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x In the Matter of the Impartial Hearing on Behalf of X
Petitioner,
And
School District,
Respondent. x
FINDINGS OF FACT AND DECISION
Impartial Hearing Officer
James McKeever, Esq.
Dated: December 13, 2016
Decision
This matter concerns a 13 year-old boy who is not classified as student with a disability (Hereinafter “Student” or “X”), (Exhibit D-1).
On June 3, 2015, the parent filed a Due Process Complaint (“DPC”) alleging that the School District (“District”) failed to offer X (“Student”) a free and appropriate public education (“FAPE”) for the 2015-2016 and 2016-2017 school year because the District failed to identify the Student as a student with a disability, inter alia. The parent also asserted that the District violated the Student’s rights under Section 504 of the Rehabilitation Act when it modify the Student’s 504 plan on May 6, 2016 and reduced the Student’s level of support (Exhibit 54).
The within decision will only address the Parent’s claims under the IDEA. The Parent’s claims under Section 504 will be addressed in a separate decision.
On June 6, 2015, the undersigned was appointed to heard and decide this matter.
On June 9, 2016, the District moved to dismiss the Parent’s DPC alleging that the issue was not “ripe” because the District had not held an eligibility meeting with respect to the Parent’s referral to the CSE (IHO Exhibit 1)
On June 15, 2016, the Parent filed an Amended DPC complaint alleging that the District failed to identify the Student as a student with a disability under its Child Find obligations during the 2015-2016 school because the District was aware that the Student’s grades had markedly declined and therefore should have referred the Student to the CSE and developed an IEP (Exhibit 60).
On June 20, 2015, the District withdraw its motion to dismiss and served an Amended Response denying the allegations in the Parent’s Amended DPC (Exhibit 63).
The initial resolution period expired on July 3, 2016.
A prehearing conference was held on July 15, 2016. During the prehearing conference the parties agreed to a briefing schedule to address the Parent’s request for a pendency Order under Section 504.
The second resolution period was waived on consent and expired on July 15, 2016.
On July 16, 2016, the parent filed an application for a pendency Order under Section 504 and requested that the services listed on the Student’s pre-May 6, 2016, 504 plan remain in place until a final Decision and Order was issued in this matter. The parent relied on the Matter of Zirkel and asserted that the 504 framework is analogous to the IDEA (Exhibit I, page 19 ).
On July 18, 2016, the District’ filed its opposition to the Parent’s request for an Order of Pendency under 504 asserting that its 504 policy does not provide for pendency (IHO Exhibit 1.).
On July 22, 2016, the Parent filed its Reply papers on the issue of pendency (Exhibit I, page 22).
A second pre-hearing conference was held on August 1, 2016.
On August 1, 2015, the Parent filed a second Due Process Complaint alleging that the District denied the Student a FAPE when it again failed to find him eligible for special education services at its CSE meeting on July 19, 2016. The Parent also claimed that the District again violated the Student’s rights under 504 when its 504 team met on June 10, 2016 and failed to consider the Parent’s input and denied the parent’s request for additional supports (Exhibit I).
Included in the DPC was an application for an Order with respect to the Student’s pendency placement.
On August 8, 2016, the District and parent agreed to consolidate the second DPC on the record (Tr. 78).
On August 9, 2016, the undersigned denied the Parent’s request for a pendency Order under Section 504 because the District’s 504 policy does not contain a provision for pendency rights.
The hearing was held on August 8, 9, 10, 20, 30 and 31, 2016 and September 20, 21, and 22, 2016. The hearing dates were selected based on the availability of the Parent and District witnesses as well as the parties’.
At the request of the parties, post-hearing briefs were initially scheduled to be submitted on October 31, 2016 (Tr. 196). Thereafter, the District requested a two-week extension due the volume of transcripts to be reviewed and due to a trial schedule on an unrelated matter. The District’s request was granted.
Post-hearing briefs were received via email November 14, 2016. The hard copies of the briefs were received on November 23, 2016. The District’s compendium of authorities was received on November 29, 2016.
Thereafter, it was discovered that one of the Parent’s on audio exhibits was not functioning and a second audio exhibit was missing. Additionally, a dispute arose between the parties with respect to exhibits that were attached to the Parent’s brief. After a series of correspondence and telephone conferences, the parties agreed to admit the disputed exhibits.
By letter, dated December 5, 2016, the undersigned received the Parent’s audio exhibits.
Throughout the hearing process, the parties made multiple requests to extend the compliance date due to witness availability, availability of the parties, preparation for due process, preparation of post- hearing briefs and the submission of additional exhibits. The Orders of extension were served on all parties as per the Commissioner’s Regulations and are part of the hearing record.
The Record Close date was December 6, 2016.
The current compliance date is December 20, 2016. Pleadings:
The impartial hearing was held pursuant to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973.
With respect to the IDEA claims, the Parent asserts: (1) that due to her son’s “functional and academic” decline during the 2015-2016 school year, the District had a responsibility to refer the Student to the CSE under the Child Find provisions of the IDEA and should have found the Student eligible for special education services and developed an IEP; and (2) that the independent evaluations (which were what?) that Parent obtained in 2014, which were provided to the District, were sufficient to establish eligibility along with the Student’s academic records. The Parent also alleges that the District’s failure to find the Student eligible for special education services at its CSE meeting held on July 19 2016 denied the Student a FAPE because the District ignored the Student’s declining grades in seventh grade and because the Student had been struggling with functional performance as a result of diagnosis with and associated conditions. The parent also alleges that the District denied the Student a FAPE because the CSE failed to consider the Student’s alleged behavioral difficulties and failed to conduct a
Regarding the 504 claims, the Parent claims that she was denied the opportunity to “meaningfully participate” in the 504 meeting held on May 6, 2016 and June 10, 2016.
The particulars of the Parent’s 504 complaint with respect to the meeting held on May 6, 2016, are as follows:
1-That during the District’s 504 meeting, which was conducted as a comprehensive review of the Student’s 504 plan, the Parent’s and the Parent’s experts were not permitted to participate in the portion of the meeting in which the District discussed amending and removing accommodations from the Student’s 504 plan.
2-Due to the Student’s marked decline in academic and functional performance in seventh grade, the Student requires greater support for his disabilities and that the plan that emerged from the meeting was grossly insufficient to meet the Student’s educational needs. Specifically, the Parent contends that where previously the Student’s grades varied from during the 2015-2016 school year there were many grades of The Parent’s also asserted that the Student’s at school has increased, and behavior-related punishments have become more frequent, such as lunch detention, instructions to go to the office for a phone call to parents about misbehavior, and removal from the classroom.
3-The District representatives did not consider the Parent or her expert’s proposals. The District’s focus was on what they considered “age appropriate,” rather than what was appropriate for the Student.
4-The District’s adversarial stance is detrimental for to the Student’s emotional well-being and to his academic and functional performance in school.
5-That the District ignored the Parent’s request to add the diagnosis of to the list of the Student’s diagnoses.
6-That during the meeting, HHHH, who chaired the meeting, used a projector to display the brainstorming process but denied the Parent’s request keep all the text in place instead of erasing the old text when she added new text. The Parent claims that she asked Ms. HHHH to to leave the existing text in place and type the new text below the existing text, so the old text would be available once the Parent and her experts were permitted to participate in the meeting. The Parent also claimed that when Ms. HHHH tried to restore some old text and couldn’t, “She became flustered” and accidentally displayed another student's confidential information on the screen. The Parent claims that each time this happened, Ms. HHHH “would scream, jump out of her chair as though she had just been burned by hot coals,” and that in her confusion, Ms. HHHH would exit out of the program and the participants would have to wait while Ms. HHHH restarted the projector.
7-That the Parent was not permitted to use the projector during the meeting.
8-That the District refused to adjourn the meeting at 11:30 a.m., when the meeting was scheduled to end, at the Parent’s request and that the District’s lawyer told the Parent that if she left the meeting, the parent would waive her right to participate in the meeting.
9-That the District refused to adjourned the meeting when they knew that the Parent’s had to leave the meeting because of another commitment and that the Parent was in pain because she was recovering from a spinal fracture.
10-That several of the District representatives left the meeting for an hour here and there, due to other commitments, and when they came back, they were not aware of what had been said in their absence, which added to the confusion and contentiousness of the meeting.
11-That the District’s refusal to schedule a continuation meeting deprived the Parent’s of the assistance of SSSS CCCC, the expert from the 12- That the length of the meeting affected the Parent’s “auditory processing’ ability and that her back pain increased.
13- That the District provided water, but no food during the meeting.
14-That when two people speak over each other, the Parent was not able to capture the meaning of either of the speakers because of the Parent’s hearing impairment, which the Parent claims she explained several times during the meeting. The Parent also alleged that even when a representative was willing to repeat him or herself, “it was still nerve racking for [her].
15-That it was difficult for the Parent’s and her experts to “get a turn speaking.
16- That the Student, who attended a portion of the meeting, observed “how little weight the district representatives gave to the opinions and recommendation of the student, his parents, his therapist and his advocate,” which was “detrimental to the child’s belief in himself and trust in school.”
17- That the District’s lawyer told the Parent that the “specific wording would be worked out later” and denied the Parent’s request to describe what the District was “aiming for.”
18-That the District’s lawyer told the parent that the District could write the plan as they see fit, with no input from the parents or their guests.
19-That the Parent’s proposals for additional accommodations were not given serious consideration.
20-That there was no discussion regarding the date the new plan would go into effect.
21-That the Parent did not receive the new 504 plan until May 24, 2016, which exacerbated the Student’s anxiety and affected his and because it wasn’t clear which accommodations were being removed.
The particulars of the Parent’s 504 complaint with respect to the meeting held on June 10, 2016, are as follows:
1-That the District representatives at the meeting refused to discuss the Student’s contributions to the meeting.
2-That the Deputy Superintendent, MMMM, stated that he had heard all of that before.
3-That the 504 Committee decisions made its decisions unilaterally.
4-That the Committee refused to discuss a classroom observation report made by a which was relevant to services.
5-That the Committee heard a report about an evaluation conducted by the district’s employee, GGGG GGGG. However, the Parent’s questions concerning the report were not addressed before or during the meeting.
6-That the District refused the Parent’s request to have MMMM JJJJ step out of the room while Student made his contribution so that he could speak freely about the lack of services received during seventh grade.
7-That the attorney for the District, who attended the meeting, decided who could talk and when and aggressively objected to the parent’s questions for the
8-That the attorney for the District whispered advice and guidance to the and the committee’s chairperson.
Based on the above allegations, the Parent requested the following relief:
1-That the District provide disability training for all staff working with student and that staff working with student shall read the plan and synopsis before classes start and send “sign-off sheets” to the parents.
2-That the District inform all building staff about
3-That the District conduct a and using the Workbook.
4-That the District identify a safe space (not a public office area) where student can take a break and self-calm when his behavior is disturbing others, or when he feels the need;
5-That the District provide close supervision of the Student during fire drills and assemblies.
6-That the District provide fidget items, and adjust seating location and furniture to allow for the amount of movement the Student needs.
7-That that the District provide a laminated pass.
8-That the District address the Student’s
and provide assistance with organization in all classes.
9-That the District provide one-on-one aide to check the Student out at dismissal.
10-That the District train the Student to use a checklist to take needed materials home and that the District notify the parents weekly of missing work.
11-The the District accept work turned in late and help the Student to learn to keep track of pull-outs and get assignments he has missed, as well as arrange for make-up work as needed.
12-That the District provide notes and additional set of books and music to keep at home.
13-That the District provide assistance for the Student to get to “in-school” music lessons on time.
14-That the District adjust assignments involving fine motor control and provide extra space and larger font for written responses in worksheets and homework assignments, especially math.
15-That the District provide large type format for state math tests and that the District provide pencil and paper format as an alternative to web-form drills and quizzes in math due to
16-That the District provide
and access to word processor and that the District provide assistance with filling in bubble sheets on assessments.
17-That the District filter the Student’s internetconnected device, to prevent visits to websites that will be disturbing or distracting to the Student.
18-That the District permit the parents to preview violent, depressing or suspenseful books, images or films that will be used in class, and to decide if such material is appropriate for the Student.
19-That the District make adjustments to assignments when needed to avoid triggering
20-That the District call the parents and include them if student needs to be interviewed for behavioral concerns or
21-The the District direct the related service providers to collaborate with the Parents to develop goals and submit three progress reports per year.
22-That the District send monthly cafeteria menus and nutritional content to the parents and provide an alternate lunch option when there is no low-carb option on the menu.
23-That the District not allow the Student to have any cafeteria food without the Parent’s permission.
24-That the District provide a one-on-one aide during lunch to go through the lunch line with Student, if needed, because some of the cafeteria workers have harassed the Student in connection with his special diet.
25-That the District allow the Student to nap (no more than 60 minutes per day) when he has had a bad night
26-That the District notify the parents when the Student makes a non-routine visit to the health office.
27-That the District provide the parent with a list of all the District representatives invited to any 504 meeting for the Student and provide all reports or proposed changes to the accommodation Plan at least three days before the meeting.
The District asserts that the Student is not eligible for special education services under the IDEA because the Student’s diagnoses do not affect his ability to function in school.
The District also asserts that the Student’ current 504 Plan is appropriate and that the Parent was not denied a opportunity to participate in the development to the Student’s 504 Plan. Findings of Fact:
The Student is a who is in grade at the District’s DDDD Middle School.
The Student has been diagnosed with
(Exhibit 12, Tr. 543-544). 2011-2012 School Year (Third Grade) :
In grade, the Parent referred the Student to the District’s Section 504 Committee to request schoolbased accommodations to address the aforementioned diagnoses. At the time the Student was attending the District’s Elementary School.
Thereafter, the District’s 504 Committee classified the Student as a student with a disability pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and developed a Section 504 Plan to address the Student’s attention and organization deficits.[1] 2012-2013 School Year Grade):
The Student’s year-end report card indicated that the Student achieved scores that either met or exceeded grade level expectations in all subjects (“3’s and 4’s), except for writing where the Student was either “Beginning to meet/sometimes meets…or met grade level expectations (“2’s and 3’s) (Exhibit4).
During this school year, the Parent reported that the Student was bullied at school and that she believed that the Student’s behaviors interfered with his ability to learn . The Parent also asked the District to conduct a and to develop a The District refused because the District did not believe that the Student’s behaviors were significant enough to warrant an (Tr. 267).
At the end of grade, the Parent enrolled the Student in the District’s HHHH Elementary School because she objected to the staff who were working with the Student at the r. 190).
On or about June 12, 2013, the District’s 504 Committee prepared an updated 504 Plan, which included the following accommodations: (1) headphones with white noise; (2) access to a quiet work area; (3) snacks permitted as needed; (4) doodle pad provided;
(5) frequent movement breaks throughout the day; (6) avoid withholding physical activity as consequence for misbehavior; (7) encourage gross motor activity during indoor recess; (8) allow fidget items while working; (9) adapt student work-space to help screen out distracting stimuli; (10) allow standing or movement while working; (11) use of routine checklists that the Student should help develop; (12) use of stability ball while working; and (13) if Student has a worksheet with small spaces for writing, he should be allowed extra paper for recording responses.
The 504 Plan also included access to a word processor, testing accommodations and an consultation (Exhibit 3).
Sometime during this school year, the Student simulated a machine gun with his hand during a fire drill and pointed at other students. The District conducted a “Threat Assessment.” However, Parent believed that the Student’s conduct was a result of the Student’s disability and she believed that the Threat Assessment caused harm to the Student (Exhibit A 2023, Tr. 1863). 2013-2014 School Year (Fifth Grade):
At the beginning of this school year, the Parent advised the District that the Student was diagnosed
(Exhibit 10, Tr. 1861).
In October of 2013, the Parent transferred the Student to the District’s OOOOJ. OOOO Elementary School (“OOOOOOOO”) (Tr. 190). Upon entering
OOOOOOOO, the Parent referred the Student to the District’s Committee on Special Education (“CSE”) (Tr. 191).
Thereafter, the District conducted an initial evaluation, which included a battery of cognitive, academic and behavioral assessments. Specifically, the District administered the and District Exhibit 6). The District also conduced classroom observations on November 11, 2013, December 17, 2013 and January 6, 2014 (Exhibit 4).
According to the “superior range” with subtests scores in either “average range,” “superior range,” or the “high average range” (Exhibit 4).
indicated that the Student’s academic ability ranged from high average in math to superior reading, with additional scores falling in the “above average range” (Exhibit 7).
The results of the teacher scale of the indicated that the Student was “average” in all and which suggested that the Student was physically restless and overactive (Exhibit 6). However, the Student’s teachers described the Student’s academic and social functioning in the classroom as appropriate and at grade level (Exhibit 6).
On January 28, 2014, the District’s CSE held a meeting to consider the Student’s eligibility for special education services. Based on the results of the aforementioned assessments and the Student’s performance in school, the CSE declined to classify the Student under the IDEA. Specifically, the District’s CSE did not find that the Student’s diagnoses interfered with his ability to access his education
(Exhibits 8, 9, Tr. 191-92). The Parent disagreed (Tr. 192).
The meeting minutes indicate that the Student was provided with scheduled breaks twice a day or as requested by the Student. However, it was noted that the Student only utilized the option twice in the month of January and that “his body was under control during instruction.” It was also reported that the Student preferred to stay engaged in his academics (Exhibit 8, page 3). It was also noted that although the Student was provided with a yoga ball to use as a chair when he worked at his desk, the Student preferred working in other parts of the classroom and joined a group a peers at a table and used a chair (Exhibit 9). Nevertheless, the meeting minutes also indicated that the Student needed occasional reminders not to have side conversations with his peers during group work (Exhibit 9).
In the spring of 2014, the District’s 504 Committee added direct to the Student’s 504 plan and, at the request of the Parent, conducted a training for District staff (Tr. 181).
Thereafter, the Parent transferred the Student to the HHHH Elementary School, which was the Student’s third school in two years (Tr. 190).
In March 2014 Dr. BBBB BBBB, Psy.D, conducted an independent psychological evaluation which was funded by the District (“IEE”) (Exhibit 12, Tr. 543-544).
Dr. BBBB noted that the Student was
Dr. BBBB
also noted that a could not be ruled at the time of her evaluation (Exhibit 12, pages 1, 27, 543). [2]
Dr. BBBB administered the the
The Student’s results on the in the average range. The results on the were in the Additionally, the results on the (Exhibit 11, 192).
Dr. BBBB also administered the
According to these scales, the Student’s teacher rated the Student as “Average” in all domains, except for where she rated the Student as
In contrast, the Parent rated the Student as in most domains (Exhibit 11). The Student’s self-report on the Average” or and Dr. BBBB noted that there were that may interfere with his daily activities.” However, Dr. BBBB also noted that the Student’s results on his showed a tendency for positivity, which indicated that the Student does not have a
(Exhibit 12).
At the conclusion of her report, Dr. BBBB recommended that in the school setting, the education team should discuss the Student’s issues and his Dr. BBBB also opined that the Student may be eligible for special education services. However, Dr. BBBB noted that her test scores were only one component relevant to this determination and that the multidisciplinary team should look into it further. She also recommended that the Student and his “family would benefit from
…
(Exhibit 12).
On May 27, 2014, CCCC who is the Parent’s expert, conducted a classroom observation of the Student in the Student’s ELA class. (Exhibit13, A 24-
25). Ms. CCCC noted that it was useful that the Student had a “bouncy” seat and laptop to work with and that he was seated at the end of a circle which enabled the Student to get up and take breaks. However, Ms. CCCC noted that the Student was “extremely fidgety” and that he needed “constant movement.” She also reported that she observed:
which she said “appeared to be disruptive to [the Student’s] ability to concentrate.” However, her report did not indicate what the were or what is was that she observed that led her to conclude that the Student’s ability to concentrate was compromised. Nevertheless, at the end of her report, Ms. CCCC concluded that the Student would need additional supports in middle school due to his (Exhibit 13).
In June 2014, the parent obtained an independent which was conducted by Dr. GGGG LLLL on June 13, 2014 and June 30, 2014 (Exhibits 13, and C-2-8, C9-18, Tr. 1563).[3]
Dr. LLLL administered the to screen for the potential impact of on language comprehension and the D-KEFS test to measure the Student’s executive functioning skills. Dr. LLLL also administered the to assess the Student’s functional executive skills (Tr. 1580, 1761).
According to Dr. LLLL, the Student scored in the “superior range” on the and in the “average” to “high average range” on the (Exhibit 13).
On the which was completed by the Parent, it was reported that the Student had problems with inhibitions, emotional control, initiation, working memory, planning/organizing, and monitoring (Exhibit 13). The Parent also reported that the Student overreacts to small problems, interrupts others and “does not think before doing,” among others (Tr. 1767).
Dr. LLLL noted that data for this assessment, was not available from the Student’s teachers.
During her interview with the Student, Dr. LLLL reported that the Student’s told her that sometimes his are annoying, but sometimes they don’t bother him. He also reported that he regrets calling out in class and that he sometimes says things he wish he hadn’t said (Exhibit 13). However, with his the Student said he felt in class (Exhibit 13).
With regard to the school reports, Dr. LLLL noted that the Student took the “school transfers” in stride. However, at the hearing, she conceded that school transfers, in general, can be difficult (Tr. 1581). However, the Student’s math teacher reported that due to his excessive absences and early pick-ups, the Student missed the majority of his math instruction, which made it impossible for the Student to learn the classroom expectations and routines and to acclimate appropriately to the classroom environment (Exhibit 12).
With respect her conclusions, Dr. LLLL noted that with respect to attention and executive functioning, the Student was within normal limits on the objective measures. Nevertheless, the Parent reported
Exhibit 12).
In conclusion, Dr. LLLL opined that the Student’s
to
Student’s ability to “access learning in the classroom.” As such, Dr. LLLL recommended that the and develop an IEP to address his and provide specialized academic instruction for writing tasks (Exhibit 12).
On June 18, 2014, MMMM, the Student’s
advised the District that after speaking
with the Parent, he believed that the Student would benefit from an IEP (Exhibit 14).
At the end of the 2013-2014 school year, the Student’s report card indicated that the Student had either met or exceeded grade level expectations in all subjects (“3’s and 4’s”), with exception of writing, where he was only “beginning to meet or sometimes met grade level expectations” (“2”) (Exhibit 15).
On July 7, 2014, the District conducted an School Based Evaluation and recommended that the Student continue to receive for thirty 30 minutes (Exhibit 16). The report also noted that the evaluation was discussed with the Parent (Exhibit 16).
On July 8, 2014, the District’s CSE held a second meeting to consider the results of the Parent’s private evaluations. The CSE again determined that the Student was not eligible for special education services (Exhibit E 206, Q 228). The CSE also denied the Parent’s request for an because the District did not believe that the Student’s were significant or that they interfered with his learning (Exhibit W).
On July 17, 2014, the Parent filed a Due Process Complaint alleging that the District’s failure to classify the Student as denied the Student a Free and Appropriate Public Education (FAPE”) (Exhibit 17)
On August 14, 2014, the Parent obtained a writing evaluation from Dr. Jean ZZZZ (Exhibit 18).
As part of her evaluation, Dr. ZZZZ administered the written expression scale from the
According to Dr. ZZZZ’s report, the Student scored in the average range on all of the instruments and Dr. ZZZZ noted that the Student was performing “at or above standards in most areas in school.” Nevertheless, Dr. ZZZZ recommended that the Student be provided with additional supports based her concern that the Student might struggle in middle school due to his in
(Exhibit 18).
On August 26, 2014 the CSE held another IEP meeting to consider eligibility. However, CSE again found the Student was ineligible for special education services under the IDEA because the Student’s diagnoses were not interfering with his ability to obtain an educational benefit from his instruction (Exhibit 19, Tr. 257-258).
At or about this time this time the Parent and District agreed to enhance the Student’s 504 plan, which resolved the Parent’s request for an IEP (Exhibit I 15-16, Exhibit 20). 2014-2015 School Year
During this school year, the Student attended grade at the District’s DDDD Middle School (“DDDD”).
The District designated the Principal as the “point person” to communicate with the Parent, whom the Parent considered to be the Student’s “case manager.” To that end, the Principal scheduled weekly meetings with the Parent. However, the Parent complained that the Principal was “disorganized” and an “ineffective building leader” (Parent’s Brief, page 9). The Parent also referred to the Principal as a “do nothing, know nothing, principal” (Parent’s Brief, page 10).[4]
Thereafter, Parent filed a complaint with the Office of Civil Rights regarding the implementation of the Student’s 504 plan.
On or about November 2014, the Parent and the District finalized the Resolution Agreement that resolved the Parent’s Due Process Complaint, dated July 24, 2014. Pursuant to the agreement, the District agreed to add the following services to the Student’s 504 Plan: ( (2)
physical education on a daily basis; and (3) a general education homework support lab (Exhibit 20).
Thus, in addition to the above, the Student’s 504 Plan contained the following:
(1) Use of head phones to minimize distraction; Daily PE; (2) Seating away from high traffic areas; (3) Flexible seating options; (4) Alterative seating/space in room when focusing is difficult; (5) Additional time to complete assignments; (6) When possible, extra lead time for assignments; (7) Offer a scribe when Student appears to be struggling to produce; (8) Reduce redundant practice items; (9) Adjust length of writing assignments to reduce anxiety and fatigue; (10) Parent to make notation on homework when Student has reached frustration level or has fatigued; (11) More space for written responses; (12) Math – fewer problems on the page; (13) Teacher to provide a list of books or videos to parents if they contain violent or disturbing content and Librarian can assist in finding alternative materials; (14) Provide a warning to students, prior to showing videos, that they may step out of the room if they choose not to view a section of the video that contains something violent or disturbing;
(15) will establish a communication tool between parent and grade level team to share information regarding student needs; (16) Parents will be called and included if Student needs to be interviewed for concerns or sensitive issues;
(17) Access to frequent breaks inside the classroom with fidget items or out of classroom utilizing break cards, sending on errands; (18) Sensory breaks as needed; (19) Identify a safe space; (20) Do not withhold physical activity as consequence for misbehavior; (21) Additional set of books, including music, to be kept at home; (22) Use of routine checklists that Student should help develop to take needed materials home;
(23) Allow use of noodle pad/ note pad; (24) Snacks as permitted; (25) Report cards mailed home; (26) Provide assistance for student to get to music lessons on time;
(27) A reasonable effort will be made to inform all building staff about (once yearly) (Exhibit E-21).
The 504 Plan also provided for the following testing accommodations:
(1) Use of word processor; (2) Extended time;
(3) Use of break periods; (4) Tests administered in separate location/room; (5) Tests administered in a location with minimal distractions; (6) Use of large time format for math tests; and (7) use of a scribe. At the hearing, the District’s 504 Chairperson (
XX) explained that the District sought to modify the Student’s 504 Plan during this school year because the District thought the current plan was inappropriate for middle school and because the plan contained a number of accommodations that the District believed were no longer necessary (Tr. 1275-76). However, according to the District, the Parent “derailed” the 504 meeting agendas in September and November 2014 by relentlessly interrupting and speaking over the District participants (Tr. 1276). As such, the plan referenced above, remained in effect for most of the 2014-2015 school year.
On April 25, 2015, the Parent advised the District that Student had been diagnosed with and that he required additional support to avoid taking snacks from other students (Exhibit B-7). Specifically, the Parent requested that the District provide the Student with a 1:1 aide in the cafeteria (Tr. 83).
In May 2015, the Student’s prepared a report regarding the Student’s functioning (Exhibit 24). The noted that in grade the Student had received and that in June of 2014, the Student achieved his motor goals and that he no longer required (Exhibit 24, page 1). However, the provider noted that were added to the Student’s 504 Plan and actually increased to twice a week for 30 minutes during the summer of 2014 after the Parent reported that the Student might experience anxiety or stress when he entered middle school (Exhibit 24).
In response to the Parent’s request for a one-to one paraprofessional, the District held another 504 meeting on June 8, 2015.
During this meeting, the District physician determined that the Parent’s claim that the Student was diagnosed with was unfounded (Tr. 87-88). As such, the 504 Committee declined to the Parent’s request for additional accommodations (District Exhibit 26).
At the end of the 2014-2015 school year, the Student’s report card indicated that the Student was on the “High Honor Roll” (Exhibit 29). Additionally, the Student’s teachers reported that the Student was an enthusiastic learner and that he did not have any behavioral issues in the classroom (Exhibit 30). However, it was noted that the Student sometimes needed to redirected from social interactions (Exhibit 30).
Additionally, the Student achieved a Level 4 score on the New York State English Language Arts assessment and a Level 3 score on the New York State Math assessment (Exhibits 22, 23).
At or about this time, the District attempted to schedule another 504 meeting to review the Student’s 504 Plan before the 2014-2015 school year ended. However, the 504 Committee did not convened prior to the 2015-2016 school year because the Parent cancelled the meeting due to the pendency of her second complaint with the Office for Civil Rights regarding her claim that the District was not implementing the Student’s Section 504 Plan (Exhibit 25, Tr. 196-197).
Subsequently, the Parent and the District resolved the OCR complaint by agreeing to implement a communication protocol wherein the Parent agreed to direct questions regarding the Student to the Dr. MMMM, District’s Deputy Superintendent, rather than emailing District personnel directly. 2015-2016 School Year Grade):
In grade, the Student began the school year at the District’s DDDD Middle School. However, in November of 2015, the Parent transferred the Student to the District’s BBBB Middle School because she was not satisfied with the staff at DDDD (Tr. 201).
During the Student’s brief stay at DDDD, the Student received a in English, a Social Studies, a in Honors Math, an in Science, a in French, a in Technology, a in Band, in PE (Exhibit 68).
At the hearing, the Student’s English teacher explained that the Student received a in the first marking period because he failed to turn in a notebook containing his assignments before he left for BBBB (Tr. 433). However, with the exception of the notebook, the English teacher explained that the Student’s work was actually on grade level and that the was actually an “incomplete,” (Tr. 433-434).
During this time the District sought to obtain to consent from the Parent in order to evaluate the Student in order update his 504 plan. The Parent, who was in constant communication with the District, did not provide consent (Exhibits 33 and 34, Tr. 1280). The District explained that the purpose of the evaluation was, in part, to reconcile the Parent’s reports of inappropriate behaviors at home, which the District did not see at school (Tr. 1278). The District was also concerned because the Parent was making requests that they believed were inappropriate for a year-old boy, such as her request for a one-to-one aide at lunch and her request to notify the staff of about the Student’
(Tr. 1280).
During this school year, the Student participated in several extracurricular music courses (Tr. 318). However, the Student’s enrollment in the extracurricular music classes caused him to miss two academic classed periods per week due to early dismissal for band and orchestra (Tr. 1043).
At some during this school year, the Parent removed the Student from his English class because she disapproved of the curriculum (Exhibit 40, Tr. 313, 844). The Parent also removed the Student from his French class because she claimed the Student already spoke three languages (Tr. 333). However, despite the Student’s removal from English, the Student earned a 81 and a 93 in the second and third marking periods after he received instruction from a tutor that was provided by the District (Exhibit 72, Tr. 316). He also scored an 89 on the French final exam, which the Student characterized as easy (Tr. 1052).
In addition to the above class removals, the Student was late 41 times and he was removed early by the Parent approximately 20 times for outside appointments, which resulted in him missing his Honors Math class (Tr. 317).
On May 6, 2016 the District conducted a 504 Meeting for the Student. In preparation the meeting, the District obtained several teacher surveys and a report from the Student’s school based counselor (Tr. 1161-1162, Exhibits 45 and 48). The District also attempted to conducted an However, the Parent objected to the evaluation being conducted by the Student’s current , JJJJ. Thus, at the parent’s request, the District agreed to have GGGG, who was another District conduct the evaluation, which the Parent agreed to (Tr. 1062). However, the evaluation could not be completed in time for the May 6, 2016 meeting. As such, the District agreed to schedule a separate meeting to discuss the issue of Tr. 371).
Prior to the May 6, 2016, meeting, the Parent was provided with a copy of the meeting agenda (Tr. 36667). The Parent also received copy of the teacher surveys and a copy of the (Tr. 1167). The Parent was also advised that the expected length of the meeting was 2.5 hours (Tr. 367).
The attendees at the meeting on May 6, 2016 included the District representatives, the Parents, the Student, the Student’s treating and the Student’s (Tr. 905-07).
The meeting was structured so that the District representatives presented their findings and recommendations first.[5] While the Parent and her experts were asked to remain silent until it was their turn to present (Tr. 367-368). Nevertheless, the Parent repeatedly interrupted the District’s representatives during the presentation of their findings (Tr. 366, 898).
The Parent and her experts objected to the format because they believed that they were excluded from the District’s discussion. However, the Parent and her experts were allowed to present their position and engage in the discussion (Tr. 815). The meeting lasted approximately six hours, instead of two and a half, because the Parent requested more time to present her position (Tr. 368, 713). Nevertheless, the Parent objected to the length of the meeting and to fact that the District did not provide the Parent with any food during the meeting. The Parent also objected to the way the 504 Chairperson utilized the projector and she objected to the District’s refusal to allow the Parent to control the projector (Tr. 476). Additionally, the Parent objected to the fact that the District’s lawyer, who was present during the meeting, tripped over an extension wire during the meeting, which momentarily disconnected the participants who were appearing by telephone, which the Parent claimed affected her ability to “meaningfully participate” in the meeting (Exhibit I-12).
However, based on the Parent and her expert’s request, the Committee agreed to continued as part of the Student’s 504 plan. The Committed also agreed to allow the Student to opt out of viewing certain disturbing videos, but not books, as the Parent requested (Tr. 372, 900). The Committee also added a homework support lab to the Plan to address the Parent’s concern that the Student needed additional support for organization and homework completion (Tr. 901). The District also added a provision for communication between the support lab teacher and the Student’s core teachers to address the issue of the Student not handing in his assignments, which was at the request of the Student’s private (Tr. 818, 901). Finally, at the Parent’s request, the Committee agreed to table the discussion of including a “ball chair” and “enlarged work sheets” in the Student’s plan to another day (Tr. 373).
At the conclusion of the meeting, the Committee recommended the following accommodations: (1)
(4) Physical Education daily; (5) Seated away from high traffic areas and flexible seating options that allowed movement or standing while working and alternate seating space when focusing is difficult; (6) Access to stability ball;[7] (7) Access to 6 OT would be revisited once the OT evaluation was completed and the Committed and Parent were able to meet to discuss the findings.
breaks; (8) and use of break periods; (9) Tests administered in with minimal distractions; (10) Professional development in area of disability; (11) Access to snacks;
(12) Homework support lab; and (13) Communication between homework support lab instructor and the Student’s classroom teachers (Exhibit 51).
Additionally, the “Additional time to complete assignments” was modified to reflect that the Student would be entitled to one additional day to complete homework, upon his request (Exhibit 51).
The Committee discontinued the following accommodations:
(1) Provide close supervision of the Student during fire drills and assemblies; (2) No cafeteria food without parent permission; (3) Minimize Distractions – Use of headphones with white noise; (3) Offer scribe when Student appears to be struggling; (4) Parents will be called and included if Student needs to be interviewed for behavioral concerns or sensitive issues; (5) Provide and permit use of fidget items; (6) Identify a safe space for Student to go if he needed a break or need to access his sensory items; (7) Do not withhold physical activity as consequence for misbehavior; (8) Additional Set of Books: including music kept at home; (9) Routine checklists that Student will help develop; (10) report cards should be mailed home; (11) Provide assistance for student to get to music lessons on time; (12) Access to portable word processor; (13) Scribe testing accommodation; and (14) Use of large type format testing accommodation (Exhibit 51).
Thereafter, on June 10, 2016, the District scheduled a second meeting to discuss the conducted by GGGG GGGG, which consisted of a class observation; a a and the – Second Edition (Exhibit 50; Tr. 1063)8.
The classroom observation indicated that the Student required more cues from his teachers to settle down than other students. However, the Student was able to be redirected and he was engaged in the lesson (Tr. 1063-1064).
With respect to the the Student’s results in the and registration quadrants were normal. However, the results in the “registration” quadrant were and the results in the “seeking” quadrant were (Tr. 1067). However, Ms. GGGG explained that results in one or more quadrants measured by the do not, alone, indicate a sensory deficit because the test must be paired with observation of the student. According to Ms. GGGG,
8 The Parent noted that the sensory profile was not age appropriate because it was not intended for 13-year-old student. Ms. GGGG conceded that she used the first edition, which only went up to age 12, instead of the second edition, which cover 13-year-olds. However, when she contacted the Parent and asked to re-administer the profile with the correct edition, the Parent failed to respond (Tr. 1064).
the Student “seeks” peer and “social interaction,” not sensory regulation of his body (Tr. 1068).
The results of the self-questionnaire placed the Student in the typical range.
The results of the indicated that the Student was average to above average with respect to the domains of “fine motor control, body coordination, strength, and agility” (Exhibit 50, Tr. 1070).
Based on aforementioned assessment results, Ms. GGGG concluded that the Student did not require school based (Exhibit 50).
The was sent to the Parent in advance of the June 10, 2016 meeting. The parent was also advised that JJJJ would present the report during the meeting because Ms. GGGG was unavailable (Exhibit F57, Tr. 1080).
Upon receipt of the Ms. GGGG report, the Parent sent Ms. GGGG a list of questions regarding the evaluation (Exhibit F55-57). Ms. GGGG did not review the questions because she was getting married the following day (Tr. 1081). However, the questions were forwarded to Ms. JJJJ, who was asked to address the Parent’s questions at the meeting (Tr. 1779).
The agenda for the June 10, 2016 meeting was limited to the discussion of the issue flexible seating options, and additional space to show work for math (Exhibit 58).
The Parent and the Student attended the meeting, as well as the Student’s treating and the Parent’s (Exhibit 57). After a discussion of the and the observations by made by the Student’s , the Committee recommended discontinuing direct occupational therapy services. However, the Committee included a quarterly consultation with personnel to monitor the impact of the removal of on the Student (Exhibit 62). The Committee also recommended removing the “flexible seating options” accommodation because the Committee believed that the Student did not have a sensory deficit and because the Student actually decline to use them (Tr. 1071, 1786) Nevertheless, the Committee reinstated the accommodation of providing additional space to show work in math because the Student’s classroom teacher thought it was beneficial (Exhibit 62). The Parent disagreed with the Committee’s findings and objected to the removal of and the flexile seating option accommodation.
On or about June 3, 2016, the Parent referred the Student to the District’s CSE to determine if the Student was eligible for an IEP (Exhibit 55). On the same date, the parent also filed a Due Process Complaint.
Thereafter, the District attempted to obtain consent from the Parent to conduct a new
The Parent refused because she said she wanted to avoid putting the Student through a new battery of tests (Exhibit 76). However, the Parent agreed to the District administering the and requested that the District administer the
Subsequently, the District administered:
2)
(Exhibit 80, Tr. 541).
During the interview, the Student reported that he had obtained 100 percent on his final exam in science and that he disliked being bored in school. He also reported that he was dedicated musician (Exhibit 80). Additionally, on the , the Student rated himself as average in all domains, with the exception of (Tr. 555).
On the the Student’ band teacher rated the Student as exceptional in all domains. However, the Student’s French rated the Student as in the areas of and (Exhibit 80). Nevertheless, it was reported that French was an “unstructured class,” that that there were times when the Student fully participated (Tr. 554).
The Parent rated the Student as
(Exhibit 80).
The District also reviewed the results from 2014, which were consistent with the Student’s academic achievement over the past two school years (Tr. 276). The District also prepared a summary of the Student past results and his recent performance in school (Exhibit 79). However, because school was not in session, the District could not conduct a classroom observation. Nevertheless, the District reviewed the school classroom observation conducted by the Parent’s in March 2016 (Exhibit 79, Tr. 278).
The teacher reports and the observation indicated that the Student struggled with in unstructured environments. However, it was also reported that the Student was calmer is a more structured class (Exhibit Tr. 278-79).
At the end of the 2015-2016 school year the Student received a in English, when his incomplete was average into his final score. However, the Student also received an 81 in Honors math; 91 in Social Studies; 86 in Science; 95 in Health; 69 in Art; which is subject the Student reported he did not like; 81 in Technology; 97 in Band; 99 in Orchestra; and a 90 and 91 in his two Physical Education classes, respectively (Exhibit 72). Based on these grades, the Student qualified for the Honor Roll and the National Junior Honor Society (Tr. 308). He also received commendations for his musical talents (Tr. 1042).
Thereafter, the Student was recommended for accelerated math for grade. And, at the request of the parent, the Student was enrolled in Honor’s Earth science for grade (Exhibit 56, 142, Tr. 308).
However, despite the average to above average scores referenced above, the Student scored a on the State Math Assessment during this school year, which was the lowest math grade he ever received on the State assessment.
Subsequently, the CSE met on July 19, 2016 to reviewed above referenced assessments in order to determine whether the Student was eligible for special education services (Exhibit 87).
Although the Parent believed that that the Student again met the criteria to be classified as because she believed that the Student’s behaviors interfered with his education, the CSE concluded that based on the Student’s academic success and the fact that his teachers did not believed the Student’s behaviors interfered with his ability to access his education, the Student was not eligible for special education under the IDEA (Tr. 281, 558-59). Additionally, although the District conceded that the Student could be distracted in the classroom, the District did not believe that the Student’ distractibility impacted the Student’s education to the extent that he qualified as a student with a disability (Tr. 279-281).
Student’s Discipline History:
A review of the Student’s discipline history indicated that in grade the Student received for an incident that the District categorized as
In grade the Student was and the Parent was notified for a incident that the District categorized as (Exhibit 86).
In grade, the Student was on two occasions for “failing to follow the District’s Rules and Regulations and the Parent was notified.”
In grade, the Student was “warned” for engaging in conduct that the District described as
(Exhibit 86).[9] Eligibility and IDEA:
The Commissioner’s Regulations provide that a student cannot be classified as a student with a disability within the meaning of the IDEA unless: (1)
he or she meets the criteria for one of the thirteen disabling conditions enumerated in 8 N.Y.C.R.R. § 200.1(zz); and (2) the disabling condition “adversely affects [his or her] educational performance.” See 8 N.Y.C.R.R. § 200.1(zz)(1)-(13); see also C.B. v. Dep’t of Educ., 322 Fed. App’x 20, 21 (2d Cir. 2009) (discussing the definition of an designation and emphasizing that the impairment must adversely affect educational performance).
Courts in the Second Circuit have uniformly held that an “adverse effect on a student’s educational performance” encompasses only academic performance and does not encompass social/behavioral functioning. See C.B., 322 Fed. App’x at 22 (affirming “no disability” finding where “[w]hile [the student]’s treating and teacher at testified to their observations of [the student’s] difficulties with , there was a continuity of [the student]’s successful performance both before and after her conditions were diagnosed”); Maus v. Wappingers
Cent. Sch. Dist., 688 F. Supp. 2d 282, 297-98 (S.D.N.Y.
2010) (emphasizing that educational performance is focused on academic performance rather than social development or integration).
Here, the evidence shows that the Student is an exceptionally bright young man with many talents who has successfully accessed his education while attending schools in the District despite his diagnoses of among others. Specifically, the evidence shows that the Student’s academic success placed him on the Honor Roll in grade, which was his last school year, and that because of his academic success, the Student is currently enrolled in accelerated math and Honors Science in grade. Additionally, evidence shows that Student’s grades are consistent with his results of , which revealed that he was performing at an average or above average level in all domains, which was also consistent with the Student’s cognitive ability. (Exhibit 79; Tr. 276). Although the parent claims that the Student’s grade suffered during grade and points to the lower grade in English, the Student’s teacher explained that the Student received a in the first marking period because the Student failed to hand in some of his assignments. However, the teacher explained that the Student was still performing at grade level. Additionally, the evidence shows that the Student actually received an 81 and a 93 in the next two marking periods, which he was able to do after yet another school transfer that was initiated by the Parent, and after the Parent actually removed the Student from his English class (Exhibit 72). Thus, although the Parent is correct that the Student’s final grade in English was not as good as it was in the previous school year, this fact does not support a finding that the Student’s and related symptoms were preventing him from accessing his education or that his diagnoses were adversely affecting his academic performance (Exhibit 78, See (8 N.Y.C.R.R. § 200.1).
Further, although it is undisputed that the Student recently scored a on the State Math assessment, which is the he ever scored on the State Math assessment, this fact, which appears to be an anomaly, alone does not convince the undersigned that the Student’s diagnoses are disabling to the point where they are adversely affecting his academic performance. Significantly, as stated above, the evidence shows that the Student earned an 81 in accelerated math in grade and he is currently attending accelerated math in grade, which shows that he is learning at higher than grade level (8 N.Y.C.R.R. § 200.1).
Moreover, although the results of the District’s recent social/emotional testing varied with respect to the class the Student was attending, and was not aligned with what the Parent was reporting at home, the evidence shows that despite the existence some behaviors in unstructured classes or classes that the Student did not like, such as French, the Student was able to meet or exceed the District’s academic expectations in all subjects (Exhibits 72 and 79).
Finally, I note that although Dr. BBBB suggested that the Student could possibly benefit from the support of an IEP, she also conceded that the Student’s academic scores were relevant to any determination of eligibility (Exhibit 11). Additionally, although Dr. LLLL opined that the Student should be classified as and that the Student required special education supports to address his impulsivity, the evidence shows that Student’s behaviors did not adversely affect his academic performance at the time of her evaluation or during the two years since (Exhibit 15, 29, and 72). Accordingly, I do not find that the Student meets the criteria for classification under the IDEA and I conclude that the District’s CSE decision not to classify the Student as a student with a disability under the IDEA was correct (8 N.Y.C.R.R. § 200.1, Application of a Student Suspected of Having a Disability, Appeal No. 13-235 (2012).
Lastly, although the Parent asserted that it was the District’s policy to decrease the number of students in the District who were classified under the IDEA (Exhibit G), which could be a reason by the District failed to classify the Student, I find no evidence to support such a finding in this matter. Request for an
The Parent claims that the District’s initial eligibility determination should be invalidated because the District did not conduct an
An is required “where the behavior at issue is sufficiently serious as to ‘impede’ the student's learning and where such an assessment is ‘necessary’ to ascertain the causes of the problematic behavior.” X v. N.Y.C. Dep’t of Educ., 2 F. Supp. 3d 311 (E.D.N.Y.
2013) (finding that although there was some evidence that the student “displayed behaviors that impacted his ability to learn,” the record showed that the student's behavior did not present a problem, and did not seriously ‘impede’ his or other students’ instruction so as to require a see also A.C. ex rel M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009).
The Parent claims that the Student’s behaviors in the home and at school interfere with his ability to learn and are significant enough to warrant an Additionally, the Parent contends that the District’s failure to collect data on the Student’s behaviors at school was inappropriate because in the Parent’s contends that the District could know whether an was warranted because the District failed tracked the Student’s conduct at school.
I disagree.
Here, although the evidence shows that the Student exhibits impulsivity and hyperactivity, at times, in school, his behaviors at school have not risen to the level where they have impeded his ability to learn or the ability of any other students to learn (Tr.
454). To the contrary, as discussed above, the evidence shows that although the Student’s symptoms related to his various diagnoses can, at times, require a sensory break or redirection from his instructor, the Student’s behaviors are often that of a typical young boy and are not that significant in school (Tr. 131, 280, 310, 558, 1783). Additionally, the Student’s Discipline history, when viewed across all the years he has attended schools in the District, is fairly insignificant (Exhibit 86). Thus, there is no reasonable basis for the District to “collect data” on the Student’s behaviors because the alleged behaviors were not impacting his education.
Accordingly, based on these facts, I find that the evidence shows that an for the Student is unwarranted because the evidence clearly shows that the Student’s behaviors do not interfere with his learning or the learning of others. Child Find Claims:
The IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01082; Application of a Child with a Disability, Appeal No. 93-41).
The Parent’s claims that the District was in possession of sufficient information, which included all of the Parent’s private evaluations, as well as the Student’s grades in grade, to identify the Student as a “child with a disability . . . and in need of special education.” However, based on undersigned’s analysis of that Parent’s eligibility claims discussed above, I find that the District properly concluded that the Student was a not a child with a disability under the IDEA. Thus, the District could not have violated its Child Find obligations when it failed to identify the Student as a student with a disability in grade.
Additionally, although the Parent claims that the District’s Child Find policy was possibly flawed, there is no evidence in the record to support this assertion. Accordingly, I find that the District did not violate its Child Find obligation when they declined to identify the Student as a student with a disability under the IDEA.
Lastly, I have considered all of the other IDEA claims for relief and find that they are without merit.
ORDERED
The Parent’s IDEA claims asserted in this matter are dismissed with prejudice
Dated: Suffolk, New York
December 13, 2016
James McKeever
James McKeever, Esq.
IHO
PLEASE TAKE NOTICE
Within 35 days of the receipt of this decision, the parent and/or Board 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 see review shall be served upon the school district not less than 10 days before service of a copy of the petitioner for review upon such school district, and within 25 days from the date 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 dated of the decision sought to be review. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8NYCRR279.2[b]). Failure to file the notice of intention to seek review is a waiver of the rights to appeal this decision.
Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
District’s Exhibits:
1. 2/13/2012
of
,
2. 8/3/2012 , M.D. Letter to Dr., M.D.
6/12/2013
Section 504 Accommodation Plan -
2013-2014 re: Annual Review
3. 2012-2013 Grade Report Card 2012-2013
4. 11/22/2013 Confidential Social History Report
5. 1/2/2014 Confidential
Evaluation
6. 1/8/2014 Parent Report)–
7. 1/28/2014 Committee on Special Education
Ineligibility Document - 2013-
2014
8. 1/28/2014 Prior Written Notice - Proposed
Ineligibility for Special Education
9. 3/12/2014 Evaluation by re:
10. 3/20/2014 MARKED UP COPY -
- Report
3/21/2014 of BBBB BBBB, Psy.D.,
11. 3/20/2014 CLEAN COPY -
- Report of BBBB
3/21/2014 BBBB, Psy.D.,
12. 6/4/2014 Recommendation and Request of
SSSS CCCC, Education
Specialist, President, by GGGG
LLLL, Ph.D,
13. 6/18/2014 Recommendation and Request of
MMMM, M.D.,
14. 2013-2014 Grade Report Card 2013-2014
15. 7/7/2014 School
Based Evaluation by Lifespan
PLL
16. 7/17/2014 Special Education Request from
M. PPPP
17. 8/17/2014
of ZZZZ, Ed., Education
Consultant
18. 8/26/2014 Committee on Special Education
Ineligibility Document - 2014-
2015
19. 11/6/2014 Resolution Agreement
20. 4/14/2015 NYSED English Language Arts
Score Report 2014-2015
21. 4/14/2015 NYSED Mathematics Score
Report 2014-2015
22. 4/23/2015 of, PhD,
Director, Clinic
23. 5/00/2015 Report of
Therapist, MMMM JJJJ,
24. 6/3/2015 M. PPPP email to re:
Complaint
25. 6/8/2015 Section 504 Accommodation Plan -
2014-2015 re: Requested Review
26. 6/10/2015 Recommendation and Request of
PPPP, FNP-C,
27. 6/11/2015 Recommendation and Request of
M.D., Family Medicine Associates
of LLP
28. 2014-2015 Grade Report Card 6/24/2015
Marking Period
29. 2014-2015 Annual/Program Review
Comment Sheet
30. 6/25/2015 Recommendation and Request of
PPPP, Ph.D., Licensed
Psychologist
31. 7/1/2015 Early Complaint Resolution
Agreement
32. 9/15/2015 Section 504 Committee Consent
for Reevaluation
33. 10/15/2015 Email from Parent Refusing
Consent for Reevaluation
34. 11/6/2015 Sublease Agreement (Bridget Rigas and PPPP PPPP)
35. 12/7/2015 Recommendation and Request
PPPP, Ph.D., Licensed
Psychologist
36. 12/9/2015 M. PPPP email to Re: Math Test
Results
37. 12/11/2015 Recommendation and Request of,
M.D., Medical Associates
38. 1/15/2016 M. PPPP email to MMMM re:
Response to Specific Points
39. 2/2/2016 M. PPPP email to MMMM re:
Problematic Novel in English
Class with Mr. AAAA
40. 3/28/2016 Observation of XXX PPPP from
SSSS CCCC, President,
41. 4/00/2016 Report of
Therapist, MMMM JJJJ,
42. 4/8/2016 Student Referral
43. 4/11/2016 J. TTTT email to D. SSSS re:
Tutor and Science
44. 4/21/2016 Report re: 5/6/2016
504 Meeting
45. 5/2/2016 Summary of the Student's
General Health Condition
46. 5/3/2016 CSE/504 Teacher Report
47. 5/4/2016 Accommodations Report
48. 5/6/2016 Section 504 Accommodation Plan -
2015-2016 re: Annual Review
49. 5/10/2016 Evaluation
50. 5/13/2016 Section 504 Committee
Recommendation for Continuation
of Services re: May 6, 2016
Meeting
51. 5/16/2016 504 Eligibility Team Review and
Minutes
52. 6/2/2016 Meeting Notice Section 504
Committee
53. 6/3/2016 Parent's Request for Impartial
Hearing
54. 6/3/2016 Parent’s Request that Son be evaluated for IEP
55. 6/6/2016 Request for Placement at a
Different Level of Instruction with attached Emails regarding same
56. 6/10/16 Meeting re: 504 Eligibility Team
Review
57. 6/10/2016 Agenda for Evaluation
58. 6/10/2016 Section 504 Accommodation Plan -
2015-2016 re: Annual Review
59. 6/15/2016 Amendment of Due Process
Complaint
60. 6/15/2016 Response letter from Parent to
IHO
61. 6/27/2016 Section 504 Committee
Recommendation for Continuation
of Services
62. 6/27/2016 Respondent's Response to
Amended Due Process Complaint
63. 6/29/2016 Email from Parent to Attorney re:
XXX's initial evaluation
64. 2015-2016 Progress Report - Marking Period
2
65. 2015-2016 Progress Report - Marking Period
3
66. 2015-2016 Progress Report - Marking Period
4
67. 2015-2016 Grade Report Card 11/13/2015
Marking Period
68. 2015-2016 Grade Report Card 1/29/2016
Marking Period
69. 2015-2016 Grade Report Card 4/8/2016
Marking Period
70. 2015-2016 Grade Report Card 6/22/2016
Marking Period
71. 2015-2016 Grade Corrected Report Card
6/22/2016 Marking Period
72. 2015-2016 Daily Attendance
73. Guide to Documentation Provided
by the Family
74. Some of XXX's Talents
75. 7/1/2016 Email from Parent to Attorney re:
IDEA Eligibility
76. 7/6/2016 Email from Attorney to Parent,
-HHHH re: Testing
77. 7/6/2016 Email from Parent to Attorney, -
HHHH re: Testing, without
Attachments
78. 7/12/2016 Confidential Student Report
- Initial Eligibility Determination
Meeting
79. 7/13/2016 Confidential Record Review of
School
80. 7/14/2016 Meeting Notice for 7/19/2016 -
Committee on Special Education
81. 7/18/2016 Letter from Attorney on behalf of
CSD in opposition to the
Parent's request for a pendency
determination with attached
Section 504 Policy and Procedures
82. 7/19/2016 District Committee on Special
Education Initial Eligibility
83. 7/19/2016 Proposed Ineligibility for Special
Education
84. 7/21/2016 3-8 Assessment Report
85. 7/21/2016 Discipline History Report
86. 2016-2017 Committee on Special Education
Ineligibility Document
87. Diagnostic and Statistical Manual
of , Fifth Edition
– (American Psychiatric Association)
88. Diagnostic and Statistical Manual
of Mental Disorders, Fifth Edition
–
(American Psychiatric Association)
89. 7/26/2016 504 Accommodation Plan
Amendment Consent Form
90. 7/26/2016 Proposed Amendment to 504
Accommodation Plan without a
Committee Meeting
91. 7/25/16 GGGG GGGG email
Correspondence to M. PPPP re:
Parent’s Exhibits: Parent Exhibits Table of Contents Volume 1, tinyurl.com/jb5mm57 A About the Student
A3 Diagnoses, Symptoms, What Helps A4 Synopsis A7
Behavioral Specialist 2009 A8 Letter from Germany A 12
Specialist 2011 A 14
Threat Assessment Records A 16
A 20 CCCC’ Observation 2014 A 24 B Medical Letters Antal 2012 and 2013 B2 Member 2014 B5 2014 and 2015 B6
PPPP 2015 B8
2015 B9
2015 B 11 June and December, 2015 B 13
B 17
2016 B 18
2016 B 19 C Evaluations and CVs
C2 Educational Psychology C9 Writing Assessment and Learning C 19 Profile
2012 C 24
2014 C 29
Dr. PPPP C 34
SSSS CCCC, M. Ed. C 39
Dr. GGGG Levin LLLL C 45 D Grades and 504 Plans The Context: D2 Grades
: The Big Picture D8
Grade: The Details D 11 Old plan (pre-May 6 meeting) D 21 Interim plan in effect between D 26 meetings New plan (post-June 10 meeting) D 30 E Recent Behavior and Attempts Collection of Recent Behavior E 24 Problems Sue CCCC’ Observation 2016 E 94
Advocacy Brief about E 97
NY Commissioner's Regulation 200.4 E 99
Policy 4321 E 128
BIP Protocol E 133
Social Behavioral Consult E 141 Process
Workbook for a Student with E 153 Catalog of Accommodations for E 175 Email Submissions of Workbook E 190 School Tool Notes about Request E 202 Email to with Scales E 203 504 Meeting Notes E 211 Special Education Complaint E 223 F Reinstatements Needed and Notes Understanding Behavioral Symptoms F2 Student-Parent Proposals F6 Agenda for June 10 Meeting F 13 Experts’ Statements F 14 1/4/14 Report F 22 Email from Principal, 3/29/14 F 25
504 Meeting Notes, 6/9/14 F 30 JJJJ 6/13/14 Report F 45 JJJJ 2/22/16 Note F 49 JJJJ 2015-16 Schooltool Notes F 51 GGGG Correspondence F 55 G Special Education in the Report, 2006 G2 12/6/11 Special Education Report G 53 12/7/11 Times Article G 71 12/20/11, Times Article G 72 Special Ed Continuous Improvement G 74 Plan, downloaded 8/1/16 Special Education Profile (NYSED) G 89 Fiscal Accountability Summary G 99 Finance Committee Minutes, 2/23/15 G 105 Ithaca Comments, 5/26/14 G 108 H Audio Recordings Flash Drive Provided; tinyurl.com/jg3mc92
July, 2014, Eligibility Meeting June 10, 2016, 504 Meeting July 19, 2016, Eligibility Meeting I Communications with Hearing Officer Hearing Request, June 3, 2016 I2 Amendment, June 15 I 13 11/6/14 Resolution Agreement I 15
Response to Motion, June 15 I 17
Letter to May 1995 I 19
Response to Pendency Objection I 22
Response to Documents & Witness I 24 Objection
Consolidation Request, August 1 I 26 J Index to Volume 1 Exhibits Added in the Hearing (First Part) K ICSD 504 Policy, Published 3/7/16
Criteria, L1 Comorbidity
Diagnostic Criteria, L4
Diagnostic Criteria, L7 Comorbidity Volume 2, tinyurl.com/h5asyjb M Sensory Processing Differences N Instruments
Adolescent/Adult Sensory Profile N[2] (2002)
School Companion N4 (2006)
Phone Log P 19 Q Email Documentation
Books, Videos, Arachnids, Q1 Behavior
Cafeteria Q 32
Correspondence Q
118
DDDD Potpourri Q
144
Eureka Q
169
Health Correspondence Q
186
Communications from MMMM Q JJJJ (all) 195
MMMM Correspondence Q
199
Getting to Music Lessons Q
269
Postponement of June, 2015, 504 Q Meeting 278
Correspondence Q
283 Exhibits Added in the Hearing (Second Part) R Exhibits Added During Hearing
Reports of Problematic Behavior R1
Notes R2 Volume 3, tinyurl.com/h4594vl S Student Records and Work Samples
Notes S1
Evaluation, March, 2012 S8
State Assessment Results S 13
State Cut Score Memos S 15
2016 State Assessment Results S 31
Math: Original; Reformatted by Parent; Completed S 35
Other Homework S 554
Weekly Planner S 60
Laminated Pass S 61
Math Syllabus, Grade Honors Algebra S 62 T
T1
Documents Supplied by District Re: Child Find T 11 U State and Federal Guidance
One to One Aides: 2012 And 2016 U1
Students with Disabilities with High Cognition: 2015 U 12
: 2016 U 15
Positive Behavior Supports: 2016 U 19 V Health Information and Email Archive
Insulin Resistance V1
Sensory Profile Graphic V 13
Email Archive V 14 W Audio Transcripts
Eligibility Meeting, August, 2014 W1
504 Meeting, June 10, 2016 W 56
Eligibility Meeting, July 19, 2016 W
123
Audio (Flash Drive Provided): tinyurl.com/z93qws7
Profile Q & A Exhibits Added in the Hearing (Third Part) X Exhibits Added During Hearing
Enrollment DDDD Support Lab, X1 Fall Grade
Berman Email, Dated 1/28/16 X5
DDDD PTA Newsletter, Fall X9 Grade
District Policy 4321.2 X 11 Y Assistive Technology Evaluation Z District’s File from 504 Meeting Held 9/18/14 AA Student’s 504 Plan, 4/30/13
Footnotes
[1] The initial 504 Plan was not offered into evidence.
[2] The issue of whether the Student should be diagnosed with Obsessive Compulsive Disorder (“OCD”) is in dispute. However, it is understood that a TS diagnosis typically include OCD symptoms (Tr. 544).
[3] Dr. LLLL noted that the Student had OCD symptoms. However, she stated that the Student had not be diagnosed with OCD at the time of her evaluation (Tr. 1573).
[4] The Parent contends that communication with the District staff was inconsistent because the staff either ignored her requests or provided insufficient responses to her questions. The District staff reported that that Parent contacted them incessantly, which included approximately over a thousand emails in one school year (Tr. 926), and that the Parent was never satisfied with the staff’s responses to her questions, which led to a never-ending cycle of demands from the Parent (Tr. 927).
[5] The District reported that the Parent often interrupted the District staff when the presented their findings and that that Parent would “blow up” at the meetings, which was disruptive to the process (Tr. 928)
[7] This accommodation would also be revisited upon the completion of the OT evaluation.
[9] The specifics of the conduct referenced above was not explained in the Student’s Discipline History Report (Exhibit 86).
[2] (2014) N6 O Public Documents 2006 Interview O2 Bio from O4 P Student Records Attendance P2 504 Sign-Off Sheets - DDDD P 15 504 Sign-Off Sheets - BBBB P 17