion in Opposition to the District’s Motion Seeking Dismissal of Claims Regarding Mandated Academic Intervention Services (IHO Ex. XLIV); Parent’s Motion to Object to the District Barring of Any Claims Raised by the Parent and Parent’s Motion Seeking Default Judgment (IHO Ex. XLV); Parent Motion for Default Order/Judgment for IEEs at Public Expense (IHO Ex. XLV). On October 31, 2015 the Parent filed Parent Cross Motion in Opposition of District’s Motion seeking Dismissal of FERPA Claims. IHO Ex. XLVII. On November 6, 2015 the District filed Attorney Affidavit Opposing Parent’s Motion to Vacate and for Default Judgment and Reply to Cross Motion Opposing Dismissal of Claims Barred by Withdrawal With Prejudice (IHO Ex. XLVIII), Attorney Affidavit Opposing Parent’s Motion for IEE at Public Expense and the Parent filed Parent Response to District’s Motion in Opposition to Parent’s Motion for Default Judgment or IEE (IHO Ex. XLVIX), and District’s Reply Affidavit (IHO Ex. L). On November 7, 2015 the Parent filed Parent’s Response to District’s Motion Opposing Parent’s Motion to Vacate (IHO Ex. LI) and Parent’s Response to District’s Reply Affidavit Regarding FERPA and AIS. (IHO Ex. LII). On November 10, the District filed District’s Sur-Reply Affidavit (IHO Ex. LIII) and the Parent filed Parent’s Response to District’s Sur-Reply on Motion to Vacate (IHO Ex. LIV).
A pre-hearing conference was held on November 11, 2015. During the pre-hearing conference the parties were told that with respect to applications made in their motions the following determinations were made:
1. The Parent’s Motion for Relief from Judgment of Order for Hearing Case No. 87975
(IHO Ex. XLI) was denied based on the parties’ May 12, 2015 settlement agreement. If the parties were claiming breach of contract, or wanted the contract enforced or nullified, application would need to be made to the Supreme Court. Tr. 16-18.[2] The parties acknowledged that the option of addressing the terms of the settlement agreement in court was available to each of them. Tr. 22.
2. There are questions of fact with respect to what the CSE recommendations were on May 11, 2015. No IEP was mentioned in the agreement. If there are IEP contents that do not square with the May 11, 2015 CSE recommendations or there was a change subsequent to the agreement or the May 2015 IEP, those IEP terms and whether they constitute
FAPE properly are before me. Tr. 21. The May 2015 IEP is before me. Tr. 20-21.
3. The District’s Motion for Particularity (see IHO Ex. XLII) was denied. The parent’s claim was sufficiently detailed for the district to be on notice of the Parent’s claims and no sufficiency challenge was filed. The pre-hearing process was used to clarify any questions. Tr. 25.
4. Whether the parent failed to provide consent to the initial provision of services requiring dismissal of the complaint is a question of fact properly before me. Tr. 23-24.
5. The parent’s claims of a denial of FAPE due to the student’s referral to AIS or RTI properly are before me. Tr. 22-23.
The pre-hearing conference was continued on November 18 3, and 23, 2015 and addressed the issues addressed in the parent’s second due process complaint as well as several pleading filed by the parties. Since the first pre-hearing conference of November 11, 2015 the District had filed District’s Response to Due Process Complaint Dated October 19, 2015, dated November
3 On November 18, 2015 the issue of the student’s pendency rights was raised by the parent who had asked in her second due process complaint for an Interim Alternative Educational Setting. During the November 23, 2015 prehearing conference, the parent stated that the student’s pendency is in his current placement, thereby agreeing with the District and removing the need for a pendency hearing. Tr. 146-152. 13, 2015. IHO Ex. LV. The Parent filed Parent’s Reply to District’s Response to Due Process Complaint Case No. 93940, dated November 13, 2015. IHO Ex. LVI. The Parent’s two due process complaints were consolidated by order dated November 16, 2015. IHO Ex. LVII. The Parent filed Parent’s Motion Requesting an Order for District to Produce Subpoenaed Documents (IHO Ex. LVIII) and the District filed Attorney Affidavit in Response to Parent’s Request for Subpoena Duces Tecum (IHO Ex. LIX), both dated November 17, 2015.
The Parent’s production requests in the subpoena to the District were resolved with the exception of an order requiring the District to produce copies of the student’s DRA-2 Black Line Master. Throughout the hearing the Parent was permitted to review the student’s DRA-2 folder and to use it to examine witnesses. An Order issued January 4, 2016, denied the Parent the right to make copies of the materials. IHO Ex. LXII.
The parties asked for extensions of the compliance date and they were granted pursuant to the Commissioner's Regulations. 8 N.Y.C.R.R. §200.5(j)(5)(i); See IHO Exs. LXIV-LXVII, LXVIII, LXXI.
The record was closed on April 14, 2016.
The District’s Position
The District sought dismissal of the Parent’s complaint to the extent that any of the allegations were the same or similar to those raised in a previous complaint, Case No. 87975, that was withdrawn with prejudice on May 12, 2015, and that any claims beyond the two year statute of limitations be dismissed. The District argued that the Parent entered into a settlement agreement dated May 12, 2015, in which the Parent released the district from any claims that existed prior to that date. The District argued that by the terms of the settlement agreement the Parent agreed to the recommendations made at the May 11, 2015 CSE meeting and thereby waived any claim that the IEP developed as a result of that meeting failed to provide the student a FAPE. In its Closing Brief, the District argued that the May 12, 2015 settlement agreement released the District from any prospective claims that the Parent might have based on the May 11, 2015 CSE recommendations or the IEP developed as a result of the May 11, 2015 CSE recommendations. IHO Ex. LXX. The District further argued that the May 11, 2015 IEP as amended on August 10, 2015 provided the student with a FAPE. Moreover, the District claimed that the parent allegations of a denial of FAPE stemming from the May 12, 2015 eligibility meeting or the District’s subsequent inability to implement the resulting IEP are barred because the Parent never provided consent for the initial provision of services despite repeated efforts by the District to obtain consent. The District maintains that the student has not received the services that he needs and to which he is entitled because the Parent refused to provide consent and later challenge whether the IEP was appropriate. Accordingly, the District maintains that the student is not entitled to any compensatory services due to the acts of the Parent.
The District also argued that the parent was not entitled to a XXXX or academic IEE at public expense. The district maintained that the evaluations provided by the district and independent evaluators that were considered by the CSE in order for it to reach its May 2015 determination of eligibility were comprehensive. Specifically, the independent XXXX evaluation included academic testing of the student.
Findings of Fact
The student is a XXXXX, enrolled in the XXX grade at the school district’s elementary school. Tr. 31-32. On May 11, 2015 the District’s Committee on Special Education (“CSE”) met and determined that the student was eligible for special education services with a classification of XXXX. The student’s classification is not in dispute.
The student transferred into the District from the XXXX City School District for the beginning of first grade, the 2012-2013 school year. At that time, the student had a diagnosis of “XXXX” and “XXXX.” Dist. Ex. 2-7. Just prior to the student’s transfer, the XXXX City School District held an annual review for the student, maintained his classification of other
(“XXX”) and decreased his levels of service, but continued XXXX/XXXX therapy, XXXX, and within a general education classroom. Joint Ex. 2; Tr. 201. The student was performing at or above grade level in math, reading and writing, although the student struggled with the XXXX act of writing. Joint Ex. 2, pp. 5-6. The student’s XXXX XXXX skills had “greatly improved,” but only within the therapy setting; they had not generalized to large group settings. Joint Ex. 2-6.
On August 8, 2012, a subcommittee of the District’s CSE met to determine the student’s educational needs. District Ex. 2. Tr. 45-46. The CSE continued the XXXX City School District IEP; the student was recommended for placement in a general education setting with the related services of XXXX and XXXX therapy, XXXX, and , as well as special transportation. Tr. 49, 55, 436-437; Dist. Ex. 2. No academic concerns were noted. District Ex. 2-4, 8. In keeping with a recommendation from the XXXX City School District, the CSE determined to reevaluate the student by May 18, 2013 in the following areas: cognitive; social/emotional; XXXX/XXXX; XXXX and medical. District Ex. 2-5; Tr. 201, 202, 437-438. On August 18, 2012 the Parent signed consent to the evaluations. Joint Ex. 3-4. The student was placed in a general education XXX grade class. Tr. 55.
On or about December 2012, the District conducted an XXXX evaluation, a XXXX and XXXX evaluation, and a psychological evaluation. District Ex. 1; See Joint Ex. 5; Joint Ex. 6-3. The results of the December 2012 XXXX evaluation conducted by XXXX XXXX showed the student’s cognitive functioning based on the Wechsler Intelligence Scale for Children (“WISC”)IV and the ten subtests that contribute to the full scale IQ (Standard Score (“SS”)-XXX), assessing the cognitive skills that include verbal comprehension (SS-XX), perceptual reasoning (SS-XX), working memory skills (SS-XX), and processing speed (SS-XX). District Ex. 1, pp. 5-
8. The student’s scores all were in the range except perceptual reasoning fell in the range. Id. No academic testing was done. Tr. 531-532.
A December 18, 2012 XXXX and XXXX evaluation conducted by XXXX XXXX showed that on the Comprehensive Assessment of Spoken XXXX (“CASL”), used to assess receptive and expressive XXXX skills, the student scored XX, which is in the range. District Ex. 1-4. The student scored in the range on all of the subtests: Antonyms (SSXX); Syntax Construction (SS-XX); Paragraph Comprehension (SS-XXX); and XXXX Judgment (SS-XX). Id; Tr. 1033. Ms. XXXX reported that the student’s expressive and receptive XXXX as well as his XXXX XXXX skills are age appropriate, as were his grammar skills. District Ex. 1-4. The student’s XXXX exhibited a frontal lisp that did not interfere with his intelligibility. Id.
A December 2012 XXXX Evaluation conducted by XXXX XXXX, a District therapist, noted that the student’s “greatest needs are in the areas of fine motor, specifically handwriting, self-care and sensory processing.” District Ex. 1-1. The student’s performance on the Bruininks-Oserestsky Test of Motor Proficiency second edition (“BOT-2”) yielded a composite standard score of XX (Fine Motor Precision - Scale Score X, and Fine Motor Integration – Scale Score XX) for Fine Motor control, putting the student in the range for both subtests and the composite. District Ex. 1-2. The student achieved Scale Scores of XX on both the subtests for Manual Dexterity and Upper Limb Coordination. Id. Ms. XXXX noted that these results are consistent with the student’s work in the classroom. Id. The student had strong visual perceptual skills. Id. In terms of sensory processing and self-care skills, Ms. XXXX stated that the student “presents with definite needs in the area of his sensory processing” and has benefitted from a class-wide sensory diet.[4] District Ex. 1, pp. 2-3. Ms. XXXX noted that the student’s body does not always register what information his body’s sensory system is giving him, which is why, for example, the student has toileting accidents. District Ex. 1-3. Ms. XXXX recommended two goals: 1) “[The student] will copy 3 sentences with 80% accuracy for size, spacing, orientation and line placement as measured by clinician observation.” 2) “[The student] will identify with minimal visual and verbal cues that he needs a sensory break in the classroom, and will move independently through those transitions in the sensory corner.” Dist. Ex. 1 pp. 1-3.
The CSE reviewed the evaluations at a December 18, 2012 meeting and determined to discontinue XXXX and XXXX and services based on the December 2012 CASL evaluation results. Joint Ex. 6, pp. 3-9; Tr. 62; Tr. 1052-1054; District Ex. 16-11. The student was recommended to receive XXXX twice in a four day cycle for 30 minutes per session, and also continued to receive modifications. District 16-2.
Despite being discontinued from the related service of XXXX and XXXX services, due to a concern about the student’s lisp, the District provided the student with “informal” XXXX services. Tr. 209, 1065-1066. XXXX XXXX provided the student with “informal” XXXX services from January 2013 to June 2013, one time in a four day cycle for 30 minutes. Tr. 1026,
1064. “Informal” XXXX services are for “a student who doesn't have an IEP, but there is a need for maybe XXX therapy or something in a more minor capacity.” Tr. 1026; see 1049-1051. The student had a XXX for which Ms. XXXX worked on helping XXX , in words, and in sentences, and then eventually to conversational XXXX Tr. 1027. Ms. XXXX pulled the student out from classes to provide the informal XXXX services. Tr. 1063. Ms. XXXX kept progress notes and indicated that the student acquired the necessary skill and was able to generalize it to other environments like in his classroom or in the cafeteria. Tr. 1027; Joint 41. It was determined that the student no longer would receive informal services because he had corrected his XXXX and no other concerns were mentioned by teachers or the parent. Tr. 1030.
On June 7, 2013 the CSE convened for an annual review, determined that the student no longer was eligible for classification as a student with a disability and declassified him. Joint Ex. 7-8; Tr. 62. The information relied upon by the CSE at the meeting included: classroom teacher report; progress XXXX; XXXX progress XXXX and parent report, as well as the 2012 XXXX evaluation, XXXX and XXXX evaluation, and psychological evaluation. Tr. 223224, 231-232; District Ex. 1. No special education teacher or psychologist participated in the meeting. Joint Ex. 7-3; Tr. 222.
On June 7, 2013 the District held a Section 504 eligibility determination meeting for the student and created a Section 504 Plan that provided the student with XXXX, special transportation (bus with an attendant) and other modifications that he had received under his December 2012 IEP. Joint Ex. 8; Tr. 63.
The student’s report card for XXX grade indicates that the student was approaching or meeting curriculum standards in all academic areas. The student was regularly encouraged to improve his fitness levels, and noted to struggle with XXXX, independent work and focus. Joint Ex. 9, pp.1-2.
During the 2013-2014 school year, while the student was in XXX grade, the student participated in “XXXX,” a XXXX group working on social interactions with peers, emotional identification, problem solving, and getting along with peers. Tr. 590-591.
In February 2014 the Parent referred the student to the CSE for an evaluation and requested that behavior rating scales be completed. Tr. 65; Joint Ex. 14. In March 2014, XXXX XXXX XXXX, a school psychologist, administered behavior rating scales, the BASC 2 and Conners 3. Joint Ex. 14; District Ex.16-40; Tr. 385-386. Both the teacher and Parent results on the BASC fell within the XXXX range for the following scales; “Anxiety, Depression, Somatization, Atypicality, Emotional Self-control, Executive Functioning and Negative Emotionality.” Joint Ex. 14-1. Both teacher and Parent results fell within the XXX range for: Withdrawal and Functional Communication. Id. “Scores fell within the XXX range on the parent rating and within the XXX range on the school rating for the following areas: Hyperactivity, Aggression, Conduct Problems, Attention Problems, Adaptability, Anger Control, Bullying, Developmental Social Disorders, and Resiliency.” Id. On the Conners rating scale, the student’s behavior at home and at school fell within the “XXXX range for: Inattention, Hyperactivity/Impulsivity, Aggression and Peer Relations. Joint Ex. 14-2. “Scores fell within the XXXX range on the at home rating and the ‘Elevated’ range on the school rating for the following scales: Learning Problems and Executive Functioning.” Id. According to the Conners “impairment” scale, the parent and school rating scales both indicate that the student’s “problems” seriously affect his schoolwork/grades and his friendships/relationships XXXX .” Id. Ms. XXXX-XXXX noted that when making determinations regarding the student’s functioning, in addition to the rating scales other sources of information such as observation reports, data collection and progress reports should be considered. Joint Ex. 14-2. The Conners scale results were consistent with the Diagnostic and Statistical Manual of Mental disorders – 4th Edition (“DSM-4”) “XXXX range for XXXX Predominantly Inattentive Type, XXXX
(although on the XXXX ” range on the school rating). Id.
On or about April 24, 2014 the CSE held an initial eligibility determination meeting for the student and recommended that he was ineligible for classification. Tr. 64-66. The standardized test results considered were the BASC and Conners Parent and Teacher scales and the December 12, 2012 WISC-IV. Joint Ex. 16. Ms. XXXX provided an XXXX report. Id; Tr.
64. The student was noted to be “approaching grade level range” in math and “approaching grade level range” in reading. The student’s needs are noted as writing improvement because his writing is difficult to read and improving focus. Joint Ex. 16-3. In terms of social development, the student needs to develop strategies to cope with his emotions more appropriately and to improve his XXXX. Id. It also was noted that the student would continue to benefit from handwriting instruction and practice. Joint Ex. 16-4. It was noted that the parents felt the student needed more support in the classroom. They also had “significant” concerns about his emotional stability and behaviors at home. Id.
Although the student’s behaviors at school were not as significant as those reported by the parents, the District conducted a Functional Behavior Assessment/Behavior Intervention Plan (“FBA/BIP”) that was completed on or about May 6, 2014. Tr. 594-595; District Ex. 16 pp. 33-
38. Data was collected over February and March 2014, including about interventions that were successful. District Ex. 16-33. The FBA/BIP were completed by XXXX XXXX, XXXX XXXX, XXXX XXXX, who was the classroom teacher at the time, XXXX Beth XXXX who was the therapist, and the parents. Tr. 596. Independent Work Center times were the only setting. District 16-34. Direct observation, scatter plot, data collection, conferences with both parents about the student’s history as well the classroom teachers, his progress to that point, and the school psychologist information about the student were taken into account. Tr.
622. No behavior rating scales were used. Tr. 622. Two target behaviors were identified: 1) the student had excessive emotional reactions including crying, yelling, verbalizing excuses, somatic complaints, lying on the floor, and withdrawal from classroom activities; and 2) the student struggled to complete his work independently and required consistent prompting. District Ex. 16, pp. 33-34. The BIP was completed on June 25, 2014. District Ex. 16-37. By the time the evaluation was completed, the student no longer was exhibiting the behaviors in the classroom. Tr. 597, 640-641. The interventions that were on the BIP were strategies that the staff already was implementing at the time that the FBA/BIP were being developed. Tr. 640. Shortly after the FBA and BIP were completed, the District received notice from the Parent that she did not want the BIP utilized. Tr. 597, 639; see Joint Ex. 21-1.
On or about May 7, 2014 the Parent requested several independent educational evaluations (“IEE”s), including a XXXX evaluation and an FBA/BIP, because she disagreed with the evaluations that were done and considered at the June 7, 2013 and April 24, 2014 CSE meetings. IHO Ex. LXVII-4, 7. The Parent disagreed with the District’s evaluation of her son that resulted in its determinations that he was ineligible to be classified as a student with a disability because the District failed to evaluate in all areas of suspected disability. Id. at 5, 16.
A May 29, 2014 XXXX Annual Progress Report by XXXXbeth XXXX, noted that the student received XXXX two times over a four day cycle, and stated that the student “continues to independently” complete writing tasks, print multiple sentences with age-appropriate fine-motor skills, use scissors appropriately, demonstrate age-appropriate visual –motor integration skills, color in small squares on graph paper with age appropriate fine-motor precision and control, use an age-appropriate pincer grasp to move game pieces to a balance board, among a number of age appropriate fine motor and visual integrations skills. District Ex. 16-26. Ms. XXXX recommended that the student would continue to benefit from reminders to “review/edit his written work as needed” and additional hand-writing practice. Ms. XXXX found that the student demonstrated “the XXXX skills necessary to complete all school –related activities at an appropriate age level and continued to access his curriculum independently. District Ex. 16-17.
The student’s XXX grade report card shows that the student achieved the grade of approaching curriculum standards in all areas of reading and math except geometry in which he met curriculum standards as he did in social studies and science. Joint Ex. 9, pp. 16-17. In XXXX education the student was graded below curriculum standards in aerobic fitness, flexibility, abdominal fitness and upper body fitness. Joint Ex. 9-17.
By letter dated August 27, 2014 the Parent revoked consent for 504 services for the student. Joint Ex. 21; Tr. 64-65. The Parent noted that on May 7, 2014 she previously rejected the Section 504 plan, disagreed with the CSE decision to declassify her son in December 2013, and requested an Independent Educational Evaluation (“IEE”) in the areas of XXXX, XXXX and XXXX therapy, and a functional behavior assessment. See Joint Ex. 21-1, Tr. 70.
For the 2014-2015 school year the student was in aXXXX grade general education classroom of approximately 18-20 students with one general education teacher, XXXX XXXX. Tr. 668. At times when Ms. XXXX was working with reading groups, XXXX XXXX, an AIS teacher would come to the classroom and provide extra support to all of the classroom students while they worked independently on math problems. Tr. 728-729.
The Parent obtained a private XXXX Evaluation conducted by XXXX XXXX, dated September 18, 2014 to October 21, 2014. District Ex. 16-19. The evaluation included the BOT2, Gardener Test of Visual Perceptual Skills and a sensory profile completed by the Parent. District Ex. 16-19. On the BOT-2 the student demonstrated fine motor control scores XXX , “however in manual coordination and bilateral coordination he scored XXX .” District Ex. 16-
20. No scores were provided for these sub-tests. District Ex. 16, pp. 19-22. Based on the completed Parent’s Sensory Profile, the student performed in the XXX of the research sample or “Definite Difference Classification for Sensory Processing (auditory, visual, vestibular, touch, multi-sensory, and oral sensory processing), Modulation (sensory processing, related to endurance/tone, body position and movement, sensory input affecting emotional responses, and visual input affecting emotional responses), and Behavior and Emotional Responses (emotional/social responses and behavioral outcomes of sensory processing).” District Ex. 1621.
Ms. XXXX summarized that based on her findings the student is more likely struggling with social-emotional issues that contribute to poor peer relationships, lack of friends, emotional immaturity and behavioral concerns because of sensory processing dysfunction rather than issues related to his diagnosis of XXXX XXX because not all children with XXX have behavioral concerns. District Ex. 16-21. Ms. XXXX recommended XXXX services focused on the following goals: 1. “[The student] will demonstrate 3 techniques to use for self-control and stress reduction to decrease frustration/anger episodes.” 2. “[The student] will write a short story (3 paragraphs with illustrations using collage and tracing media to improve fine motor planning/coordination and handwriting.” 3. “[The student] will improve bilateral UE bimanual coordination needed for play with legos and tool use such as using pliers and a wrench simultaneously.” District Ex. 16-22. Ms. XXXX also provided a suggested short term objective for each goal. Id.
The parent obtained a private XXXX therapy evaluation of the student because of concerns about the student’s motor abilities in school. The Parent felt that the student “may have limited ability to explore the school playground and limited participation in motor activities with peers (both during free time and XXXX education class.” District Ex. 16-14; Parent Ex. K.
A XXXX therapy evaluation dated October 21, 2014 was conducted by XXXX XXXX, who administered the standardized test, Bruininks-Oseretsky Test of the Motor Proficiency, in a clinical setting, with “mock up environments.” District Ex. 16-14 The student’s subtest scores included “Subtest X: Balance total score XX, scale score X, age equivalence-less than XXyears. Subtest 6: Running Speed and Agility total score XX, scale score X, age equivalence-X years, X months. Subtest 8: Strength total score XX , scale scoreX, Age equivalence X years.” District Ex. 16-15. The student has difficulty maintaining an upright posture over several minutes, needing more support. Id. at 14. The student presents with typical motion throughout his joints, but his active motion is “limited in positions which rely on strength to complete….” Id. From both sitting and standing positions, the student “presents with a delayed and incomplete protective/righting response.” Id. Ms. XXXX noted that the student walks through his environment “with a smooth, symmetrical gait.” District Ex. 16-15.
Ms. XXXX noted that the student
“has deficits in postural muscle and endurance which interfere with his ability to participate throughout his school day. Per clinical observation as well as standardized testing, he presents with a significant gross motor delay. These deficits impact his ability to safely maneuver through his daily environments as well as his ability to interact with peers. Additionally he lacks ability to appropriately catch himself and regain upright from positions which take him outside of his base of support.” District Ex. 16-16.
Due to the student’s “differences in strength, postural control, muscular endurance and the ability to catch himself, Ms. XXXX, recommended goals for the student, to be addressed in direct therapy services. The suggested goal areas for the student include participation in three to five minutes consecutive movement game with peers with skills/activities to attain the goal, and demonstration of improved postural control during both static and dynamic tasks with a description of objectives the student should achieve to attain the goal. District Ex. 16-15. Ms. XXXX recommended direct XXXX therapy services twice a week individually for 30 minutes per session and once a week in a small group for 30 minutes per session for the student to address his motor deficits because the student’s “performance in his school setting is so profoundly impacted” by them. District Ex. 16-16.
The Parent obtained a private XXXX-XXXX Evaluation of the student in preparation for the upcoming CSE eligibility determination meeting. Although undated, the report conducted by XXXX XXXX from XXXX Medical Center notes that the student is eight and it is time-stamped October 23, 2014 by the District. District Ex. 16-7. Ms. XXXX administered the Clinical Evaluation of XXXX Fundamentals (“CELF”) 5, a comprehension, receptive, expressive and XXXX XXXX test. The student’s composite Core XXXX Score of indicates that the student’s overall XXXX is (85-115 are considered to be within normal range). Ms. XXXX also was concerned by the discrepancy between the student’s Receptive XXXX Index ( ) and Expressive XXXX Index ( ) indicating that there is a “significant gap” between the student’s comprehension and ability to use XXXX appropriately. District Ex. 16-8. The XXXXs Profile showed that the student had very poor social XXXX skills. On informal tasks the student tended to focus on the details of a story and had difficulty comprehending figurative XXXX. District Ex. 16-9. On the Test of XXXX XXXX (“TOPL”) the student performed , but did significantly better talking about the pictures and hypothetical situations used in that test than on measures that assessed the student’s competence with social XXXX in the real world. District Ex. 16-9. On the Goldman Fristoe Test of Articulation Second Edition, used to determine the presence and nature of XXXX-sound disorders, the student was found to have “slight frontal lisping of /s/ and /z/ in all positions. District Ex. 16-8; Tr. 1040.
Ms. XXXX noted that based on her clinical judgment and the results of the standardized tests, the student is exhibiting XXXX and XXXX deficits consistent with what is expected for a child with a diagnosis of XXXX Ms. XXXX recommended that the student receive “skilled XXXX therapy” to address his “significant” deficits. District Ex. 16-9. The student’s “deficits in XXXX XXXX, particularly the difficulty he has comprehending context clues, understanding figurative XXXX, and extracting salient information from a story put him at risk of poor academic achievement.” Id. The student’s “vocal quality and XXXX sound errors would also be appropriate targets for therapy.” Id. Ms. XXXX noted that therapy would likely be most successful in a group or inclusive setting. District Ex. 16-10.
XXXX XXXX, a district XXXX and XXXX therapist, prepared a report dated October 29, 2014 in which she compared the December 12, 2012 XXXX and XXXX evaluation completed by XXXX XXXX with the private XXXX and XXXX evaluation report conducted by XXXX XXXX. District Ex. 16-12. Ms. XXXX highlighted that the student’s inattention during the assessment process likely impacted the student’s scores on the CELF-5 and therefore may not be valid indicators of his overall XXXX ability. District Ex. 16-12; Tr. 1039. The student’s standard score of on the Receptive XXXX Index indicated average ability in his understanding of XXXX. His standard score of on the Expressive XXXX Index indicated expressive XXXX skills.” Id. Ms. XXXX noted that a student with such a score typically would experience a great deal of difficulty formulating age-appropriate sentences and communicating information, but based on recent conversations with the student’s teacher and special area teachers, the student did not exhibit either in his day-to-day functioning in school. District Ex. 16 pp. 12-13. Ms. XXXX opined that on the CELF-5, had the evaluator also had the classroom teacher or special area teachers, and not just the parents and evaluator, complete the “XXXXs Profile,” the evaluator would have had more opportunity to observe a wide range of communication skills, including those related to the classroom setting, and quite possibly higher scores. District Ex. 16-13. Ms. XXXX suggested that the student would benefit from the XXXX group led by a social worker who focuses on XXXX social communication skills. District Ex. 16-13.
From June 24, 2014 to December 18, 2014 the District sent the Parent Prior Written Notice requesting consent to conduct the following evaluations of the student: XXXX; adaptive behavior scales; educational evaluation; psychological evaluation; social history and student observation. Joint Exs. 24-31. The Parent did not provide consent for these evaluations. Many of these were the same evaluations for which the Parent had requested IEEs at public expense because the District had not performed these evaluations previously. See IHO Ex. LXVII. As of November 12, 2014 the District and Parent were parties to an impartial hearing about the IEEs requested by the Parent. Id.
On December 1, 2014 there was a “team” meeting to determine what if any other information was needed by the CSE in order to determine the student’s eligibility. Tr. 68. The parent was invited to attend, but did not. Tr. 67-68; Joint Ex.22. On December 19, 2014 the CSE met to determine the student’s eligibility, but decided that it needed more information in order to make the determination. District Ex. 16. The minutes of the meeting reflect a general concern that the private evaluations do not include any information from District staff, and that the staff experiences of the student differ from what is reported in the private evaluations. District Ex. 16, pp. 2-6. The District received the private XXXX therapy evaluation on time for consideration at the December 19, 2014 CSE meeting. Tr. 421-422. The District had two undated XXXX Therapy Referral Forms completed by unidentified individuals and stamped received by the District in November 2014, although Ms. XXXX stated that playground monitors, the teachers and the XXXX education teacher were asked to complete the forms. Tr. 422-423. The forms with the exception of an additional sentence and some additional checks that are initialed are in what appears to be identical handwriting and have identical content including that the student does not trip or fall in the classroom, hallways stairs or cafeteria and has no issues using the playground equipment. District Ex. 16 pp. 17-18. No concerns were noted about the student. Tr. 423. No concerns were noted about the XXXX therapy evaluation and no further action was taken. Tr.
423. The parent never was informed in writing that additional information was needed with respect to the XXXX therapy evaluation. Id.
By Prior Written Notice dated December 30, 2014, the District informed the Parent that it was unable to make an eligibility determination and provided a list of evaluations it deemed necessary. District Ex. 17. The District had not conducted any of the evaluations listed: psychological evaluation; social history; educational evaluation; classroom observation; adaptive behavior scales; and XXXX evaluation. District Ex. 17-2; Tr. 230. The District provided the Parent with a Consent for additional evaluations (Dist. Ex. 17-4), but the parent did not provide consent. Tr. 67- 69.
A February 24, 2015 Findings of Fact and Decision for Case No. 87856, ordered that the Parent was entitled to IEEs at public expense for a XXXX evaluation and an FBA/BIP. IHO Ex. LXVII; see Tr. 301.
On March 26, and March 27, 2015, XXXX XXXX, a behavior analyst, and XXXX , a XXXX , conducted an independent FBA and wrote a report, pursuant to the award of an FBA IEE to the parent. Joint Ex. 47. The rationale for the evaluation was noted as: the student “has demonstrated difficulties with self-regulation; on task behavior; refusal behaviors related to instructional demands; independence in task completion; and transitioning issues. Joint Ex. 47-1. The goals were to “decrease maladaptive behaviors while increasing socially appropriate alternative (replacement) behaviors so that the student can fully participate in the classroom academic instruction and improve his overall academic performance.” Broad goals included increasing the student’s ability to maintain focus during instructional periods, compliance with demands, and ability to self-regulate. Joint Ex. 47-1. The evaluators interviewed the parents and educational staff including XXXX XXXX, XXXX XXXX, XXXX XXXX XXXX XXXX-XXXX and XXXX , the Elementary Principal. Joint Ex. 47-6. The assessment was conducted at the student’s home and across school environments including the classroom, lunch room, music room and tech room.
The evaluators found that “across a variety of antecedent conditions, when [the student] is presented with a task demand or non-preferred activity/situation, [the student] will engage in off-task behavior; talk-outs; and refusal behaviors in an attempt to escape the demand or situation (socially-mediated negative reinforcement).” Joint Ex. 47-10. When the student was not receiving the direct attention of an educational team member, he engaged in off-task behavior, talk-outs and refusal behaviors in an attempt to gain attention. During less structured times such as lunch or recess the student engaged in noise play for automatic reinforcement. Id.
The evaluators recommended creating a BIP with: high rates of reinforcement including access to individualized attention and highly preferred items with a plan to lessen the density of the reinforcement schedule; one-on-one support during academic instructional periods to decrease the escape from demand with a plan to fade the support in favor of self-management; XXXX training and participation in a structured social group with targeted goals; strategies to teach and reinforce the use of appropriate replacement behaviors such as requesting breaks from work demands, asking for attention and preferred items, engaging in relaxation techniques, and expressing feelings of frustration; and frequent verbal praise for appropriate social behavior coupled with decreased attention for engaging in targeted problem areas. Joint Ex. 47-10.
Ms. noted that although the student could initiate a conversation, it usually was “one-sided in nature” and of interest to the student, lacking social reciprocity. Joint Ex. 47-9. Most of the observed conversations consisted of 3-4 verbal exchanges and were directed toward the student’s topic of interest. The student did not yet demonstrate XXXX such as perspective taking or flexible thinking. Id. It was recommended that the student participate in XXXX training and a structured XXXX group. Joint Ex. 47-10.
Pursuant to the order authorizing the parent to obtain an IEE at public expense in the area of , Dr. XXXX XXXX, a clinical psychologist with a specialization in conducted an independent XXXX evaluation of the student and issued a report dated May 1, 2015. Joint Ex. 42. Dr. XXXX reviewed several documents that were provided by the parent: the FBA/BIP performed by XXXX XXXX; a May 7, 2014 Psychological Report by ; XXXX XXXXs’s XXXX Evaluation, XXXX XXXX’s XXXX XXXX Evaluation; XXXX XXXX’s XXXX Therapy Evaluation; the District’s December 12, 2012 Psychological Evaluation; the District’s 2014 FBA; the student’s XXX through XXXX grade report cards; the student’s prior IEPs and 504 Plan; and a November 12, 2014 XXXX Therapy Referral form. Joint Ex. 42 pp. 1-2; Tr. 1394. The student’s teacher completed a Conners Rating Scale requested by Dr. XXXX. Tr. 1402. Dr. XXXX did not request other information from the District and the District did not provide any. Tr. 1412.
Dr. XXXX confirmed the student’s previous diagnosis of XXXX XXX, and also diagnosed the student with XXXX (“XXXX”). “The student did not meet criteria for any specific learning disability and his basic academic skills are solid.” Joint Ex. 42-18; Tr. 1410. The student’s weak graphomotor skills impact him significantly. The student’s diagnosis of XXX impacts the student regarding academics in that the student has “very low frustration tolerance, difficulty with transition, executive functioning, behavioral intervention, poor attention, and he needs additional support to be able to access and perform in school at his ability level particularly as he gets older and the demand in school increases.” Tr. 1446; see Joint Ex. 42.
Dr. XXXX administered the WISC-V to assess the student’s general intellectual abilities. The student’s scores resulted in a Full Scale IQ of XXXX percentile, placing him in the range. The student’s scores were much more variable than those he scored in 2012, with “marked weakness in processing speed and working memory.” Joint Ex. 42. The student’s test results were as follows: Verbal Comprehension was in the Range (XXX Standard Score (“SS”)/XX percentile); Visual Spatial was in the Range (XX SS/XXth percentile); Fluid Reasoning was Average (XX SS/XXst percentile); Working Memory was Average (XX SS/XXth percentile); and Processing Speed fell within the range (XX/Xst percentile). Joint Ex. 42-24. In order to have a better idea of the student’s highest potential or intellectual ability, what he can learn and retain as well as his problem solving skills, Dr. XXXX looked at the student’s General Ability Index (“GAI”), an alternate way of assessing intelligence when the full scale IQ is considered clinically skewed or not accurately assessing or representing the child's true ability. Joint Ex. 42-7; Tr. 1367-1368, 1461-1462. The student’s full scale IQ was skewed because of the student’s processing speed and working memory. The student’ GAI fell solidly in the range, in the XXth percentile (SS – XX). Joint Ex. 42-7.
The student’s verbal skills were solidly in the range (Verbal Comprehension Index XXth percentile) and Similarities XXrd percentile). Joint Ex. 42-7. The student’s effort and attention were diminished across all visual tests, attenuating his scores. Joint Ex. 42-8. The student’s scores were somewhat better on the Visual Spatial tests (Block Design – XXth percentile and Visual Puzzles XXth percentile) than on Fluid Reasoning (Matrix Reasoning- XXh percentile). Joint Ex. 42-24. The student also performed for his age on the Beery rd Visual Motor Integration Test (XX percentile) in which he was required to copy simple figures.
Dr. XXXX found that the student’s scores on visual processing speed were significantly weak compared to his other intellectual skills, “reflecting an area of clinically significant weakness in this domain.” Joint Ex. 42-8. Dr. XXXX observed that the student’s scores involving fine motor coordination such as the Coding Test (XX percentile) impacted by his fine motor skills and visual scanning as reflected in the test Symbol Search (XX percentile) impact students as they have more demanding classroom tasks such as note-taking. Joint Ex. 428, 17.
The student’s academic skills in reading, mathematics, and writing were assessed using subtests from: Woodcock Johnson Test of Achievement-Third Edition (“WJ-III”); Grey Silent Reading Test (“GSRT”); Grey Oral Reading Test (“GORT”) and Test of Written XXXX-fourth Edition (“TOWL-4”). Joint Ex. 42-9. The student’s reading skills were solidly in the “ range for word reading, word decoding, and reading fluency (WJ-III Letter Word Identification XX percentile, Word Attack XX percentile, Reading fluency XX percentile)” though his reading was notably dysfluent. Joint Ex. 42-9, 17. The student performed well on reading comprehension on structured tests (WJ-III Passage Comprehension XX percentile, WIAT III Reading Comprehension XX percentile, GORT-5 Comprehension Xx percentile). Joint Ex. 42-9. “In contrast, [the student] performed in the range on a test of independent reading where he was asked to read passages and answer multiple choice questions without support (GSRT XX percentile).” (emphasis in original) Joint Ex. 42-9. Dr. XXXX noted that the student had obtained age and grade appropriate reading skills, but struggled to apply them to more complex tasks if required to work independently. Id. Dr. XXXX also noted that the student struggled to make inferences and understand non-literal questions. Id.
The student’s math scores revealed a “weakness in XXXX” Joint Ex. 42-9. The student’s strongest score was on a test of basic calculations on which he still scored
(WJ-III Calculation XX percentile). Joint Ex. 42-9, 25. The student scored in the range on a test of math fluency (WJ-III Math fluency XX percentile), during which Dr. XXXX observed a lack of automaticity, and in the WJ-III Applied Problems – XX percentile where the student’s inattention were noted. Joint Ex. 42-9, 17, 25.
The student’s writing skills were variable. The student’s handwriting “is arduous and illegible at times.” Joint Ex. 42-17. His strongest skills were in the area of phonological processing including spelling and word decoding when translating from sound to phoneme (WJIII Spelling XX percentile, Spelling of Sounds XX percentile). Joint Ex. 42-9, 25. The student scored in the range for a test of writing fluency (WJ-III Writing fluency XX percentile), which does not factor in legibility. Joint Ex. 42-10. Although the student wrote sentences within the designated time period, “they were illegible so this score is not an accurate assessment of his true writing speed.” Joint Ex. 42-10. Given structure, such as verbal prompts of target words, the student’s writing is at grade level, but with less structure and more independence the student’s writing revealed more errors in sentence structure, grammar and spelling. Joint Ex. 42-10, 17.
The student’s XXXX functioning was variable as tested. The student’s receptive XXXX skills were in the in some of the areas tested (WIAT-III Oral Discourse Comprehension-XX percentile, NEPSY-II Comprehension of Instructions-XX percentile and WIAT–III Receptive Vocabulary-XX percentile). Joint Ex. 42-10. These scores were noted to be consistent with the 2014 XXXX and XXXX evaluation conducted by XXXX XXXX. Id.
The student’s expressive XXXX skills include solid word knowledge (WJ-III Picture Vocabulary-XX percentile). The student’s verbal fluency and XXXX automaticity were much
, “suggesting that when under a time pressure, [the student] cannot quickly and automatically access XXXX.” Joint Ex. 42-19. The student scored well , in the XX percentile on the NEPSY-II Word Generation Initial Letter subtest and X percentile on the NEPSY-II Word Generation Semantic subtest. Joint Ex. 42-10, 21. The student also scored
(XX percentile) on the CTOPP Rapid Naming subtest, a measure of visual scanning, automaticity, and speed of processing linguistic information. Consistent with the student’s stronger decoding skills, the student achieved scores on the CTOPP Phonological Awareness (XX percentile) and Memory (XX percentile) subtests. Id.
Dr. XXXX administered two CASL subtests and found the student scored below average in the XX percentile for Nonliteral XXXX and average in the XX percentile for XXXX Judgment. Joint Ex. 42-28. The XXXX Judgment score suggests that the student knows the appropriate responses to different social scenarios. The Nonliteral XXXX score is concerning because it impacts the student’s ability to interpret non-literal questions presented in school and is consistent with difficulty interpreting figurative XXXX. Joint Ex. 42-11.
On tests of attention, working memory and executive functioning, the student’s performance showed that he “can focus his attention for short periods of time and can take information in from his environment, but that he cannot maintain his attention for long periods of time and that he cannot sustain his attention while doing multiple tasks, steps or demands at the same time.” (Emphasis in original.) Joint Ex. 42-11. On a test of sustained auditory attention, the NEPSY-II Auditory Attention, the student scored in the X percentile or Range. Joint Ex. 42-26. In a more difficult test of sustained attention and response inhibition, the NEPSY-II Response Set, the student scored in the X percentile or Range. Joint Ex. 4224, 26. As the demands increased, the student was less able to focus and unable to inhibit incorrect responses. Joint Ex. 42-11. The student’s test results in terms of auditory memory fell within the range (California Verbal Learning Test, Immediate Recall X percentile and Delayed Recall X percentile). Joint Ex. 42-13, 27. The student’s results on visual memory testing were very strong, in the Range (Children’s Memory Scale – Dot Locations X and X percentiles). Joint Ex. 42-13, 27, 28. Dr. XXXX viewed the student’s performance with respect to learning information and applying it as an issue with how the student learns information and not with a memory problem. Joint Ex. 42-13.
Dr. XXXX’s findings were consistent with those on the FBA regarding the student’s lack of perseverance on more challenging tests. Joint Ex. 42-13. The student seems to use his negative behaviors to seek adult attention “because he lacks the executive functioning skills necessary to work independently, maintain his attention, and shift as demands change without this one-to-one support.” Joint Ex. 42-13.
Based on behavior rating scales completed by the student’s mother, student, and teacher, and parent interview with the father, the scores and information indicate: “[d]ue to [the student’s strong intellectual skills in contrast with his underperformance in school and challenges socially, [the student] is at great risk for depression, anxiety and continued thoughts of self-harm if he is not provided with adequate support.” (Emphasis in original) Joint Ex. 42-15. Dr. XXXX cautioned that the student must be monitored closely. Joint Ex. 42-18.
Dr. XXXX concluded that the student’s “symptoms related to his well-established diagnoses of XXXX and XXX are impacting his ability to learn and retain information in his current academic program.” Joint Ex. 42-18. Dr. XXXX made recommendations for the student: 1. Classification as a student with XXXX; 2. Additional time on all in-class and standardized tests (1.5 time) supported by the student’s scores on tests of math fluency and also his illegible handwriting when under time pressure, as well as the discrepancy between his processing speed and skills in the verbal domain (Joint Ex. 42-19); 3. Testtaking in a separate location away from classroom distractions with adult support to ensure the student stays focused and self-monitors, tests broken up into smaller parts, directions read and checked for understanding, and breaks (Joint Ex. 42-19); 4. A small classroom setting with a small teacher-to-student ratio and “access to a special education teacher who can teach the student the skills he needs to perform to his strong potential.” (emphasis in the original) Joint Ex. 42-19; 5. Alternatively the student might be successful in an ICT classroom with a special education teacher, but then he also would need additional support to manage the larger setting, such as a one-to one aide who would assist with redirection, focus and organization (Id.); 5. Consideration of placement outside of the District if there is not an appropriate District placement to meet the student’s intellectual and social needs (Id.); 6. Short breaks when appropriate throughout the day due to the students inattention, low frustration and slower processing speed (Joint Ex. 42-20); 7. Additional time to complete assignments and decreased workload to allow the student to focus his efforts on improving skills rather than become overwhelmed by the time and length of the assignment due to his slow processing speed, distractibility and difficulty with organization and planning (Id.); 8. Constant refocusing and redirection using visual and verbal cues combined with positive reinforcement for staying on task (Id.); 9. Preferential seating near the teacher (Id.); 10. Learning different strategies to copy notes from the board due to the student’s difficulty with working memory and sequencing, as well as providing the student with a copy of any important information that is written on a board (Joint Ex. 42-21); 10. Allow the student to use technology for all in-class note-taking (Id.); 11. Teach the student more active study skills (e.g., by a special education teacher in resource room) because the student has a strong ability to learn and retain new information over time that is “impacted by inattention and poor organization during the learning phase.” (Joint Ex. 42-21); 12. Teach the student using a multi-sensory model given the student’s strength in the auditory and visual domains (Id.); 13. Weekly communication between the student’s teacher and his parents to ensure consistent behavioral methods are used, to check in about weekly assignments, and determine where additional support is needed (Joint Ex. 42-22); 14. Conduct an XXXX evaluation due to the students graphomotor deficits but strong verbal skills as well as provide a graphic organizer (Joint Ex. 42-22); 15. Extended school year (12 months) for a more structured summer, ease the transition back to school in September, and allow him to continue skillbuilding to support his academic performance (Joint Ex. 42-22).
Dr. XXXX also recommended that the student receive XXXX and XXXX therapy with a focus on XXXX XXXX skills, XXXX and XXXX therapy as recommended by the private evaluations so that the student does not fall further behind his peers. Joint Ex. 42-22. The student’s BIP recommended by XXXX XXXX should be implemented and the parents should be trained to help support the student’s avoidant behavior’s at home. Id. Dr. XXXX “strongly encouraged” weekly and therapy in the school setting and privately, because of the student’s threats of self-harm, self-esteem issues due to his academic and social challenges, the need to learn better coping strategies and ways to express frustration. Joint Ex. 42-23. The student would benefit from an updated medical consultation to re-evaluate possible medication treatments that “might be viable” to help with symptoms of inattention and emotional regulation. Id. The student also would benefit from a XXXX group to support the student in his peer relationships and XXXX XXXX deficits. Id. Dr. XXXX also recommended that the student ride on a special education bus with an aide who is trained to work with students with
XXX. Id.
Ms. XXXX noted on the fall semester of the student’s XX grade report card that he was making progress in most areas of theXXXX grade curriculum and understood how to write a well-organized sumXXXX and letter, however the student was “not able to complete assignments independently due to the laborious XXXX act of writing (many assignments are typed).” Joint Ex. 9-15. The student was noted as unwilling to copy notes in math class. Id. The student required and was given frequent breaks throughout the day and transitioned to most new activities before the rest of the class. Id. The student required support to begin independent work, but once started he was able to work independently. The student “frequently” was disruptive (making noises, calling out, laying on the ground),” and required “a great deal of redirection.” Id.; see also District Ex. 20-5, 9. For the winter quarter, while the student understood the process of writing an explanation and was able to dictate a response, he was unable to write a response independently. Joint Ex. 9-16.
The student had difficulty showing his comprehension of text because of his difficulty writing. He also had difficulty with inferential reasoning even if he understood the text. The student was noted to be “very unfocused during whole group instruction, small group instruction, and during independent work time and requires frequent breaks throughout the day. He accomplishes very little work independently, however when provided with encouragement and support to remain on task, most of what he accomplishes is done by himself.” Joint Ex. 9-16; see also District Ex. 20-1. For the 3rd or last quarter, the teacher comments appeared to be generic to the entire class. Id.
Grade-wise, the student dropped from a first quarter grade of “ ” or “Approaches grade level expectations” to a “ ” or “ grade level expectations” for the second andXXXX quarters in all ELA-Reading foundational skills: phonics and word recognition; fluency to support comprehension; fluency rate and expression; and on the DRA2. The student was approaching grade level in other areas of fiction and non-fiction skills. Joint Ex. 9-13. In writing, the student met grade level expectations in his use of grammar, vocabulary and weekly spelling assignments. Joint Ex. 9-13. The student performed grade level expectations in writing to communicate ideas, “[p]roduces writing in which the development and organization are appropriate to task, purpose, audience,” and “[d]emonstrates consistent effort and perseverance.” The student was approaching grade level expectations in planning revising and editing, researching, and application of spelling in his writing. Id.
In math, the student was approaching grade level expectations in most areas. Joint 9-14. Ms. XXXX used a math profile to track the student’s assessment in different skill areas throughout the year in order to determine his math grades. Tr. 690- 693. 698-699; District Ex.
30. The student chose to sit just outside of the classroom during all math assessments and sometimes asked the teacher to scribe his answers. Tr. 693-695; e.g. see, District 30-24. The student refused to do math class work or did not complete his math homework multiple times and told Ms. XXXX that his mother said he did not have to do it. See District Ex. 20-1, 2, 6, 8, 9, 10, 17. Ms. XXXX found that the student required support to start the work, but was able to do a few of each assignment’s problems independently, and often was accurate in his work. District Ex. 20-2, 5, 6; See, District Ex. 35.
The student’s writing was very large and poorly formed. Tr. 699-700. He was able to write neater if the teacher gave him graph paper and asked him to stay within a certain amount of space. In math, Ms. XXXX would scribe for the student if she wanted to know the student’s thinking and she assessed that the need to write was interfering with the student’s ability to share what he knew. Tr. 700. For writing assignments, sometimes the student would type it, but other times if it was a longer answer, Ms. XXXX would write it for him. If Ms. XXXX wanted to know if the student understood a concept, she “often would write it…..” Tr. 701. If the student was upset about how the need to write might impact on his performance, Ms. XXXX would scribe for him or they might take turns. Tr. 701. Ms. XXXX stated that she could read most of the student’s handwriting, but that it was not legible for aXXXX grader. Tr. 752-753. The student’s handwriting was always a concern to Ms. XXXX. Tr. 778.
Although Ms. XXXX found that the student was able to do some work independently that required working with paper and pencil, the student’s ability to work independently was a concern to her. Tr. 754-755. For math assessments, the student would need refocusing. Tr. 798-
801. Over the course of the school year the student did not work independently most of the time. Tr. 800-801. The student needed help getting started, organized and set up to do the work. Tr. 801-802. During group ELA writing work, the student needed help getting started, avoided the work, or Ms. XXXX scribed for him. Tr. 802-803. During independent work times, once the student got started, Ms. XXXX found that he could work independently, with some prompting to continue. Tr. 803-804. The student needed adult support to transition to the next activity. Tr. 804.
During the 2014-2015 school year the student was not receiving XXXX because the parent did not consent to the services. Tr. 701. Ms. XXXX opined that the student needed more support in terms of handwriting skills than what she was able to provide. Id.
ForXXXX grade, Mr. XXXX XXXX, the XXXX education teacher noted that in the fall and winter quarters, the student was disruptive, had difficulty following directions and staying on task. Joint Ex. 9-15. The student received a “ ” or “ grade level expectations” in XXXX education for “Skill performance” all three quarters, as well as in the two quarters for which the class was graded for “Flexibility,” “Abdominal fitness,” and “Upper body fitness.” Id. For “Aerobic fitness,” the student improved from a “ ” to a “ ” or “Approaches grade level expectations” in theXXXX quarter. Id.
On May 11, 2015 the CSE convened to determine whether the student was eligible for special education services. Joint 51; Tr. 225. The CSE determined that the student was eligible as a student with a disability with a classification of XXXX. Joint Ex. 51.
The individuals present at the meeting were: XXXX XXXX Director of Student Services and Chairperson; XXXXXXXX, secretary; XXXX XXXX, school psychologist; XXXX, XXXX education teacher; XXXX XXXX, special education teacher; XXXX XXXX, XXXX XXXX pathologist; XXXX , principal; XXXX XXXX, therapist; XXXX XXXX, school social worker; XXXX XXXX, student’sXXXX grade teacher; XXXX XXXX, attorney for the School District; XXXX XXXX, Transportation Supervisor;XXXX, Parent Representative; the Mother of the student; and XXXX XXXX, the Parent’s advocate. Joint Ex. 51 (cover page).
For part of the meeting additional individuals participated, by telephone: Dr. XXXX XXXX who conducted the independent XXXX evaluation; XXXX XXXX who is a licensed XXXX therapist and supervises all of the XXXX therapists who work at the school district through a contract with the XXXX XXXX Center and reviewed the student’s private XXXX therapy evaluation (Tr. 292); and XXXX XXXX, a Board Certified Behavior Analyst (“BCBA”) who conducted the FBA. Joint Ex. 51 (cover page). Dr. XXXX and Ms. XXXX participated only for the review of each of their reports. Tr. 1337; see Joint Ex. 51-29, 45,107. Ms. XXXX did not participate in the entire meeting; she stopped participating after she reviewed the evaluation. Tr. 1227-1228; see Joint 51-145.
At the meeting, XXXX XXXX reviewed the FBA and explained her report consistent with the findings above. Supra pp. 19-21. Ms. XXXX noted that much of the FBA was developed from the District’s previous FBA (similar function for the student’s behavior Joint 51, pp. 8-9) and from speaking to the educational team. Joint Ex. 51-3. Ms. XXXX highlighted that the student is able to have improved on-task behavior and limited refusal behavior when given a highly-motivating item. The student’s verbal skills were too high for the Verbal Behavior MAPP assessment; the student uses age-appropriate grammatical structure. The student’s social communication skills were observed as an area of weakness; the student is unaware of personal space, his volume is inappropriate, his conversations are one-sided, he does not yet demonstrate perspective-taking and is unable to engage with peers when they initiate a conversation, all characteristic for a student with XXXX. Joint Ex. 51, pp. 8-9, 11. Ms. XXXX noted that “generally a BIP is developed from the FBA and CSE meeting with the educational team,” but Ms. XXXX created one pursuant to the order awarding the parent an IEE for an FBA and BIP. Joint Ex. 51-12. To that point, Ms. XXXX stated that “additional strategies should be developed by the educational team in direct consultation with the district’s behavior analyst.” Id. Ms. XXXX explained some of the strategies she included in the BIP: use of a token reward system with highly rewarding items such as electronics or doing errands that have adult engagement, that reportedly worked well for the student in the school and home environments, to reinforce longer periods of work. Joint Ex. 51, pp. 21-28. Another strategy in the BIP is to teach and reinforce appropriate replacement behaviors. Joint Ex. 51, pp. 20-21. To address self-regulation issues Ms. XXXX suggested some calming techniques. Ms. XXXX highlighted that the BIP needs to be a “team BIP” involving the parent, the educational team and preferably a BCBA or similarly credentialed individual to manage the plan, and emphasized the need for consistent data collection, data analysis with plan adjustments if necessary, and carry over between school and home with more collaboration. Joint Ex. 51, pp. 21-23.
With respect to a structured XXXX group with specific targets and goals, Ms. XXXX suggested considering the District’s “XXXX,” but in response to being asked whether the one session per week for 20-25 minutes is sufficient, Ms. XXXX stated that the one thing known about children such as the student is “that repetition is…really important and so more exposure is going to help increase his skill development quicker, and …really make it a strong skill, so I would suggest that he actually has XXXX training on a…daily basis and not a weekly basis.” Joint Ex. 51-14. Ms. XXXX added that “XXXX” does not sound like XXXX training which would target skills that then are carried over in to a group. Joint Ex. 51, pp. 14-15. Ms. XXXX stated that a social worker could work on the student’s XXXX training. Joint Ex. 51-15. Ms. XXXX recommended a behavior analyst to analyze the data collected during the implementation of the BIP, and Ms. XXXX stated the district could work with its contracted behavior specialist,
XXXX. Joint Ex. 51-16. The parent requested that the XXXX plan be formalized in the IEP. Joint Ex. 51, pp. 17-20.
The CSE considered the results of Dr. XXXX’s evaluation. Joint Ex.51. Dr. XXXX confirmed the student’s diagnosis of XXXX and confirmed her own diagnosis of the student with XXXX, despite the District’s assertions that it no longer applied. Joint Ex. 51, pp. 66-69. Dr. XXXX reported that the student’s cognitive abilities were in the average range, once the student’s working memory and processing speed results were factored out, consistent with the District’s 2012 cognitive testing. Joint Ex. 51-48.
Consistent with the private XXXX and XXXX evaluation conducted by XXXX XXXX, Dr. XXXX found that the student’s ability to understand non-literal XXXX was an area of weakness for the student, in the range. Joint Ex. 51-77, 76. However, Ms. XXXX, the District XXXX therapist pointed out, as confirmed by the Parent, that the student has strong receptive XXXX scores with the ability to make inferences and did not see Dr. XXXX’s conclusions on this point supported. Joint Ex. 51-84.
Dr. XXXX’s recommendation for XXXX and XXXX therapy was to focus on social communication skills and to address the student’s weakness in XXXX automaticity, or generating XXXX. Joint Ex. 51-94.
The CSE discussed the student’s academic skills. The team discussed Dr. XXXX’s findings that although the student’s reading skills are average, including fluency, she found his reading disfluent. See Joint 42-9; Tr. 496. Dr. XXXX found the student’s letter word identification, fluency, comprehension and decoding were in the average range, but when required to work independently the student was unable to complete the work. Joint Ex. 51, pp. 49-50, 55. Ms.XXXX informed the CSE of the student’s DRA2 results. The DRA2 assesses reading engagement, reading fluency and comprehension skills. Tr. 715. At the end of XXX grade the student had passed DRA level XX and when administered the same level with different materials in October 2014, the student passed level XX, showing no regression. Joint Ex. 51-145. In February 2015, the student passed DRA level XX in reading fluency, which is beginning XXX grade, but because of the “big…writing requirement to pass level XX, the student was unable to pass the comprehension section. Id. Ms. XXXX described the student as being on grade level reading. Although the student completely misses some areas, he puts relevant thought and connections into the class discussions. Joint Ex. 51-164.
In the area of writing, Dr. XXXX reported that the student’s basic writing skills were intact. However, his graphomotor impairment impacts his work to the point that it’s illegible, even to the student. Joint Ex. 51, pp. 56-57. Ms. XXXX reported that the student’s writing was level. Joint Ex. 51, pp. 145-146, 161-162. Ms. XXXX told the meeting that the XXXX act of writing is very difficult for the student. Longer writing assignments “are often scribed” by the teacher or typed by the student. Joint Ex. 51-146. Through scribing, Ms. XXXX determined that the student has shown that he is able to write a sumXXXX, a letter, a response to literature and a short story. Id. With graphic aids the student is able to write more legibly. Id. The student is able to do well on spelling tests if he is given time during school to study. Joint Ex. 51-146.
In math, Dr. XXXX told the group that the student’s math scores were grade level and across all three math tests that she administered. Joint Ex. 51-49, 56. Math fluency, calculations and math word problems all were expected levels. Joint Ex. 51-55. Dr. XXXX was aware that the student is refusing to complete his homework and stated that reinforcement would improve automaticity, but Dr. XXXX explained that what is impacting the student’s ability to learn is attention, working memory, processing, executive function and organization. Joint Ex.51-55, 72. If the student is able to learn it properly, he can remember it. Id. Ms. XXXX reported that the student has good math skills and abilities. Joint Ex. 51-146. The student’s poor handwriting results in careless errors. The student’s fluency with math facts in all calculations is slow. Ms. XXXX reported that the student states he does not have to do math and is particularly unfocused during math instruction. Joint Ex. 51-147. Nevertheless, Ms. XXXX reported, the student has picked up many of the math skills taught in the modules covered. Id.
Dr. XXXX recommended a class with a small student-to-teacher ratio, but one where his intellectual ability can be supported with appropriate peers. Joint Ex. 51-90. Dr. XXXX did not know what class options the District had for the student and stated that if a smaller classroom setting is not possible, an academically appropriate ICT class with an aide who would help the student remain focused and stay on task as well as support him to do work independently and to stay organized might be appropriate. Joint Ex. 51-90, 99-100. Without the proper amount of support, Dr. XXXX did not think that the student would advance each year in school with increasing rXXXXnce on individual work, executive functioning, organization and attention.
The CSE discussed the student’s social/emotional levels. Dr. XXXX emphasized that she had concerns about the student’s self-esteem. The teacher reported to Dr. XXXX difficulty with the student’s attention and behavioral control. Joint Ex. 51-76. Dr. XXXX described the student to be at risk with need of more support with attention, executive functioning, and selfmonitoring, not primarily to stay on task and focus as suggested by Ms. XXXX. Joint Ex. 51, pp. 90-91. The student has anxiety and has expressed self-harm as reported by the parent. Dr. XXXX did not believe that the student was suicidal. Joint Ex. 51-88. Preferential seating should be somewhere less distracting, but if not near the teacher Dr. XXXX reinforced the need to be near the additional adult support. Joint Ex. 51 pp. 96-98.
Ms. XXXX told the meeting that the student “usually requires assistance in starting his assignments.” Joint Ex. 51-147. The student takes four to five minute breaks throughout the day, checking his stopwatch often to keep track of time. The student has difficulty organizing his supplies and often loses them. The student has difficulty sitting at a desk, and he “usually hangs over it or fidgets in his chair.” Joint Ex. 51-148. Ms. XXXX stated that the student “frequently makes loud disruptive noises throughout the day, sirens, horns, announcer, voices.” Id. During unstructured times such as lunchroom or recess the noises are more prevalent. Id. The student has cried a few times throughout the year over situations with peers or frustration because he wanted to do something different. Id.
The student had difficulty walking in line with the rest of the class most of the year, but recently had changed his behavior. The student goes to lunch and XXXX education about five minutes before the rest of the class in order to help him with the transition. Joint Ex. 51-149.
Socially, the student has made good friends, however he dictates what and how the children will play, often choosing among limited themes. The student perceives others as bullying him if they do not want to play according to his plan. Joint Ex. 51-149.
The CSE discussed the student’s XXXX and XXXX skills. XXXX XXXX reviewed the XXXX and XXXX evaluations conducted by the District in December 18, 2012 for which Ms. XXXX gave the student some selective subtests of the CASL which all were in the range. Joint Ex. 51-165. Ms. XXXX described Ms. progress report that indicated the student had met all of his XXXX and XXXX goals including age-appropriate XXXX XXXX skills. Id. The student did have a frontal lisp at the time, but it did not interfere with his XXXX intelligibility. Id. Subsequently, pursuant to a December 2012 CSE meeting, the student had XXXX and XXXX services removed from his IEP, but Ms. XXXX explained she picked up the student for informal XXXX services to work on the XXX, and he did very well XXX Joint Ex. 51-166. Although Ms. XXXX had not assessed the student formally when she finished working with the student, she stated that according to an informal therapy report she did at the time, the student no longer needed the informal services. Joint Ex. 51-168. Ms. XXXX had not formally re-assessed the student at the end of her informal work with him. Joint Ex. 51-167. The parent stated that the student still had XXX to which Ms. XXXX responded: “Well, sometimes they need a little tune-up….” Joint Ex. 51-167.
Ms. XXXX then reviewed the XXXX and XXXX evaluation conducted by XXXX
XXXX. Ms. XXXX challenged the validity of Ms. XXXX’s findings and noted that if the student’s expressive XXXX in the school setting was commensurate with the CELF-5 scores, school personnel would have noticed it. Joint Ex. 51, pp. 173-174. Ms. XXXX also attributed the low scores to the student’s inability to focus. Id. The parent and advocate pointed to similar XXXX XXXX deficits found by Ms. XXX and Dr. XXXX, and also noted that the District’s last evaluation was from December 2012. Joint Ex. 51-175.
Ms. XXXX stated that the student just needed reminders and to practice the skills he previously had learned, but had not practiced in a long time. Joint Ex. 51, 178-183. Ms. XXXX explained that Ms. XXXX’s XXXX XXXX group was perfect to address the student’s issues. Id. XXX was concerned whether the goal would be XXXX-based. Joint Ex. 51-184.
The CSE discussed the student’s XXXX evaluations and present skill levels. XXXX XXXX, a nationally certified and licensed therapist who is contracted by the District to provide XXXX to its students through XXX BOCES, reviewed the private reports and those completed by the District in 2012. Ms. XXXX stated that the Gardner Test of Visual Perceptual Skills used by the private therapist to evaluate the student was invalid because the test has been updated. Joint Ex. 51-85. The Parent stated that the test was the correct edition and she would get the missing scores. Joint Ex. 51-86.
The CSE discussed the student’s need for special transportation. XXXX XXXX informed the CSE that the student has no problems on the morning bus where he sits in one of two seats with a younger student, near an adult. Joint Ex. 51-108. The student lets the aide know if there is a problem, and Ms. XXXX had not received any conduct reports. Joint Ex. 51-109. In the afternoon the student is on a bus with fewer students, some of whom need an aide. Id. The morning ride is approximately 30 minutes and the afternoon ride is approximately 25 minutes. Id. And what was final comment?
The CSE considered information about the student’s XXXX development. Mr. XXXX, the XXXX education teacher, read from a prepared statement: while the student is “capable of participating in all activities, [the student’s] gross motor skills and sport-specific or manipulative skills are level.” Joint Ex. 51-112. Mr. XXXX stated that he was concerned about the student’s scores, and whether the scores are because the student is struggling with the actual skill itself or staying focused on the task. Id. Mr. XXXX explained that in XXXX education the students are taught a skill and observed to use it throughout a unit, giving the teacher a more authentic view of the student’s abilities. Mr. XXXX explained that sometimes the student partially or completely stops focusing on what he is doing, and he might start doing something else. At times, Mr. XXXX is able to redirect him and other times he gets to the student when he is able. Joint Ex. 51-113. With the three and four step skills the class was learning, the student had more difficulty. Joint Ex. 51-114. Mr. XXXX still observed the student to be able to participate and enjoy XXXX education class. Joint Ex. 51, pp. 115-117. The student’s behavior is an issue in that Mr. XXXX is unable to address the student about issues like safety concerns because the student tells him that he is not responsible for his behavior. Joint Ex. 51, pp. 117-118. The student often makes siren noises, but there does not seem to be a pattern to it and sometimes the student can be re-directed. Joint Ex. 51 pp. 119-122.
The private XXXX therapy evaluation that was completed at the XXXX Medical Center by XXXX XXXX was reviewed , paragraph by paragraph, at the CSE meeting by XXXX XXXX, a XXXX therapist contracted from the XXXX XXXX Center to review the evaluation at the CSE. Tr. 1182-1183, 1216; Joint Ex. 51. Ms. XXXX also reviewed the district XXXX therapy referral forms. District Ex. 16 pp. 14-16. Ms. XXXX never met the student and is familiar with him only from a records review. Tr. 1182.
The parent complained that Ms. XXXX’s input was predetermined as the parent received an email prior to the CSE meeting from Ms. XXXX’s boss, XXX , that stated Ms. XXXX was going to recommend that another XXXX therapy evaluation be conducted in the school setting, a position Ms. XXXX confirmed. The only other XXXX therapy report the District had was one conducted by XXXX XXXX Center in 2010, on its premises, when the student was in preschool. Under protest, the Parent agreed to have the private XXXX therapy evaluation conducted by XXXX XXXX to Ms. XXXX. Joint Ex. 51.
Ms. XXXX recommended that a XXXX therapy assessment be done in the school setting because XXXX therapy in a clinical setting is different than XXXX therapy in a school setting, and you want to see whether the student can access the educational environment the same way as other students can. Joint Ex. 51 pp. 135-137; Tr. 1184, 1186-1188. The referral forms did not indicate any concerns. District 16, pp. 17-18. Ms. XXXX objected because the school district never informed the Parent that a XXXX therapy evaluation had to be done on school premises. The Parent agreed to exercise her right to an IEE in XXXX therapy that previously was granted by the District. Joint Ex. 51, pp. 142-144.
The Parent added that the student recently fell coming off of the bus and a subsequent xray revealed a XX torsion that causes the student’s XXX. Joint Ex. 51 pp. 134-135.
After approximately 3.5 hours, the CSE considered possible classifications for the student and determined that the student was eligible for classification as a student with a disability, under the classification of XXXX. Joint Ex. 51 pp. 202-203. Prior to reaching agreement, it was clarified that the student’s attention and focusing still would be addressed. Id.
Next, the participants discussed what content would go in an IEP. Ms. XXXX identified three broad areas for the CSE to address: 1. Social, emotional, behavioral; 2) XXXX and XXXX XXXX; and 3. Fine motor concerns for writing. Joint Ex. 51-204. Ms. XXXX was asked about creating goals; she stated that she wanted Ms. XXXX’s subtest scores and a sensory profile to be completed by the student’s teacher to better target goals to support the student. Joint Ex. 51, pp. 205-208. The parent agreed to provide consent for the evaluation to be done by the student’s teacher. Joint Ex. 51-208.
For the social/emotional goals, Ms. XXXX said that she had not planned about the emotional goal to address the student’s self-esteem; the participants talked about the student’s perceptions, coping strategies and his inability to interact appropriately. Joint Ex. 51, pp. 208-
211. Ms. XXXX said that she would work on the goal. Joint Ex. 51-211. Ms. XXXX stated that for a social goal she would suggest: interacting appropriately with peers, using kind words, taking turns, reciprocating conversations and understanding and following social cues. Joint Ex. 51-211. Ms. XXXX stated that another goal needed to be developed about focusing and attention. Id.
In terms of the student’s academics, Ms. XXXX stated that there is not a significant deficit, but opened the discussion. The special education teacher noted the student’s issues with math fluency, but stated that because the student does not seem to be performing “ grade level in any one area” he “looks to [her] like an AIS student….” Joint Ex. 51, pp. 211-212. The parent refused to discuss AIS services and left the meeting.
Ms. XXXX and Ms. XXXX both stated to the parent: This is for eligibility for special education programming. Joint Ex. 51-214. Ms. XXXX said that the special education teacher was describing options. The special education teacher explained that in order to receive direct teacher consult, which is a special education service, a student needs to be two or more years below grade level. If a student is less than two years below grade level (which is where the student is), generally they are able to access the curriculum and receive RTI/AIS services. Joint Ex. 51, pp. 214-215. Students who are three or more years below grade level are recommended for the ICT class. The advocate acknowledged and Ms. XXXX confirmed that this was a description of the continuum in the District. The advocate and Parent wanted academic services and the special education teacher and XXXX said he does not qualify. Joint Ex. 51 pp. 215-216.
With respect to XXXX, Ms. XXXX, with Ms. XXXX’s agreement, thought the student qualified and suggested having the student pick up from where he left off when under the Section 504 plan, once in a group and once individually in a four day cycle. Joint Ex. 51, pp. 218-219.
Dr. XXXX recommended a goal for note-taking, explaining that it is a complex skill that requires visual scanning, processing speed, and working memory. Dr. XXXX recommended that until the student is able to take notes independently he be provided with a scribe for class work and a goal to build word processing skills. Joint Ex. 51, pp. 92-94.
For Ms.XXXX and Ms. XXXX suggested one individual session that could be in a setting, and “XXXX” The parent was uncertain about the recommendation. Joint Ex. 51221.
Ms. XXXX said given the diagnosis of XXXX, parent counseling for 30 minutes per session per month should be added to coordinate home and school; Ms. XXXX explained that the session could include parent training if needed. Joint Ex. 51-221. Ms XXXX also stated to add a 30 minute monthly team meeting including the Parent to discuss the student’s progress. Joint Ex. 51, pp. 223-224.
Ms. XXXX requested an XXXX evaluation by XXX BOCES. Joint Ex. 51-224.
Ms. XXXX stated special transportation will be added in the form of a monitor on the bus based on Ms. XXXX’s report that it worked. Joint Ex. 51, pp. 224-225. In the afternoon he can stay on a bus with fewer students. Id.
Ms. XXXX addressed supplemental aids and services. The FBA/BIP would be listed, but not attached to the document. Joint Ex. 51, pp. 226-227. The advocate agreed because changes to the BIP could be addressed in the monthly meetings.
Ms. XXXX stated that the student needed adult support during academic times, and explained that it could be a classroom teacher or an aide, adults to create a smaller student to teacher ratio, but not a special education teacher program because the student is too near grade level to qualify. Joint Ex. 51-228, 236-237. The parent wanted the student in an ICT class at a minimum. Ms. XXXX speculated that the student might be placed in an ICT class, but it would be as a general education student and would not appear on the student’s IEP “because that’s a program service.” Joint Ex. 51-240.
Ms. XXXX explained that the only other way to provide the adult support is to put him in a classroom and provide an aide. Joint Ex. 51-241 In the District, the students in the ICT are low functioning in academics. Joint Ex. 51-242. The student would gravitate toward the students who also are having social difficulty. Joint Ex. 51-242. Ms. XXXX advocated for the student to remain in a setting with typically developing peers because he likes them and has made great social gains even though still needs support. Joint Ex. 51-243. The CSE recommended not putting special education teacher program on the IEP, but supports are going to be provided through the classroom. Joint Ex. 51-249-250. . The Parent expressed concern and confusion that the student might be placed in a general education class. Joint Ex. 51, pp. 245-246. The parent planned to visit either a XX or XX grade ICT class. [5]
The following supplemental aids and services also were noted by the CSE as needed by the student: testing with minimal distractions; extended time; checking for understanding; directions read; chunking of assignments; graphic organizer; and breaks as needed. Joint Ex. 51, pp. 228-230. The parent suggested modified homework assignments, refocusing and redirection, preferential seating and a non-verbal cuing system. Joint Ex. 51, pp. 234-235. Dr. XXXX recommended testing in a location with minimal distractions with support from an adult who can insure that the student is understanding the test and staying focused and self-monitoring. The student at times needs refocusing during a test, but does not usually take longer to complete the tests than the other students. Joint Ex. 51-154. The parent pointed out that if the student is to slow down his writing so that it is more legible, he will need more time to complete the work. Joint Ex. 51-154.
No discussion was had regarding the frequency with which any of these services would be provided except Dr. XXXX made clear at the hearing that she concluded the student needed most of the services throughout the day.
The CSE discussed extended year services (“ESY”); the student did not qualify. The proposal was to implement services and track data to determine whether the student regresses. Joint Ex. 51-251.
The decision was made to keep the student in Ms. XXXX’s class for the remainder of the school year, and to work out the necessary adult support. Joint Ex. 51; Tr. 714, 781.
The parent was not given an IEP, or a draft IEP. Tr. 428-429. The parent was told that she should obtain the XXXX information that had been requested and that the District would be putting together the IEP. The Parent was told that she would receive the IEP in the mail along with a consent for services, which she should send back. Tr. 252.
The IEP was created over time from May 11, 2015. Tr. 429. Subsequent to the May 11, 2015 CSE meeting the student’s IEP was completed. The people who entered information in the IEP included XXXX XXXX, XXXX , XXXX XXXX, XXXX XXXX, and XXXXXXXX, who was the secretary entering information regarding the accommodations, supplemental aids and services. Tr. 342.
On May 12, 2015, the parties entered into a settlement agreement. In pertinent part, the agreement states:
Paragraph 4: "The parties acknowledge and agree with the recommendations of the CSE at the May 11, 2015 eligibility meeting, subject to necessary board approval,"
and
Paragraph 5: "The parties agree that this agreement fully and finally resolves all matters raised in the Request dated January 14, 2015 as well as any other pending complaint or action filed on grounds included in the request. ...In consideration of the concessions provided in this agreement, the parents release and discharge the district...from any and all claims and/or causes of action which exist or may exist of the date of this agreement including but not limited to those in connection with the hearing request, any claim or cause of action asserted under
IDEA...and or Article 89 of the NYS Education Law."
District Ex. 38D.
The parent signed consent for “XXXX group” and “individual ”, received by the District on May 12, 2015. District Ex. 75; Tr. 1583-1584 (01/19/16).[6] Ms. XXXX stated that it started as informal services until the IEP was formally implemented. Tr. 1586 (01/19/16).
Subsequent to the May 11, 2015 CSE meeting, XXXX XXXX, a licensed master social worker, provided the student “informal” individual once a week and group during “XXXX” once a week, 30 minutes per session. Tr. 589, 591, 592, 636-637. By “informal” services Ms. XXXX explained that she meant that because the IEP had not yet been finalized and the parent had requested in writing that Ms. XXXX begin to provide services to the student immediately. Tr. 637. The sessions focused on the areas identified during the May 11, 2015 meeting. Tr. 637. Ms. XXXX recorded her sessions with the student in a Contact Log; there were two sessions of individual therapy (5/13 and 5/27) and one group session (5/15/15). Joint Ex. 43; Tr. 645. Once the IEP was finalized, because the Parent did not consent to the initial provision of special education services, Ms. XXXX did not provide the student with services. Tr. 652. Ms. XXXX sent home permission slips to provide to the student, but she did not receive a response from the parent. Tr. 652.
On May 27, 2015 the Parent received a copy of the IEP which had been approved by the Board of Education, the previous day. Joint Ex. 37-4.[7] The district sent the Parent a consent form for the initial provision of special education services. Prior to May 27, 2015 the Parent never received a draft IEP from the district. Tr. 1606 (01/19/16).
The IEP discussed by the CSE on May 11, 2015 and effective May 27, 2015 (hereinafter the “May 2015 IEP”) reflects the CSE recommendation to classify the student under a classification of XXXX. Joint Ex. 37-4.
Under Present Levels of Performance, the student’s test scores from both the 2015 and 2012 WISC tests are listed, as are the results of the 2015 administration of the WIAT-III. Joint Ex. 37-5, 6. The student’s Present Levels of Performance in reading, writing and math were based on the information provided by the student’sXXXX grade teacher. Tr. 429. The student’s reading levels are reported based on his performance on the DRA2 and classroom performance. Joint Ex. 37-7; 750-751.
With respect to the student’s writing, the IEP states that the student was found “within the instructional range for writing a scaffolded XXXX, vocabulary, reflection and literal comprehension.” Joint Ex. 37-7. The student’s writing is acknowledged to be a challenge. If the classroom teacher writes his thoughts, the student has shown the ability to verbally produce different types of writing pieces. Joint Ex. 37-7. The student does well on spelling tests when he has time to study in school, which he does an average of 30 minutes per week. Id.
With respect to the student’s math levels, the IEP states that the student has good basic math skills, but lacks math fluency and his poor handwriting “frequently results in careless errors.” Joint Ex. 37-7. Although the student tends to be very unfocused during math lessons and often does not complete in class assignments he has acquired many of the skills taught. Id.
The student completes minimal work during independent work time and requires assistance to start assignments.
The IEP states that the student’s academic, developmental and functional needs including those of concern to the parent are: “[The student] needs to develop fluency and phrasing skills while reading as well as strengthen his ability to show his comprehension of the texts he reads through writing. He needs to develop XXXX while working independently and increase his ability to focus for longer periods of time throughout the lessons.” Joint Ex. 37-7.
The student’s social development levels IEP section includes that he has made good friends and enjoys playing with them. Joint Ex. 37-6. The student’s play is limited to particular themes. The student perceives himself as being bullied or that people are being mean to him if his view is not acted on or if he is corrected by adults. The student often makes loud disruptive noises, but will refrain when asked by “trusted adults and distracted in the moment.” Joint Ex. 37-6. “The student needs to respond appropriately to adults. The student needs to increase his ability to accept limits and to communicate frustration with academic tasks in an appropriate manner. The student needs guidance to increase appropriate class participation. [The student] also needs to begin to accept the differing opinions of his peers and not become offended or upset if someone disagrees with him.” Id.
The student’s XXXX development section of the IEP states that he participates in all XXXX activities and within the general education XXXX education class with no limitations. The student’s XXXX education needs are noted to include improving his fine motor skills and “to build XXXX for attending class.” Joint Ex. 37-8.
The student’s management needs are listed as: requiring short breaks throughout the day; having difficulty with organization of supplies to the extent that the student uses one desk for independent work time and a second desk for group lessons; having difficulty sitting at a desk (either hanging over it or fidgeting); making loud disruptive noises frequently that are more prevalent during unstructured times; test-taking in separate locations with the teacher acting as a scribe; and transitioning outside of the classroom in advance of the class to help with the transition. Joint Ex. 37, pp. 8-9.
The effect of the student’s needs on involvement and progress in the general education curriculum are noted as: “[The student] has a “ in fine motor skills, XXXX, and attentional skills which interferes with participation in age appropriate activities.” Joint Ex. 379.
The IEP reflects that the student needs a behavior intervention plan. Joint Ex. 37-9.
The IEP reflects that the student does not need an XXXX device and/or service. Joint Ex. 37-9.
The IEP contains the following social/emotional/behavioral goals:
1. "[The student] will interact in an appropriate manner with his peers (i.e., using kind words, taking turns, reciprocating conversation, understanding and following social cues)(Supported by classroom teacher) ." Joint Ex. 37-9.
2. "[The student] will develop and utilize strategies to help him focus and attend to his class work, classroom activities, and instructions provided by teachers or adults in the classroom. (Supported by classroom teacher).
3. “[The student] will use age appropriate problem solving skills to resolve differences of opinions with adults and peers. (Supported by classroom teacher).
The first goal is in response to the CSE recommendation that the student have a goal to address his XXXX XXXX deficits. Tr. 1046. The goal would be addressed in in the small group, “XXXX” Tr. 1047-1048.
The second goal addresses the student’s attention issues and is “specific to addressing his needs academically by being able to focus, attend, follow directions and complete assignments.” Tr. 433.
The student has one motor goal:
“Using a functional grasp, [the student] will complete tasks that involve controlling pencil movements within boundaries, and imitating letters with 80% accuracy.” Joint Ex. 37-10.
Ms. XXXX never received from the Parent the subtest scores from Ms. XXXX’s evaluation and finalized the goal based on all of the information the District did have and what made the most sense for the student. Tr. 910. The goal created for the student was to improve his handwriting by working on the fine motor skill of forming letters neatly within boundaries so that it would promote him being able to become more confident in his handwriting skills and to improve the automaticity of his handwriting. Tr. 910-911.
The student has no academic goals on his IEP. Tr. 318; Joint Ex. 37-9. Ms. XXXX explained that based on all of the information before the CSE on May 11, 2015, the student did not “need the support of the special education teaching program so, therefore, there wouldn't be academic goals on the IEP.” Tr. 349. As of the May 11 meeting, the student was functioning grade level in XXXX’s view. Tr. 435; Joint 37-7. According to the DRA2 he was at the mid XXX grade level, but the CSE worked from information provided by his current teacher about his progress in XXX grade as well. Tr. 436. In Ms. XXXX’s class the student was in a small guided reading group on grade level. Tr. 236.
The student did not have a special education program recommended. The student was placed in the home public school district. Joint Ex. 37-10, 15.
Ms. XXXX testified that the IEP incorporated Dr. XXXX’s recommendation for a smaller teacher to student ratio by recommending that the student be placed in the Integrated CoTeaching classroom setting. Tr. 245; see Joint Ex. 42-20. However, the ICT classroom is not on the student’s IEP because the CSE did not think that the student needed an ICT classroom for academic reasons. Tr. 246, 248. Ms. XXXX testified that the CSE made the decision that the least restrictive environment (“LRE”) for the student was in a general education classroom with additional supports. He needed additional adult support in order to stay focused and on task, his XXXX area of need. Tr. 78.
The student was recommended to receive related services from May 27, 2015 to June 24, 2015 and beginning September 9, 2015: psychological individually once a week for 30 minutes in the therapy room or in other locations during opportunities for social interactions with peers and in a small group for 30 minutes per session once a week. Joint Ex. 37.
Parent counseling was recommended once a month for 30 minutes per session. Joint Ex. 37.
The student also was recommended to receive individual XXXX twice in a four day cycle for thirty minutes per session, across all settings. Joint Ex. 37 pp. 10-11.
From July 6, 2015 to August 7, 2015, the student also was recommended to receive individual XXXX at home or camp twice a week in a four day cycle for thirty minutes per session. Joint Ex. 37-11.
From May 27, 2015 to June 24, 2015 and beginning September 9, 2015 the student’s IEP noted supplementary aids and services, program modifications or accommodations the student was recommended to receive: adult support (during academic times throughout the day); FBA/BIP; chunking of assignments; allow for breaks; refocusing and redirection; special seating arrangements (in an area with minimal distractions); non-verbal cueing; use of graphic organizer (for written assignments); modified homework assignments (at teacher discretion); and additional time to complete assignments (at teacher discretion). Joint Ex. 37, pp. 11-12.
Each of these supports was to be provided “as needed x Daily,” throughout the school day, and across all settings. Joint Ex. 37, pp. 11-12.
A team meeting, including the parent, was recommended once a month for 30 minutes. Joint Ex. 37-13.
The IEP reflects that the student is not eligible for ESY. Joint Ex. 37-13.
The student received testing accommodations on all tests: allow for breaks; check for understanding; directions read to student; extended time (1.5); and location with minimal distractions. Joint Ex. 37, pp. 13-14.
The IEP indicates that the student needs special transportation accommodations/services of “Adult supervision – Bus with an Attendant.” Joint Ex. 37-14.
XXXX XXXX andXXXX Hall, therapists with TST BOCES provided the student with the XXXX, two times in a four day cycle for 30 minutes per session, recommended on the May 27, 2015 IEP. Tr. 902-903.
On June 9, 2015 (referenced in Joint 38) the Parent sent Ms. XXXX a draft IEP for her son which she corrected and resent on June 18, 2015. District Ex. 39. The Parent’s 40 page proposed IEP included a special class placement (ICT), XXXX therapy, XXXX and XXXX therapy, additional supplementary aids and services, and special transportation consisting of an aide on a small bus. Id. The Parent specified different and more goals. Tr. 1542-1543.
In a letter dated June 22, 2015 Ms. XXXX noted that the Parent had yet to provide “any specific written consent to the initial provision of special education services.” Joint Ex. 38. Ms. XXXX told the Parent that in a Prior Written Notice dated May 11, 2015, the Parent “was notified of the CSE’s proposed initial eligibility and provided with a request for written consent for the initial provision of special education services. This consent requirement applies to the initial provision of services, not to the specific educational program and services to be included in your son’s IEP.” Id. “so what I was trying to say to her in this letter was that the consent is for initial provisions not necessarily the program, meaning, that we would come back to a CSE meeting to try and address the concerns that she had regarding the IEP that was developed.” Tr. 444; see 1530. With the Parent’s consent, the District could at least provide XXXX and services and the CSE could be reconvened to discuss the Parent concerns about the program and placement. Tr. 1569-1570 (01/19/16).
Ms. XXXX noted that the Parent sent a June 13, 2015 email stating that she rejected the District’s proposed IEP resulting from the May 11, 2015 CSE recommendations, “in part.” Yet the Parent stated in a State Complaint served on the District on or about June 11, 2015: “The Parent has not signed the consent form as the Parent does not agree with the IEP.” (Emphasis in the original.)
Ms. XXXX explained in the letter that the District was making an effort to confirm whether or not the Parent provided “consent for the initial provision of special education services….” The Parent was told that if she did not provide consent for the initial provision of services, the CSE would take no further action with respect to her son until such consent is provided. Ms. XXXX reminded the Parent that she could address the CSE regarding “the appropriateness of the CSE’s recommendations.” District Ex. 38-1. Last, Ms. XXXX informed the parent that the District was reviewing the 40 page draft IEP proposed by the Parent “and will attempt to work further with you to resolve differences.” Id. At the hearing Ms. XXXX explained that the letter was an effort to obtain written consent so that the District could “move forward to provide special education services to [the student] per the IEP that was developed on May 11 XXX” Tr. 100.
On or about June 23, 2015, XXXXXXXX, a licensed therapist employed by XXX BOCES, completed an XXXX evaluation of the student “to determine some possible technology supports for producing written work.” Joint Ex. 39; Tr. 1239, 1266. Ms.XXXX reviewed a referral form completed by Ms. XXXX that identified the referring problem as the student’s writing. Tr. 1243, 1300-1301; Joint Ex. 39 pp. 11-20. Ms.XXXX clarified the referral question by contacting Ms. XXXX and asking what area the CSE chairperson, XXXX XXXX, Ms. XXXX and the Parent wanted evaluated for XXXX. Tr. 1304-1305. Ms.XXXX used the DeCoste Writing Protocol, a comparison tool that uses both standard writing as well as assistive technologies and compares the student’s efficiency and his accuracy across those different forms. Tr. 1241. It is not a standardized test. Id. Ms.XXXX did not believe that there are standardized tools that she could have used to evaluate the student. Tr. 1278. Ms.XXXX described the DeCoste as one commonly used by XXXX professionals that would be the best tool to answer this question: "What is the best method of producing written work?" Tr. 1242. She described it as the “gold standard.” Tr. 1294.
Ms.XXXX also reviewed an XXXX evaluation, a XXXX therapy evaluation, the private FBA/BIP, Dr. XXXX’s XXXX evaluation and a XXXX evaluation, all provided to her by the parent. Tr. 1243-1244, 1266. Ms.XXXX went to observe the student in his classroom twice; once the student was not present and once he was in the back of the room with an adult, but not engaging in the classroom activity or writing. Tr. 1263-1265.
Ms.XXXX had the student handwrite sentences, copy sentences, and write sentences from dictation. The student wrote sentences using an iPad with keyboard, other technology that assisted with spelling and a dictation device or voice recognition device. Tr. 1245-1246; Joint Ex. 39. The results of the evaluation showed that the student had 30% legibility with printing. “He mixed upper and lower case letters and reversed letters, he also had trouble with uniform sizing, spacing and line orientation.’ Joint Ex. 39-5. Although Ms.XXXX did not review samples of the student’s classroom work, the student’s therapist, XXXX XXXX, was present during the evaluation and confirmed that the sentences the student produced at the evaluation were typical of his writing. Tr. 1261-1262, 1313.
The student demonstrated skill using the word processing technology, with predictive text, and spelling support. His typing speeds were in line with his printing despite his “1-2 finger typing style.” Joint Ex. 39-5. For words at the XXX grade level, the student was 61% accurate typing a dictated sentence, but increased to 95% accuracy when spelling support was provided with predictive text. Joint Ex. 39-5. Using voice recognition technology, the student’s accuracy writing sentences ranged from 32% (sentences with complexity) to 100% (two word sentences) as compared to 95% t0 100% using the keyboard with predictive text. Joint Ex. 39 pp. 3-5. The student had a lot of difficulty modulating his voice for the voice recognition technology and would require a great deal of adult support to use. Tr. 1250. The student also was tested on using a digital graphic organizer/mind map application to write three to four sentences. The task proved “very difficult” for the student and he needed “maximum adult support.” Joint Ex. 39-5. Ms.XXXX was aware that the student used a scribe during the 2014-2015 school year. Tr. 1265.
Ms.XXXX spoke to the Parent about some of her concerns, between the two visits that comprised the evaluation. Tr. 1244-1245. Ms.XXXX did not evaluate the student in some of the areas of concern to the Parent because they were not part of the referral question related to handwriting. Ms.XXXX did subsequently consider some additional uses or additional areas that the technology might be incorporated into the student’s day. Tr. 1258-1259; Joint Ex. 39-6. Ms.XXXX also included concerns she had related to how technology could conflict with some of the student’s needs, e.g., maintaining focus, maintaining independence from adult support and social relatedness to his peers. Id., Tr. 1265. These other areas were not discussed at the August 10, 2015 CSE meeting; Ms.XXXX stated that the academic team working with the student would explore those options once the student was trialing one of the technologies. Tr. 1310-1311.
Ms.XXXX recommended: “Trial period with word processing program including a word prediction/predictive text and spell check options. This might take the format of a desktop computer, laptop, iPad with external keyboard, or chrome book, based on district discretion. If successful, as measured by increased quality, quantity, and/or independence in producing written work, the CSE may consider whether it is a good option for the student.” (Emphasis in original) Joint Ex. 39-6.
Ms.XXXX explained that she recommended a trial because before a technology is placed on a student’s IEP, the student needs to be observed using it in real time in the classroom, to confirm whether or not it is the correct choice for the student. Tr. 1251. Ms.XXXX stated that according to best practices, she does not recommend brand names because of the rapidly changing technology market, but recommends technology based on its functions and allows the District to make the choices. Tr. 1257. Ms.XXXX “would not say with 100 percent accuracy” that the student needed a device without a trial period. Tr. 1276-1277. At the hearing, shown samples of the student’s handwriting (District Ex. 30), Ms.XXXX stated that the student “[a]bsolutely” could benefit from a computer device to help him write legibly. Tr. 1281. Ms.XXXX said that her recommendation would have been the same. Tr. 1281.
An XXXX report completed by XXXX XXXX, dated June 24, 2015 included the Teacher Sensory Profile completed by XXXX XXXX on May 23, 2015. District Ex. 50; Tr. 719-
720. Of the thirteen categories of behavior rated, the student was rated as “Much More than Others” to exhibit those behaviors and “More than Others” for one behavior. District Ex. 50-3.
In an email dated June 24, 2015 the Parent attached a form entitled “Consent for Initial Provision of Special Education and Related Services.” District Ex. 43; Tr. 108, 402, 1568-1569. On the form, the Parent checked a box that indicated: “I give my consent for the provision of special education services, in part.” District Ex. 43-2. The Parent further wrote that she accepted the eligibility determination and the classification of XXXX. Id. The Parent accepted the related services of XXXX and counseling, but rejected the annual goals for both of those related services. The Parent accepted all of the accommodations, but rejected the frequency “as needed” or “at the Teacher’s Discretion.” Id. The Parent rejected the District’s determination that the student did not need XXXX and XXXX services or XXXX therapy. Id.
On the Parent’s consent form, she also rejected the District’s description of Evaluation Results and all categories of Present Levels of Performance because in her view the descriptions were inaccurate, and based on the teacher’s report “rather than valid and reliable technically sound instruments, and therefore created an IEP that is not reasonably calculated to meet the student’s unique needs.” District Ex. 43-2. The Parent rejected the lack of placement on the IEP and stated that it was not agreed upon at the CSE meeting. The Parent rejected that the BIP was not to be implemented by a behavior analyst and only as needed. The Parent also rejected the determination that a communication device and/or service was not needed and noted that an iPad and PECS were discussed at the meeting. The Parent rejected that the student would be required to participate in all District and State-wide assessments. The Parent rejected the determination that adaptive XXXX education is not applicable. The Parent rejected that her son is not exempt from a foreign XXXX. The Parent also rejected the transportation accommodations. Id.
Although Ms. XXXX stated that she never saw it, in another June 24, 2015 email from the parent to J.XXXX, at the correct email address, the Parent asked for clarification of the consent form. Parent Ex. J; Tr. 1498-1500.
By Prior Written Notice dated July 14, 2015 the District informed the Parent that the consent form sent by the Parent along with extensive modifications to the May 2015 IEP is not the required consent for the initial provision of services. The District referred to the May 11, 2015 CSE recommendations and offered to convene another CSE to review the Parent’s concerns about the IEP, as well as the completed XXXX evaluation and the sensory profile. District 76; Tr.1600-1601(01/19/16).
By Meeting Notice dated July 29, 2015, the District invited the Parent to a CSE Meeting to discuss the student’s educational needs scheduled for August 10, 2015. District Ex. 52. By email dated August 1, 2015 the Parent informed the District that she wanted a meeting notice with the specific purpose of the meeting stated, and objected to the presence of the District’s attorney and secretary, and wanted specific service providers present. Id.-4. By Meeting Notice dated August 7, 2015 the District sent the Parent a Meeting Notice revising the purpose to reflect that the meeting was to discuss the XXXX evaluation, the XXXX (sensory) evaluation and the Parent concerns with respect to the differences between the Parent’s proposed IEP and that developed by the CSE in May. Id. The district explained its rationale for including their attorney and secretary. Id. By emails dated August 7, 8, and 9, 2015, the Parent continued to state her objection to participating in a CSE meeting that included the District’s attorney, and asked for the meeting to be rescheduled, given the short notice of the meeting purpose and response from the District, so that she could review testing protocols, exercise her right to include a parent member, invite participants and benefit from the participation of XXXX XXXX, the XXX therapist who conducted the District’s recent XXXX evaluation. Parent Exs. O, Q.
August 10, 2015 IEP
On August 10, 2015 the CSE reconvened to review the results of the XXXX evaluation, the teacher sensory profile and to address the parent’s concerns about the proposed services for the student. Tr. 122. The meeting participants included: XXXX XXXX-XXXX as chairperson, XXXXXXXX as secretary; XXXX XXXX as the student’s general education teacher ; XXXX XXXX (by telephone) as a general education teacher; XXXX as the student’s special education teacher; XXXX XXXX as school psychologist; XXXX as a Behavior analyst; XXXX XXXX as a XXXX pathologist; XXXX XXXX as a social worker;XXXXXXXXas an occupational therapist; XXXX as an XXXX consultant and XXX XXX as District Counsel. District Ex. 57A, pp. 1-2. The Parent did not attend.
The CSE also reviewed the results of the Sensory Profile 2 teacher questionnaire. The August 10, 2015, effective September 9, 2015 to May 11, 2016, IEP is similar to the IEP dated May 27, 2015, but the CSE added information as well as services and goals. Cf. District Ex. 37 and District Ex. 57C. The August 10, 2015 IEP includes the student’s test results from all of the 2015 standardized assessments completed in the XXXX evaluation and the behavior rating scales. District Ex. 57C.
The CSE added information to the student’s August IEP under the academic levels of performance section. District Ex. 57C-12. “[The student] requires adult support to ensure on task behavior and student engagement.” Id. The Parent concerns that the student has not obtained grade level skills and that the student will continue to struggle as the demands increase is noted. The parents are most concerned about the student’s behavioral problems at home and at school which impact his functioning academically and socially. The CSE noted that the student’s “behaviors in the classroom and school environment have not impacted his ability to participate in the general education classroom.” District 57C-12.
Under the August 10, 2015 IEP section for social development present levels, the CSE added information from the FBA findings, specifically describing the student’s off-task behavior when the student is presented with a demand, non-preferred activity, or an adult is not paying attention to him. District 57C-12. The CSE added the Parent concerns about the student’s behavioral problems at home and at school which impact his functioning academically and socially. The CSE noted that the student’s “behaviors in the classroom and school environment have not impacted his ability to access the supports and content in the general education setting.” District 57C-13.
Under the present levels of performance for XXXX development, the CSE added the findings from the XXXX evaluation completed by XXXXXXXX. The student’s written legibility was noted to be at the percentile. The student’s computer access skills were noted as functional at his grade level. Keyboarding was suggested as a consideration to address the student’s writing difficulties. District 57C-13.
Ms.XXXX questioned whether XXXX intervention for the student is “an effort worth the energy” for the student at the August 10, 2015 CSE meeting. Tr. 1296; Joint Ex. 39-6. Given the student’s age and grade, weighed against the struggle that the student has with handwriting, which is not at a functional level, would it be best “to continue to work on improving his handwriting or would it be better to look at technology and see if he can develop skills and facility with something that allows him to be more productive and successful in the classroom.” Tr. 1297-1298.
The CSE also added information based on the completion of the Sensory Profile 2 Teacher questionnaire. “…[the student] presents with sensory needs that may impact on his ability to participate in activities throughout the school day. He may benefit from support, especially classroom strategies suggested in the report.” District 57C-13. It was suggested that the strategies should be trialed for a 6-8 week period, including: giving the student a timer to use in the hallways to set to 1 minute during which he can do some XXXX activity; allowing the student to engage in activities as a “helper” in the classroom; and whole class “brain break” activities. If the strategies were not successful, then other options would be considered, such as the use of a weighted vest, lap belt or ankle weights, or the use of equipment such as a sit disc. Id. Any sensory strategy was to be trialed and documented for a 4-6 week period. Id.
With respect to the student’s XXXX development needs, the IEP states that the student “also has to improve his ability to engage in on task behaviors and requests.” District 57C-13. The Parent concerns are noted as the impact of the student’s poor fine motor skills on his ability to complete grade level writing tasks, the student’s ability to access the general XXXX education and general education environment, and whether the student has sensory integration needs and if they are being met. Id.
The student’s management needs under XXXX development include assessment, through XXXX, of the teacher continuing to scribe for the student. To address the student’s off-task behaviors it is noted that the student requires adult support in the classroom to ensure on task behavior and work completion. The IEP also states that services of a behavioral consultant are needed to assist the educational team in implementing the behavior intervention plan. District 57C-14. The IEP also states that the student needs “a trial of XXXX to determine if it will help him in accessing the general education curriculum.” Id. The August 10, 2015 IEP indicates that the student does need an XXXX device and/or service. District 57C-15.
Two new goals were added to the student’s IEP. A social/emotional/behavioral goal was added to the student’s IEP: "[The student] will practice self-monitoring and self-regulation throughout the school day to determine whether to utilize sensory strategies (i.e. weighted vest, movement breaks, et cetera). (Supported by classroom teacher)." District 57C-16.
A motor goal was added: “The student will build, duplicate and reproduce designs from visual models to assist visual motor skills.” District Ex. 57C
A trial sensory program was added to the student’s recommended supplementary aids and services/program modifications/accommodations on an as needed basis, daily, throughout the day. District 57C-18. A portable word processor with word prediction was added as an XXXX device, for a trial period, September 9, 2015 to November 15, 2015, on an as needed basis. Id.
Behavioral Intervention Consultation for the educational team, for two hours monthly, was added to the IEP. District 57C-18.
The District noted that it attempted, but could not address all of the concerns the Parent had raised in emails at the meeting, particularly the student’s eligibility for XXXX therapy services, because the Parent did not come to the meeting. The District reiterated that the Parent was granted IEEs for XXXX therapy and XXXX that the CSE would review when available. District 57C-1, 13-14; Tr. 1493.
By Prior Written Notice dated August 10, 2015 the District informed the Parent that the CSE recommended that the student continue to receive special education services. District Ex.
57C. The CSE reviewed the XXXX evaluation and recommended that the student “have a trial of XXXX to address concerns in writing. If the trial is successful then a writing goal with a focus on technology will be discussed.” Id.
The Prior Written Notice indicates that the CSE considered more restrictive programs and or services, i.e., less time in the general education setting, but rejected those because of the student’s current functioning levels and skills. District Ex. 57C. The District considered and determined that a general education setting with related services was appropriate to meet the student’s needs. August 10, 2015 IEP – District Ex. 57C-3.
By Prior Written Notice dated August 14, 2015 the District informed the Parent that the District was granting her request for the independent educational evaluations at public expense in both the areas of XXXX therapy and XXXX specifically the sensory evaluation. District Ex.
55. The District previously had granted the Parent’s request on or about September 8, 2014, but the parent had the evaluations paid for through her insurance. Id. Tr. 407.
By email dated August 16, 2015 the Parent informed Ms. XXXX that she disagreed with the CSE’s determination that the student is not entitled to XXXX and XXXX therapy. District
56. The Parent reminded Ms. XXXX that at the May 11, 2015 meeting she had expressed concerns about the student’s lisp and XXXX XXXX skills, explaining that if she appeared to agree it was because of the District’s representation that XXXX XXXX skills would be addressed by a social worker and not a XXXX . Upon further review and consideration, the Parent wanted the student’s XXXX deficits to be addressed by a XXXX and XXXX The Parent requested Prior Written Notice of the District’s refusal to provide XXXX and XXXX services and the reasons why. District Ex. 56.-1.
The Parent also informed Ms. XXXX that she did not agree with the student’s placement in the general education setting. The Parent understood from the May 11, 2015 CSE meeting that the student needed the behavioral support of an integrated co-taught classroom and questioned the District’s placement of the student in that setting without formally recommending the placement on the student’s IEP. District Ex. 56-1.
The Parent also requested that the student receive special transportation on a bus with fewer students and an aide both going to and coming home from school. The student receives this transportation service on the way home, but not on the way to school when the bus has more than 35 students. District Ex. 56-2.
The Parent noted that she included a second copy of the Parent-created consent form previously sent on June 24, 2015. The Parent also attached a District form providing consent for the initial provision of services. District Ex. 56-2. Although the Parent dated the signed form June 24, 2015, the District form is stamped as received by the District on August 18, 2015, two days later than the email. District Ex. 56-5. The Parent made an “X” in the box that states: “I hereby grant consent for the initial provision of special education services,” and wrote in by hand, “in part. The Parent is accepting the determination of eligibility and rejecting the IEP.” Id.
Ms. XXXX did not consider the parent’s form received on June 24, 2015 to have provided consent because the parent rejected the entire IEP and accepted only the student’s eligibility. Tr. 1532, 1571. The signed District consent form returned by the parent on August 18, 2015 did not change the district’s view because it also rejected the IEP. Tr. 1572-1573. Ms. XXXX understood that the parent was not providing consent for services. Id. The District did not follow up with the parent to ask what the consent form meant. Tr. 1573. In a decision from the New York State Education Department, it was determined that the Parent had not provided consent. District Ex. 62; Tr. 1591, 1601-1602.
By email dated August 31, 2015 the Parent again informed the District that she accepted the CSE determination of the student’s eligibility for special education services, but that she rejected the IEP, found the goals to be ambiguous, rejected the determination that the student did not need XXXX goals, rejected the determination that the student receive an XXXX trial, and rejected the determination that the student did not need XXXX, academic or XXXX therapy services. District Ex. 58. The Parent repeated that the student was in need of a special education placement. Id.
The Parent informed the District that if the student’s IEP was not changed, she would file for an impartial hearing. The Parent also noted that she had not refused to attend the August 10, 2015 CSE meeting, but had asked to have it rescheduled because she did not receive notice of the meeting until August 7, 2015 which did not give her sufficient time to invite those individuals who she wanted to attend, the District intended to have its lawyer present who the Parent felt was there to intimidate her, the therapist who conducted the evaluation was unavailable on that date, and the Parent had not received the evaluations with sufficient time to review them. District Ex. 58-2. Again the Parent included a signed District form for Consent for Initial Provision of Special Education Services, dated August 31, 2015 on which she placed an “X” before: “I hereby grant consent for the initial provision of special education services,” and handwrote: “in part, as I am rejecting the IEP, but accepting the determination of eligibility.” District Ex. 58-3.
In September, at the start of the 2015-2016 school year, the student was enrolled in an integrated co-teaching classroom with one full-time general education teacher, XXXX XXXX, one full time special education teacher, XXXX, and one full time paraprofessional. Tr. 146, 809-
810. “Integrated Co-Taught Class” does not appear on the student’s IEP. Joint Ex. 37; Tr. 262. There are 16 students in the classroom, four of whom have IEPs. Tr. 810, 1559. The classroom is teamed with a second integrated co-taught classroom at the XXX grade level. The student has math with one set of teachers and moves to another classroom for English XXXX Arts (“ELA”) with the other set of ICT teachers, a process followed by all XXX graders in preparation for
XXXX. Tr. 811.
By email dated September 10, 2015 the parent rejected the results of the DRA-2 reading assessment and requested an IEE at public expense to evaluate the student in academic areas. See District Ex. 63. By Prior Written Notice dated October 7, 2015 the District informed the Parent that the Parent was not entitled to an IEE at public expense because the District had not conducted an evaluation of the student in academic areas since the previous evaluation with which the parent disagreed for which the parent already had been awarded an IEE, the XXXX evaluation conducted by XXXX XXXX, which included an evaluation of the same areas. Id. Additionally, the District noted that the DRA2 was an assessment tool administered to all students and is one measure of performance among many that the CSE considered in making its determination of what services the student needed. Id.
By letter dated October 2, 2015, Ms. XXXX informed the Parent that without consent for the initial provision of special education services and no prescription for services for the 20152016 school year, the District would be unable to provide XXXX or any other special education services for the 2015-2016 school year. Tr. 147-148.
By email dated October 5, 2015 the Parent requested an IEE in the area of a XXXX evaluation. See District Ex. 66. It had been reported by teachers that the student said XXXX. Tr. 186. The incident was reported to the elementary school principal who assigned XXXX XXXX, a certified school social worker to check in with the student and “to do a lethality assessment or threat assessment.” Tr. 187, 567, 579-580, 1100.
On October 6, 2015, Ms. XXXX conducted the threat assessment which involved learning whether the student understood what it meant when he said XXXX whether the student had a plan to follow through on his statement, and determining what was happening in the student’s life that caused the student to use the words. Tr. 578, 1100, 1103. Ms. XXXX was familiar with the student from seeing him in the hallways, but never evaluated him or provided him with any indirect or direct services. Tr. 567. Ms. XXXX spoke to the student, confirmed that the student stated that XXXX and determined that the student was not at risk for harming himself, but had spoken out of frustration and anger. Tr. 568, 576-577, 1104. Ms. XXXX reported her assessment of the student’s risk to the principal, who in turn called the parent. Tr. 573-574. There is no written protocol in the district for how to intervene with students who say they are going to harm themselves. Tr. 269. Ms. XXXX did not review any of the student’s records, did not know that he had an FBA/BIP, and did not know that he was a special needs student. Tr. 570-571. Mr. XXXX also contacted the parent. Tr. 1100, 1102-1103. Mr. XXXX completed an incident report as well. Tr. 1101. There were no other reports of self-harm. Tr.
1104. There was one incident in which the student was angry with another student and said he wanted to XXX. Tr. 1105.
By letter dated October 6, 2015 the parent was notified that the student had been referred for AIS/RTI services. Parent Ex. C. Based on a September 24, 2015 administration of the Standardized Test for the Assessment of Reading (“STAR”) computer-adaptive reading test, the student scored a percentile rank of XX, or . The student scored a XX Instructional Reading Level, indicating that he “is at least proficient at reading XXXX grade words and books,” grade level. District Ex. 69-3; Tr. 1119. These results were shared with parents at parent-teacher conferences, but the student’s parents did not schedule a conference and were not given the results. Tr. 833-834. Ms. XXXX also assessed the student using the DRA2 on Level XX. The student failed the assessment for Level XX and remains on Level XX, the same level as when he was tested in February 2015 and May 2015. Tr. 843.
After considering the student’s performance on the DRA2 and STAR assessments, Ms. XXXX, Ms. XXXX and Ms. XXXX, a New York State certified reading specialist, determined that the student would be referred for Academic Intervention Services (“AIS”) services. Tr. 829, 849, 1082, 1480. The student currently receives AIS, four times per week for twenty to thirty minutes to support his reading, from XXXX. Tr. 828-829, 1094. . The student did not want to be pulled out of the classroom for 30 minutes per day for the services as originally intended so Ms. XXXX provides the service in the classroom during the last 30 minutes of the day, “wrap-up time”. Tr. 850, 854-855. The AIS plan is focusing on oral reading fluency, writing, and comprehension of reading. Tr. 1098. The student needed to improve in the areas of "all reading fluencies,” comprehension and writing. Tr. 850.
Although District witnesses testified that AIS and RTI are not the same, the District’s document, "Response Intervention Model, XXXX Central School District," states on page 5: "RTI Tier II reading services formerly known as Title 1 and Non-Title 1 AIS." Parent Ex. D-5; Tr. 1108-1109. Principal XXXX stated that the XXXX policy changed in October 2015: RTI is the interventions that we put in place to support a student when they're not meeting grade-level expectations. AIS is what we do after we have gone through the steps of RTI and they're not responding to the interventions that the classroom teacher's putting into place and so we bump up the intervention.” Tr. 1110. Not all students who qualify for AIS have a disability. Tr. 1117.
The District offered varying responses as to why the student could have been referred to the CSE for academic services, but was not: for now the student is receiving AIS services and does not necessarily need a reading goal on his IEP (Tr. 1342-1343); the District already had been threatened with litigation by the parent (Tr. 1349-1350); and the Parent had not given consent so there was no IEP in effect (Tr. 1350).
By email dated October 13, 2015 the parent referred the student to the CSE for a comprehensive evaluation. Id. By Prior Written Notice dated October 29, 2015 the District denied the Parent’s request for the XXXX IEE at public expense explaining that the Parent was not in disagreement with a previously conducted evaluation by the district. The District denied the Parent’s request for a comprehensive CSE evaluation due to the comprehensive evaluation that took place prior to the May 11, 2015 meeting at which the student was determined eligible for special education services, an IEP was developed and the Parent had yet to provide consent for the initial provision of special education services. District Ex. 66.
The Parent requested an impartial hearing in the due process complaint received by the District on October 22, 2015. Parent Ex. A1.
The Parent filed a second due process complaint for the 2015-2016 school year on November 3, 2015. Parent Ex. A2.At the hearing, Ms. XXXX testified about the student in her XXXX grade classroom. Ms. XXXX described the student as getting very excited when he is able to do work and understand concepts. He is reluctant to work independently, and requires frequent check-ins for understanding and prompts every 10 to 15 minutes as well as redirection. Tr. 812. The student requires very clear expectations and responds well to a class-wide ticket reward system established in the classroom. Tr. 813-814. The behaviors exhibited by the student are: work refusal or avoidance (District Ex. 70- 1, 2, 3, 4, 5, 6, 8); not completing homework (District Ex. 70-1,); becoming excessively emotionally upset in response to other students or adults (District Ex. 70- 1, 2, 4, 5); ignoring direction from adults ( District Ex. 70-1, 2); lack of focus or inattention (District Ex. 70 -3); and making inappropriate loud sounds that are disruptive (District Ex. 70-2 ). Tr. 814-815. The student was described as “antsy,” needing frequent breaks and to walk around, but this behavior has faded as the year has progressed and the student is much more able to stay seated for longer periods of time. Tr. 824. General classroom management strategies such as redirection and prompting have been effective for the student. With respect to homework completion, because the student completed only one homework assignment, the teachers sent home a communication folder. The student never brought it back to school. Tr. 815. The student consistently has stated throughout the school year that his mother stated he does not have to complete the homework because it is too difficult. Tr. 822. The teachers maintain a “running record” of the student, recording if he says or does something out of the ordinary. District Ex. 70; Tr. 818-819. The teacher never shared this information with the Parent because Ms. XXXX was instructed by Ms. XXXX only to communicate with the Parent through Ms. XXXX and the lawyer due to the ongoing litigation. Tr. 835. Ms. XXXX believes that the student needs behavior goals, but because the class is so small this year, with three teachers, she was not sure if the goals needed to be worked on through a BIP. Tr. 867-868. Because of the teacher to student ratio, the adults often can intervene before the behaviors become extreme. Id.
Some of the student’s behaviors are playing with things in his desk, making noises that are not related to the work (such as fire truck and ambulance sirens), getting up and kind of walking around the classroom. Tr. 882. Those behaviors have improved. The student can make siren sounds up to 20% of any given day, but does not do it every day. Tr. 882-883. The student’s behavior around work completion and resistance to adult direction has not improved; Ms. XXXX believes the student needs goals in these areas. During whole group instruction the student likes to participate. He may get distracted by playing with things or making lists. Tr.
880. The student moves a lot during group instruction, but generally knows what is going on in the lesson. Id. The student’s behaviors are distracting to himself and others. Tr. 880. The behaviors are inconsistent within a day and from day to day. Tr. 880-881.
Handwriting is an area in which the student struggles. Tr. 822-823. If an assignment involves more than a paragraph, the teachers offer the student an iPad or Chromebook to complete the work. Tr. 823. Sometimes the student can read his own handwriting and other times he cannot. Id. The student is able orally to answer a question about a reading, but cannot answer it as clearly in writing. Tr. 823-824.
The student has a solid understanding of number sense, but often gets lost in word problems. Tr. 815-816. The student is level in ELA skills, both reading and writing. Tr. 816. He is grade level in both areas. Tr. 816. The student is a reluctant reader and has difficulty with comprehension questions as well as inferences. Tr. 816. The student benefits from graphic organizers.
The student has not demonstrated any difficulty moving about the classroom, in the playground or navigating the school building. Tr. 824-825. In terms of social and emotional development, the student is well-liked by his peers and gets along with them. Tr. 825.
District witnesses and documentary evidence in the record support the finding that the parent told the student that he did not have to complete class work if it was too difficult or homework, as given. District Ex. 70. The parent did not rebut this evidence.
In the course of the hearing, an independent XXXX evaluation was ordered in order to gain a better understanding of the student’s mental health needs due to noted anxiety, depression, and comments of self-harm. In a XXXX evaluation dated January 27, 2016 Dr. essentially confirmed information in previous reports, relying heavily on Dr. XXXX’s findings and information provided by the Parent. Results of the Mental Status Exam included: “[The student] was alert, oriented, with appropriate dress XXXX and eye contact. His mood was euthymic and his affect was full.” IHO Ex. XL-2. Dr. XXXX was aware of the student’s homicidal and suicidal comments, and wrote: “[The student] acted younger than his stated age, was somewhat hyperactive, was pleasant and did not exhibit suicidal or homicidal ideation, hallucinations or delusions.” Id.
Findings Related to the Provision of Related Services and the District Requirement for a Prescription
By letter dated July 13, 2015 XXXX XXXX reminded the Parent that the District had not yet received a prescription for the student’s summer XXXX services agreed upon in the May 12, 2015 settlement agreement and explained it was needed to contract for the services “in order to ensure that there are no medical contradictions associated with the services to be rendered.” District Ex. 47. Ms. XXXX stated that the District did not ask the Parent to consent for the District to bill Medicaid or private insurance for the services and that the District would cover any cost associated with obtaining a prescription from the student’s doctor. The District also told the Parent that any missed services caused by a delay in obtaining the prescription would be made up to the student at the convenience of the parent. Id. Ms. XXXX also reminded the parent that she had not provided the requested consent to share information about the student with the contracted provider for the XXXX services, XXXX. Id. The District contracted with XXXX to provide related services. The contract required that: "The therapists will secure prescriptions for services provided and will submit the prescriptions to the district." Tr. 1570-1571.
By letter dated July 17, 2015 in response to the Parent’s July 16, 2015 request for informed consent to provide a prescription for XXXX services, Ms. XXXX provided the Parent with “FERPA Consent to Release Student Information” for allowing the physician to provide a prescription for the student for XXXX from July 6, 2015 to August 7, 2015 and May 27, 2015 to May 26, 2015 to the school district. District Ex. 49; Tr. 159-160. District Ex. 49-2. By email dated July 21, 2015 the Parent informed the district that a HIPPA release for medical records, not a FERPA release is required because the prescription would not be an educational record, and moreover, a prescription as described by the District did not exist to be released. District Ex. 49-
3. The Parent requested that the District send the Parent the correctly worded consent form. Id.
Sometime in August 2015, the District received a notice from Dr. rescinding the prescription at the Parent’s request. Id. Prior to December 4, 2015 when the CSE recommended either XXXX therapy or XXXX as related services the District XXXX therapist or the therapist would prepare the prescription and the Office of Student Services would fax it to the physician's office, without obtaining the Parent’s consent. The physician would then sign it and fax the prescription back to the Office of Student Services at which time the child could receive whatever related service they were supposed to receive. See Joint Ex. 491; Tr. 1576-1577. The District did not get consent from the Parent subsequent to the May 11, 2015 CSE meeting to obtain a prescription for XXXX from the student’s doctor. Tr. 1589. XXXX XXXX wrote the prescription for XXXX XXXX services dated September 12th of 2012, and XXXX XXXX, LCSW, wrote the prescription for services dated May 27th of 2015, without the Parent’s consent. Joint Ex. 50; Tr. 1581, 1587. Ms. XXXX testified that prescriptions signed by a physician were not necessary for XXXX or services. Tr. 1580, 1592. For students whose parents do not consent to have the District bill Medicaid for the services, such as the student in the present case, the student’s prescription is filed in a binder and otherwise has no purpose. Tr. 1594-1595, 1620.
As a result of the corrective action required by the Parent’s SED complaint, as of December 4, 2015 the District adopted new procedures for and XXXX therapy: the District will obtain a FERPA consent from parents to release personal identifiable information to the student's physician and the District is then seeking the prescription from the physician. Joint Ex. 49-4; Tr. 1571-1572, 1574, 1577-1578, 1600.
ANALYSIS AND DECISION
Preliminary Matters
Jurisdiction Issues
In the District’s Response to Due Process Complaint Dated October 19, 2015 the District made a Motion to Dismiss the Parent’s “complaint allegations that occurred prior to May 12, 2015,” (IHO Ex. XLII - emphasis added) on the grounds that those claims are barred by the parties’ private settlement agreement dated May 12, 2015 in which the Parent expressly released the District from “any and all claims and/or causes of action which exist or may exist as of May 12, 2015.” The District’s motion is granted consistent with my previous denial of the Parent’s Motion to Vacate the Order to Terminate IHRS Case No. due to the parties’ settlement agreement.
In the District’s Post-Hearing Brief, for the first time, the District argued that the May 12, 2015 settlement agreement not only released the District from any and all allegations stemming from the May 11, 2015 CSE Recommendations but also the resulting IEP, which was written after May 12, 2015. See IHO Ex. LXX-8. The District’s motion to dismiss the Parent’s claims on the basis of a release from post-May 12, 2015 allegations is denied.
The District relies on the XXXX in paragraph five of the May 12, 2015 settlement agreement, but the terms of the paragraph limit and define the terms and timeframe of the paragraph XXXX The first sentence reads: “The parties agree that this agreement fully and finally resolves all matters raised in the Request dated January 14, 2015 as well as any other pending complaint or action filed on grounds included in the request.” District Ex. 38D. The Parents also expressly released and discharged the District “...from any and all claims and/or causes of action which exist or may exist of the date of this agreement including but not limited to those in connection with the hearing request, any claim or cause of action asserted under IDEA...and or Article 89 of the NYS Education Law." District Ex. 38D. Thus, the claims from which the Parents released the District are those that were raised in the January 14, 2015 Request, those that were pending as of May 12, 2015 that were filed on grounds included in the request, and those which existed or may have existed as of the date of the agreement, May 12, 2015. The plain XXXX of paragraph five limits the release to those claims that may exist as of May 12, 2015, not beyond.
The District’s motion to dismiss the Parent’s FAPE claims because in the May 12, 2015 settlement agreement the Parent agreed to the May 11, 2015 CSE recommendations also must be denied. See IHO Ex. LXX-8. Notably, the agreement does not refer to an IEP and once the record was developed, by the District’s own actions and arguments, the District did not think that the Parent was bound to whatever IEP was developed. In fact, in its encouragement to the Parent to sign consent for initial provision of services, the District repeatedly told the Parent and explained at the hearing that it was consent for the proposed eligibility and provision of services. As testified to by the Director of Special Education about a District letter to the Parent dated June 22, 2015, in a Prior Written Notice dated May 11, 2015, the Parent “was notified of the CSE’s proposed initial eligibility and provided with a request for written consent for the initial provision of special education services. This consent requirement applies to the initial provision of services, not to the specific educational program and services to be included in your son’s IEP.” Joint Ex. 38. “[S]o what I was trying to say to her in this letter was that the consent is for initial provisions not necessarily the program, meaning, that we would come back to a CSE meeting to try and address the concerns that she had regarding the IEP that was developed.” Tr. 444; See Tr. at 1530. The District’s position is in keeping with an advisory letter, Letter to Lipsett, in which OSEP advised that the fact that a parent or guardian does sign the IEP does not bar him or her from subsequently raising claims that the IEP in question denied the student a FAPE. See Letter to Lipsett, Office of Special Education Programs, 52 IDELR 47 (2008). Similarly, where the Parent only agreed to CSE recommendations the Parent cannot be barred from challenging the IEP which she did not see until two XXXX after the CSE meeting. [8]
Additionally, the hearing record contains a Closing Arguments submitted by the Parent, in which the Parent raised arguments which the Parent did not raise as issues in her complaint, and made factual assertions for which the Parent provided no testimony or documentary evidence. IHO Ex. LXIX. These included alleged arguments made by the District with respect to the District’s ability to pay for special education services to the student and an April 14, 2014 State Office of the Comptroller audit that assessed the District and its delivery of special education services. Id. pp. 1-2. I find that the hearing record does not show that the District made any financial arguments with respect to the provision of special education services to this student. Nor did the District agree to expand the scope of the impartial hearing to include these issues. No evidence was introduced by the Parent related to these issues. I also note that the District's closing brief did not address these issues. Accordingly, these issues were not before me and I will not address them in this decision.
FERPA Claims
The IDEA and New York State regulations provide for parents to pursue a due process hearing in matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child. 20 USC 1415(b)(7); 34 C.F.R. Sec. 300.511; 8 NYCRR 200.(5)(j). The FERPA issues raised by the Parent are beyond the scope of an impartial hearing as set forth in the above regulatory XXXX.
Complaints regarding violations of FERPA are not within the jurisdiction of an impartial hearing officer, but instead are to be filed with the New York State Education Department or the Family Policy Compliance Office. 34 CFR 99.63; 8 NYCRR 200.5(l).
Consent for the initial provision of services The District argued, pre and post-hearing, that “any and all allegations of a denial of FAPE stemming from the May 2015 CSE Eligibility Determination meeting, the resulting IEP or the District’s inability to implement the IEP are barred as the Parents refused to provide written consent for initial special education services.” IHO Ex. LXX-12; see also IHO Ex. XLII.
Based on a review of the record and applicable law, I find that the Parent provided written consent for the initial provision of special education and related services to the student by accepting the student’s eligibility and classification, even though she rejected the specific May 2015 and August 10, 2015 IEPs. The District received or became aware of a number of conflicting communications from the Parent from which it was unclear whether the Parent was consenting to the initial provision of services. See Joint Ex. 38. In a response to a June 22, 2015 letter from the District seeking clarification, on June 24, 2015 the Parent sent the District a signed consent form on which she indicated that she consented to the initial provision of special education services in part, and specified those services to which she agreed and disagreed. District Ex. 43. The Parent resent this form as well as the District Consent Form on or about August 18, 2015 indicating that she “consented to the initial provision of special education services” and handwrote “in part.” The Parent wrote that she accepted the determination of eligibility, but rejected the IEP. District Ex. 56.
By consenting to the student’s eligibility as a student with a disability, specifically XXXX, the Parent clearly communicated that she consented that her son has a disability and “requires special services and programs approved by the department.” 8 NYCRR 200.1(zz). All of the consent forms with various modifications and the Parent’s alternative IEP all communicated that the Parent wanted her son to receive special education services, but that she disagreed with the IEP that was developed by the District. The Parent’s consent form stating that she rejected the IEP, however, did not give the District permission to provide the services on the IEP. The District, therefore, cannot be found responsible for non-implementation of the IEPs. The Parent, however, retained her due process rights to challenge the IEPs and the District maintained its right to defend its recommendations as having provided the student with a FAPE.
Last, even if one were to find that the Parent was required to, but did not sign consent for initial provision of services, the parties would be in the same posture, i.e., the District would not be responsible for providing the services, but the Parent still could challenge whether the IEPs provided FAPE. 8 NYCRR 200.5(b)(4). To grant the District’s motion to dismiss the Parent’s complaint on these facts would be to condition the Parent’s access to due process upon the Parent first consenting to and accepting the very services that she is challenging.
APPLICABLE LEGAL STANDARDS
The IDEA mandates that participating States provide students with disabilities FAPE. FAPE requires special education and related services tailored to meet the unique needs of a particular student that are reasonably calculated to enable a student to receive educational benefits. Meaningful educational benefit under the IDEA requires that special education be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade; it does not require that services maximize a student's potential. Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 156, 200-201, 102 S.Ct. 3034, 3048-49 (1982). What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free School District, 142 F.3d 119, 132 (2d Cir. 1998) citing Tucker v. Bay Shore Union Free ScXXXX Dist., 873 F.2d at 567. Moreover, the law expresses a strong preference for students to be educated to the maximum extent appropriate with non-disabled peers. Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998).
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. Walzczak supra at 122 citing 20 U. S.C. §1401(a)(20). The IEP "must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. However, it need not furnish every special service necessary to maximize each handicapped child's potential." M.XXXX v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir.2012) (citations and internal quotation marks omitted).
Parents play a significant role in the IEP process. They must be informed about and consent to evaluations and have the right to an independent educational evaluation of their child. They are members of the IEP team. Schaffer v. Weast, 126 S.Ct. 528,532 (2005). Moreover, parents’ participation at IEP meetings must be "meaningful". Deal v. Hamilton County Board of Education, 392 F.3d. 840,853 [6th Cir. 2005]) Parents must also be given prior written notice of any changes to the IEP and notice of procedural safeguards, including the right to an impartial due process hearing. Schaffer, supra 126 S.Ct. at 532
Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S.Ct. at 532 citing Rowley at 206; M.S. v. Board of Education of the City School District of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. M.XXXX, 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009). However, individual or cumulative procedural violations may be considered to deny a student a FAPE if the procedural inadequacies (a)impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); 34 C.F.R. §300.5213(a)(2); 8 NYCRR 200.5(j)(4)(ii); Werner v. Clarkstown Cent. ScXXXX Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005).
The school district bears the burden of proof with respect to the appropriateness of its recommendation. New York Ed. Law §4404 (1) (c)
With respect to a decision regarding the appropriateness of a school district IEP recommendation, a hearing officer must render a decision on substantive grounds based on a determination of whether the child received a FAPE. Where a procedural violation is alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. §1415 (f)(2)(E).
There is broad authority under the IDEA for a court (or hearing officer) to fashion appropriate equitable relief where there has been a failure to provide FAPE to a child. The IDEA provides that courts "shall grant the relief that the court determines to be appropriate." 20 U.S.C. § 1415(i)(2)(C) (iii); 34 C.F.R. § 300.516(c)(3). The Supreme Court has interpreted the statute to "confer [ ] broad discretion on the court" in fashioning relief. See Burlington ScXXXX Comm. v. Dep't of Educ., supra at 369, holding that the statute (IDEA) authorizes private school tuition reimbursement and noting that "[t]he type of relief is not further specified, except that it must be appropriate."
Compensatory education is "prospective equitable relief' that requires a school district to fund special education "as a remedy for any earlier deprivations in the child's education." Somoza v. New York City Dept. of Educ.,538 F.3d 106, 109 n.2 (2d Cir.2008) citing Burr v. Sobol, 888 F.2d 258 (2d Cir.1989) - compensatory education is an appropriate remedy where a child could lose the right to a FAPE because he or she will be aging out of the statutory limit for services (21) and where the IDEA requirements were grossly violated and excluded the student from school for a prolonged period- aff'g prior holding in Burr v. Ambach, 863 F.2d 1071 (2d Cir.1988) ; see also, P.ex rel. Mr. and Mrs. P. v. Newington Bd. Of Ed., 546 F.3d 111 (2d Cir.
2008) affirming an award of compensatory services for a denial of FAPE where no gross violation of FAPE was demonstrated; Reid v. District of Columbia, 401 F.3d 516,522 (U.S.C.A.,Dist. Col. 2005); Student X v. New York City Dept. of Educ., 2008 WL 4890440 (E.D.N.Y. 2008).
In determining an award of compensatory education, courts (and hearing officers) should exercise flexibility and ensure that relief is designed to ensure the student is educated appropriately within the meaning of the IDEA. Thus, relief should ensure a student receives instruction to remediate individualized needs and be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have provided in the first place. Reid, supra, 401 F3d 516, 524. Other courts have held that an award of compensatory education should be provided for a period equal to the period of a derivation of FAPE but excluding the time reasonably required to rectify the problem. M.C. v. Cent. Reg'l ScXXXX Dist., 81 F3d 389 391-92, 396-97 (3d Cir. 1996).
The May 2015 and August 10, 2015 IEPs
The August 10, 2015 IEP contains the same as well as additional information and recommendations as the May 2015 IEP. Cf. District Ex. 37 with District 57C. Accordingly, this decision will address allegations of procedural violations with respect to both IEPs, however, the focus of allegations of substantive denials of FAPE will focus on the August 10, 2015 IEP.
Procedural Violations
The Parent alleged procedural violations that she claimed deprived her of meaningful participation in the IEP process, denied the student a FAPE, and deprived him of educational benefit.
CSE Composition May 11, 2015
The Parent alleged that because Dr. XXXX and XXXX XXXX were not present (or on the telephone) for the entire May 11, 2015 CSE meeting, they were unable to contribute to the discussion of the development of the student’s IEP goals, services and program, which impeded the Parent’s opportunity to participate in the decision-making process regarding her son’s education. Additionally, the Parent claims that had she understood that the final IEP would result from the May 11, 2015 meeting, she would have asked that the transportation supervisor and the XXXX therapist stay at the meeting to get their input as well.
During the May 11, 2015 CSE meeting the Parent was aware that the CSE was discussing the programs and services for the student’s IEP. The Parent noted that the student had been determined eligible and remarked that her advocate was accustomed to two CSE meetings, one to determine eligibility and one to develop the IEP. Joint Ex. 51-218. To the extent that the private evaluators were not on the telephone for the entire meeting, the meeting transcript and their testimony indicate that they communicated their views about the types of goal and services the student needs.
The fact that the participants named by the Parent were not present for the entire meeting is not a procedural violation.
CSE Composition and Parent Participation August 10, 2015
The IDEA sets forth procedural safeguards and guarantees parents the right "to participate in meetings with respect to the identification, evaluation, and educational placement" of their child. 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. 34 CFR 300.322; 8 NYCRR 200.5(c) and (d).
Requirements for parent participation at meetings of their child's CSE require school districts to ensure that parents are notified of their child's CSE meeting early enough to ensure they have an opportunity to attend and to schedule such meetings at a mutually agreed on time and place. 34 CFR § 300.322(a); 8 NYCRR 200.5(d). The school district’s notice to the parents must inform parents in advance of the meeting, the purpose, time, and location of the meeting and who will be in attendance. 34 CFR § 300.322(b); 8 NYCRR 200.5(c).
In accordance with 34 CFR § 300.321(a)(6), at the discretion of the parent or public agency, other individuals who have knowledge or special expertise regarding the child may attend the IEP meeting. The determination of the knowledge or special expertise of these individuals must be made by the party (parent or public agency) who invited the individual to be a member of the CSE. 34 CFR § 300.321(c); see also 8 NYCRR 200.3(a)(1)(ix).
Although a party’s attorney is permitted to attend a CSE meeting, Guidance form OSEP emphasizes that even “if an attorney possessed knowledge or special expertise regarding the child, an attorney's presence could have the potential for creating an adversarial atmosphere that would not necessarily be in the best interest of the child. Therefore, OSEP's longstanding position is that the attendance of attorneys at IEP meetings should be strongly discouraged.” Letter to Andel, 116 LRP 8548 (2/17/16).
Accordingly, the District was permitted to have its attorney present.
The District sent the Parent a Meeting Notice dated July 29, 2015 for a CSE Meeting scheduled for August 10, 2015 to discuss the student’s educational needs, with a specified a time location and the names and titles of those who would be attending. District Ex. 52. In an email dated August 1, 2015 the Parent objected to several of the District’s participants, including the District’s lawyer, and requested the presence of a XXXX therapist, a BCBA, and the therapist who wrote the XXXX (sensory) evaluation for the student. Id at 4-6. The Parent also requested a meeting notice that specified that the purpose of the meeting was to review the District XXXX evaluation, the XXXX (sensory) evaluation, and to discuss the difference between the Parent’s proposed IEP and the one developed by the CSE as she had understood the District proposed to do in a Prior Written Notice dated July 14, 2015. Id. at 4.
By letter and Meeting Notice dated August 7, 2015, the District stated the purpose of the meeting as a reevaluation review, and included the areas requested by the Parent. District Ex. 52 at 7-10. The District provided justification for the individuals it planned to attend. Id. By emails dated August 7, 8, and 9, 2015 the Parent continued to object to the District’s lawyer as a participant at the meeting. Id.-13; Parent Exs. O, Q. The Parent asked the District to reschedule the meeting so that she could review testing protocols, exercise her right to include a parent member, invite participants and benefit from the participation of XXXX XXXX, the therapist who conducted the District’s recent XXXX evaluation. District Ex. 5213; Parent Exs. O, Q. The District held the meeting on August 10, 2015 as scheduled, with the attorney and secretary present, and the Parent did not attend. Joint Ex. 52.
Based on the District’s late response to the Parent coupled with its lack of effort to reschedule the meeting, I find that the District failed to comply with its obligation to ensure that the Parent was present at her son's Reevaluation/Review CSE meeting or was afforded the opportunity to participate in the meeting. 34 C.F.R. § 300.322; 8 NYCRR 200.5(d); see, Board of Educ. of the Springville-Griffith Inst. CSD, SRO Appeal No. 07-087 citing Mr. M., 2007 WL 987483.
The District conducted the August 10, 2015 meeting without the Parent and without sufficient effort to ensure her participation. Although the CSE did make some changes to the student’s IEP that appear consistent with the Parent’s previously expressed concerns, given the stalemate between the parties over the development of an appropriate IEP for the student, and the Parent’s interest in being a participant in the development of an IEP that provides her son with an appropriate IEP, the District significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE.
Consideration of Private Evaluations
The Parent alleged that the District did not consider her private evaluations in developing the student’s IEP. Based on the entire record, the evidence supports the findings and conclusion that the CSE considered the Parent’s evaluations. Joint Ex. 51. The student’s August 10, 2015 IEP includes descriptive information and scores from the private evaluations, the BIP created by XXXX XXXX (although this should be specified as such on the IEP), and many of the recommendations for supplemental supports and services, modifications and accommodations recommended by Dr. XXXX. Ex. 57C. Although the District did not offer the student XXXX and XXXX services, there was a discussion at the CSE meeting of the private XXXX and XXXX evaluation. The District is not obligated to agree with the Parent’s private evaluations, but must consider them. T.S. v. Bd. of Educ. of Town of Ridgefield, 10 F. 3d 87, 89-90 (2d Cir. 1993).
The CSE considered the Parent’s private XXXX therapy evaluation, but determined that it needed an evaluation that was done in the school setting. The District’s position with respect to the XXXX therapy evaluation is questionable. The District previously considered the same evaluation in its December 2014 CSE eligibility determination meeting for the student and never mentioned the simulated school setting of the private evaluation to be an issue, while specifying to the parent a number of evaluations it needed in order to make an eligibility determination. Additionally, the District never told the Parent that in order for a XXXX therapy private evaluation to meet school district criteria it had to be conducted in the school environment. The District did not produce school district criteria reflecting that this is a policy for private XXXX therapy evaluations to be considered valid. Disregard of the Parent’s private XXXX therapy evaluation was a procedural violation.
Pre-determination
The Parent alleged that the CSE impermissibly predetermined the student’s placement in a general education setting based on options available in the District.
The appropriate inquiry for a claim of pre-determination is whether the Parent was denied a meaningful opportunity to participate with respect to her concern that the student required a more restrictive setting than a general education placement because she believed that he needed special education instruction to address his needs. See E.XXXX v. New York City Dep’t of Educ. 15 Civ. 3535 (S.D.N.Y. 2016). The proper inquiry is whether the CSE had an obligation to consider that the student needed a special education placement and concede that fact even if the District’s options were not currently designed to meet the student’s needs. Id. A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP." T.P. v. Mamaroneck Union Free ScXXXX Dist., 554 F.3d 247, 253 (2d Cir. 2009).
Although the Parent did participate actively in the May 11, 2015 CSE meeting, as did her advocate, the CSE knew in advance that it would not place the student in one of its special education programs. The special education teacher at the meeting stated that based on her view the student is not “performing significantly below grade level in any one area” so he looks like a student who is going to get AIS. Joint Ex. 51-211-212. When the Parent left the room upset, the District’s attorney stated that “AIS-RTI” is a “trigger word,” and an unidentified female stated: “Yeah, well. Well, that’s what we have.” Id. at 213. When the Parent returned to the meeting, the special education teacher explained that students like her son, who are performing one-totwo years below grade level, typically receive AIS services. In the District, students who are two or more years below grade level receive direct teacher consult and those who are more than three years below grade level are in the ICT classes. Id. at 214-215. The Director of Student Services stated that while the student needs adult support for his behavioral needs during academic times he does not qualify for academic support so he would not be recommended for the ICT class even though he might get placed there as a general education student, and ICT would not be put on his IEP because it is “a program service.” Joint Ex. 51, pp. 238-246.
Based on the CSE fixed view that a student who is not at least two or more years below grade level is not qualified to receive a special education program on his IEP, regardless of his overall needs, I conclude that the District impermissibly pre-determined that the student would remain a general education student and provide other means of support on his IEP. The IEP outcome was pre-determined and the District did not enter the CSE meeting with the requisite open mind, thereby denying the Parent an opportunity to participate meaningfully.
Requirement for Board of Education Approval
The Parent alleged that the District violated the IDEA by requiring Board approval prior to providing the student with an IEP; the procedure delayed providing the student with services and Board members were not CSE members or responsible for making special education decisions for the student. The District made the May 11, 2015 student’s eligibility determination and IEP development contingent upon acquiring Board approval at its May 26, 2015 meeting. Joint Ex. 51. The Parent received the approved IEP on May 27, 2015.
States are permitted to have a State regulation that requires the board of education to approve/determine services and setting after the child's IEP is developed by the Committee on Special Education so long as the Board is not permitted to unilaterally change a child’s IEP or placement. Letter to Hayes, OSEP (March 3, 2016). Further guidance from OSEP states that a regulation like New York’s is permissible, but the State “must ensure that the Board’s actions do not delay or deny” providing FAPE to the child. Id.
The Board approval here was forthcoming within sixteen days of the May 11, 2015 CSE meeting. The time involved was not an unreasonable delay. There is no procedural violation.
Substantive Violations
Academic Needs
The explained that the student’s diagnosis of XXX impacts the student regarding academics in that the student has “very low frustration tolerance, difficulty with transition, executive functioning, behavioral intervention, poor attention, and he needs additional support to be able to access and perform in school at his ability level particularly as he gets older and the demand in school increases.” Tr. 1446; see Joint Ex. 42. Dr, XXXX concluded that the student’s symptoms related to XXXX and are impacting his ability to learn and to retain information in his current academic program. Joint Ex. 42-18. Dr. XXXX was aware that the student is refusing to complete his homework and stated that reinforcement would improve automaticity, but Dr. XXXX explained that what is impacting the student’s ability to learn is attention, working memory, processing, executive function and organization. Joint Ex.51-55, 72.
Although the student does not have a specific learning disability and attained scores in both his cognitive and achievement testing, the identified reading fluency as well as math fluency as deficit areas, based on the test results. Joint Ex. 42-18, Tr.
1410. The student’s math scores were level and across all three math tests that she administered. Joint Ex. 51-49, 56.
The student’sXXXX grade teacher reported concerns about the student’s ability to work independently particularly if the XXXX act of writing is involved. Tr. 754-755, 800-801. The student was reported to have tested at a grade level in reading in both February and May of 2015. Joint Ex. 51-145. The DRA2 scores for both tests ( ) were available by the August 10, 2015 CSE meeting, demonstrating that the student was at least grade level according to that assessment. Tr. 843. Testing completed in September 2015, corroborated the student’s deficits in reading. Once again he DRA2 , and on the STAR his score was the equivalent of XX grade, placing him more than years his grade level by that measure. District Ex. 69-3; Tr. 1119. Similarly, the fact that the District referred the student for AIS only months after the May meeting and two months after the August 10, 2015 meeting to address precisely the academic deficits previously identified corroborates the student’s deficits in reading. The record evidence supports the recommendation that the student required academic special education support in his IEP in order for him to benefit from his education. See, Rowley.
The student’s IEP does not adequately reflect Dr. XXXX’s findings by merely reporting the test results. Clearly the District agreed with many of her recommendations and must have agreed with much of her testing, voicing only a minimal challenge to her finding that the student’s reading is disfluent. The IEP does not adequately describe the student’s levels pf performance or his management needs. The student’s IEP states, in response to the noted Parent concerns, that the student’s “behaviors in the classroom and school environment have not impacted his ability to participate in the general education classroom.” District 57C-12. Given that the student requires a BIP, also recommended by the CSE, the student’s behaviors clearly interfere with his learning. The record amply supports a finding that the student frequently engages in off task behaviors, work refusal, and an inability to work independently. Joint Ex. 47-1.
The CSE did not develop any academic goals. Clearly the student needs appropriate goals to address his learning deficits.
While the CSE did adopt many if not most of Dr. XXXX’s recommendations, it was adamant that the student did not require the adult academic support of a special education teacher, which in the District appeared at the time to be either a Direct Consultant Teacher or a special education teacher in an ICT classroom. See Joint Ex. 51. Even without the information from recent testing, the student’s significant attention, working memory, processing, executive functioning and organizational issues all impact on his ability to learn. Dr. XXXX emphasized that the student’s needs were well beyond refocusing and redirection, instead requiring a special education teacher who could provide the specialized instruction he needed in order to learn.
The District’s posture at the CSE meetings, that a special education teacher only would be available to the student if he were at least two grade levels below expectations is inconsistent with the IDEA. Pursuant to the IDEA, “FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 CFR 300.101(c). The CSE stated at the May 11, 2015 CSE meeting that the student needed adult support during academic times, and represented that the student would be placed in an ICT class, although it was not a formal recommendation that would go on the student’s IEP because he did not require that placement for his academic needs. Joint Ex. 51, The student’s significant needs justified a special education placement in May. By August 10, 2015, given the District’s available testing, including the DRA2 and the private evaluations, the student’s needs and goals could only be appropriately addressed with a special education teacher. ICT services means “the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students.” 8 NYCRR 200.6 (g). “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student … the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students. .” 8 NYCRR 200.1(vv). Nothing in either definition supports the District’s position with respect to placing the student in an ICT class where he needs the support of the specially-designed instruction, but refusing to put it on the student’s IEP. The District cannot remedy the IEP by testifying that the adult support listed in supplemental aids and services would be carried out in the ICT class. See R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012). The student’s IEP was not reasonably calculated to provide him with educational benefit.
XXXX/XXXX/XXXX XXXX
As reported in both the 2014 private XXXX and XXXX evaluation by XXXX XXXX (District Ex. 16-7) and confirmed by both Dr. XXXX and XXXX Kohn, the student exhibits XXXX and XXXX deficits consistent with a child who has a diagnosis of XXXX Spectrum Disorder with significant deficits in XXXX XXXX and understanding figurative XXXX. District Ex. 16-8, 9; Joint Ex. 51-94. Although the evaluator did not gather information from the student’s teachers, I find the reports, observations and testing of Ms. XXXX, Dr. XXXX and XXXX XXXX, taken in the aggregate, as more reliable than Ms. XXXX’s statements that minimized the findings based on conversations with the student’s teachers (District Ex. 16-3), and her conclusory statements made at the May 11, 2015 CSE meeting that the student knows what he should be saying in conversations, he just needs to practice saying it. Joint Ex. 51, 178-
183. The District last evaluated the student in 2012. See, Joint Ex. 51-175.
The student uses age-appropriate grammatical structure. The student’s social communication skills were observed as an area of weakness; the student is unaware of personal space, his volume is inappropriate, his conversations are one-sided, he does not yet demonstrate perspective-taking and he is unable to engage with peers when they initiate a conversation, all characteristic for a student with XXXX. Joint Ex. 47, pp. 9-10; Joint Ex. 51, pp. 8-9, 11.
Although Ms. XXXX thought that a school psychologist or social worker had the necessary skill to provide the adult support needed by the student to work on XXXX development, she made very clear, that the 30 minutes of XXXX per week was not the intensive type of XXXX XXXX and XXXX training that she believed the student needed. Joint Ex. 51. She recommended that the student receive daily XXXX training. The private XXXX therapist also recommended XXXX therapy in a group or inclusive setting. Dr. XXXX also recommended XXXX training or XXXX therapy with a focus on XXXX XXXX.
The District did not adequately describe the student’s deficits in XXXX XXXX and XXXX in his present levels of performance. The student’s single goal to interact in an appropriate manner with his peers, does not adequately address the student’s deficits. See 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). The goal is not "sufficiently detailed and measurable" nor does it adequately address the student's identified areas of need. R.XXXX v. New York City Dep't of Educ., No. 12-cv-3763-AJN, 2013 WL 5438605 (S.D.N.Y. Sept. 27, 2013) (quoting A.M. ex rel. Y.N. v. New York City Dep't of Educ., No. 12-cv-5573-JMF, 2013 WL 4056216 (S.D.N.Y. Aug. 9, 2013)).
The District’s failure to provide the student with XXXX and XXXX services or intensive XXXX training with adequate goals is a denial of FAPE. The recommendation to receive one thirty minute group session weekly with the school social worker is wholly inadequate to meet the student’s significant needs, especially when the session also is designed to address the student’s other social and emotional issues. The student should receive four sessions per week of intensive group XXXX XXXX/XXXX training in addition to the thirty minutes XXXX group known to the District as “XXXX” Although the Pareant argued that the services should be provided by a XXXX and XXXX therapist, Dr, Lanz and XXXX XXXX both stated that the services possibly could be provided by a school psychologist or social worker. The services should be provided by one or more appropriately licensed individuals (XXXX and XXXX pathologist, school psychologist, or school social worker) to deliver the particular interventions needed in a coordinated manner.
XXXX Therapy
The May 11, 2015 CSE had the results of the Parent’s recent XXXX therapy evaluation, the student’s report cards and the participation of the student’s XXXX education and classroom teacher, as well as the Parent to inform them. Joint Ex. 51. I am discrediting the reasons for the District’s rejection of the Parent’s private XXXX therapy evaluation. The District considered this same evaluation at a December 2014 CSE meeting, and while the District did not find the student eligible for special education because it determined that more information was needed, the District never told the Parent that there was an issue with the private evaluation while it identified other areas for evaluation. Tr. 421-423; District Ex. 17. The October 2014 XXXX Medical Center XXXX therapy evaluation also meets the District criteria for XXXX therapy evaluations as no reliable evidence was produced to indicate otherwise.
The private XXXX therapy evaluation used standardized testing which revealed that the student has deficits in his strength, postural control, muscular endurance and the ability to catch himself. District Ex. 16-15. The results of the standardized testing were not challenged. Consistent with the results of the private XXXX therapy evaluation, the student has a history of receiving below grade level expectation grades in XXXX education in the areas of flexibility, abdominal fitness and upper body fitness. Joint Ex. 9 -15, 17. At the May 11, 2015 CSE meeting Mr. XXXX stated that while the student is “capable of participating in all activities, [the student’s] gross motor skills and sport-specific or manipulative skills are below grade level.” Joint Ex. 51-112. Mr. XXXX stated that he was concerned about the student’s scores, and whether the scores are low because the student is struggling with the actual skill itself or staying focused on the task. Id.
This evidence is corroborated by a prescription created by the District, which it sent to the student’s doctor for his signature, and included a diagnosis for the student corresponding to ICD-9 Code 315.4. The Centers for Medicare and Medicaid Services indicate that the ICD-9 Code 315.4 description is Developmental Coordination Disorder. ICD-9 Code Lookup, https://www.cms.gov/medicare-coverage-database/staticpages/icd-9-code-lookup.asp (last visited 4/27/16).
Although I credit the witnesses’ testimony that the student moves well in the hallways and cafeteria, plays at recess and participates in gym, the student is not making meaningful progress in XXXX education. The IEPs are not reasonably calculated to provide the student with educational benefit with respect to XXXX education or the development of the student’s XXXX skills necessary for meaningful participation. The XXXX education teacher expressed serious concern for the student at the May 11, 2015 CSE meeting while also stating that the student participates and enjoys the class, however the student’s report cards reflect the teacher’s views of the student’s performance. Additionally, the student was noted to hang over his desk, unable to sit upright for any length of time, an observation that also is consistent with the private XXXX therapy evaluation. Joint Ex. 37 at 8-9. The District’s failure to include XXXX therapy to the student as a related service is a denial of FAPE. The student is entitled to XXXX therapy services, however the record is silent with respect to a recommended frequency or duration.
XXXX
As discussed at the May 11, 2015 CSE meeting and as testified to by the student’sXXXX grade teacher, his handwriting is poor, often illegible even to himself, and he often requires a scribe in order to complete written work. Joint Ex. 51. The results of the OT evaluation revealed deficits in the following areas: upper extremity coordination, core strength, manual coordination, bilateral coordination, visual form constancy, visual sequential memory, and sensory processing. The results of the District’s XXXX sensory evaluation confirmed the student’s significant sensory processing needs.
The student has three goals to address his deficits in this area. One goal is focused on the student’s fine motor ability and writing. The second goal, added at the August 10, 2015 meeting is to address his visual motor skills. TheXXXX, addresses the student’s need to self-monitor and self-regulate.
The student’s significant sensory needs are not sufficiently addressed in his IEP either in describing his current levels or his goals.
The Parent was granted an IEE in the area of XXXX (sensory) evaluation that was conducted but not yet reviewed by the CSE. Based on the information the CSE had at the time of its meetings its recommendations for XXXX were not reasonably calculated to provide the student a FAPE. The Parent was afforded an IEE and the CSE will have an opportunity to reconsider its recommendations when it has all of the evaluative information.
XXXX
At the May 11, 2015 CSE meeting an XXXX evaluation (“AT evaluation”) was recommended to address the student’s poor handwriting. Joint Ex.51. The Parent signed consent for the evaluation. An AT evaluation was completed on or about June 23, 2015 that investigated technology supports for the student to produce written work. Joint Ex. 39. The evaluator reviewed several evaluations and reports provided by the Parent, used the DeCoste Writing Profile to demonstrate writing skills through print, keyboarding, and the use of an iPad with a predictive word feature. Id.; Tr. 1241-1244. The evaluator also tested the use of voice recognition technology and the use of a graphic organizer/mind map application. Joint Ex. 39 at 3-5. Although the evaluator did not review samples of the student’s classroom work, the student’s occupational therapist was present during the evaluation and confirmed that the sentences the student produced at the evaluation were typical of his writing. Tr. 1261-1262,
1313. The evaluator spoke with the Parent about additional concerns regarding other potential areas for the use of AT. Tr. 1244-1245. The evaluator considered some additional uses or additional areas that the technology might be incorporated into the student’s day and included those in her recommendation. Tr. 1258-1259; Joint Ex. 39-6. The evaluator presented her findings at the August 10, 2015 CSE meeting where the student’s poor handwriting and his need to develop skills to use technology was discussed. Joint Ex. 52. Consistent with the evaluator’s recommendation, the CSE recommended that the student receive a portable word processor with word prediction as an XXXX device, for a trial period, September 9, 2015 to November 15, 2015, on an as needed basis. District 57C-18.
The District’s AT evaluation used valid and technically sound instruments to assess the student’s handwriting and how he might produce written work using AT consistent with the provisions of 8 NYCRR 200.4(b)(5)(iii) and the evaluation was sufficiently comprehensive. 8 NYCRR 200.4(b)(6)(ix). Although the Parent characterized the results of the AT evaluation as inconclusive, the evaluator recommended the use of a portable word processor with word prediction as an XXXX device and also suggested that the District monitor the student’s use of it to assess whether the student is a more successful writer with it or if an adjustment or other technology should be tried. The XXXX is a recommendation on the student’s IEP. The District is not in violation of 34 C.F.R. 300.304 as argued by the Parent, nor did it deny the student a FAPE through the AT evaluation or its recommendation.
Special Transportation
Based on the information provided by the Transportation Supervisor at the May 11, 2015 CSE meeting and the subsequent discussion among all of the participants, including the Parent, the CSE recommendation for the student to receive special transportation with a monitor was appropriate. Joint Ex. 51. The CSE discussion considered that the student travels on a bus with many students in the morning, without incident, and appropriately travels home with a small number of students in the afternoon. Joint Ex. 51. In addition to stating that there is a bus monitor, the IEP should reflect the smaller number of students for the return trip home. With respect to the parent’s claims that the recommendation is a denial of FAPE, the Parent offered no proof substantiating her assertions in her Due Process Complaint (Parent Ex. A1-30) or Closing Argument. The CSE recommendation for special transportation with a monitor provided the student with FAPE.
As for the Parent’s claim for travel expenses incurred for the student’s transportation to and from school as of September 2015, the Parent explicitly wrote that she rejected the specific IEPs developed as a result of the May 11, 2015 and August 10, 2015 CSE meetings. Consequently, without the Parent’s consent to the IEP, the District was not required to provide special transportation services. Accordingly, the Parent is not entitled to reimbursement for travel expenses.
AIS/RTI Claims
The Parent claims that the District’s use of AIS or RTI services for her son, in lieu of special education services is a denial of FAPE. See Parent Exs. A1, IHO Ex. LXIX. The record evidence demonstrates that the student is receiving AIS for the first time during this school year. The Parent offered no evidence to rebut the District’s proof, or to support her other claims with respect to the District’s use of AIS/RTI in relation to her son. The Parent rejected the student’s IEP leaving the District without consent to provide the services on the IEP. The provision of AIS to the student is not a denial of FAPE.
Parent Claims for IEES at Public Expense
Both the federal and state regulations clearly state that "a parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency." 34 C.F.R. § 300.502(b)(I); 8 NYCRR 200.5(g)(1). Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005]. The federal regulation requiring a school district or public agency to initiate a due process hearing regarding an outside evaluation is triggered by the requirement that a parent disagree with an evaluation obtained by the public agency. See 34 C.F.R. § 300.502(b); 8 NYCRR 200.5[g][1].
The parent’s claim that the District violated the IDEA and New York regulations by failing to request a due process hearing to challenge the parent’s request for an IEE in reading because the parent disagreed with the use of the February 2015 DRA2 as an evaluation fails on two grounds: 1) the DRA 2 is not an evaluation, nor was it used as an evaluation, to determine the student’s eligibility for special education, and 2) the parent is entitled to only one IEE at public expense each time the district conducts an evaluation with which the parent disagrees, and the parent previously was awarded an IEE that included academic testing in response to a previous disagreement with the District’s evaluation.
The DRA 2 is an assessment administered to all students in the district, and was only one piece of information used to determine the student’s eligibility and program, not an individual evaluation of the student used to determine the student’s eligibility. Joint Ex. 51. An “evaluation” is defined as those “procedures used in accordance with34 CFR §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.” State regulations define ‘individual evaluation” as those “procedures, tests or assessments used selectively with an individual student,… and other appropriate assessments or evaluation as may be necessary to whether a student has a disability and the extent of his/her special education needs, but does not include basic tests administered to, or procedures used with, all students in a school grade or class.” 8 NYCRR 200.11(aa).
The District was permitted to consider the DRA2 results as one component of a full and individual evaluation, consistent with 34 CFR §§ 300.304-300.311, using a variety of assessment tools and strategies in determining whether the child is a child with a disability under 34 CFR § 300.8 and the content of the child's IEP. 34 CFR § 300.304(b)(1). See Letter to Zirkel, 52 IDELR 77 (OSEP 2008). Accordingly, the DRA 2 is not an evaluation that would trigger the District’s obligation to file for a due process hearing. It also must be noted that while the May 2015 IEP did not list all of the student’s academic testing performed by Dr. XXXX, the audio recording, transcript and testimony reflect that the May 11 CSE considered all of the results. After the parent received the May 2015 IEP and expressed among many concerns that the scores were omitted, on the August 10, 2015 IEP, the CSE corrected the student’s IEP section of academic present levels of performance to include all of the academic testing results, reflecting that the DRA 2 results were among many that the CSE considered.
As stated, a parent is entitled to only one IEE each time the parent disagrees with an evaluation conducted by the local educational agency (“LEA”). 34 C.F.R. § 300.502(b)(5); 8 NYCRR 200.5 (g)(1). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)- (ii);14 8 NYCRR 200.5(g)(1)(iv). In the instant case, as a result of an impartial hearing in which the Parent had requested a XXXX IEE at public expense because she disagreed with the District’s most recent evaluation of her son, the Parent was awarded a XXXX IEE which included academic testing. Again, the results of this same comprehensive IEE were considered by the CSE during the May 11, 2015 eligibility determination meeting (Joint Ex. 42 and 51), and included in the student’s August 10, 2015 revised IEP. Cite The District’s obligation to request a due process hearing to defend its own evaluation or challenge that of the Parent’s would make no sense in this case. Having funded the XXXX IEE in response to the Parent’s disagreement with its most recent evaluation, considered the results of that IEE at the student’s CSE eligibility determination meeting, and used those results, in part, to develop the student’s IEP, the District’s obligation to request a due process hearing was not triggered.
The Parent also requested an IEE at public expense for an XXXX sensory evaluation. During the pre-hearing conference, the parties informed me that the District approved funding the requested XXXX IEE. Tr. 12-13. Although on the same date the parent mentioned an issue with processing the approved IEE, the parent did not raise any issue with respect to the requested XXXX IEE for the remainder of the hearing. The Parent’s claims with respect to the requested XXXX IEE at public expense are moot. See also IHO Ex. 49, Joint 45; District Ex. 74.
The Parent’s request for an independent XXXX evaluation at public expense also is moot. In the course of the hearing I ordered an independent XXXX evaluation at public expense because of the evidence that the student was significantly anxious and depressed, the psychologist report stated that he should be monitored closely, the student had made a suicide threat in school on October 5, 2015 (although he was assessed by a school social worker not to be at risk at the time), and it came to my attention that the student was removed from the school by the Parent due to her concerns for the student’s safety. Joint Ex, 42 On balancing the District’s interests not to incur additional and unwarranted expenses and its interest in the safety of the student, with the Parent’s concerns about the safety of the student and any FAPE considerations I might need to address, I determined that it was prudent to obtain a XXXX evaluation to inform the outcome of the issues in the case. Consequently, the Parent’s request for an IEE to assess the student’s mental health is moot.
Need for Prescription
The Parent argues that the District breached the May 12, 2015 settlement agreement by requiring the Parent to provide a doctor’s prescription, prior to the District providing the agreed upon XXXX, a condition that was not included in the settlement agreement, and therefore the contract should be invalidated. The Parent further argues that the District caused unreasonable delay by requiring a prescription. Based on a recent OSEP letter, while the IDEA does not require a physician's prescription in order to provide a related service for a child with a disability, “a state can require a physician’s prescription in order to provide a related service for a child with a disability so long as: (1) the child’s parent does not incur a cost for obtaining the prescription; and (2) the requirement does not result in a delay in providing a related service that is required for the child to receive FAPE.” OSEP, Letter to XXXX, p. 3. (March 2016). The Parent further argues that had she been in possession of the OSEP letter, validating the accuracy of her position with respect to the Parent’s Motion to Vacate the Termination Order for IHRS Case No. 87975, she would have prevailed on the motion.
The parties were informed during the pre-hearing conference that any claims related to the enforcement, implementation or voiding of the settlement agreement would be a matter for a court to determine. Tr. 16-18. State regulations provide that settlement agreements "shall be enforceable in any State court of competent jurisdiction or in a district court of the United States"
8 NYCRR 200.5[j][2][iv]. Accordingly, the regulations do not confer jurisdiction to enforce settlement agreements at an impartial hearing or on appeal to a State Review Officer. See Application of the Bd. of Educ., Appeal No. 07-043. While a settlement agreement may, in some instances, be admissible and relevant to the facts underlying a parties' dispute in a due process proceeding, the administrative hearing officers in due process proceedings in New York lack enforcement mechanisms of their own and the Second Circuit has held that due process is not the appropriate procedure for enforcing the provisions of a settlement agreement. XXXXC. v. Colton-Pierrepont Cent. ScXXXX Dist., 2009 WL 2144016 (2d Cir. 2009). Therefore, as previously decided and conveyed to the parties, this decision is not reaching the Parent’s claims with respect to the validity of the settlement agreement, but only those matters over which hearing officers have subject matter jurisdiction, relevant to this case: the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. 1415(b)(6)(A).
Remedies
Based on the above findings of both procedural and substantive FAPE deprivations, the student is entitled to special education and related services. The student’s IEP should reflect the ICT special education program. The CSE shall convene promptly and develop appropriate academic goals for the student, as well as update his goal in the other areas of development. With respect to the composition of the CSE, the District is entitled to determine who it deems a necessary participant, as does the Parent. The student also shall receive four sessions per week of group XXXX XXXX therapy and/or XXXX training, thirty minutes per session, to address his deficits in this area. The therapy or training shall be provided by an appropriately licensed individual and may be a combination of sessions allocated between a XXXX and XXXX pathologist and a school psychologist or social worker. A FAPE for the student also includes XXXX therapy as a related service. The record is devoid of any recommendations as to frequency or duration. Should the Parent desire XXXX therapy as a related service for the student, she can exercise her right to an IEE in XXXX therapy for the purpose of a recommendation of frequency and duration. If the Parent obtains a recommendation for the frequency and duration of XXXX therapy, the CSE shall promptly reconvene to recommend XXXX therapy and consider the XXXX therapists recommendations on frequency and duration.
Compensatory Education
Compensatory relief should be consistent with the standard established in Rowley that educational progress be commensurate with a student's needs and abilities and specially designed instruction should provide some educational benefit and not be aimed at maximizing a student's educational opportunity. See M.C. ex rel. Mrs C. C. v. Voluntown Bd. Of Educ., 226 F3d 60, 62 (2d Cir. 2000) citing, Rowley, supra at 3034.
In this case, by the actions of both the Parent and the District, the student has been deprived of greatly needed special education and related services. The parties’ inability to work cooperatively and communicate effectively only has harmed the student and is completely contrary to the purpose of the IDEA. The Parent did not provide evidence with respect to an award of compensatory education. As described above, the District did not provide FAPE to the student. It must be noted, however, that the student has been in the ICT class that he would have been in had it been on his IEP. He also has been receiving AIS in reading since October. The District was prepared to provide the student with two sessions of XXXX to address the student’s writing needs and two sessions of counseling, one group and one individual. In light of the fact of the student’s needs and that he did not receive the services, it is equitable to require the District to provide the student with those two services that he missed, but would have received under the IEP. See Burlington. But for fact that the student is getting daily XXXX XXXX or XXXX training going forward (including one session of “XXXX”), I would have considered ordering those services as well.
ORDER
Accordingly it is ordered:
1. The District denied the student a FAPE.
2. Within fifteen school days of the date of this order the District shall convene a CSE to implement the provisions of this order.
3. The CSE shall include the ICT designation on the student’s IEP.
4. The CSE shall update the student’s present levels of performance to reflect his current functioning.
5. The CSE shall develop appropriate academic goals for the student. The District shall develop any other goals that are required based on the student’s current levels for emotional/ behavioral needs, XXXX, XXXX XXXX and XXXX, and sensory and XXXX needs.
6. The CSE shall amend the student’s IEP to include four sessions of XXXX XXXX and XXXX therapy or XXXX training per week, in a small group or at the discretion of the provider in the classroom, in addition to “XXXX,” for thirty minutes per session. The therapy or training shall be provided by an appropriately licensed individual and may be a combination of sessions allocated between a XXXX and XXXX pathologist and a school psychologist or social worker.
7. The CSE shall develop XXXX goals for the student to work on in his XXXX XXXX/XXXX training
8. If the Parent exercises her right to a XXXX therapy IEE for the purpose of recommending the frequency and duration of services, the CSE shall convene within ten school days of receiving the evaluation report to consider the recommendation of frequency and duration.
9. The CSE shall include all participants required by the regulations. The District and the Parent each is entitled to invite the individuals who it deems are required.
10. The District shall provide the student with XXXX to address his writing needs in the amount of two (30 minute) sessions per number of XXXX that school has been in session for the 20152016 school year, less the number of XXXX that the Parent removed the student from school. The cumulative number of hours can be scheduled by the Parent and the District at a time that is mutually convenient including, after school, weekends, and the summer session. The Parent must use the hours by the end of the 2016-2017 school year.
11. The District shall provide the student with counseling (one group and one individual at 30 minutes per session) in the amount of two sessions per number of XXXX that school has been in session for the 2015-2016 school year, less the number of XXXX that the Parent removed the student from school. The cumulative number of hours can be scheduled by the Parent and the District at times that are mutually convenient including, after school, weekends, and the summer. The Parent must use the hours by the end of the 2016-2017 school year.
12. The Parent is not entitled to reimbursement for transportation expenses. __/s/________________________ Lana S. Flame, Esq Impartial Hearing Officer Date: April 28, 2016
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the XXXX Central School District has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8 NYCRR 279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions for filing an appeal and forms can be found on the Office of State Review website: www.sro.nysed.gov/appeals.htm. XXXX, Parent of XXXX v. XXXX Central School District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 7, 2015
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 8, 2015
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 10, 2015
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
XXXXXXXX, Secretary for the CSE Office — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 11, 2015
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
XXXX, School Psychologist — District
XXXX XXXX, School Social Worker — District
XXXX XXXX, Elementary School Social Worker — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 14, 2015
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
XXXX XXXX, XXX Grade Teacher — District
XXXX L. XXXX, XXX Grade Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 15, 2015
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
XXXX XXXX, Occupational Therapist — District
XXXX E. XXXX, XXXX XXXX Pathologist — District
XXXX XXXX, Elementary School Principal — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 22, 2015
XXXX XXXX XXXX, ESQ., Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 23, 2015
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 5, 2016
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
XXXX XXXX, XXXX Therapist and Administrator — District
XXXXXXXX, Occupational Therapist — District
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 6, 2016
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX, Clinical Psychologist — Student
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 19, 2016
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX-XXXX, Director of Student Services — Student
XXXX XXXX XXXX, ESQ., Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 18, 2016
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX, Elementary School Social Worker — Student
XXXX XXXX-XXXX, Director of Student Services — Student
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX XXXX-XXXX, Director of Student Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 26, 2016
XXXX XXXX, Representative — Student
XXXX, — Parents
XXXX XXXX XXXX, ESQ., Attorney — District
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2016
XXXX XXXX, Representative — Student
XXXX XXXX XXXX, ESQ., Attorney — District
XXXX Central School District v. XXXX, Parent of XXXX — District
DOCUMENTATION ENTERED INTO RECORD DECEMBER 7, 2015
1 XXXX Evaluations Joint
05/17/10, 11/22/11, 05/29/12, 12 pp.
2 Prior Written Notice and IEP Joint
05/29/12, 11 pp.
3 Prior Written Notice and Signed Consent Joint
08/13/12, 4 pp.
4 August 13, 2012 Prior Written Notice and IEP Joint
08/08/12, 12 pp.
5 Meeting Notice Joint
12/03/12, 5 pp.
6 Prior Written Notice December 21, 2012 and IEP Joint
12/18/12, 10 pp.
7 May 23, 2013 Meeting Notice and Meeting Documents Joint
06/07/13, PWN 06/13/13, 10 pp.
8 Section 504 Recommendation and 504 Plan, Notice of Board of Education Review Joint
06/13/13, 06/07/13, 06/24/13, 5 pp.
9 Report Cards and Progress Reports Joint
2012- 2015, 16 pp.
10 Section 504 Meeting Notice with meeting documents, OT Progress Report Joint
02/10/14, 02/27/14, 9 pp.
11 February 12, 2014 Prior Written Notice with Signed Consent Joint
02/23/14, 4 pp.
12 Section 504 Recommendation and 504 Plan Joint
02/27/14, 3 pp.
13 Meeting Notice and Meeting Minutes Joint
04/21/14, 04/23/14, 5 pp.
14 Behavioral Rating Scales Report Joint
March 2014, 6 pp.
15 Prior Written Notice Proposed Ineligibility Joint
04/25/14, 2 pp.
16 CSE Ineligibility Document Joint
04/23/14, 4 pp.
17 Parent Letter, District Response to Parents, Letter Joint
05/07/14, 06/04/14, 2 pp.
18 Parent Correspondence Rejecting Draft FBA/BIP Joint
05/08/14, 05/13/14, 2 pp.
19 Parent Letter Rejecting XXXX Participation Joint
05/13/14, 1 pp.
20A Section 504 Committee Meeting Notice, Documents and Plan and OT Report Joint
05/23/14, 06/03/14, 05/29/14, 7 pp.
20B Section 504 Recommendation and 504 Plan Joint
06/09/14, 06/04/14, 3 pp.
21 Parent Revocation of Consent- 504 Service and Prior Written Notice Joint
08/27/14, 09/08/14, 11 pp.
22 XXXX Invite, Team Meeting and Parent Response Joint
11/21/14, 12/01/14, 11/24/14, 5 pp.
23 XXXX XXXX Review of SLT Evaluations Joint
10/29/14, 2 pp.
24 Prior Written Notice, Proposed Re-evaluation and Request for Consent with Joint
Certified Mail Receipts
06/24/14, 3 pp.
25 Prior Written Notice, Proposed Re-evaluation and Request for Consent (2nd Joint Notice)
05/22/14, 3 pp.
26 Prior Written Notice, Proposed Re-evaluation and Request for Consent with Joint
Certified Mail Receipts
08/29/14, 4 pp.
27 Prior Written Notice CORRECTED Proposed Re-evaluation and Request for Joint
Consent with Certified Mail Receipts
09/03/14, 4 pp.
28 Prior Written Notice CORRECTED Proposed Re-evaluation and Request for Joint
Consent with Certified Mail Receipts
09/04/14, 4 pp.
29 Prior Written Notice Proposed Re-evaluation and Request for Consent (2nd notice) Joint with Certified Mail Receipts
09/18/14, 4 pp.
30 Prior Written Notice Proposed Re-evaluation and Request for Consent (3rd notice) Joint with Certified Mail Receipts
10/24/14, 3 pp.
31 Prior Written Notice Proposed Re-evaluation and Request for Consent Joint with Certified Mail Receipts
12/18/14, 4 pp.
32 Draft FBA/BIP with Scatterplots Joint
May 2014, 13 pp.
33 OT SumXXXX of Related Service Session Notes Contact Log Joint
11/01/12-06/07/13, 8 pp.
34 O/T Contact Log and OT Observations Joint
09/02/13-06/27/14, 20 pp.
35 CSE Eligibility Meeting CD Joint
05/11/15
36 CSE Meeting CD Joint
08/10/15
37 Prior Written Notice, IEP Joint
05/11/15, 15 pp.
38 Letter from XXXX XXXX to Parent Joint
06/22/15, 2 pp.
39 E-mails forwarded from XXXX XXXX to M. XXXX and XXXX XXXX Joint
Regarding XXXX Evaluation Report, XXXX Evaluation, XXXX Referral Form with
Cover Letter
06/23/15, 06/05/15, 06/26/15, 17 pp.
[WITHDRAWN 01/05/16]
40 Prior Written Notice Request for IEE at Public Expense Joint
07/01/15, 9 pp.
2 Meeting Notice Dated July 30th, 2012, Minutes from Meeting dated District
August 8th, 2012, Incoming Student Screening dated July 24th, 2012, and an Agreement to Excuse a Required Meeting Member dated August 8th, 2012
07/24/12, 07/30/12, 08/08/12, 9 pp.
17 Prior Written Notice and Consent for Additional Evaluation District
12/30/14, 4 pp.
38B Typed CSE Minutes. Marked for ID only District
05/11/15, 9 pp.
38E Consent for Sensory Profile AT Evaluation District
05/12/15, 1 p.
39 Three Emails and Parent’s Draft IEP, 6/9/15 and 6/18/15 43 pages District
6/9/15 and 6/18/15, 43 pp.
40A State Complaint Form District
06/11/15, 2 pp.
40B Parent Statement in support of State Complaint District
06/11/15, 21 pp.
43 Parent E-mail to J. XXXX re: New Consent Form and Consent Form District
Marked for ID only.
06/24/15, 2 pp.
DOCUMENTATION ENTERED INTO RECORD DECEMBER 8, 2015
41 Informal XXXX/XXXX Progress Report. Marked for ID only. Joint
March 2013, 2 pp.
42 XXXX Evaluation by XXXX XXXX and an Addendum Joint
05/01/15 and 05/18/15, 32 pp.
43 Contact Log for XXXX and a SumXXXX of Related Service Session Notes
Joint
01/01/15-11/24/15, 14 pp.
1 XXXX Evaluation; XXXX XXXX Evaluation; District
Confidential Psychological Reevaluation
December 2012; 12/18/12; 12/12/12, 8 pp.
43 Email from Parent to XXXX XXXX and Consent for Initial Provision District of Special Education Related Services
06/24/15 2 pp.
47 Letter from XXXX XXXX to the Parent District
07/13/15, 2 pp.
49 Letter from Ms. XXXX to the Parent 2015, FERPA Consent Release District
Student Information Form, and E-mail from XXXX XXXX to XXXX XXXX and XXXX XXXX Forwarding an Email from the Parent to Ms. XXXX
07/17/15, undated, 07/21/15, 4 pp.
52 CSE Meeting Notice; E-mail from the Parent to XXXX XXXX; Letter District and Response to the E-mail from XXXX XXXX to the Parent; Meeting Notice with Parent Invitation Response form FERPA Consent to Release Student Information; E-mails Forwarded by XXXX XXXX to XXXX XXXX and XXXX and XXXX XXXX with E-mails from the Parent to Ms. XXXX; and a Signed FERPA Consistent to Release Student Information Form from the Parent
07/29/15, 08/01/15, 08/07/15, 08/08/15 and 08/10/15, 15 pp.
56 E-mail Forwarded by XXXX XXXX to XXXX XXXX and XXXX District
XXXX from the Parent to Ms. XXXX. The consent for Initial Provision of Special Education and Related Services Developed by and Signed by the Parent, and a XXXX Central School District Consent for Initial Provision of Special Education
Services Signed by the Parent
08/17/15, 06/24/15, 08/18/15, 5 pp.
57A CSE meeting Sign-In Sheet District
08/10/15 , 2 pp.
57C Prior Written Notice and IEP District
08/10/15, 20 pp.
58 E-mail District
08/31/15, 3 pp.
59 Parent E-mails to J. XXXX forwarded to . XXXX; Letter from XXXX District
To Parent
10/02/15, 8 pp.
60 E-mail Forwarded by XXXX XXXX to XXXX XXXX and XXXX
District
XXXX Containing an E-mail from the Parent to Ms. XXXX, and XXXX Medicine's Letterhead with
Electronic Signature by XXXX
09/06/15, 08/13/15, 2 pp.
61 Letter from XXXX XXXX, New York State Education Department District to Parent and XXXX XXXX in Response to Parent’s June 15, 2015
Complaint and NYSED Decision
08/13/15, 11 pp.
62 New York State Education Department's Written Decision in Response District to the Parent's Complaint dated July 9th, 2015
09/03/15, 10 pp.
63 Prior Written Notice, E-mail from XXXX XXXX to XXXX XXXX and District
XXXX XXXX Forwarding an E-mail from the parent to Ms. XXXX
10/07/15, 10/09/15, 7 pp.
66 Prior Written Notice District
10/29/15, 2 pp.
K XXXX Therapy Evaluation XXXX XXXX, XXXX Medical Center
Parent
10/21/14, 3 pp.
DOCUMENTATION ENTERED INTO RECORD DECEMBER 10, 2015
44 Letter from XXXX XXXX to XXXX, XXXX Central School District Code Joint of Conduct adopted July 7th, 2015, Cover Page with Pages 3 and 6 of 30
10/15/15, 4 pp.
45 Prior Written Notice; A FERPA Consent Form Signed by the Parent; an Joint
E-mail Thread between Dr. XXXX and XXXX XXXX; an Occupational Therapy Contract between the XXXX Central School District and Dr. XXXX; a W9 Tax Form
10/30/15, 11/19/15, 11/9/15-11/11/15, 9 pp.
46 DRA2 K to 3 Student Assessment Folder and the DRA2 4 through 8 Joint
Student Assessment Folder and Excerpted Pages.
2012-2015, 7 pp.
47 FBA Developed by XXXX XXXX, BIP Joint
March and April, 2015, 18 pp.
16 December 19th, 2014 CSE meeting documents District
December 2012 - 12/19/14, 56 pp.
21 XXXX XXXX's Credentials District
Miscellaneous dates, 4 pp.
38B Typed CSE Meeting Minutes District
05/11/15, 9 pp.
50 Letter from Ms. XXXX XXXX to XXXX, and an XXXX Report District
07/20/15, 06/24/15, 5 pp.
55 Prior Written Notice District
08/14/15, 2 pp.
57D Typed CSE Minutes from CSE Meeting. Marked for ID Only. District
08/10/15
A2 Due Process Complaint Parent
11/03/15, 6 pp.
B DRA2 X through X and X through Student Assessment Folders Parent for the Student. Marked for ID only.
10/18/12- 10/2015, 2 pp.
HH XXXX XXXX report Submitted at the May 11th, 2015, CSE meeting Parent
Undated, 9 pp.
DOCUMENTATION ENTERED INTO RECORD DECEMBER 14, 2015
20 Ms. XXXX's Log District
09/04/14-04/20/15, 17 pp.
30 Student Math Profile, 2014 - 2015 Math Modules District
2014-2015, 42 pp.
31 Student Profile for Reading and Writing Assessments, Spelling Tests, District
XXXX Test with Student Writing, and Additional Samples of Student Work
Undated, 24 pp.
35 Homework Assignment Completed During Independent Time District
09/11/14-11/14/14, 62 pp.
69 Staff-to-Parent Communications regarding Parent/Teacher Conference District
October 2015, 6 pp.
70 Notes about the Student District
09/09/15-11/23/15, 9 pp.
C Letter from Principal XXXX to Mr. and Mrs. XXXX and Form with a Parent
Heading "Academic Intervention Services, RTI, Tier II, Individual Student Plan"
10/06/15 and 10/07/15, 2 pp.
D Response to Intervention Model, XXXX Central School District Approved Parent
06/25/12, 31 pp.
DOCUMENTATION ENTERED INTO RECORD DECEMBER 15, 2015
64 Letter about AIS, Emails from the Parent, AIS Plan, Letter to the District Parent from Mr. XXXX
10/06/15 – 10/16/15, 8 pp.
71 Student Referral Form District
10/05/15, 1 p.
74 Supplemental 12 XXXX Report by XXXX XXXX District
11/25/15, 6 pp.
E XXXX Prescription Forms and Prescriptions Parent
05/15/15-06/16/15, 6 pp.
F E-mails and Letters from XXXX XXXX to XXXX Parent
02/26/15-03/27/15, 4 pp.
DOCUMENTATION ENTERED INTO RECORD JANUARY 5, 2015
G XXXX XXXX Center XXXX Therapy Evaluation Report Parent
05/18/10, 3 pp.
H Two E-mails from Parent to Ms.XXXX Parent
06/12/15, 2 pp.
N E-mail from XXX XXX to Advocate for IDEA Copied to XXXX XXXX Parent
05/08/15, 2 pp.
39 E-mails forwarded from XXXX XXXX to XXXX and XXXX XXXX Joint
Regarding XXXX Evaluation Report, XXXX Evaluation, XXXX Referral Form with
Cover Letter
06/05/15 - 06/26/15, 20 pp.
57D Typed CSE Minutes from CSE Meeting and the Underlying Handwritten Notes District from which the Meeting Minutes were Typed
08/10/15, 19 pp.
DOCUMENTATION ENTERED INTO RECORD JANUARY 6, 2015
24 E-mail Thread between Parent and J. XXXX with E-mails from XXXX XXXX District
11/04/14 and 11/05/14, 8 pp.
38D Signed Settlement Agreement; Parent Withdrawal District
05/11/15, 05/12/15, 5 pp.
I Consent for Initial Provision of Special Education and Related Services Parent
06/24/15, 1 p.
J E-mail from Parent to XXXX Parent
06/24/15, 1 p.
L District Plan for Special Education for the XXXX Central School Parent
District for the '14-15 School Year
07/07/15, 8 pp.
DOCUMENTATION ENTERED INTO RECORD JANUARY 19, 2015
75 Parent Consent Handwritten Note District
05/12/14, 1 p.
76 Prior Written Notice from XXXX Central School District to the Parent of the Student of this Case
07/14/15, 2 pp.
DOCUMENTATION ENTERED INTO RECORD FEBRUARY 18, 2015
I Letters from Parties and E-mail re: Waiver of Resolution Period IHO
10/23/15-10/29/15, 6 pp.
II Notice of Appearance and E-mail re: Notice of Appearance IHO
10/29/15, 2 pp.
III Emails re: Motion to Vacate (without attachment) IHO
10/29 and 10/30/15, 3 pp.
IV District Response to Parent’s Due Process Complaint (email without attachment) IHO
10/10/15, 1 p.
V Emails with Parent Cross Motion in Opposition of the District’s Motion IHO
Seeking Dismissal of AIS claims and Follow Up Attachment (without attachment)
10/30 and 11/1/15, 2 pp.
VI Parent E-mail re: Motion for Default Judgment and Parent Proposed IEP IHO
(without attachment)
10/31/15, 1 p.
VII Parent E-mail re: Motion for Independent Educational Evaluation IHO
(without attachment)
10/31/15, 1 p.
VIII Second Parent email re: Motion for Independent Educational Evaluation IHO
(without attachment)
10/31/15, 1 p.
IX Parent E-mail re: Motion in Opposition of the District’s Motion Regarding IHO
FERPA Claims (without attachment)
10/31/15, 1 p.
X Emails between the Parties and IHO re: Pre-Hearing Conference and IHO
Multiple Motions (without attachments)
11/4/15-11/6/15, 5 pp.
XI Parent email with Second Due Process Complaint (without attachment) IHO
11/3/15, 1 p.
XII Parent Advocate and District E-mails re: Second Due Process Complaint IHO
11/04/15 -11/06/15, 3 pp.
XIII Emails re: Parent’s Response to District Affidavit Regarding FERPA and IHO
AIS Issues (without attachment)
11/07/15-11/10/15, 4 pp.
XIV District E-mail re: Sur-reply Affidavit (without attachment) IHO
11/10/15, 2 pp.
XV Emails and Letters re: Waiver of Resolution for IHRS 93940 IHO
11/10/15, 4 pp.
XVI Email and Notice of Appearance IHO
11/11/15, 2 pp.
XVII Scheduling E-mails IHO
11/11-11/13/15, 11 pp.
XVIII Emails, Subpoenas for District Records and NYSED records IHO
11/12/15 and 11/14/15, 6 pp.
XIX Parent E-mail re: Open Hearing IHO
11/12/15, 1 p.
XX E-mail re: District Response to Parent’s Second Complaint IHRS 93940 IHO
(without attachment)
11/13/15, 1 p.
XXI Emails re: Additional Subpoenas and District Affidavit in response to IHO
Parent Subpoenas (without attachment)
11/14/15-11/17/15, 7 pp.
XXII Emails re: Parent’s Reply to District’s Response to IHRS 93940 IHO
(without attachment)
11/13/15-11/15/15, 4 pp.
XXIII IHO E-mail re: Consolidation and Pre-Hearing Conference (without attachment) IHO
11/17/15, 1 p.
XXIV IHO E-mail re: Scheduling and Parent’s Intention to Pursue Court Action IHO
11/17/15, 1 p.
XXV E-mail (without attachment) re: Parent’s Motion Requesting Order for Discovery IHO
11/18/15, 1 p.
XXVI Parent E-mail re: Court Action IHO
11/20/15, 1 p.
XXVII Emails re: Documents Requested in Parent’s Subpoena of District Documents IHO
11/30/15, 4 pp.
XXVIII Parent E-mail re: Request for IHO to Reconsider Parent’s Motion to Vacate
IHO
11/30/15, 7 pp.
XXIX E-mails and Correspondence re: Pearson Policies and Parent Copies of IHO
DRA-2 Blackline Masters, Pearson Terms and Conditions
12/7/15-12/22/15, 35 pp.
XXX Parent E-mail re: Hearing Continuation IHO
12/22/15, 1 p.
XXXI District E-mail re: Independent XXXX Evaluation and District Policies IHO
12/23/15, 8 pp.
XXXII E-mails re: District’s Correspondence with Pearson about Providing IHO
Parent DRA-2 Copies
01/01/16, 2 pp.
XXXIII E-mails re: Parent Consent for District Document Release for XXXX IHO
Evaluation, District Request for Parent Consent, and Parent List of Documents
Released to Psychiatrist
01/22/16, 8 pp.
XXXIV E-mails re: Parent Consent for Document Release for XXXX Evaluation IHO
01/22/16, 3 pp.
XXXV E-mails re: Parent Consent for Document Release for XXXX Evaluation IHO
01/26/16-1/27/16, 6 pp.
XXXVI E-mails re: Dr. XXXX Letter and Subpoena for District Documents related IHO to Student and Dr. XXXX
01/28/16, 4 pp.
XXXVII E-mail from Ms. XXXX to IHO and Ms. XXXX re: Subpoena for District
IHO
Documents related to Prescriptions for the Student, Subpoena to XXXX
XXXX for such Documents, Administrative Procedures for Obtaining Prescriptions
02/10/16, 4 pp.
XXXVIII E-mails from Ms. XXXX, IHO and Ms. XXXX re: Subpoena for District
IHO
Documents related to Prescriptions for the Student, Subpoena to XXXX XXXX for such Documents, Administrative Procedures for Obtaining Prescriptions
(without attachments)
02/10/16-02/11/16, 3 pp.
SIX E-mails re: Matters before the IHO in IHRS 93438 IHO
01/15/16, 3 pp.
XL XXXX Evaluation IHO
01/27/16, 4 pp.
48 XXXX Central School District Special Education Services Questions and Joint
Answers
Undated, Revised 08/19/13, 4 pp.
49 Letter to XXXX XXXX from XXXX Volpe of the New York State Joint
Education Department, Resolution of the Compliance Assurance Plan XXXX
Central School District Procedures for Obtaining Prescriptions for Occupational and XXXX Therapy related Services, and XXXX Central School District Administrative Procedures for Obtaining Prescription for Medically related Services
Revised 12/04/15 and Undated, 4 pp.
50 Letter to Parent from XXXX XXXX, Prescription Referral for XXXX XXXX Joint
Therapy Services, and Prescription for Psychological Counseling Services
02/10/16, 09/12/12, 05/27/15, 3 pp. 51 Transcript of the May 11th, 2015, CSE meeting Joint
12/22/15, 233 pp.
52 Transcript of the August 10th, 2015, CSE meeting Joint
12/22/15, 48 pp.
O E-Mail From the Parent to XXXX XXXX Parent
08/09/15, 4 pp.
P E-Mail From the Parent to XXXX XXXX Parent
08/08/15, 1 p.
Q E-Mail From the Parent to XXXX XXXX Parent
08/07/15, 3 pp.
R E-Mail From the Parent to XXXX XXXX Parent
06/16/15, 2 pp.
A1 Due Process Complaint Parent
10/19/15, 41 pp.
A2 Second Due Process Complaint and Attachments Parent
11/03/15, 312 pp.
45 Agreement between XXXX Central School District and XXXX XXXX District
Therapy, XXXX and XXXX and XXXX Pathology Services
05/02/14, 10 pp.
DOCUMENTATION ENTERED INTO RECORD FEBRUARY 26, 2016
XLI Parent’s Motion for Relief from Judgment of Order for Hearing Case IHO
No. 87975 (with Ex. 1-10)
10/29/15, 34 pp.
XLII District’s Response to Due Process Complaint IHO
10/19/15, 10/30/15, 6 pp.
XLIII Parent’s Cross Motion in Opposition to the District’s Motion for Particularity IHO
10/30/15, 3 pp.
XLIV Parent’s Cross Motion in Opposition to the District’s Motion Seeking Dismissal IHO of Claims Regarding Mandated Academic Intervention Services; Attachments
(OSEP letter 11-07); XXXX Central School District Response to Intervention Model
10/30/15, 2 pp.; 01/21/11, 3 pp.; 2012, 30 pp.; total 35 pp.
XLIVA XXXX Central School District Board of Education Policy Statements IHO
Multiple Dates, 626 pp.
XLV Parent’s Motion to Object to the District Barring of Any Claims Raised by the IHO
Parent and Parent’s Motion Seeking Default Judgment (with Ex. 1-7)
10/30/15, 43 pp.
XLVI Parent Motion for Default Order/Judgment for IEEs at Public Expense IHO (with exhibits)
10/30/15, 31 pp.
XLVII Parent Cross Motion in Opposition of District’s Motion seeking Dismissal IHO of FERPA Claims
10/31/15, 3 pp.
XLVIII Attorney Affidavit Opposing Parent’s Motion to Vacate and for Default
IHO
Judgment and Reply to Cross Motion Opposing Dismissal of Claims Barred by
Withdrawal With Prejudice plus Exhibits 1-2
12/06/14 (corrected to 11/06/15), 6 pp.
XLIX Attorney Affidavit Opposing Parents’ Motion for an IEE at Public Expense IHO
IHRS plus Ex. 1
11/06/15, 4 pp.
L District’s Reply Affidavit IHO
11/06/15, 3 pp.
LI Parent’s Response to District’s Motion Opposing Parent’s Motion to Vacate IHO
with Exhibits
Undated, received 11/7/15, 27 pp.
LII Parent’s Response to District’s Reply Affidavit Regarding FERPA and AIS with IHO
Attachments
11/07/15, 138 pp.
LIII District’s Sur-Reply Affidavit IHO
11/10/15, 4 pp.
LIV Parent’s Response to District’s Sur-Reply on Motion to Vacate IHO
11/10/15, 4 pp.
LV District’s Response to Due Process Complaint IHO
10/19/15, 05/11/15, 08/10/15, 10/29/15 PWNs and 11/13/15 email correction,
11/13/15, 11 pp. LVI Parent’s Reply to District’s Response to Due Process Complaint Case No. 93940 IHO
with Exs. 1-8
11/13/15, 42 pp.
LVII Consolidation Order for NYSED Case No. 93940 with 93438 IHO
11/16/15, 1 p.
LVIII Parent’s Motion Requesting an Order for District to Produce Subpoenaed IHO
Documents
11/17/15, 8 pp.
LIX Attorney Affidavit in Response to Parent’s Request for Subpoena Duces Tecum IHO
IHRS
11/17/15, 6 pp.
LX Subpoena to XXXX XXXX XXXX, NYSED
IHO
11/19/15, 1 p.
LXI Parent’s Response to District and Pearson Communication re: DRA2 IHO
01/01/16, 19 pp.
LXII Order on Parent’s Request for Copies of DRA-2 IHO
1/4/16, 1 p.
LXIII Consolidation Order for NYSED Case No. 99518 IHO
2/11/16, 1 p.
LXIV Order to Extend the Compliance Date IHO
12/21/15, 1 p.
LXV Order to Extend the Compliance Date IHO
1/15/16, 1 p.
LXVI Order to Extend the Compliance Date IHO
2/15/16, 1 p.
DOCUMENTATION ENTERED INTO RECORD APRIL 14, 2016
LXVII Findings of Fact and Decision for NYSED Case No. 87896 IHO
02/24/15, 27 pp.
LXVIII Order to Extend the Compliance Date IHO
03/15/16, 1 p.
LXIX Parent's Closing Arguments (with Attachment) IHO
04/13/16, 35 pp.
LXX District's Post-Hearing Brief IHO
04/14/16, 28 pp. (plus cover)
LXXI Order to Extend the Compliance Date IHO
04/13/16, 1 p.
S The Parent's errata sheet for Joint Ex. 51 Parent
Undated, 1 p.
Footnotes
[2] By email dated November 20, 2015 the parent stated that she was not filing a court claim regarding the settlement agreement. IHO Ex XXVI. In an email dated November 30, 2015 the parent requested the IHO to reconsider the parent’s motion to vacate the Order of Termination for Case 87975. IHO Ex XXVIII.
[4] Ms. XXXX did not identify what assessment she used to evaluate the student’s sensory processing abilities although she noted that the Parents completed a questionnaire without identifying which one. Joint Ex. 51-187.
[5] Ms. XXXX understood that the adult support would be provided in an ICT setting and that the Parent wanted to come and observe such a class. Tr. 714.
[6] Two transcripts from successive hearing dates begin with the same page number. Hearing dates of January 19, 2016 and February 18, 2016 both begin at page 1547. The 1/19/16 transcript ends at page 1613. In the case of any reference in this decision to page numbers in the range of 1547-1613, the date of the hearing will follow the transcript pages.
[7] By Prior Written Notice dated May 11, 2015 the District informed the Parent of the CSE recommendations made on that date. It must be noted that within the Prior Written Notice, the IEP is referenced, but record evidence shows that it was not yet written, and still was subject to Board approval. There is no record evidence as to when the Prior Written Notice dated May 11, 2105 was sent to the Parent.
[8] During the first scheduled pre-hearing conference, based on the information I had at that time, I informed the parties that the May 2015 IEP was properly before me. Tr. 20-21. I stated that I would engage in a finding of fact regarding what the agreed upon recommendations were at the May 11, 2015 CSE meeting and determine whether the recommendations were aligned with the IEP that was developed. Id. However, based on the record evidence produced in the course of the hearing, it became apparent that the parties did not have a meeting of the minds about the agreed upon recommendations, and it is undisputed that the District did not believe that the Parent was bound to the IEP. Tr. 444; See Tr. at 1530. At the hearing, the District had a full and fair opportunity to present evidence about all areas of the IEP dated May 11, 2015 and effective May 27, 2015 and to demonstrate why it provided the student with a FAPE.