Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

{} Petitioners,

Hearing Officer: Michael Lazan

v. Case # 97318

UNION FREE SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case filed on behalf of a ten-year-old student (“the Student”) who is eligible for services as a student with

I have been assigned to hear cases with these parties previously. While I was rendering a decision on another case involving the same parties -- which has already been reviewed by the New York State Review Officer (see No. 16-060) -- Petitioner was filing additional complaints on June 2, 2016; June 15, 2016; and July 8, 2016 in regard to the Student. The matter proceeded to hearing on August 10, 2016 on all three cases, which were to be consolidated. During this date, the parent agreed to amend all three complaints and consolidate the complaints into one. Additionally, claims related to a manifestation determination were dismissed sua sponte by the Hearing Officer because they did not sufficiently allege facts to the effect that the student had been suspended for ten days in a particular school year. (Tr. @ 14)

On August 11, 2016, the parent filed an amended complaint combining all the claims in the three cases and adding additional claims. The matter proceeded to hearing on claims relating to the appropriateness of the Extended School Year (“ESY”) program for Summer, 2016, the lack of therapy in the ESY program, the “availability of due process” for ESY cases, on the training of the staff at the ESY site, on the bus service at the ESY site, and on the failure to implement the ESY IEP. The parent also brought claims pursuant to the 2016- 2017 school year, challenging the June, 2016 IEP in regard to present levels of performance, goals, lack of sensory integration, lack of assistive technology, lack of behavioral therapy and behavioral interventions, and inadequate bus transportation. There were also challenges brought regarding the placement at {}, including training of staff on sensory issues.

After hearing dates, the parties provided briefs. (IHO Exh. 1, 2) Because of the extensiveness of the testimony and issues in this case, to allow the parties to write briefs and to allow this IHO to write this decision, four timelines extensions were granted here. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 3)

FINDINGS OF FACT

The Student is a ten-year-old who is classified as a student with He has {}. The Student’s background is set forth in more detailed fashion in my earlier decision on case # 96338, and in the State Review Officer’s decision in No. 16-060.

. After a BOCES “self-contained” program could not meet the Student’s needs for the 2013-2014 school year, the Student went to the {} for the 2014-2015 school year. At this point, he was still classified as {}, and he was assigned to an 8:1+2 program. (D-5)

The Student had many {}. (D-13)

Nevertheless, the Student did not do well at {}. He became {}. There, toward the end of the 2014-2015 school year, there were reports of the student’s improved demeanor. As a result, the Student continued in the 6:1+2 placement with an aide at {}.

However, in the 2015-2016 year, he began to have more {}.

The school was apparently out of ideas on some days, when they would resort to calling the parents to pick the student up. This was considered to be part of the Student’s BIP. (D-10) The BIP also suggested a {}.

The issues continued. The Student was only able to attend instruction for about ten minutes. Most of the time, {}.

Some improvement in behavior was reported during tutoring. Improvement was also reported by the Student’s therapist and therapist. (Tr. @ 190- 191) The tutor used techniques such as {}. Still, even with the individualized instruction, the Student did not make academic progress. (D-12) On the progress report dated June 10, 2016, he had not met his goals in any area. (D-24)

Two IEP meetings were held in June, 2016. Because of the recommendation of the tutors and the related services providers, the school district felt that the Student could go back into a classroom. (Tr. @ 190-191) For the summer, 2016, the Student was assigned back to a BOCES program, with a 6:1+2 ratio. (1x weekly), therapy (3x weekly), therapy (3x weekly), therapy (4x weekly), and parent training and (2x weekly) – all for thirty minute sessions – were recommended. (D-12) The earlier BIP was also recommended for the Student, though it was indicated that the staff would re-work it “as needed.” The IEPs anticipated the same educational placement for the 2016-2017 school year, but the location of services was to be in {}, inside the District. The parent objected to this proposal, but the District did not change its recommendation, pointing out that another BIP was to be developed and was to be added. Goals were also added to reflect concerns relating to functional communication, sensory needs and social and emotional issues.

(D-12) Testing accommodations remained the same from the IEP in December, 2015. Transportation accommodations (bus with an attendant, harness) were kept the same as well.

While at the BOCES program for the summer of 2016, the bus did not always come in time for this program. (Tr. @ 536) When the bus came, the Student had a difficult time on the bus, and no harness was being provided for at least part of the time. (Tr. @ 539)

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law of this Hearing Officer are as follows:

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The central purpose of the IDEA is to ensure that all children with disabilities have available to them special education and related services designed to meet their unique needs and provided in conformance with a written IEP (i.e., free and appropriate public education, or “FAPE”). 20 U.S.C. Sects. 1400(d)(1(A), 1401(9)(D), 1414(d); 34 C.F.R. Sects. 300.17(d), 300.320; Shaffer v. Weast, 546 U.S. 49, 51 (2005). Pursuant to the Supreme Court's decision in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, (1982), the standard in determining whether a child is receiving a FAPE, or the “basic floor of opportunity,” is whether the child has “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Rowley, 458 U.S. at 201. The IDEA, according to Rowley, imposes “no additional requirement that the services so provided be sufficient to maximize each child's potential commensurate with the opportunity provided other children.” Id. at 198.

The IEP must be evaluated prospectively as of the time of its drafting and therefore hold that retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered. Further, parents who end up placing their children in public school cannot later use evidence that their child did not make progress under the IEP in order to show that it was deficient from the outset. Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the IEP creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)

In June, 2016, I ruled that the school district’s 6:1+2 program at BOCES was inappropriate for the student, and the District did not appeal that portion of the decision in the subsequent proceeding before State Review Officer Carol Hauge. In so ruling, I stated:

To this hearing officer, it is fundamental that a school must keep a student on the premises and continuously teach that student during the entirety of the school day. When a school cannot even maintain the Student on the premises, it is pretty clear that there is something wrong with the placement. That is what happened here. See Findings, @ 14.

In my view, the June IEP, 2016 offers largely the same program that I previously ruled to have denied the Student a FAPE. No significant new interventions or methodologies were adopted by the District. Moreover, there is nothing to suggest that the different locations of services would have any impact on the student, either. {}

A sensory diet was also mentioned in the IEP, and the record is certainly full of references to the fact that the student may in fact benefit from sensory integration. However, no sensory diet was specifically referenced in the IEP, and no timeline was established to determine when this sensory diet would have to be completed. A “new” BIP was also mentioned in this IEP, but there is nothing in the record to establish what would be provided in this “new” BIP, and no timelines was established for when the BIP was to be completed.

The District’s main argument is that the student did so well during tutoring (and in related services) between February and June that he was ready to go back to the same program that he had failed at previously. The record does not bear this out. First, the students’ progress in the tutoring was minimal. {}.

Moreover, and crucially, any progress that was made was progress with individual instruction. It is reasonable to calculate that much of the progress in behavior was due to the fact that he had a teacher dealing with him individually – and with an aide in the room as well. Otherwise, this was the same student as he was four months ago. Certainly, there is nothing in the record from an expert in that the student’s behaviors would suddenly be manageable in the same kind of program that he could not handle previously. In my view, something significant and new had to be included into the Student’s earlier program to make it appropriate.

It is noted that the record does not establish that the student made academic progress with the tutor, who was not called a witness. The progress report on goals indicates only the same boilerplate, generic reference over and over with respect to academics – “progressing inconsistency – the student is making inconsistent progress and may not achieve goal.” This is consistent with the tutor’s testimony in the prior hearing, where she was asked about the student’s academic progress in reading. She indicated that they “worked” on a few books -- but that they had not gotten to reading them. There was no clear testimony about any progress in math, writing, or any actual schoolwork. The focus was on his behavior and “trying to get to the point where we can actually sit down and do this stuff.” (Id. @ 897)

The parent brings many further allegations in this regard, but I need not address them. The District denied the Student a FAPE through its IEPs in June, 2016.

REMEDY

Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:

The statute directs the court to “grant such relief as [it]

determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985).

The parents again seek a placement for the 2016-2017 school year at a school called {}. Where Districts have failed to offer students a FAPE, courts have ordered that schools be paid for education. A hearing officer or a court may simply order a student to attend a particular private placement in the future if it is appropriate to insure that a Student receives a FAPE. Branham ex rel Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a Disability, Appeal No. 08-103 n.9.

State Review Officer affirmed these principles in the preceding case between the parties. Affirming my decision not to award the student prospective placement at the SRO held that Petitioner had not presented enough proof to place the student at the school. The SRO also indicated that “while it is possible that {} may have been able to provide the student with an appropriate program, the general description” of the program in the record would not suffice. However, the SRO did state that “if the parents remain displeased” with the CSE’s recommendation for the student’s program for the 2016-2017 school year, they may bring another proceeding, i.e., the instant proceeding.

The District asserts that there is no evidence that {} could be an appropriate placement, but this time, the parent presented two witnesses from the school. {} testified that the school provides special education to students who are on {}. The school also provides speech therapy, occupational therapy, and physical therapy, and there are opportunities for access to general education students in this program. Ms. indicated that the {} classroom at the school was the best fit for the Student. As of the date of testimony, there were eight students in this class, with two paraprofessionals and one special education teacher.

The BCBA assigned to the proposed classroom, {} explained that she addresses skill acquisition and behavior problems in the classroom. If a student shows maladaptive behavior, she will provide a behavioral plan for that student and work with the teacher to remove that maladaptive behavior. Students with particular behavior problems are assigned to her caseload and she will see them every week. The work that is conducted in the classroom is on a “ ” basis and then is group-based. Reinforcers for the are chosen after the parent is consulted. If a student has particularly severe behavior problems, data is taken every day for the Student.

I was impressed with the testimony from the school, in particular the thoughtful, scholarly testimony from {}. Given the {} that this student has been experiencing, regular contact with a highly-trained professional who specializes in dealing with -related behavioral issues is sensible. This is a student who has {} and a fresh approach is necessary in order to formulate a program that is reasonably calculated to meet those needs. {} employs such an approach, in particular as implemented by a staff that is trained and supervised by professionals including {}. It is noted that the parents submitted an evaluation from a named {} who pointed out that the student has never had and would benefit from it. (P-77) While {} was not called as a witness by the parents, I note that hearsay is admissible in these proceedings.

The District argued that the school witnesses either did not know the student or did not know the student well, but this is not required in a case like this. All that is required is that a parent present credible testimony or evidence indicating that the school is “proper” under the Act. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12–13, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). As stated by the Circuit, ultimately, the issue turns on whether a placement—public or private—is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). This means that the placement must provide students with “meaningful access” to education. Walczak v. Florida Union Free School Dist., 142 F.3d 119, 133 (2d Cir. 1998)

It is notable that SRO collected cases in her decision on the previous case. Those cases, in my view, support Petitioner. In two of the cases that she cited, she specifically pointed to the fact that the school witnesses did not discuss the qualifications of the providers and the focus of the therapy. L.Q. v. Ne. Sch. Dist., 932 F.Supp.2d 467, 490 (S.D.N.Y. 2013); R.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, @ *5 (S.D.N.Y. Mar. 30, 2011). The school witnesses here certainly established their credentials, the educational philosophy of the school, and the focus of the therapy employed there. It is reasonable to postulate that this school – which is approved in the State of New Jersey -- will provide the Student with meaningful access to education.

The District also protests that the school indicated that it offered only a “trial acceptance” of the student, but the testimony of the two school witnesses indicated that this approach was merely an extra precaution just in case the student presented with unexpected difficulties. The witnesses did not equivocate in their view that the school was appropriate for the student. While the school is not extremely close to the Student’s house, the bus trip is still of an acceptable length. Under the circumstances, I agree with the parents that the student should be placed at {} immediately, at the expense of the District. Appropriate transportation shall be provided to insure the student’s safety on the bus, including a harness and a bus aide.

RELIEF

1. The District is deemed to have denied the Student a FAPE through its June, 2016 IEP;

2. The Student is hereby ordered to be immediately placed at {};

3. Transportation to and from the school shall be provided by the District;

4. The Student shall be provided with a bus aide and a harness in connection to such transportation.

Dated: Brooklyn, N.Y.

December 20, 2016

Michael Lazan

MICHAEL LAZAN IHO

APPEALS NOTICE

There is a right to appeal this decision to the New York State Review Officer in accordance with 8 N.Y.C.R.R. Sect. 200.5(k) of the Regulations of the Commissioner of Education.

EXHIBITS

School District

1 6/2/16 DUE PROCESS COMPLAINT,

12 PAGES

2 6/15/16 DUE PROCESS COMPLAINT,

13 PAGES

3 7/8/16 DUE PROCESS COMPLAINT,

10 PAGES

4 ANSWER TO DUE PROCESS COMPLAINT,

39 PAGES

5 12/15/14 IEP, 11 PAGES

6 5/15/15 IEP, TEN PAGES

7 7/16/15, TEN PAGES

8 10/3/15 IEP, TEN PAGES

9 11/13/15 IEP, 11 PAGES

10 12/11/15 IEP, 11 PAGES

11 2/4/16 IEP, 12 PAGES

12 6/13/16 and 6/23/16 IEPs

13 3/7/14 CONFIDENTIAL

ASSESSMENT, 4 PGS

14 3/11/14 EVALUATION, 7 PGS

15 3/4/14 BRIGANCE Assessment,

2 PAGES

16 12/2/14 FBA/BIP, 18 pages

17 5/19/15 EVALUATION, 4 PAGES

18 6/23/15 EVAL,

7 PAGES

19 10/30/15 BIP, 14 PAGES

20 7/10/15 NOTE FROM DR.

, REC'D ON 3/30/16, 1 PG

21 RELATED SERVICE SESSION NOTES,

8 PAGES

22 THERAPY SENSORY PROFILE, 7 PAGES.

23 6/17/16 SENSORY PROFILE -

CAREGIVER QUESTIONNAIRE, 8 PGS

24 6/10/16 PROGRESS REPORT ON

IEP GOALS, 7 PAGES

25 EVALUATION, 7 PAGES.

26 6/7/16 OT PROGRESS REPORT

27 6/8/16 RELATED SERVICE ANNUAL

REVIEW, 1 PG

28 8/11/16 AMENDED DUE PROCESS

COMPLAINT, 22 PAGES

29 ANSWER TO AMENDED DUE PROCESS

COMPLAINT, 4 PAGES

30 SUBPOENA DUCES TECUM AND RESPONSE,

26 PAGES

31 6/14/16 TRANSCRIPT,

73 pages

32 AUDIOTAPE OF THE JUNE 23RD

MEETING

33 SEPTEMBER 15TH, 2016 LETTER,

TWO PAGES

34 SUBPOENAS AND CORRESPONDING

DOCUMENTATION

Parents:

27 LETTER FROM DATED

JUNE 21ST, 2016

28 BEHAVIOR INTERVENTION PLAN FROM

FOUR PAGES

39 NEW BEGINNINGS PRINTOUT, TWO PAGES

50 PRESCRIPTIONS FROM DR. ,

51 PRESCRIPTIONS FROM DR. ,

THREE PAGES

56 DRAFT IEP FOR THE MEETING OF

6/13/16, 11 PAGES

58 LETTER DATED 7/6/16 FROM

GILDEA, ONE PAGE

59 LETTER FROM DATED

JULY 8TH, 2016

65 ONE-PAGE E-MAIL FROM

DATED 7/6/16

67 E-MAIL DATED 7/11/16 FROM PARENT

TO MR. , ONE PAGE

68 E-MAILS DATED 7/19/16,

TWO PAGES

74 LETTER FROM DATED

8/2/16, ONE PAGE

75 CD OF 6/13/16 MEETING -- 910

76 LETTER FROM TO

DATED 8/4/16

77 REPORT FROM DR.

78 SERIES OF FORMS WRITTEN BY

DR. , SIX PAGES

83 E-MAIL FROM TO

DATED 9/3/16

87 PRINTOUT

99 10/7/16 LETTER OF DR. ,

ONE PAGE