Impartial Hearing Decision

x In the Matter of the Impartial Hearing on Behalf of X.,

Petitioner, And

Central School District,

Respondent. x

FINDINGS OF FACT AND DECISION

Impartial Hearing Officer James McKeever, Esq.

Dated: April 6, 2016

Decision

This matter concerns an eleven year old child classified as Student with (Exhibit D-1).

On June 25, 2015, the parent filed a Due Process Complaint (“DPC”) alleging that the Central School District (“District”) failed to offer X. (“Student”) a free and appropriate public education (“FAPE”) for the 2015-2016 school year, inter alia.

On June 26, 2015, the undersigned was appointed to heard and decide this matter.

The initial resolution period expired on July 21, 2015.

A prehearing conference was held on August 7, 2016.

On August 24, 2015, the parent filed an Amended Due Process Complaint asserting a failure to implement claim for the period of December 2014 through August of 2015.

The second resolution period expired on October 2, 2015.

A second pre-hearing conference was held on October 6, 2015.

On October 9, 2015, the parent filed another DPC alleging a denial of FAPE for the 2015-2016 school year and a failure to implement claim for the period covering August 2015 to October 2015. Included in the DPC was an application for an Order with respect to the Student’s pendency placement.

On October 13, 2015, the District requested an Order of Consolidation with respect to the above DPCs.

On October 14, 2015, the parent joined the District’s request to consolidate the DPCs.

On October 19, 2015, the undersigned issued an Order of Consolidation based on common issues of fact and law.

The District filed a Response to each complaint asserting that the Student was offered a FAPE for the subject school year and that the Student was not entitled to compensatory educational services, among other assertions.

On or about October 2015, the parties developed an Interim Service Plan (“ISP”) wherein the District agreed to provide the Student with two hours per day of home instruction and the related services referenced on his 2014-2015 IEP. However, both the District and the parent requested that the undersign decide the Student’s pendency placement.

Thereafter, at the request of the parties, the undersigned issued a pendency decision on December 21, 2015. The undersigned found the Student’s pendency placement was the IEP for the 2012-2013 school year.

The District appealed the pendency Order.

On February 12, 2016, the Office of State Review issued a decision and found that the Student’s pendency placement was the placement agreed to by the parties during their September 2014 meeting.

The hearing was held on October 26, 2015, November 3, 4, 5, 12, 13, 2015 and concluded on December 14, 2015. At the conclusion of the hearing, the parties agreed that the transcripts from all the previous hearing be admitted into evidence and considered in the within decision.

At the request of the parties, post-hearing briefs were initially scheduled to be submitted on January 25, 2016 (Tr. 196). Thereafter, the District requested a two-week extension due the volume of transcripts to be reviewed. The District’s request was granted.

Post-hearing briefs were received on February 8, 2016.

Subsequently, a dispute arose between the parties with respect to exhibits that were offered into evidence, but not referenced in the transcripts. After a series of correspondence and telephone conferences, the parties agreed to admit the disputed exhibits.

By letter, dated March 8, 2016, the undersigned received the parent’s exhibits that were not referenced in the transcripts.

Throughout the hearing process, the parties made multiple requests to extend the compliance date due to witness availability, 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 March 30, 2016.

The current compliance date is April 6, 2016.

Pleadings:

The impartial hearing was held pursuant to the Individuals with Disabilities Education Act (IDEA), regarding the parent’s request for a finding that the District denied Student, a FAPE in the least restrictive environment (“LRE”), during the 2015-2016 school year. The parent also contends that the District’s failed to offer the Student of FAPE from December 23, 2014 to August 24 24, 2015 and from August 25, 2015 to October 9, 2015, because it failed to implement the Student’s program. Additionally, the parent asserted claims under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), the Americans with Disabilities Act, the First and Fourteenth Amendments, and 34 U.S.C. Section 1983.

With respect to the allegations of a denial of FAPE for the 2015-2016 school year, the parent asserted that the District’s IEP, dated June 2, 2015, denied the Student a FAPE because: (1) the placement was predetermined; (2) the parent was denied meaningful participation when the CSE ignored parent’s concerns about the student’s needs and the effectiveness of the S. program; (3) the distant location with an early bus schedule was inappropriate because of the Student’s disorder and anxiety; (4) the IEP lacked parent training and counseling; (5) the CSE did not adjust the goals on the IEP despite evidence of a lack of progress; (6) the IEP did not recommend an effective communication device or assistive technology; (7) the CSE failed to discuss any program other than BOCES S.; (8) the District failed to provide supports and services for placement in a general education setting; (9) the goals for social/emotional performance-regarding behavior management did not adequately address the Student’s needs; (10) the goals were inadequate because thee did not contain evaluative criteria-procedures or schedules to measure progress and failed to indicate a baseline with target levels of performance; (11) the measures of achievement on the goals lacked specificity; (12) the IEP was not individualized; and (13) the BOCES S. class was not the Student’s LRE.

With respect to the parent’s “implementation claim” from Decision 2014 to August 2015 and from August 2015 to October 2015, the parent alleged the following: (1) that the District failed to provide the Student with his mandated related services of and ; (2) the District failed to provide the Student with a general education teacher; (3) the IEP failed address the Student’s deficits in and sleep challenges; (4) the District withheld access to Student records; and (5) the District segregated the Student by placing him in a class alone (Exhibits D-1, D-3 and D-5).

The parent also asserted that the District failed to fund an independent reading evaluation that the parent requested on June 17, 2015 (Exhibit D-1, D-3 and D-5).

Based on the above alleged violations the parent requests the following: (1) an Order directing the District to place the Student in a general education class with supports and services; (2) develop appropriate goals and train staff to meet the Student’s needs; (3) make a finding that the District denied the Student a FAPE from December 2014 through June 2015; (4) an Order directing the District to create a fund from which the parent may pay for the Student to receive compensatory education services privately; (5) direct to the District to provide before an after school instruction in and

(6) provide weekend tutoring in a evidence based reading program; (7) order the District to pre-pay for services at rates sufficient to ensure the provision of services; (8) Attorneys fees; (9) a finding that the District violated the Student’s rights under Section 504 of the Rehabilitation Act of 1973; (10) declare the parent was the prevailing party; (11) a finding that the District violated the parent and Student’s rights under the ADA; and (12) grant other relief (Exhibit D- 1, D-3, D-5).

The District asserts that the Student’s IEPs provided FAPE and that the 12:1:4 BOCES S. class was appropriate to meet the Student’s needs in the Student’s LRE. District notes that the BOCES S. program was recommended for the 2013-2014 school year, which was upheld by IHO K. and the SRO. The BOCES S. was also recommended for the 2014-2015 school year, which IHO L. found appropriate. However, the District submits that the L. pendency placement for the 2014-2015 school year was not appropriate placement for the Student.

The District maintains that the S. program provides appropriate supplementary supports and services as well as related services. The program is designed to address academic, social, communication, management, adaptive, and behavioral needs of students’ diagnosed with Additionally, teachers and paraprofessionals are specifically trained to address the needs of students with The program also provides services to enable parents to implement strategies in the home.

The District submits that it is not required to create its own S. program for one student and the District has no control over BOCES’ determination of the location of the program.

The District also contends that the parent meaningfully participate at the CSE.

Lastly, the District contends that the IHO only has the authority to consider issues related to the “identification, evaluation or educational placement” or the “provision of a free appropriate public education.” (Exhibit D-2).

Findings of Fact:

The Student is a eleven-year old boy classified as a child with . Classification is not at issue (Exhibits D-1, D-3, D-5).

The Student presents with severe characteristics and requires a highly structured and intense educational program for students with similar needs (Exhibit D-8(b)). The Student has severe cognitive delays and significant social deficits (Exhibits D-8(b),D-9). Academically, the Student’s skills are at a level and the Student has profound delays and functioning skills compared with students his age (Exhibits D-8(b), D-9, D-16). The Student is not ready for any standardized testing due to his inability to maintain his gaze on a visual stimulus (Exhibit D-8(b)).

The Vineland-II was administered in April 2014 as part of the Student’s triennial evaluation (Exhibit D-8(b)). The ratings of the Student’s Adaptive Skills from his educational team and his parent placed the Student is the “ Range” compared to children his age. The Student also presented with Daily Living Skills, but had a “greater relative skill for Socialization” (Exhibit D-8(b).

The Student is The Student typically screams or makes screeching sounds to communicate his wants and needs.

The Student has limited student work skills like sitting at a desk, holding tools appropriately, pointing with intent, and remaining quiet while a teacher instruction is provided (Exhibit D-8(b).

The Student has a disorder. The Student often cannot fall asleep until very late at night, which prevents him from adhering to the a morning schedule and often causes him to be late for school (Exhibits D-8(b), Tr. 923).

On November 7, 2014, Professor T. C., a licensed speech pathologist, conducted an independent “Augmentative and Alternative Communication” (“AAC”) evaluation and determined that the Student required a communication system or speech-generating device to interact with his peers ( Exhibit D-8(r), Tr. 1002-The “Report” is dated November 16, 2014). Ms. C. noted that the Student demonstrates a severe communication delay, which impacts his ability to successfully participate “socially and academically” in daily activities and routines. Ms. C. reported that the Student’s inability to use speech as a means of communication and his lack of access to verbal language, placed him at a significant risk of further delay and at a significant disadvantage to his verbal peers. Ms. C. reported that she observed and interacted with the Student at school and that the Student exhibited good “communication intent.” She also observed that the Student “utilized multimodality communication strategies including his body (e.g., laying on the floor), vocalizations, gestures, eye gaze, grabbing, and occasional communication cards when presented to him” (Exhibit D-8(r), page 2). Additionally, Ms. C. noted in her report that the Student’s Speech Language Pathologist reported that the Student demonstrated the skills to use the PECS at the level of “preferred” vs. “non-preferred” objects with some consistency. The Speech Pathologist also indicated that the Student was able to occasionally answer some “yes/no” questions with picture cards (Exhibit D-8(r), page 2). Consequently, Ms. C. opined that the Student could be taught within the District with the assistance of a Speech-Language Pathologist who has expert knowledge of speech-generating devices (Exhibit D-8(r). Tr. 1012-1016). Based on her evaluation, Ms. C. recommended that the Student “consistently utilize multi-modality communication strategies; including sign language, true words, communication picture boards, visual schedules, gestures, facial expression, and an iPad with speech generating software…to improve his ability to express his wants and needs.” (Exhibit 8-(r)) (Tr. 1008). Ms. C. also recommended that the Student receive services and that training be provided for the Student’s mother by a licensed speech-language pathologist specializing in AAC supports and services, among other recommendations.

T. W., the District’s CSE Chairperson, did not agree with Ms. C.’s recommendations because he said she failed to use any other device during her evaluation (Tr. 54). He also stated that the Student could not point and chose between two items correctly (Tr. 55), which is why he believed that the PECS system was appropriate (T. 497).

Additionally, Mr. W. testified that he was qualified to determine what, if any, communication device would be appropriate for the Student because his wife is a speech pathologist who specialized in AAC evaluations (Tr. 53).

Further, Mr. W. testified that he believed that the Student could not be educated in the District, in part, because the Student needed “to be able to communicate” and “we haven’t found the right tool in order to make that happen.” (T. 44). Nevertheless, he conceded that the PECS system was not an assisted technology device (Tr. 497).

By letter dated March 26, 2015, the parent requested an independent reading evaluation (Exhibit G). The District failed to respond to the parent’s request (Tr. 518). The District also did not initiate a hearing to defend its own reading evaluation (Record generally).

By letter dated April 27, 2015, the parent requested that the CSE meeting scheduled for May 2, 2015 include a parent member and the school physician (Exhibit TT).

By letter dated April 29, 2015, Dr. P., the Student’s treating , opined that the BOCES S. program, which the CSE recommended for the 2013-214 and 2014-2015 school years, was inappropriate because the bus ride was too long and the Student exhibited self-injurious behaviors on the bus. He also stated that the BOCES S. program was inappropriate because the program did not included services (Exhibit Q).

On June 2, 2015 the District’s CSE reconvened and developed the Student’s program for the 2015-2016 school year (Exhibit 9). The District continued to recommend the BOCES 12:1:4 S. class with five times per week of 30 minutes, three times per week for 30 minutes and two times per week for 30 minutes for an Extended School Year (Exhibit D-9).

The CSE did not consider any other placement on the continuum of special education placements.

The IEP indicates that the CSE team reviewed a reading evaluation dated May 26, 2016, Dr. P.’s letter dated April 29, 2015, a Behavior Intervention Plan dated November 15, 2014 and Professor C.’s evaluation dated November 16, 2014 (Exhibit D-9).

Mr. W. read Dr. P.’s letter to the CSE. However, although there was very limited discussion with respect to Dr. P.’s opinion, the CSE rejected his Dr. P.’s opinion with respect to the length of the bus ride to the BOCES S. program. At the hearing, Mr. W. also stated that Dr. P. had not visited the S. program and that he had not observed the Student in school.

The CSE team discussed the parent’s concerns with respect bus ride being too long at the CSE meeting. However, Mr. W. did not remember if there was a discussion about the Student’s alleged “self-injurious” behavior (Tr. 64, 66).

With regard to communication, the CSE team recommended a “total communication approach” which included speech, sign language and the PECS system (Exhibit D-9, p. 2). However, the IEP did not include any assistive technology or speech generating device to assist with the Student’s communication needs (Exhibit D-9). Additionally, the audiotape of the CSE meeting shows that the AAC evaluation conducted by Ms. C. was not discussed in any detail other than Mr. W. stating that he disagreed with Ms. C.’s recommendation because he believed that she only used one communication device as part of her evaluation (Exhibit FF). Moreover, L.G., the Student’s provider, who attended the CSE meeting, admitted that there was no discussion about providing the Student with an assistive technology device at the CSE meeting (Tr. 791). Further, when asked if the Student could learn to use another communication device, Ms. Greene testified that “she didn’t know because she had not worked with the Student long enough to know what his skills could have developed into (Tr. 782).

The IEP noted that due to the Student’s late arrival at school, he has not attended his scheduled sessions since November 2014 (Exhibit D-9, p. 3). As such, no progress was made to his current speech and language goals.

The IEP states that the Student requires close adult supervision at all times for safety, communication and interaction to learn new skills. The Student’s also requires one to one physical assistance to engage in all aspects of classroom activities and activities of daily living. In addition, the Student needs assistance with toileting and is not toilet trained (Tr. 40).

The speech goals, which were discussed at the IEP meeting, indicate that the Student will continue to work with the PECs system to increase his communication with staff and peers. The IEP also includes several pre-academic and speech goals that contain short-term instructional objectives (Exhibit D-9, p. 6). The goals include criteria and measures to determine if the goal has been achieved. Such as “80% success with moderate assistance over 10 weeks” and “7 out of 10 trials over 10 weeks” (Exhibit D-9, page 6). Additionally, the IEP states that the Student’s progress will be measured by “recorded observations” “by the end of each marking period” (Exhibit D-9, pages 6-8).

By letter dated September 5, 2015, Dr. P. K. stated that he agreed with Dr. P.’s opinion referenced in his later dated April 20, 2105 regarding the BOCES S. program and the length of the bus ride (Exhibit Q, Tr. 926).

On September 10, 2015, Dr. K. sent a second letter to the District expressing his concern about the Student’s sleep disorder and his ability to ride the bus to the BOCES S. program (Exhibit D-14, Tr. 934).

In September 2015, the parent brought the Student to the District middle school each day (Tr. 927). Mr. W. and District staff did not admit the Student, but told the parent that the Student’s educational placement was at the BOCES S. program (Exhibit D-9, Tr. 938).

By letter dated September 18, 2015, the parent requested an emergency CSE meeting regarding the Student’s placement (Exhibit S).

By letter dated September 23, 2015, Dr. K. reiterated his objection to the Student’s placement at BOCES (Exhibit VVV, Tr. 942).

The CSE held a meeting on October 9, 2015 and generated a second IEP for the 2015-2016 school year (Exhibit D-16). This IEP continued to recommend placement at the BOCES S. program and appears to be identical to the IEP dated June 2, 2015 (Exhibits 9 and 16).

The CSE offered to change the transportation arrangement to an alternate pick up time, door-to-door (Tr. 94).

The Student’s program from December 2014 to August of 2015 was the Student’s pendency placement while a DPC before IHO L. was heard (Tr. 31, 111). At the time, the Student’s former 12:1:4 class in the District had been eliminated (Tr. 29). However, IHO L. found that the parties’ agreed to implement the Student’s IEP for the 2013-2014 school year to the extent that the District could replicate the program at the School (Exhibit D-8(g), page 3). That IEP provided for placement in a 12:1:4 class with adaptive physical education in a 8:1:1 class, therapy four times a six day cycle, 1:1, for 30 minutes, in a small group two times per six day cycle for 30 minutes, and in a small group two times a week for 30 minutes (Exhibit D- 9(g), page 2).

Mr. W. testified that the District did the “best the could” to replicate the program during the Student’s pendency placement (Tr. 114). The school day began at 7:50 a.m. and ended at 2:30 p.m. (Tr. 33, Exhibit 8(q)). The Student’s h services began at 8:00a.m., which was based on the speech provider’s schedule (Tr. 41, 770), however, the District was aware of the Student’s disorder which prevented him from attending to school on time. As a result of the Student’s tardiness, the Student rarely received services during this time (Tr. 774). With the exception of adaptive PE, the Student was not provided with a general education teacher as part of his pendency program. (Tr. 624). However, the Student was taught by a special education teacher in all areas (Tr. 615), as well as by various teaching assistants (Tr. 38, 619). The Student was not taught with other students because the Student’s behaviors were too disruptive to place him in a regular education class (Tr. 43). However, the District had students from other classes visit with the Student (Tr. 43). The District also provided a one-to-one aide (Exhibit 8-Q).

The Student was often absent during this time. When the Student came to school, it was often after 10:00a.m. (Tr. 39). As a result, the Student only received one speech session from December 2014 to June of 2015 (Tr. 363, 793).

Additionally, was not implemented during this period because the District said the parent failed to provide an appropriate prescription from the Student’s doctor (Tr. 46). The parent provided the prescriptions in February 2015 (Exhibit 8(p)). However, the parent also told Mr. W. that she did not want the Student to received therapy (Tr. 49). l therapy was provided after this date when the Student came to school (Tr. 50). However, the Student was absent 39 days and late 113 times from September 2014 to May 2015 (Exhibit 8(y)).

After accounting for the Student’s 39 absences during this period of time, I find that the Student missed approximately 76 sessions of . This calculation is based on 39 absences over a six-month period wherein the Student was entitled to receive approximately 16 sessions of per month. It is noted that it is unlikely that the Student was absent on each day he was schedule to receive speech. However, as there is very little evidence in the record on this issue, these findings are based on a reasonable approximation.

The June 2, 2015, IEP recommended the BOCES S. program beginning in July 2015 and continuing through June of 2016 (Exhibit 9). Therefore, this IEP was in effect during the period of August 2015 to October 2015 until the parties agreed to an Interim Service Plan (Tr. 255) and the issue of what constituted pendency was litigated.

The BOCES S. program is designed for children with The class is a 12:1:4 class located in a public school in Baldwinsville Central School District at Palmer Elementary School. The bus ride from the parent’s home is approximately one hour and five minutes (Tr. 95, Exhibit D-20-D-23).

The S. class contains a bathroom to assist with toileting (Tr. 388). The Student profiles in the class are all similar to the Student’s to the extent they are all working on “pre-readiness” skills and “early reading” skills (Tr. 389). The program utilizes the philosophy, which is a program that focuses on building independence through visual supports, data recording and behavioral supports (Tr. 385). The goal of the program is to teach students academics and behavioral strategies while supporting their communication and social-emotional needs (Tr. 385). is similar to to the extent they are both based on positive reinforcement programs. However, is typically for older students with a focus on generalizing the skills taught in the 1:1 setting into a larger group setting (Tr. 392-393).

Students in the BOCES S. class use the PECS as well as iPads with “proloquo” software to assist with their communication needs (Tr. 398).

The program does not use physical restraints, but employs a “Therapeutic Crisis Intervention” (“TCI”), which focuses on prevention (Tr. 414). Restraints are only utilized if it’s on the Student’s behavior plan (Tr. 414). However, “mats” are used for students with higher level aggressive needs as a protective barrier between the student and staff (Tr. 415).

Students in the BOCES S. class can “push-out” for mainstreaming opportunities with their typically developing peers (Tr. 65).

The Student attended the BOCES S. program for three days a week during the summer of 2014. The parent took the bus to the BOCES S. program with the Student during this time (Tr. 387).

FAPE 2015-2016 school year:

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits 8 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Parental Participation and Predetermination:

The parent claims that her input was ignored at CSE meetings held on June 2, 2015 and October 9, 2015 and that the CSE had predetermined the Student’s placement in the BOCES S. program before the meeting was actually held.

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007].

Based on the following, I find that the parent was denied an meaningful opportunity to participate at the CSE meetings held on June 2, 2015 and October 2, 2015 and that the CSE predetermined the Student’s placement.

Here, the evidence shows that the IEPs dated June 2, 2015 and October 2, 2015 indicate that the AAC evaluation conducted by T.C. was reviewed and considered in developing the Student’s “Present Levels of Performance and Individual Needs” (Exhibit D-9). However, L.G., the Student’s provider, who attended the CSE meetings, admitted that there was no discussion at either CSE meetings regarding Ms. C.’s evaluation, and that the CSE did not discuss the possibility of providing the Student with an assistive technology device to address his communication needs (Tr. 791). Additionally, the audio tapes of the CSE meetings confirm that the AAC evaluation was not discussed in any detail at either meeting other than Mr. W. stating that he disagreed with Ms. C.’s recommendation because he believed that she only used one communication device as part of her evaluation (Exhibits FF, GG). Significantly, because it is undisputed that the Student’s greatest deficit is his inability to use language to communicate, I find that the CSE’s failure to consider Ms. C.’s AAC evaluation in any meaningful way, whose findings the parent clearly supported, prevented the parent from meaningfully participating in the CSE process. Specifically, although perhaps procedural in nature, I find the CSE’s failure to consider Ms. C.’s report “impeded” the Student’s substantive right to a FAPE, “significantly impeded” the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, and actually “caused a deprivation of educational benefits” to the Student in that the recommendations contained in the report, if considered, could have impacted the CSE’s placement recommendation for the 2015-2016 school year. 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii].

Additionally, although the record shows that two IHOs and the SRO found that the BOCES placement was appropriate for the two previous school years, there is no evidence in this record to support a finding the CSE considered any other placement on the continuum of special education placements at either CSE meeting. Thus, I find that the CSE’s failure to consider what appears to by a very thorough and thoughtful evaluation, when they met to consider the Student’s placement for the 2015-2016 school year, or any other special education placement, supports a finding that the CSE’s placement decision was predetermined. Therefore, for these reasons, I find that the IEPs dated June 2, 2015 and October 2, 2015, denied the Student a FAPE for the 2015-2016 school year.

Accordingly, this matter is remanded back to the CSE to consider Ms. C.’s AAC evaluation and any other AAC evaluation that the District may obtain in the interim.

Finally, based on these findings, I need not address the other FAPE claims asserted by the parent.

IEE:

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 1835, Appeal No. 08- 039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].

Here, the evidence shows that by letter dated March 26, 2015, the parent requested an independent reading evaluation (Exhibit G). The District failed to respond to the parent’s request (Tr. 518). The District also did not initiate a hearing to defend its own reading evaluation (Record generally). Accordingly, the parent’s request for an independent reading evaluation is granted.

Implementation Claims:

With respect to the parent’s “implementation claim” from Decision 2014 to August 2015 and from August 2015 to October 2015, the parent alleged the following: (1) that the District failed to provide the Student with his mandated related services of therapy, therapy and therapy; (2) the District failed to provide the Student with a general education teacher; (2) the IEP failed address the Student’s deficits in toileting and sleep challenges; (3) the District withheld access to Student records; and (4) the District segregated the Student by placing him in a class alone (Exhibits D-1, D-3 and D-5).

The Student’s program from December 2014 to August of 2015 was the Student’s pendency placement while a DPC before IHO L. was heard (Tr. 31, 111).

At the time the Student’s former 12:1:4 class in the District had been eliminated

(Tr. 29). However, IHO L. found that the parties’ agreed to implement the Student’s IEP for the 2013-2014 school year to the extent that the District could replicate the program at the Burton School (Exhibit D-8(g), page 3). That IEP provided for placement in a 12:1:4 class with adaptive physical education in a 8:1:1 class, therapy four times a six day cycle, 1:1, for 30 minutes, therapy in a small group two times per six day cycle for 30 minutes, and therapy in a small group two times a week for 30 minutes (Exhibit D- 9(g), page 2).

The evidence shows that the school day began at 7:50 a.m. and ended at 2:30 p.m. (Tr. 33, Exhibit 8(q)). The Student’s services began at 8:00a.m., which was based on the provider’s schedule (Tr. 41, 770). However, the District was aware of the Student’s sleep disorder, which prevented him from attending school on time. Consequently, as a result of the Student’s tardiness, the Student received only one service during from January 2015 to June 2015 (Tr. 774).

The Student did not receive therapy services because the parent advised the District that she did not want the Student to receive the services (Tr. 49).

The Student did not receive therapy services because the parent failed to provide the District with a prescription for the service until February 2015 (Tr. 46). Thereafter, therapy was provided when the Student came to school (Tr. 50).

The Student was absent 39 days and late 113 times from September 2014 to May 2015 (Exhibit 8(y)).

After accounting for the Student’s 39 absences during this period of time, I find that the Student missed approximately 76 sessions of speech. This calculation is based on 39 absences over a six month period wherein the Student was entitled to receive approximately 16 sessions of per month. It is noted that it is unlikely that the Student was absent on each day he was schedule to receive speech. However, as there is very little evidence in the record on this issue, these findings are based on a reasonable approximation. Additionally, I find that the Student is entitled to 76 “make up” sessions of because the evidence shows that the services were scheduled at the convenience of the speech provider and not based on the Student’s needs. However, the record does not contained sufficient evidence to support the parent’s claims regarding and Nor does it support a finding that the Student deprived services from August to October 2015 because at that time it appears the BOCES program was the Student’s placement and the parent chose not to send him there. As such, the parent’s claim for this time period is denied.

Accordingly, the District is directed to provide the Student with 76 additional services , which are to be provided on a one-to-one basis for 30 minutes each. The District shall either provide these services after school or pay for these services to be provided in the home at the prevailing rate for such service.

Section 504:

A plaintiff aggrieved by a violation of Section 504 of the Rehabilitation Act of 1973 may be entitled to compensatory damages Butler v. South Glens Falls Central Sch. Dist., 106 F. Supp. 2d 414, 420 (NDNY 2000).

To recover under the Rehabilitation Act, there must be evidence that: (1) the student is disabled; (2) the student is otherwise qualified to participate in school activities; (3) the school or board received federal financial assistance; and (4) the Student was excluded from participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability.” (Schreiber v. East Ramapo Central School Dist., 700 F. Supp. 2d 529, 564 [SDNY 2010]; D.C. ex rel. E.B. v. New York City Dept. of Educ., 950 F. Supp. 2d 494, 518 {SDNY 2013].

Intentional discrimination my be inferred when a policy maker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the challenged policy or custom Butler v. South Glens falls Central Sch. Dist., 106 F. Supp. 2d 414, 420

(NDNY 2000).

Although I have found violations of the IDEA, the record before me does not support a finding that the District acted with intentional discrimination or deliberate indifference. As such, the parent’s Section 504 claims cannot be sustained.

Additional Claims:

Finally, I have considered the parent’s asserted claims under the Americans with Disabilities Act, the First and Fourteenth Amendments, and 34 U.S.C. Section 1983, and conclude that these claims are beyond my jurisdiction. As such, these claims are hereby dismissed.

Lastly, I have considered all of the other claims for relief and find that they are without merit.

ORDERED

The District denied the Student a FAPE for the 2015-2016 school year.

ORDERED

This matter is remanded back to the CSE to consider T. C.’s AAC evaluation and any other AAC evaluation that the District may obtain in the interim. The CSE shall also consider alternative placements on the special education continuum of placements. The CSE shall reconvene within 30 days of the date of this decision. However, in the event the CSE seeks to obtain a second AAC evaluation, the District shall reconvene within 60 days of the date of this decision.

ORDERED

The District is directed to provide the Student with 76 additional services, which are to be provided on a one-to-one basis for 30 minutes each. The District shall either provide these services after school or pay for these services to be provided in the home at the prevailing rate for such service.

ORDERED

All other claims referenced in the parents’ Due Process Complaints are dismissed, with prejudice.

Dated: New York, New York

April 6, 2016 James McKeever James McKeever, Esq.

Impartial Hearing Officer

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. Due Process Complaint, 6/24/15 (7 pages)

2. Response to Due Process Complaint, 6/26/15 (2 pages)

3. Amended Due Process Complaint, 8/24/15 (20 pages)

4. Response to Amended DPC, 9/2/15(2 pages)

5. Due Process Complaint, 10/9/15 (52 pages)

6. Response to Due Process Complaint, 10/16/ 15 (2 pages)

7. 2013-2014 School Year Litigation History (85 pages)

a) Due Process Hearing Request, 5/23/13 (pages 1 – 36)

b) IHO K. Decision and Order, 6/15/14 (pages 37 – 64)

c) SRO Decision No. 14-109 (pages 65 – 85)

8. 2014-2015 School Year (500 pages)

a) 2014-2015 IEP, 5/8/14 (pages 1 – 11)

b) Team Evaluation Report, 4/14 (pages 12 -24)

c) CSE Meeting Minutes-attendance 5/8/14 (pages 25 – 27)

d) OCM BOCES ESY Progress Report, 8/13/14 (pages 28 – 31)

e) Due Process Complaint Notice, 9/2/14 (pages 32 – 58)

f) DPC and Complaint, 12/22/14 (pages 59 – 87)

g) IHO L. Decision on Pendency, 2/23/14 (pages 88 – 95)

h) IHO L. Decision, 4/13/15 (pages 96 – 128)

i) IHO L. Decision Motion to Dismiss, 5/13/15 (pp.129 – 151)

j) SRO Decision No. 15-053 (pages 152-168)

k) SRO Decision No. 15-065 (pages 169 – 178)

l) Testimony of M.C., 12/12/14 (pages 179 – 255)

m) Testimony of R.G., 12/22/14 (pages 256 – 320 )

n) Testimony of A.F. , 1/2/15 (pages 321 – 398)

o) Testimony of A. F., 1/14/15 (pages 399 – 421)

p) Related Services parent forms, June 2014- 2/25/15 (pages 422 – 431)

q) Schedules, undated (pages 432 – 433)

r) Augmentative and Alternative Communication Evaluation, 11/16/14 (pages 434 - 448)

s) Functional Behavioral Assessment, 11/15/14 (pages 449 – 482)

t) AccessCNY PT Evaluation, 12/19/14 (pages 483 – 487)

u) Letter to Mrs. G. from T W., 4/28/15 (pages 488)

v) Letter from L. P. M.D., 4/29/15 (pages 489 – 490)

w) Reading Specialist Report, 5/26/15 (pages 491 – 492)

x) Progress Report for 2014-2015 Goals and Objectives, 6/30/15 (pages 493 – 499)

y) Daily Attendance 2014-2015 (page 500)

9. 2015-2016 IEP, 6/2/15 (12 pages)

10. Prior Written Notice, 6/2/15 (2 pages)

11. Meeting Minutes and Notes, 5/18/15 (2 pages)

12. Letter to S. G. from T. W., 6/22/15 (1 page)

13. Letter from P. K., M.D., 9/5/15 (1 page)

14. Letter from P. K., M.D., 9/10/15 (1 page)

15. Letter from T. W. to S. G. , 9/10/15 (2 pages)

16. 2015-2016 IEP, 10/2/15 (11 pages)

17. Prior Written Notice, 10/02/15 (2 pages)

18. Daily Communications Long, 2014-2015 (234 pages)

19. Email from to with attached proposed pendency agreement, 10/8/15 (3 pages)

20. Google Map – Palmer Elementary School to Cazenovia Middle School (3 pages)

21. Google Map – Stonehedge Elementary School to Cazenovia Middle School (4 pages)

22. Google Map – Palmer Elementary School to 3960 Sanderson Rd., Erieville, NY (3 pages)

23. Google Map – Stonehedge Elementary School to 3960 Sanderson Rd., Erieville, NY (4 pages)

24. RS Summary of Daily Notes, 2014-2015 (11 pages)

25. Summary of Related Service Session Notes, 2014-2015 (26 pages)

26. 2012-13 IEP, 8/28/12 (16 pages)

27. 2013-2014 IEP, 5/2/13 (17 pages)

28. 2014-2015 Calendar (1 page)

Parent’s Exhibits:

A. 10-14-15 Cover Letter 1p

B. 10-17-13 NYSED to District Deficiency Letter 6p

C. NOT IN EVIDENCE ------ 30p

D. 2011-2012 LLI TRAINING Reading Pgm 4p

E. 2-12-15 District SPED Parent Presentation 12p

F. 3-13-15 NYSED - D COMPLAINTS SUSTAINED 5p

G. 3-26-15 G. -W. READING IEE REQUEST 1p

H. 4-19-15 G. - District Records Release Authorization 1p

I. 4-20-15 Clerk Receipt for four large documents 1p

J. SEE District Exhibit 8V

K. 5-15-15 G. Re SLEEP CLINIC 2p

L. 5-12-15 District Budget Hearing Report 28p M. 6-2-15 CSE Mtg Transcription 61p N. Backdated Resolution Mtg Notice Rec’d 7-1-15 PM 3p O. 7-1-15 G. -W. re Backdated Notice +Mediation Req 1p P. 9-3-15 D Notice Re ALL STUDENTS 2p Q. 9-5-15 Dr. K. Letter Concurring w Dr. P. 2p R. 9-10-15 D-G. re Insistence on S. Placement 3p S. 9-18-15 G. -W. EMERGENCY CSE MTG REQ 1p T. 9-23-15 D-G. Proposed AGMT no CC to UC 2p U. 9-24-15 D-G. 2nd Prop AGMT NO CC to UC 2p V. 10-2-15 CSE Mtg Transcription 24p W. SEE D Ex 5 1p X. 10-9-15 DPC to IHO McKeever 53p.pdf Y. 10-9-15 Interim Order Re Home Instruction 3p Z. 10-9-15 PENDENCY MEMO w Exhibits 286p AA. Partial Witness List 1p BB. -- ID ONLY IHO McKeever Confirm of Complete DPC 2p CC. 6-3-15 Student Progress Report 1p DD. 4-22-15 District Link to Disabling Samuel TED in.mp4 EE. 9-16-14 Meeting Audio FILE 57min.mp3 FF. 6-2-15 CSE Mtg Audio File 87 min.mp3 GG. 10-2-15 CSE Mtg Audio File CD 1p.mp3 HH. 9-12-14 “RESOLUTION” MTG TRANSCR 41p II. 8-15-14 BOCES-G. OT PT SHORTAGE 1p JJ. 9-16-14 D Refuses to admit MW UNTIL 9-16-14 1p KK. 9-12-14 re Pendency 2p LL. 9-17-14 Supt. - P ref to Other Students in M’s Class 2p MM. 9-9-14 BACKDATED PT Script SVCS WH 1p NN. 10-10-14 NYSED to W. re Systemic Violations 1p OO. 10-19-14 W.-G. re OT PT Enc + Envelope 3p PP. 2015 Fourth Grade Report Card 2p QQ. 2-27-15 CANCELLED CSE Meeting Notice 2p RR. 9-11-15 Porta-NYSED Complaint re Mediation 15p SS. 4-28-15 W.-G. re 12-22-15 Complaint 1p TT. 4-27-15 G. Request re CSE Meeting 1p UU. 4-28-15 W. to G. re Pendency 1p VV. 10-20-15 District Late Disclosure FedEx POD 2p WW. 8-26-15 W.-G. re Ordered Services 1p XX. 6-22-15 W.-G. refusal to admit Matthew 1p YY. 9-18-15 G. -W. Emergency CSE Mtg Request 1p ZZ. 9-28-15 D-G. Insistance upon to S. 7am 1p AAA. 10-17-15 Dr -TW e-mail 2p. BBB. ----- Marked Only --- Dr. Fenlon-W. 1p. CCC. 10-2-15 CSE Mtg Sign-in Sheet 1p DDD. 11-03-15 2nd Cir NOTICE OF APPEAL 1p

EEE. 10-29-14 Letter re THERAPY TIMES 1p

FFF. 11-5-15 Dr. F. Evaluation Report 4p.pdf GGG. -

HHH. 1-28-10 Report ABA 1-1 4p

III. 10-15-13 D Agrees to Fund Dr F. IEE 1p.

JJJ. Transcript Disabling Segregation - Habib 5p

KKK. 10-12-13 re Transportation Inapprop 1p.

LLL. 9-25-14 G. -W. re + IEE Req UC 1p

MMM. 11-24-14 ALL IHO L. HEARING Tr. 1073p

NNN. 7-6-15 Principal Refusal to Admit MW to ESY 1p

OOO. 9-9-13 OT PT Post-dated Permission Req 4p.

PPP. 4-28-15 W.-G. re CSE Request 1p

QQQ. 9-29-14 D-G. re MEDICAID Consent REQ 4p

RRR. 6-18-13 -D MEDICAID Auth WD 2p

SSS. ALL IHO K. Transcripts 1327p

TTT. 9-2014 TA HELP WANTED $8.61 1p

UUU. 11-11-15 P-IHO LB w Exh re Pendency 46p

VVV. 9-23-15 Dr. K.- letter M Needs HB INSTR 1p

HEARING OFFICER EXHIBITS

1. IHO McKeever letter regarding appointment, 7/2/15 (2 pages)

2. IHO McKeever letter regarding resolution period, 10/1/15 (2 pages)

3. Interim Order regarding home instruction, 10/9/15 (3 pages)

4. Order of Consolidation, 10/19/15 (3 pages)

5. District’s letter brief regarding pendency placement, 10/22/15 (74 pages)

6. Plaintiff’s Opposition to Introduction of Evidence or Witnesses, 10/26/15 (9 pages)

7. Plaintiff’s Reply to District’s letter brief regarding pendency, 10/26/15 (22 pages)

8. District’s letter to IHO McKeever regarding IHO authority and for an order to determine pendency placement, 10/29/15 (3 pages)

9. District’s letter to IHO McKeever addressing authority to change current educational placement of student, 11/11/15 (3 pages)

10. Interim Decision, 12/21/15 (7 pages