Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

_______________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF PARENTS CONCERNING THEIR CHILD

AGAINST

Decision and Order

CENTRAL SCHOOL DISTRICT

______________________________________________

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The school district will be referred to as “District,” the parents as “Parents,” and the student will be referred to as “Student.” The parents filed a complaint notice dated February 19, 2016. (Ex. 1). A hearing was held on June 16, 2016, and June 20, 2016. This case involves the issues of bullying, re-evaluations, and reimbursement. The District’s mistakes in addressing the bullying of the Student were such as there was a denial of a free appropriate public education (“FAPE”) in this case. However, the equities warrant a reduction in reimbursement.

Parents’ Position In the complaint notice (Ex. 1), the Parents allege that the District failed to re-evaluate the Student for his Individualized Educational Program (“IEP”) within three years, did not provide a procedural safeguard notice, and did not respond to the Parents’ request for protocols to keep the Student safe after receiving death threats from another student in the school. The Parents wrote that they placed the Student in another school district after verbal notice to the Committee on Special Education (“CSE”) in August 2015. The Parents are seeking reimbursement for tuition of $9,550.00 for the 2015-16 school year, reimbursement for two more years of tuition, and reimbursement of $1,080.00 for the Student’s counseling.

District’s Position In their response to the complaint notice, dated March 4, 2016 (Ex. 2), the District denied the allegations regarding failure to evaluate the Student and the other issues. They allege that the District is barred by the Family Educational Rights and Privacy Act (“FERPA”) from discussing or relating information about other students and that issues related to student discipline are outside the jurisdiction of the IHO.

Discussion “Death Threat” The Student’s Mother testified that the incident between the Student and the Other Student occurred on January 13, 2015. (Tr. p. 280). She stated that the Other Student wrote “‘I am going to kill [the Student], I am going to kill [the Student]’ over several times, and it says at the last page, ‘You’re dead, [the Student].’” (Tr. p. 282).

Miscommunication with former Superintendent leads to shaken faith The Student’s Mother testified that the Student was not in school on the day of the incident. She learned about the incident when the then Principal called to say that state troopers were on their way to her house because of the death threat against her son. The Principal stated that she would talk to the Parents afterward. (Tr. p. 283). The Mother testified that the Other Student was in school the following day, although the then Superintendent had told her that she would talk to the Principal and the Other Student would not be in school that next day. (Tr. p. 285).

Further Communication Problems and the Student’s Victimization The Mother testified that the Student stayed out of school for three days and no one informed the Parents that it was safe for the Student to return to school. (Tr. p. 288). The Student went back to school after his father called the school and learned that the Other Student was not there. (Tr. p. 288). The Mother testified that the Student was not sleeping at night, was diagnosed with and began counseling about ten to twenty days after the incident. She testified that he went to four counseling sessions. (Tr. p. 288 – 289). The Mother testified that the Student was diagnosed with post-traumatic stress disorder during his first visit to the . (Tr. p. 308). She said the Parents called the Principal and Superintendent regarding the Student’s diagnosis1. (Tr. p. 309). The Student’s Father testified that the Student’s behavior changed after the incident. He said that “He was not eating. He was not sleeping. He was very combative….” (Tr. p. 338). The Mother testified that after the Other Student was suspended, his friends “taunted”

The Father testified he informed the Superintendent in the spring of 2015 about the Student’s problems with peers, but not the Director of Special Education. (Tr. p. 349 – 350).

the Student. (Tr. p. 283). The Father added that, after the incident and the Parents’ complaint against the Principal, the Student told him that some teachers made allegations about him and the brother of the Other Student threatened him. (Tr. p. 339 – 340). The Father also testified that the Student was diagnosed with and received counseling four times. (Tr. p. 340).

The Return of the Bully (The Other Student) The Other Student returned to school at the end of May. (Tr. p. 290). The Mother said that the school did not tell her when the Other Student would return. (Tr. p. 292). The Mother testified that she gave the school a copy of the restraining order against the Other Student as soon as the Parents had it, within a few days after the incident. (Tr. p. 293). Coincidentally, the Student was injured on or about the date that the offending Student was to return to the District School. The nurse practitioner from a medical clinic wrote a letter, dated May 28, 2015, stating that the Student was seen that day for reevaluation of his left ankle sprain. She recommended that he have home tutoring for the rest of the school year because of his need for crutches. (Ex. 12). The Director of Special education testified that the Student completed the school year with home tutoring after injuring his ankle. (Tr. p. 55 – 56).

The CSE had Sparse Information Regarding the Student’s Victimization The Director of Special Education/Assistant Principal testified about the incident involving the Student and the Other Student, and that there were disciplinary consequences for the Other Student. (Tr. p. 73). He said he was not aware of any other issues between the students that impacted the Student’s education and the Parents did not report anything else after that incident.

(Tr. p. 74). He stated that the Other Student was never in the building at the same time as the Student after the incident. At the time the Other Student returned to the school, the Student was receiving tutoring at home. (Tr. p. 75).

The School Psychologist testified that she was aware of the incident with the Other Student and saw what was written in the Other Student’s notebook. (Tr. p. 220 – 221). She said she never spoke to the Student about this incident because she was not asked to by the administration, the teachers, the Student or his Parents. She testified that she was asked to work with the Other Student. (Tr. p. 222). She did not know if the Student received any counseling related to the Other Student’s threat. (Tr. p. 223).

The Annual Review: CSE Composition

The CSE held an annual review for the Student on March 6, 2015, to develop the 2015-16 IEP. (Ex. 5). The CSE Chair (Director of Special Education), the Case Manager/Special Education Teacher, the School Psychologist, and the General Education Teacher attended the meeting; the Student’s mother participated by phone. (Ex. 5).

CSE Evaluations The evaluations listed included a psychoeducational evaluation from March 16, 2012; a teacher report from April 11, 2011; a evaluation and social history from March 9, 2011; State and district-wide testing from 2009, 2010, 2011, 2012, and 2013. The most recent testing was the STAR reading assessment from Fall 2014 which gave the Student a grade equivalent, a Basic Reading Inventory from February 2015 which gave the Student a grade equivalent for independent word lists and grade equivalent in instructional and frustrational levels in word lists; and grade independent equivalent in fluency and grade equivalent independent and grade instructional/frustrational levels in comprehension. It was noted that the Student has difficulties which can affect his comprehension.

The Director of Special Education/Assistant Principal testified that he was the Chairperson for the Student’s 2015-16 IEP meeting. (Tr. p. 46). He stated that at the meeting, everyone was able to discuss the Student’s progress. (Tr. p. 48). He testified that the Student was making progress, his reading level improved, and he attained most of the goals on his IEP. (Tr. p. 51).

He testified that the Parent did not raise any concerns about the Student’s testing at the IEP meeting. (Tr. p. 68). He said that the Parents did not raise any concerns about the final recommendation, nor the Student’s health or safety. (Tr. p. 69 – 70). He also did not recall the Parents raising concerns about the Student’s present levels of performance, goals, social or peer issues, or transition planning. (Tr. p. 71 – 72). The Parent did not discuss a private placement. (Tr. p. 72). He remembered that the Parent mentioned therapy screening for the Student. (Tr. p. 72).

The School Psychologist testified that she was involved in the 2015-16 IEP meeting. (Tr. p. 162). She said that at the meeting the Student’s case manager (the Special Education Teacher), reported how the Student was performing in English, reading, writing, and math; the Student’s English Teacher discussed his progress in reading. (Tr. p. 163). She said the CSE’s areas of concern were the Student’s problems with motivation, reading, writing, and math; in particular, in reading with fluency, decoding, and comprehension; in math with computation tasks and multistep problems; and in writing with grammar, syntax, mechanics, and the Student’s dislike of writing. (Tr. p. 164 – 165).

She testified that no one raised concerns at the meeting about the sufficiency of the evaluations, other than the Mother’s mentioning of herapy screening. (Tr. p. 167). She said that she based the Student’s academic abilities on information from his files, the teachers’ reports, the STAR reading and math evaluations, and the BRI. (Tr. p. 167).

She testified that she reviewed the 2012 psychoeducational evaluation before the CSE meeting, but not did not discuss the information with the CSE “because no additional concerns were coming up at that time of anything new.” (Tr. p. 184). When asked if the Student’s needs have changed substantially, she said no. (Tr. p. 189).

She said the Student’s Parent did not mention concerns over safety or the CSE recommendations during the meeting. She also did not hear of the Parent objecting to the CSE recommendations after the meeting. (Tr. p. 190). She said the Parent did not communicate with her about testing, other than the Mother’s notes on the consent forms to contact her when doing testing and not to take the student out of core classes. (Tr. p. 190).

The Mother testified that she did not discuss the Student’s safety at the CSE meeting because the Other Student had not returned to the school. (Tr. p. 301 – 302). The Mother did not recall mentioning the Student having disorder at the CSE meeting. (Tr. p. 317).

The Mother testified that she did not object to the IEP or the programs. (Tr. p. 322). She testified that she requested the Student be tested for therapy and she knew that she could request evaluations. (Tr. p. 322).

The Director of Special Education testified that when they discussed the social-emotional section of the IEP, the Parent did not mention the Student’s disorder diagnosis, that he was receiving counseling, his problems with peers, or that they had threatened him. (Tr. p. 385). He said the case manager did not bring up these issues either. (Tr. p. 386). He added that none of the administrators spoke to him about any problems between the Student and other students; he was also not told of any issues regarding the Student and staff members. (Tr. p. 387). He testified he never heard from any teachers or staff members that the Student had social problems with peers during the spring of 2015. (Tr. p. 392). He stated the District cannot arrange and provide counseling for students without their parents’ consent. (Tr. p. 392). He said that in order for a student to receive counseling, it would go through the CSE. If the CSE determined the Student needed counseling, the Parents would have to sign a consent form. He testified that the Parents never requested counseling for the Student. (Tr. p. 394). He never received a report or a copy of a report related to the Student’s counseling service and it was not mentioned at the CSE meeting. (Tr. p. 395). He said the Parent also did not mention the Student’s difficulties with eating, sleeping, or being combative during the CSE meeting or at any other time throughout the rest of the school year. (Tr. p. 395).

He added that the Student’s case manager, who taught four of his classes, never reported any problems between the Student and peers or a change in his behavior or academic decline. (Tr. p. 397). He said he was contacted within a week of the death threat (Tr. p. 399).

CSE Recommendation

A recommendation was made: Special class math, English, social studies, and science 15:1; accommodations of special seating arrangements, checking for understanding, refocusing and redirection, use of a calculator, and access to a computer during writing assignments. It included a coordinated set of transition activities.

The CSE/CPSE Director/Assistant Principal sent the Parents Prior Written Notice for proposed continuation for Special Education, dated March 6, 2015, and a copy of the IEP for the 2015-16 school year. (Ex. 5). The notice included a statement indicating that the Parents had already received a procedural safeguard notice and thereby were informed they should contact the Director of Special Education Services if they wanted an additional copy.

The CSE/CPSE Director/Assistant Principal (the current Director of Special Education) sent the Parents a Notice of Board of Education Review for a Special Education, dated July 13, 2015, informing them that the board supported the CSE’s recommendations. (Ex. 4).

The Parents Take Action The Student’s Father testified that he and his wife scheduled a meeting with the Interim Superintendent in August 2015. He stated that the Interim Superintendent had canceled two prior meetings and had his secretary call the Parents as they drove into the school to cancel this meeting. He said the Parents insisted on meeting with the Interim Superintendent but he told them that he was busy and did not have much time. (Tr. p. 345).

The Interim Superintendent testified that he has held that position since May 1, 2015. (Tr. p. 368). He recalled that the Student’s Parents met with him in the summer of 2015 regarding the situation between the Student and the Other Student. (Tr. p. 368). He testified that the meeting was scheduled by his secretary and it was not canceled or rescheduled at any point. (Tr. p. 369). He remembered that the Parents showed him an order of protection, which had expired and he told them that if they needed to continue it, they should speak to the judge who signed it. (Tr. p. 370 – 371). He said the Parent spoke about their concern for the Student’s safety (Tr. p. 372).

He said that he recommended the Parents talk to the Director of Special Education as the Student had an IEP. (Tr. p. 375). He said the Parents were upset that the Student and the Other Student would be in the school building in September. He said he explained that all students have a right to education and the timeframe for the issue had expired. He told them that the school would conduct safety planning for all the students. (Tr. p. 377). He testified that he called the Director of Special Education to tell him about his meeting with the Parents and that they were coming to see him; he said he asked the Director of Special Education to discuss the safety issues with them. (Tr. p. 378). He said that if the Student had returned, the staff would have discussed monitoring and a safety plan in late August or early September. (Tr. p. 381).

The Father testified that he told the Interim Superintendent that he wanted assurance that the Student would be safe in school during the following school year. He said the Interim Superintendent told him that there were 350 students in the school and he was concerned about all their safety; what would happen would be decided by the Director of Special Education and they should talk with him.

The Father testified that the Parents then immediately went to speak to the Director of Special Education. (Tr. p. 346). He said the Director looked at the Student’s and the Other Student’s schedules on the computer and saw that they would be in classrooms across the hall and would see each other during the school year. (Tr. p. 346 – 347). The Father said he told the Director that as no one could make sure the Student would be safe, the Parents would place the Student in another school. He said the Director told him to sign paperwork to send the Student’s records to the other school. (Tr. p. 347). He testified that the main reason he withdrew the Student from the school was for his safety but he was also concerned about his academic performance. (Tr. p. 349).

The Mother testified that after the Parents had a meeting with the Superintendent (who told them he was too busy to talk with them), they met with the Director of Special Education. He reviewed the Student’s and the Other Student’s schedules and told the Parents that the students’ classrooms would be across the hall and that they would still see each other in the hallway, gym, art class, and in the cafeteria (Tr. p. 295). She testified that the Parents told the Director of Special Education that day that they were withdrawing the Student from the school. She added that they asked him if they needed to sign anything or do anything. She said he told them to sign a release of records when the Student transferred to the other school district and he would send the records. (Tr. p. 295 – 296).

The Director of Special Education testified that the Parents met with him in August 2015 about their concerns over the Student having any contact with the Other Student during the next school year. (Tr. p. 111 – 112). He said he looked at their schedules and saw that the Other Student would only be in the building for half of the day and that they would only be in the same room for part of lunch. (Tr. p. 112). He added that the lunch room was supervised. (Tr. p. 112). He said the Students’ classrooms would be near each other, across the hall, one room down in the same hallway. (Tr. p. 113). He testified that he discussed some ways the School could help the students avoid interacting with each other, such as having one student leave a little earlier. (Tr. p. 77).

Parents Withdraw Student from the District During the Meeting with the Parents, the Director said they did not say they were removing the Student from the school, but informed him by phone around mid-August 2015. (Tr. p. 116). He thought it was the Student’s father who called to inform him that the Student would be going to the District. (Tr. p. 117). He added that he received a records request from the District shortly after the Father’s phone call. (Tr. p. 118). The Father said the Parents were taking the Student out of school because of concern for his safety. (Tr. p. 118). He said that the records were sent to the District the same day or the day after the request. (Tr. p. 119).

Student History At the time the complaint notice was filed, the Student was 16 years old (Ex. 5) and attending 10th grade in a high school in . (Ex. 19; Ex. 20). The Student was diagnosed with

Disorder and was given an educational classification of (Ex. 5).

June 2015 progress reports indicated that, while in the District, the Student was progressing gradually yet inconsistently. (Ex. 9). The District later conducted a psychoeducational evaluation on October 23, 2015, which presents a picture of the Student during that time period. (Ex. 23). On the Weschler Intelligence Scale for Children – fourth edition (“WISC – IV”), the Student’s cognitive abilities were tested as in verbal comprehension; in perceptual reasoning; and in processing speed and in full scale IQ. His academic skills were tested by the Kaufman Test of Educational Achievement – third edition (“KTEA – III”). He scored in letter and word recognition and reading comprehension; n phonological processing, math computation, and written expression; low in nonsense word decoding, word recognition fluency, decoding fluency, math concepts and applications, and spelling.

The District developed an IEP for the Student, dated November 24, 2015. (Ex. 19). The Student was evaluated with the WISC – IV, the KTEA – III, the Weschler Individual Achievement Test – third edition (“WIAT – III”), and Key Math – third edition and was given vision and hearing screening by the school nurse. An initial eligibility meeting was held for the Student at the District on November 2, 2015. His primary disability classification was and his secondary disability was in in Writing and Math. (Ex. 19).

Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).2

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs

“Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. 20 U.S.C. § 615(g). New York has elected to employ the two-tier approach. N.Y. Educ. Law § 4404 (McKinney Supp. 2005); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992). Under the New York scheme a parent who wishes to challenge his or her child’s IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005). A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer’s decision to a State Review Officer (“SRO”). N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005). After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under § 615(i)(2) of the IDEA. 20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004).

Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176.

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).

Reimbursement Analysis A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents where the services offered by the board of education were inadequate or inappropriate; the services selected by the parents were appropriate; and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985); R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252. This framework may be referred to as the three-prong Burlington/Carter Test. The first prong of this test; whether the services offered by the board of education were inadequate or inappropriate, is the proper heading under which to consider the alleged violations in this case.

Prong I A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed. Dep’t Rep 487 (1983). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Board of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. 300.550(b); 8 NYCRR 200.6(a)(1).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep’t. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch.

Issues Here, I observe two significant issues: First, procedurally, did the problems with the evaluation process result in the denial of FAPE? The short answer is no, and my analysis of this issue follows. Second, and the central issue in this case, is whether the District failed to respond appropriately to the Student in the context of acknowledged bullying such that the Student was denied a FAPE? Here, I find against the District and hold the District responsible for the denial of a FAPE.

Improper Reevaluation The Student’s reevaluation was not conducted according to NYCRR § 200.4 in the following areas:

1. A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student’s IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student. NYCRR § 200.4(b)(4).

The reevaluation was not timely and it was only conducted by the School Psychologist, not a multidisciplinary team including a teacher or other specialist with knowledge in the area of the Student’s disability.

2. As a part of an initial evaluation, if appropriate, and as part of any reevaluation in accordance with section 200.4(b)(4) of this Part, a group that includes the committee on special education, and other qualified professionals, as appropriate, shall review existing evaluation data on the student including evaluations and information provided by the parents of the student, current classroom-based assessments, local or State assessments, classroom-based observations, and observations by teachers and related services providers. The group may conduct its review without a meeting. NYCRR § 200.4(b)(5)(i).

The reevaluation did not include information provided by the Student’s Parents, classroom-based observations, or observation by teachers and related service providers.

3. If additional data are not needed, the school district must notify the parents of that determination and the reasons for it and of the right of the parents to request an assessment to determine whether, for purposes of services under this Part, the student continues to be a student with a disability and to determine the student’s educational needs. The school district is not required to conduct the assessment unless requested to do so by the student’s parents. NYCRR § 200.4(b)(5)(iv).

The District did not notify the Parent that they determined additional data was not needed.

4. School districts shall ensure that, for purposes of eligibility and continuing eligibility determinations, a copy of the evaluation report and the documentation of determination of eligibility are provided at no cost to the parent. NYCRR § 200.4(b)(6)(xiii).

The Parents claimed they did not receive a copy of the reevaluation report or documentation of the determination of eligibility.

Despite these shortcomings, I find that the school psychologist explained the procedural violation in a way that I find the cumulative impact neither 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits.

The School Psychologist wrote in her report that she only conducted a records review because of significant transition during the 2014-15 academic year of administration and staff. She added that the transition led to a lack of time available to conduct full psychoeducational evaluation assessments during the 2014-15 academic year and consents for testing were not sent out by the CSE office until midway through the school year, which delayed the assessment process. She added that if there was a need for full psychoeducational evaluation before the Student’s next reevaluation date, an evaluation would be conducted to address new areas of need or concern. She did not conduct any new evaluations, or social and health history update, educational history, teacher interview, student interview, classroom observation or behavioral observations.

The School Psychologist testified that the three-year reevaluation for students can involve formal standardized testing, informal testing, or both. She said that she does not administer standardized testing every three years if it will not give her any new information. She added that standardized testing will only let her know how students compare to their peers. (Tr. p. 160 – 161). She said she can get more specific information about students from grades, progress reports, achievement of IEP goals, teacher input, classroom observations, behavior logs, and attendance records. (Tr. p. 161).

She testified that a records review can serve as a reevaluation. (Tr. p. 195). She said that the reevaluation was due in March, but that she did it when she could get to it. She added that if any concerns had come up, they could have been addressed at the fall reevaluation meeting. She was out on maternity leave from September through mid-January and had a replacement for part of the time. (Tr. p. 197). She said the transitions that year included a new superintendent, changes in curriculum and program, and the transition of the elementary school principal. (Tr. p. 198). She said these factors contributed to the reevaluation report not being available by the March CSE meeting. (Tr. p. 198). The consents for evaluation were not sent by the CSE office until midway through the school year, which also caused a delay in the assessment process. (Tr. p. 199). She testified the Parents were sent the consent form, and the District received it back by January. (Tr. p. 200). The School Psychologist testified that the CSE did not discuss whether or not formal testing was necessary at the March meeting; she did not speak with the Parent about it, and the Parent did not bring it up at the meeting. (Tr. p. 201).

She testified that the reevaluation (Ex. 14) was written after the March CSE meeting and included information from the CSE meeting. (Tr. p. 192 – 194). She testified that there is no requirement to conduct a cognitive assessment to develop a student’s performance level (or to conduct any specific tests). (Tr. p. 248 – 249). She said that in determining testing, one would review all the data and see if there are any new areas of concern or need and see if there is a pattern of consistency; if things remain consistent, then a student does not need formal assessment. She said the informal assessments give detailed information about a student’s performance. (Tr. p. 249 – 250).

Bullying Standard As an initial matter, effective July 1, 2012, boards of education must comply with the provisions of the Dignity for All Students Act, found in Article 2 of the Education Law (“DASA”) and, effective July 1, 2013, the amendments thereto (Chapter 102 of the Laws of 2012). Under DASA, “harassment” and “bullying” are defined as:

“the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or

(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.

Acts of harassment and bullying shall include, but not be limited to, those acts based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.” New York Education Law § 11(7).

DASA requires districts to have “policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination,” and such policies must be distributed to all school employees, students, and parents electronically or in writing. Educ. Law § 13(1); see 8 NYCRR 100.2(l)(2)(ii)(b). According to the allegations in the petition, all events and actions alleged occurred after July 1, 2013, the effective date of the DASA amendments, which impose additional duties and obligations on districts regarding the reporting and investigation of alleged incidents of harassment, bullying, and discrimination.

The historical precedent for bullying as a denial of FAPE in IDEA cases, T.K. v. NEW YORK CITY DEPARTMENT OF EDUCATION (E.D.N.Y. 4-25-2011),779 F. Supp.2d 289., is as follows (highlighting is my own):

“The applicable standard should take into account administrative advice that has long been given to schools in how to apply the IDEA and other child protective legislation…. [U]nder IDEA the question to be asked is whether school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.

This standard does not impose a new obligation on schools. For at least ten years the Department of Education has informed schools that they are legally obligated to comply with it. A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment.

Earlier, the Department of Education had advised schools that “[w]hen disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively. Where the institution learns that disability harassment may have occurred, the institution must investigate the incident promptly and respond appropriately.” Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. (citation omitted). Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. (citation omitted).

The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination. It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability. In its October 2010 Bullying and Harassment letter, the Department of Education provides an illustration of when a school is required to act, and what type of response is required. It is useful in applying the above test. A hypothetical student with a disability is verbally teased by other students and on one occasion is tackled, hit with a binder, and has his personal affects thrown in the garbage. DOE Bullying and Harassment Letter at 8-9. The student approaches teachers and guidance counselors who suggest counseling, but they do nothing to punish the bullies. Id. The bullying then continues and the student, who was once doing well, begins showing the signs of victimization at the hands of other children. Id. at 9. The school in this hypothetical responded in part to the bullying, in offering the student counseling to deal with what he was going through. But it did not respond adequately. It did not fully investigate the bullying or punish those who were perpetrating the harassment. In this example, the school deprived the student of his educational benefit.” T.K. v. NEW YORK CITY DEPARTMENT OF EDUCATION (E.D.N.Y. 4-25-2011),779 F. Supp.2d 289. (internal citations omitted, my emphasis).

“Since the decision in T.K., the United State Department of Education (“USDOE”) has further clarified that:

A school should, as part of its appropriate response to the bullying, convene the IEP Team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. If the IEP is no longer designed to provide a meaningful educational benefit to the student, the IEP Team must then determine to what extent additional or different special education or related services are needed to address the student's individual needs; and revise the IEP accordingly. (Dear Colleague Letter, 61 IDELR 263). With respect to additional steps that a district might take to address bullying about which it is on notice, the USDOE has identified the following nonexclusive actions: “separating the accused harasser and the target; providing counseling for the target and/or harasser, or taking disciplinary action against the harasser”; providing additional services to the student who was harassed to address the effects of the harassment; adopting new policies or procedures for receiving reports of harassment; or providing training or interventions for the school community. (Dear Colleague Letter, 55 IDELR 174).” (See Application of a STUDENT WITH A DISABILITY, SRO No. 15-057, 2014).

District Mishandles Aftermath of Bullying Here, immediately after the bullying incident, the District did not reconvene the CSE, did not conduct an FBA or BIP for the Student, and did not create and implement a safety plan regarding the Other Student’s return to school. It is only by coincidence that the Student injured his ankle, was tutored at home for the rest of the school year, and was not in school when the Other Student returned from suspension. The District needed to follow the law for bullying and have a safety plan in place, particularly because the Other Student threatened the Student’s life. It is at this juncture that I find the District’s failures. I understand that the communication between the Parents and the District all went through the then existing Principal and the then existing Superintendent. Those individuals are no longer with the District and they were not called as witnesses. The record is devoid of documentation or testimony concerning the District’s efforts to comply with DASA.

The Father testified that he met with the Superintendent several times in person about his concerns over the Student’s peers. (Tr. p. 363). He testified the Superintendent left the District in May before the Other Student came back to school. The Parent said the Interim Superintendent did not address the issue of the incident and there was no plan. (Tr. p. 365).

Interim Superintendent Directed the Parents Too Late While it appears that the Interim Superintendent acted professionally, testimony reveals that at the time the Parents confronted the Interim Superintendent, he didn’t fully comprehend his or the District’s responsibilities under DASA.

I agree with the Parents that late August early September is too late for the District to pursue a safety plan. The matter was mishandled since the incident occurred in January and the further deferral of the issue was unreasonable. As a result of the effects of the bullying, the Student’s needs have changed such that the May 2015 IEP was no longer designed to provide meaningful educational benefit. Thus, the Student was deprived of a FAPE for the school year.

Prong II

Appropriateness of the Placement I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the District. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 (S.D.N.Y. 2010). The

Second Circuit has clearly stated:

“… [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

Moreover, parents “may not be subject to the same mainstreaming requirements as a school board.” Frank G. v. Bd. of Ed. of Hyde Park (2d Cir. 2006) quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000) citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that “the test for the parents’ private placement is that it is appropriate, and not that it is perfect”).

However, the parent bears the burden of proof with regard to the appropriateness of the educational program in which the Student was enrolled. M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027. In order to meet that burden, the Parent must show that the Private School offered an educational program that met the Student’s special education needs. Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027.

Here, the Parents were able to show that the District reevaluated the Student, provided an appropriate IEP, and implemented it. The Parents were also able to show that Student made progress in the District. The fundamental characteristic of the School is that the environment provided a perception of safety. The Father testified the Student was reluctant to go to school after the incident but he readily goes to school at the Other District. (Tr. p. 342). He testified that based on the report cards, the Student is doing well academically at his current school and he has made several friends. (Tr. p. 342 – 343). The Mother testified that the Student’s grades in the District are “excellent,” that he is not withdrawn, and that he is participating in social activities. (Tr. p. 296 – 297). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at 7 (S.D.N.Y. Aug. 27, 2010). Accordingly, the Parents have sustained their burden under Prong II.

Prong III Equities In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. 471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192. “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148.

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 612(a)(10)(C)(iii)(I), 34 C.F.R. § 300.148(d). This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

Pervasive Miscommunication In this instance, although the District made errors in addressing the Student’s safety after the threat by the Other Student, the Parents failed to properly notify the District of their removal of the Student and demand for reimbursement.

It is clear to me that the Parents were not cognizant of the notice requirements of IDEA. Supporting my observation, The Director of Special Education stated that the Father did not mention any concerns about the IEP, program, supports or services, and did not say he was making a unilateral placement and seeking tuition reimbursement when he called . . . (Tr. p. 78).

Despite the overall impression that the Parents were earnest in protecting their son, the Father stated he did not inform the Director of Special Education in August 2015 that he was seeking tuition reimbursement. (Tr. p. 350). His testified without guile that he borrowed money to pay tuition at the District and then looked into reimbursement. (Tr. p. 358 – 359).

The Mother also testified the Parents did not provide written notice withdrawing the Student from the school. She offered the plausible reason that the Director of Special Education told them they just had to sign a form for the records. (Tr. p. 333). To all of this, I find that the miscommunication was pervasive and while I do not find fault with the Parents’ prerogatives in removing their son from the District I do not wish to reward their failure to properly advise the District of their intentions. Conclusion Therefore, I reduce the award of tuition reimbursement by thirty percent (30%). Regarding the Parents’ claims for payment for I note that the record was not fully developed on this point (no invoice in evidence) however, I direct the District to pay for such services that were provided (and not yet paid for) upon the presentation of a properly supported bill3 for such services.

Regarding prospective tuition for future years out of the District, this is denied as this relief is not supported in the record before me.

It is therefore ORDERED

The District may require an affirmation from the Psychologist indicating that the balance is open or a receipt from the Psychologist indicating that the amount was paid and the source so that there is a protection against double billing.

Tuition for the 2015-2016 school year shall be reduced by thirty percent and paid for by the District upon the presentation of a properly receipted bill for same; and The cost of shall be paid by the District upon the presentation of a properly supported bill for such services.

Dated: August 25, 2016

___________________

Martin J. Kehoe III, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before the 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 viewed. 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 to the 25- for 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 and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.